Appendix — Pullman Standard, Inc. v. Pinkard

TABLE OF CONTENTS

Page

AppenpDIx A Opinion of U.S. District Court, N.D.Ala.,

dated October 31, 1978 80 F. R. D. 287, 18 FEP Cases

TE TD eee eee 5a

APPENDIX A to said ion, arbitration decision

sustaining Lofton’s discharge 23a

APPENDIX B to said opinion, arbitration decision

sustaining Pinkard’s discharge 37a

Appenpix C — Opinion of U.S. Court of Appeals, 5th

Circuit, Unit B (now 11th Cir.) dated June 10, 1982,

re eee 53a

ArpENDIX D — Statutes, Civil Rights Act of 1866, 42

TT ] eee eee eee 9la

la

APPENDIX A

Louis PixkanD, Edward Lofton, Richard

Holston and Donnie Sealie, on behalf of

themselves and other similarly situated,

Plaintiffs,

V.

PULLMAN-STANDARD DIVISION,

PULLMAN, INC., a corporation,

Defendant.

Civ. A. No. 76-G-0226-S.

United States District Court, N.D. Alabama S. Div. Oct. 31,

1978.

MEMORANDUM OPINION

Gun, District Judge.

This is an action under Title VII, 42 U.S.C. § 2000e, et seq.,

and 42 U.S.C. § 1981, for redress of racial discrimination.

While it appears that there are absent as to plaintiffs Louis

Pinkard and Edward Lofton allegations of charges having been

filed with the Equal Employment Opportunity Commission

(EEOC) and of “Notice of Right to Sue” letters having been

issued, defendant admits their existence. Jurisdiction has not

been questioned, and the court assumes that plaintiffs will

amend their complaint.

This action came before the court to be heard on October 12,

1978, for a determination of whether plaintiffs Louis Pinkard,

Edward Lofton, Richard Holston, and Donnie Sealie satisfy

the requirements of Rule 23, Federal Rules of Civil Procedure,

as to representation in a class action. Plaintiffs claim to repre-

sent a class of all black employees of defendant company who

were discharged within a period stipulated by the parties,

within 180 days prior to the earliest filing with the EEOC of a

charge of discrimination by any of the four named plaintiffs.

2a

At the conclusion of plaintiffs’ presentation, defendant

moved in open court under Rule 41(b), Federal Rules of Civil

Procedure, to dismiss the class allegation. Defendant argued

that plaintiffs had failed to carry their burden of proof as to

typicality of claims, adequacy of representation, or defendant's

actions or omissions on grounds generally applicable to the

class. After consideration of the motion, the evidence pre-

sented and the arguments of counsel, as well as the applicable

law, the court is of the opinion that defendant’s motion is due to

be granted.

Counsel for defendant has furnished the court with an able

and expansive brief, with supplementation, in opposition to

plaintiffs’ class claims. By contrast, plaintiffs have shown little

to support their claim, indicating a failure to meet their burden

of proof in this inquiry. Defendant in its brief distinguishes

between the usual class situation, where common questions of

law or fact prevail, and the instant case. Plaintiffs, in opposi-

tion, cite a recent Fifth Circiut decision, Herbert v. Monsanto

Company, Texas City, Texas, 576 F. 2d 77 (Sth Cir. 1978). The

court finds the Herbert case to be distinct from the question

presented here, and defendant’s arguments to be persuasive

on the point.

While Herbert states that “racial discrimination is almost by

definition class discrimination,” 576 F. 2d at 80, the decision is

clearly hung on the breadth of the defendant’s policies involved

there and the wide scope of the statistical evidence that would

be pertinent to show those policies. Although nowhere is it

explicit in that decision, it would appear to be a hiring dis-

crimination suit. Such discrimination inherently manifests a

policy of the employer-defendant and is particularly suited to

statistical evidence—in short, given to typicality of claims and

interests. The case at hand, however, involves questions of

discharge from employment which conversely are best and

most fairly adjudicated in light of the facts surrounding each

individual occurrence. And where a case involves such special

investigation of the claim of every single member of the puta-

3a

tive class, it does not lend itself to trial by the class method.

Reddix v. Lucky, 252 F. 2d 930 (5th Cir. 1958).

It was the duty of the plaintiffs in this case to present

evidence of the typicality of their claims, yet they did not fulfill

this obligation. Nothing was brought up that would compare

the treatment of whites with that of the plaintiffs and their

alleged class, nor was any mention made of the total employ-

ment picture at the defendant’s plant. Indeed, judicial notice

may be taken of a prior case before this court in which it was

shown that defendant hired huge numbers of blacks at its

Bessemer facility. It has not been said that defendant is

opposed to having blacks on its payroll, and it may in fact not be

possible truthfully to say so at all. This would go to subvert a

supposition of the existence of a practice or policy on the part of

the defendant to discriminate against blacks. Plaintiffs have

failed to take up this issue. There has been no showing of any

other discriminatory policy or practice on the part of the de-

fendant, such as one to hire and then fire blacks. Furthermore,

plaintiff Louis Pinkard, in his testimony before the court,

claimed that he was discharged for having stood up, as a union

representaive, for his fellow black employees. He then admit-

ted that he knew of no other employee who had been similarly

treated. This clearly would serve to deny any nexus, and in no

way did this plaintiff affirmatively show commonality between

his claim and those of the putative class. Plaintiffs have simply

failed to show any typicality here, and their case would be

better pursued as an individual action.

Finally, the court observes the concern expressed by the

Fifth Circuit in Herbert, “with the purpose of Rule 23, to

provide for judicial economy in the litigation of similar claims.”

576 F.2d at 80. But the economics found there simply do not

obtain here. Discharge actions involve basically dissimilar

claims, as to which—as noted above—particular study must be

made as to each complainant’s circumstances. There may well

be good cause for at least some firings. These would not be

actionable, and claims for their redress would only be frivo-

lous. To disallow class status will only deny baseless claims the

4a

shelter provided by other claims, as to which there may be

good cause. Thus it will be less wasteful of judicial resources to

allow each cause to be brought separately. Presumably, most if

not all those with claims which lack merit know this anu will

recognize the lack of merit by not filing suit. Merited or not,

each must stand alone. In this way, the wheat will separate

itself from the chaff.

The plaintiffs having failed to carry their burden of proof,

the court is drawn to the conclusion that there is essentially no

question of fact or law involved here common to the putative

case, which would predominate over questions affecting only

individual members, and that a class action would be inferior to

other available methods for the fair and efficient adjudication

of the controversy. The court is therefore of the opinion that

defendant's motion to dismiss the class allegation should be

granted, and that this case should proceed to trial on the merits

as an individual action.

A separate order in accordance with this opinion is con-

temporaneously entered.

5a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

CIVIL ACTION NO. 76-G-0226-S

Louis PINKARD; EDWARD LOFTON;

RICHARD Ho ston; and Donnie SEALIE,

Plaintiffs,

V.

PULLMAN-STANDARD, a division

of PULLMAN, INCORPORATED,

Defendant.

FILED IN CLERK’S OFFICE

NORTHERN DISTRICT OF ALABAMA

JUN 29 1979

JAMES VANDEGRIFT, CLERK

UNITED STATES DISTRICT COURT

BY: Jane T. Doaxe

MEMORANDUM OPINION

This is an action under 42 U.S.C. § 2000e, et seq., and 42

U.S.C. § 1981, arising from alleged racial discrimination on the

part of the defendant. A hearing was held pursuant to Ruie

23(c), Federal Rules of Civil Procedure, to determine the

appropriateness of class certification in this action. By its

Order and Memorandum Opinion entered October 31, 1978,

the court denied class certification. Trial on the merits of the

individual claims ensued.

All four plaintiffs are black males over the age of twenty-

one. The defendant is an employer within the definition of 42

U.S.C. § 2000e, et seq., engaged in interstate commerce. All

four claimants seek redress for alleged racial discrimination in

6a

being discharged from their respective employment with the

defendant. In addition, plaintiffs Pinkard and Lofton alleged

that they were discharged because they opposed racially dis-

criminatory practices of the defendant. The defendant denies

any racial discrimination in discharging the plaintiffs and

raises a number of affirmative defenses in bar to these claims.

Under 42 U.S.C. §§ 1981 and 2000e, et seq., this court is

given jurisdiction over suits of this nature. The venue of this

suit is not disputed. The court’s jurisdiction is not contested as

to plaintiffs Holston and Sealie. The defendant takes issue with

the court’s jurisdiction over the claims of plaintiffs Lofton and

Pinkard. There is a discrepancy in the jurisdictional prere-

quisites as to the claims of these two men, which shall be taken

up prior to the court’s discussion of their individual claims.

Jurisdiction

The original plaintiffs, Louis Pinkard and Edward Lofton,

initially chose to sue under 42 U.S.C. § 2000e, et seq., alone. No

allegation of the issuance of a right-to-sue letter was made.

Later Richard Holston was added as a party-plaintiff. Still

later the piaintiffs amended their complaint to bring in their

claim under 42 U.S.C. § 1981, for equal enjoyment of the right

to contract. At that time it was alleged that plaintiff Holston

had received his right-to-sue letter. No such averments were

made as to Pinkard and Lofton. Finally, plaintiffs moved to add

Donnie Sealie as a party-plaintiff. It was alleged that Sealie

had received his right-to-sue letter. The motion was granted

and Sealie was added as a fourth plaintiff. The suit ripened as

one with four claims under 42 U.S.C. § 2000e, et seq., but only

two based on right-to-sue letters, and four claims under 42

U.S.C. § 1981.

At the Rule 23 hearing, no mention had been mad> of the

original plaintiffs’ right-to-sue letters. In the course of con-

structing its order and opinion later entered on October 31,

1978, the court learned from the defendant’s counsel that a

letter had been issued. For the purposes of expediting its class

7a

ruling the court reflected its assumption that an appropriate

amendment to the complaint would be offered. None ever was,

even though it was apparent by the pretrial order entered

November 29, 1978, that the defendant would pursue its juris-

dictional defenses.

The court’s jurisdiction over cases under Title VII depends

upon the issuance by the Equal Employment Opportunity

Commission (EEOC) of the plaintiff's right-to-sue letter.

Beverly v. Lone Star Lead Const. Corp., 437 F.2d 1136 (5th

Cir. 1971). While in a class action all members need not ask

separate EEOC charges, Oatis v. Crown Zellerbach Corp.,

398 F.2d 496 (5th Cir. 1968), and one particular group of

individual plaintiffs has been similarly excused where proof of

broadly discriminatory hiring practices was adduced, Wheeler

v. American Home Products Corp., 582 F.2d 891 (5th Cir.

1977), this court will adhere to the rule in Beverly, supra. Wide

divergence of facts abounds in discharge actions such as this.

As each plaintiff must be examined on the merits of his own

case, as documented in this court’s Memorandum Opinion of

October 31, 1978, so must he stand by his own charge. It would

be no fairer to allow the original claimants to hide their haste

behind the patience of added plaintiffs than it would be to all

them to depend upon the merits of the others’ claims. Ine

sounder rule for discharge actions would be that recited in

Beverly, supra. Because the facts in Wheeler, supra, make its

decision inapposite here, this court need not decide whether it

is to be followed. The failure of plaintiffs Pinkard and Lofton to

await the issuance of the letter before filing suit is thus fatal to

their claims under 42 U.S.C. § 2000e, et seq.

Pinkard was fired on February 12, 1976; he filed his EEOC

charge on February 13, 1976, and his civil action on February

17, 1976. He had no right-to-sue letter then. And, while the

EEOC did come around to issuing the letter, it did not do so

until August 18, 1978. The court concludes that this would not

cure the jurisdictional defect in the Title VII claims of plaintiffs

Pinkard and Lofton. The reasons given for the issuance were

that suit was pending in federal district court over the same

8a

issues, and that therefore the charge before the EEOC was

being dismissed. This is not one of the published conditions for

which the EEOC will issue such a letter, according to its

regulations. 29 C. F. R. §§ 1601.19 and 1601.28. The defendant

should not be adversely affected by the unpublished rules of

procedure of an agency. 5 U.S.C. S 552(a)(1) and 555(c). Thus

the letters are invalid and insufficient to mask the error of

plaintiffs’ too-great haste in filing their suit.

Despite plaintiffs’ counsel’s contention that the right-to-sue

letters issued Sealie and Holston would suffice to bring Pink-

ard and Lofton within the purview of the court’s jurisdiction,

the court is of the opinion that, for the foregoing reasons, it

lacks jurisdiction over the claims of plaintiffs Pinkard and

Lofton relating to Title VII. Nevertheless, the court has heard

several days of testimony. It and only it is now in a position to

rule on the merits of this action. Though perhaps out of an

excess of caution, the court declines to rest on the threshold

finding of a lack of jurisdiction, and will proceed to discuss the

merits of all claims, in the interest of judicial economy.

The Individual Cases

I. Richard Holston

Plaintiff Holston was hired by the defendant on February

21, 1974, and assigned to the welding department as a welder.

On June 28, 1974, he received a written warning for bad work.

Within two weeks, he was given another warning for bad work

which was later rescinded. On August 28, 1974, he received a

three-day suspension for bad work. On March 13, 1975, he was

given a written warning for being absent from his work station

during work time. None of these instances did he grieve.

Holston was directed to report to work on July 24, 1975. to

the location where he had worked the night before, for a new

assignment. Instead, Holston went to a different point some

distance away, and sat and waited until around 7:00 P.M.

without working. In the meantime, two foremen had been

looking for him. When one of the two, Franklin Rodriguez,

9a

finally found Holston, he told the plaintiff to wait at Position

One while Rodriguez could arrange his work assignment. Rod-

riguez returned after 15 minutes or so to find no Holston. He

searched for 30 minutes, including the restroom area. When

Holston reappeared, he told the foremen he had been in the

restroom.

Rodriguez told Holston that he wanted to discuss this in the

office. Holston wanted a union steward present and said he

wanted to go look for one. Rodriguez said not to, and to wait

while he found the steward instead. When Rodriguez returned

with the steward, they found Holston was gone again. He

returned to say that he had been looking for a steward. They

had a conference in the office, after which Rodriguez sus-

pended Holston, subject to being made a discharge as was the

custom in disciplinary matters.

The next day a conference was attended by Holston, Rodri-

guez and representatives of the union and the company. Hol-

ston was then fired; the reasons given were his failure to follow

direct orders of the foreman and his overall record at Pullman.

Plaintiff filed a grievance. The union accepted the company’s

position without arbitration. No claim has been brought by the

plaintiff against the union for unfair representation or racial

discrimination.

The plaintiff is charged with the burden of presenting a

prima facie case of racial discrimination. McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668

(1973). The McDonnell Douglas formula has been widely fol-

lowed and flexibly applied even in discharge cases. McDonald

v. Santa Fe Trail Transportation Co., 427 U.S. 273, 96S. Ct.

2574, 49 L. Ed. 2d 493 (1976). Besides race and adverse action,

plaintiff must show qualification for the job and satisfactory

performance thereof. Evelyn M. Lochan v. The B. F. Good-

rich Co., Civil Action No. 78-G-0344-W (N.D. Ala., filed June

27, 1979); Whack v. Peabody and Wind Engineering Co., 452

F. Supp. 1369 (E. D. Pa. 1978). Under the guidelines followed

in these cases, the plaintiff has failed to establish a prima facie

case. It is indisputable that his work performance was any-

10a

thing but satisfactory. The defendant, moreover, has rebutted

the plaintiff's claim in its articulation of a legitimate and non-

discriminatory business purpose for the discharge. Furnco

Constr. Co. v. Waters,. U. S., S. Ct., 57 L. Ed.

2d 957 (1978); Board of Trustees, Keene State College v.

Sweeney. U. S.. — _ S. Ct. , 58 L. Ed. 2d 216

(1978). The evidence showed that the plaintiff was a poor

worker. He had been grossly out of line on July 24, 1975, by his

continued absences and insubordinate behavior with the fore-

man Rodriguez.

Nor has the plaintiff carried the burden of persuasion in its

rebuttal—he showed nothing to convince the court that the

defendant’s practices were a pretext for racial discrimination.

McDonnell Douglas, supra. The plaintiff relies on the fact that

the foremen were all white and the plaintiff black to find racial

discrimination in the discharge. But the evidence was clear

that blacks and whites alike had been discharged for compara-

ble offenses. plaintiff pointed to two whites who were less

quickly discharged. This can hardly be persuasive evidence in

view of the greater seriousness of the plaintiffs conduct.

Neither of the whites was shown to have hidden from his

foreman after receiving his direct orders. No evidence was

presented that any white had engaged in comparable conduct

and had not been fired. The plaintiff thus has failed to prove

that he was the victim of racial discrimination, and judgment as

to his claim is accordingly due the defendant.

II. Donnie Sealie

Plaintiff Sealie was hired on January 30, 1974, as a welder-

helper. On December 19, 1974, he received a written warning

for tardiness and for jumping shifts, or reporting for the day

shift after being ordered to the night shift. He was warned then

to follow the instructions of his foreman. Plaintiff did not file a

grievance.

On January 10, 1975, plaintiff was grinding sill seams in such

a way as to throw sparks on two welders, one black and one

white, who complained to the foreman, Ed Hamaker. The

lla

foreman ordered the plaintiff to move so that the sparks would

be thrown in a different direction. It is a standing rule,

apparently, not to throw sparks on another employee. Never-

theless, plaintiff said he knew what to do and would work the

way he wanted to. Sealie testified that he was then suffering

with a back problem and told Hamaker that he couldn’t work in

the suggested position, but the court does not find his account

Hamaker repeated the order and the plaintiff repeated his

refusal. The foreman took the plaintiff to the office where a

discussion was held between the two with the department head

and a union steward. Sealie was adamant in his refusal to obey

the foreman’s instructions, and he maintained his insistence

with the labor relations assistant. The plaintiff was then dis-

charged. The reasons were given as his refusal to perform as

instructed and his overall record. It was remarked that he had

been disciplined for a similar offense less than a month before,

and that he was counseled at that time that failure to obey the

instructions of his foreman subjected him to discharge.

Sealie’s grievance was duly filed and disposed of by the

union, which accepted the company position and did not arbi-

trate. No claim has been made against the union, either for

unfair representation or for racial discrimination, arising out of

the abandonment of his grievance.

For the very failure discussed regarding plaintiff Holston’s

claim, plaintiff Sealie also has not carried his burden of proof.

He had performed unsatisfactorily in the past and persisted in

disregarding the explicit instructions of foreman Hamaker. If

this does not vitiate any prima facie showing, although the

court holds that it does, it does show a legitimate

nondiscriminatory reason behind his discharge at the very

least. Absolutely no pretext was shown in answer to defend-

ant’s articulation. Plaintiff Sealie, as did Holston, relies on the

fact that he is black and his foremen were white. Still, the

evidence was conclusive that most cases of insubordination

resulted in termination, whether the employee was white or

black.

12a

Accordingly, judgment is due the defendant as to the claim

of plaintiff Sealie as well.

III. Edward Lofton

Plaintiff Lofton had worked for the defendant approximate-

ly 25 years when discharged by written notice on December 23,

1975. At termination Lofton was a helper in the paint depart-

ment. His discharge was the result of an incident which oc-

curred on December 17, 1975, concerning the distribution of

handbills. The matter was taken before arbitrator H. Carlton

Bryan, whose findings as to the material facts were contained

in his Opinion and Award, Appendix A to the court’s Memoran-

dum Opinion, and defendant’s Exhibit A at trial. Lofton’s

grievance was denied. The plaintiff has launched a calumnious

attack, limning the arbitrator in the Lofton proceeding for his

personal racial bias. It appears that while he maintained the

Birmingham office of the National Labor Relations Board, the

arbitrator refused blacks access to the restroom in his building.

This same man, furthermore, refused on several occasions to

accept NLRB charges involving racial discrimination, requir-

ing the charging parties to forward their charges to Atlanta.

Regarding the question of weight to be given the arbitrator’s

report, the Supreme Court has established guidelines, or sug-

gested factors, to be considered in Alexander v. Gardner-

Denver Co., 415 U.S. 36, 94 S. Ct. 1011, 39 L. Ed. 2d 147

(1974). These include:

The existence of provisions in the collective- ining

agreement that conform substantially with Title VII, the

degree of procedural fairness in the arbitral forum, ade-

quacy of the record with respect to the issue of discrimina-

tion and the s competence of particular arbitrators.

Where an arbitral determination gives full consideration

to an employee’s Title VII rights, a court may properly

accord it great weight.

415 U.S. at 60, n. 21.

The arbitrator has been charged with racial prejudice. His

personal competence over Title VII- related is thus in doubt, as

13a

would be the procedural fairness of the arbitration itself. But

because the arbitrator was not present at trial to defend him-

self, and in view of the kind of attack made against him, the

court feels it should simply make its own findings of fact. It

cannot be held that the arbitrator was prejudiced or his

arbitration unfair because he has been absent from, and is not a

party, to these proceedings. But there is abundant evidence

for the court to make its own rulings without resort to the

arbitrator’s report.

The court finds the plaintiff Lofton to be a witness of dubious

credibility. His account of the December 17, 1975, occurrence

is vague, evasive, and given to change. In a prior action charg-

ing the defendant with racial discrimination, moreover, he

testified as to the 20 grievances he filed between 1965 and 1974.

The trial judge admonished the parties on the dangers of

exaggeration and perjury at the close of his testimony, indicat-

ing that he had thought Lofton to be playing fast and loose with

the truth. (Defendant’s Exhibit 7, pages 337-338.) This court

was similarly impressed with the plaintiff's performance on the

witness stand in this action.

The evidence showed that defendant had been plagued for

several months with outside agitators distributing in-

flammatory handbills around its Bessemer plant. This activity

was commonly thought to be communist in its inspiration. The

usual messages conveyed were designed to instigate unrest

among the work force and distrust, if not hatred, of the

management. There had been at least two fights caused by

such propagandizement, which the plaintiff acknowledged.

The particular handbill involved in Lofton’s discharge was

distributed on December 17, 1975. It advocated a work slow-

down and protested layoffs. Although Lofton’s story has taken

different forms at different times, the court concludes that he

was directly involved in handing out the literature to his fellow

workers. The testimony of several witnesses corroborated

Lofton’s role in the distribution process: he had handbills in

hand and was actively seeking to pass them to others. His

efforts were met with some rebuke by his fellow workers. No

14a

other person was identified and so implicated under the evi-

dence presented. The exact nascence of the handbills remains

uncertain but is immaterial to the issue of Lofton’s involve-

ment in handing them out. There was testimony by one man

who said that the papers were already there when Lofton

arrived at work, but this man actually clocked in after the

plaintiff. Lofton also contradicted at trial the story he gave the

company the day after the incident had taken place regarding

whether the handbills had been passed out at the gate when he

came to work. It is still clear that Lofton did distribute the

papers, however he came by them.

Great emphasis is placed on the plaintiff's reading ability,

which he claims is limited. For this reason he contends he was

unaware of the content of the handbills and could not fairly

have been disciplined on account thereof. The court places

little stock in Lofton’s claim. He was for two years a union shop

steward and as such had regular dealings with written grie-

vances and the collective bargaining agreement. Nor did he

have any difficulty reading his own grievances during his testi-

mony in the earlier trial, after which he drew the admonition

discussed above.

Furthermore, even if Lofton had not known what the hand-

bill said, he should have taken reasonable steps to find out. The

circumstances alone would have indicated the content of such

literature. One fellow worker testified that he knew what the

handbill was without reading it, and spurned Lofton's offer of it

in no uncertain words. Lofton told the company that he had

seen the papers being handed out one morning and related this

toa fight. This alone should have put the plaintiff on notice as to

the contumacious content of what he was passing around.

Prior to Lofton’s discharge, the company had no policy to

forbid employees from distributing literature in the bath

houses. It was, however, a part of the union contract that no

employee was to participate in work stoppages or to interrupt

or impede the work. By participating in the distribution of the

handbills, Lofton was in violation of the contract. This was the

reason the defendant gave in its discharge notice to the plain-

15a

tiff. And just as the arbitrator found the discharge justifiable,

so does this court after its independent consideration. Thus, no

prima facie case of discrimination has been established: plain-

tiff was in violation of the contract and therefore was perform-

ing his duties unsatisfactorily, as a matter of course. Viewed

differently, at the very least this articulates a legitimate,

nondiscriminatory reason to discharge the plaintiff, as the law

would ask the defendant to show had a prima facie case been

presented. Obedience to the contract would obviously be a

valid business interest.

Hardly could the cause given the defendant to fire Lofton be

construed as pretextual. In the only comparable situation, a

white employee named Janet Gould was also discharged for her

invelvement in distributing similar handbills. Plaintiff points

to a rumor which circulated about a like occurrence with Ku

Klux Klan propaganda. This incident was not sufficiently eluci-

dated for the court to make any finding thereon, but it was

shown that an investigation did occur. Without more, the court

can attach no significance to the allegations. Finally, plaintiff in

relying upon his relative illiteracy does not persuade the court

of his innocence. The evidence is clear that this was not simply

an incidenct seized upon by the defendant as opportune for

carrying out a vendetta against the plaintiff. There was no

showing, moreover, of anything that could be attributed to

retribution against the plaintiff for his union activities.

It has not been established that there was any discrimination

against the plaintiff, Edward Lofton. Judgment accordingly is

due the defendant as to these claims as well.

IV. Louis Pinkard

Plaintiff Pinkard was hired by the defendant in July 1962 and

was assigned to the steel erection department. At the time of

his discharge, February 12, 1976, he was an assembler. He

became active in the union in 1970; he served as shop steward

and later as grievance committeman. He testified as a witness

for the plaintiffs in the earlier trial alluded to above, Swint v.

Pullman-Standard, CA 71-P-0955-S (N.D.Ala., Sept. 13,

16a

1974). Since his discharge, Pinkard has served as vice-

president of the union. His activities in that role will be taken

up later.

Plaintiff Pinkard was discharged for reasons given on his

termination slip as “serious misconduct, including acts of in-

subordination to Track Foreman Dave Mason,” and abuse of

the grievance procedure despite the admonitions of the defend-

ant. Pinkard filed a grievance on February 5, 1976, regarding

the background incident which occurred on February 4 and led

to his discharge. He filed a second grievance on February 12,

protesting the discharge, and a third on February 13, attribut-

ing his dismissal to racial discrimination and his past union

activities. As chronicled earlier, he filed his EEOC charge and

brought this action, prematurely, all within a week of the

discharge. Much later, on October 15, 1976, the arbitrator

selected by the parties, James P. Whyte, issued his Order and

Award denying Pinkard’s grievance, Appendix B to this

Memorandum Opinion, and plaintiff's Exhibit 6 at trial. Whyte

fairly and thoroughly covered the question of discrimination.

His expertise was lauded in testimony, and was sufficient for

both parties to agree on him.

The Alexander, supra, requirements were otherwise met to

serve as arbitrator. The court, accordingly, attaches great

weight to the findings of arbitrator Whyte, Alexander v.

Gardner-Denver Co., supra; Rios v. Reynolds Metals Co., 467

F. 2d 54 (5th Cir. 1972); Wilson v. Woodward Iron Co., 362 F.

Supp. 886 (N.D.Ala. 1973), and by its independent inquiry into

the facts as presented at trial, arrives at similar conclusions

regarding plaintiff Pinkard’s claim of racial discrimination.

The incident which precipitated Pinkard’s discharge in-

volved insubordinate conduct toward Dave Mason. The evi-

dence showed the Pinkard was approached by Neal Bell, a

black union shop steward, who asked Pinkard to handle the

compiaint of Nathaniel King, a black employee. King had been

given a written warning slip on a matter concerning which he

had earlier received an oral warning. Pinkard recognized this

as “double jeopardy.” He was apparently unaware that the

17a

written warning had been given, although he had counseled

King on tardiness before. No written grievance was filed. He

asked Mason for a meeting with the department head, Mason

and King to discuss the warning. Mason was pessimistic over

what it would accomplish.

Pinkard asked for and received relief, as per the company

practice, so he could attend the meeting with the General

Foreman, one Moss, and Gilbert, his assistant. In Moss’s

office, it seems, Pinkard spoke first. Apparently Moss and

Gilbert were preoccupied and did not respond. Mason prompt-

ed Pinkard to proceed, and Pinkard replied that he would

rather go to the main office. Moss then spoke and Pinkard said

he wanted King present to discuss his warning. Moss pointed

out that the proper procedure had been followed and that King

need not be there. Pinkard refused to go any farther without

King.

Mason denied Pinkard’s request to go to the main office and

told him to return to work. Pinkard soon returned to ask

Mason’s permission to obtain a witness to Mason’s denial of the

request to go to the main office. Mason agreed, but told Pink-

ard to return to his work. In Pinkard’s absence a meeting was

arranged with the plaintiff and Moss, Mason, and Frank Hyde,

industrial relations assistant. Mason was told to bring Pinkard

back, and went looking for him mistakenly thinking the meet-

ing would concern the King matter.

Mason could not find Pinkard at his job then, but found him

instead some distance away a short time later. Pinkard

apparently went to find Bell, the steward, and returned to his

work station to see Mason there with Bell. Mason told plaintiff

of the meeting, which plaintiff refused to attend. Then Mason

told the plaintiff that he had been told to go back to work,

whereupon plaintiff, in Bell’s presence, called Mason a liar.

Mason reported the incident to Moss, and ultimately Pinkard

was given notice of his discharge, though Mason made no

recommendation of any sort in the decision, nor was he asked to

make any.

18a

Plaintiff presented testimony which showed that other

workers had called foreman liars and had not been discharged.

But no instance of comparable significance was presented. It is

important to note that Pinkard was a union grievance commit-

teeman; as such, he should be expected to know better than

others not to call his foreman a liar. Second, this was no joking

riposte, as the other occurrences clearly were. It was a veno-

mous retort by a man whose resentment still showed through

at trial some three years later. Third, this one black man

castigating another—race was hardly an issue between them.

Plaintiff points to an incident with a white, Arvil Hulsey,

who was not discharged after accusing a foreman of lying. The

court is not persuaded that Hulsey’s case is comparable.

Hulsey had witnesses to corroborate his version of what he had

been told earlier; Pinkard did not. Here, the witnesses sup-

ported Mason. Nor was Hulsey’s altercation nearly as grave.

Hulsey was laid off for three days, and only reinstated as a part

of a strike settlement, as his penalty. And even Hulsey himself

said in testimony that discharge was the usual result of in-

subordination.

It is true that union duties draw committeeman away from

their jobs regularly. It is also true that this was the only time

that Pinkard unjustifiably did not return to work. His record

was not umblemished, however; he had had oral warnings

concerned his work conduct in the past. The insubordinate

conduct, moreover, means more than his failure to go back to

his job. Rather, it was the plaintiff's attitude which sparked his

discharge, and his earlier compliance with instructions is im-

material to his run-in with Mason. The court concludes, as did

the arbitrator, that it was not the failure to return to work

which caused his discharge. Indeed, the order by Mason was

ambiguous. But the unprovoked malevolence plaintiff dis-

played toward the foreman—in the presence of other

employees—justified his discharge.

Further justification lies in Pinkard’s loud refusal to go to

the meeting Mason sought him to attend. This showed his

disdain for management as well as the orderly resolution of

19a

disputes. In effect, also, he shirked his duties as union commit-

teeman. Thus he stepped outside of the protection of the union

roll. The inevitable conclusion is that plaintiff was in fact in-

subordinate, that his insubordination was egregious, and that

management thereby had a legitimate reason to terminate

him. No prima facie showing of discrimination could be found,

because no disparity in treatment was established.

Pinkard was told that he was terminated, additionally, for

his overuse of the grievance procedure. This charge bears

directly upon the plaintiffs claim of discriminatory treatment

for his espousal of black employees’ rights through the union.

The evidence established that the plaintiff did take an active

role as committeman, and filed more grievances than his pre-

decessors. Some were frivolous, many were not. This is in-

sufficient cause, as the arbitrator ruled, to support discharge.

But, as the arbitrator further ruled, plaintiffs claim to have

been discharged for racial prejudice resulting from these acti-

vities was unsupported by anything more than his own accusa-

tions. No case can be made out for discriminatory treatment on

mere hypothesis and suspicion.

Pinkard was also discharged for abuse of the grievance proc-

ess. Plaintiff's actions in the King incident were typically

extra-contractual. Grievances were often handled informally

in the interest of settling disputes before putting matters in

writing. Grievances often were dropped. Foreman would

sometimes ask to resolve problems informally. The company

tolerated such irregularity only to a reasonable point, how-

ever, and objected to plaintiffs habit of ignoring channels.

Although Pinkard never received a written warning, he had

had several oral reprimands for proceeding in derogation of the

contractual mechanisms. He had been told that if he continued

to do so he would risk termination. Yet the company did take

great pains not to foreclose him from airing racial problems.

Pinkard was reprimanded in May of 1971 for skirting griev-

ance procedures with a petition to reduce production. He filed

an EEOC charge on this occasion, which was dismissed for lack

20a

of reasonable cause. Later that month he made no effort to end

an unauthorized work stoppage or to assit in an investigation,

although he was then a steward. In February of 1973 Pinkard

was orally warned with regard to not working overtime. All

accounts of this incident are vague and the court does not find it

necessary to its decision. In May 1975 Pinkard sought to pull

workers off their jobs to take them to the main office to discuss

a work assignment complaint. He was refused and warned to

follow standard procedures. The warning was put in plaintiff's

record, apparently unbeknownst to him.

The court finds that abuse and admonition characterize

plaintiff's disregard for established methods in handling grie-

vances and his relationship with management. His failure to

follow through with, and his insufferable attitude during, the

King incident was simply the final item. He gave the defendant

ample justification for his discharge. By contrast, he gave the

arbitrator and has given the court nothing to substantiate his

charge of racial discrimination. The arbitrator denied Pink-

ard’s grievance, which decision is supported by substantial

evidence as determined by this court. By the rule established

in McDonnell Douglas, Furnco, and Sweeney, supra, judg-

ment is due the defendant for the plaintiff's failure at his proof.

The court takes note of plaintiff's other involvement in the

courts of this district. In Calvin E. Parker, et al. v. Local

Union No. 1466, United Steelworkers of America, AFL-CIO;

Leonard Lewis; Louis Pinkard; and Arvil Hulsey, Civil Ac-

tion No. 76-M-1450-S (N.D.Ala., filed March 15, 1979), the

plaintiff was held liable in damages for his actions as vice-

president of the Local. There, at a time since his discharge,

plaintiff was found to have unlawfully interfered with the

rights of Pullman employees. Pinkard was involved in refusing

to recognize union members’ sentiment not to strike but to

work. Under Parklane Hosiery Co., Inc. v. Shore, _— U.S.

—, 99S. Ct. __., 58 L. Ed. 2d 552 (1979), Parker is a

conclusory determination as to the plaintiff's misconduct. It is

well settled under the labor laws which Title VII was modeled

that such behavior would disqualify the plaintiff from

21a

reinstatement, even if the discharge was originally improper

(which this was not). NLRB v. Big Three Welding Equipment

Co., 359 F. 2d 77 (5th Cir. 1966); Ayers v. Western Line Con-

solidated School District, 555 F.2d 1309 (5th Cir. 1977), va-

cated and remanded on other grounds sub nom. Givhan v.

Western Line Consolidated School District. U. S., 99

S. Ct. __, 58 L. Ed. 2d 619 (1979). Furthermore, since this

suit is an equity proceeding, plaintiff also disqualifies himself

from any equitable relief for being without clean hands. The

prejudice actually exp sed by he facts in this case is not racial,

as charged, but anti-management, as reflected by the plain-

tiffs attitude and actions.

Discussion

The racial attitudes of the defendant have been on trial

before. Swint v. Pullman-Standard, 539 F.2d 77 (Sth Cir.

1976). The courts have once absolved defendant from the

charge of prejudice against having blacks on its labor force.

Neither individually nor as a whole have the four plaintiffs

expressed more than personal suspicions otherwise. Ample

cause was shown for the discharges, and this court will not be

swayed by bare accusations to find bias that is unproved.

Plaintiffs have submitted statistics which they contend show

racial bias by a numerical dispariy of discharges between white

and black permanent employees. Defendant presented its own

statistical showing of nearly exact conformity of racial makeup

in the representative work force as compared to net discharges

of all employees. Neither proof is persuasive. Discharge ac-

tions demand scrutiny of the merits of each decision, and as

such are not significantly aided by consideration of broad sta-

tistical data. This is especially true where, as here, there are

offsetting presentations for both sides which convey an

essentially neutral impression racially.

The court recognizes hat the brunt of its discussion has

dealt with the plaintiff's ick of proof of discrimination in light

of standards set by cases decided under Title VII. Remedies

under 42 U.S.C. § 1981 have been widely hailed as distinct

22a

from those under Title VII. Yet the principle of proving a

prima facie case of race discrimination under Section 1981 is

closely related, if not identical, to that under Title VII. It has

been said that the allocation of proof mandated in McDonnell

Douglas, supra, should be applied to claims under Section

1981. This includes both the plaintiffs’ burden of proving a

prima facie case and the defendant’s burden of articulation in

defense. Long v. Ford Motor Co., 496 F. 2d 500 (6th Cir. 1974);

Sabol v. Snyder, 524 F.2d 1009 (10th Cir. 1975); Flowers v.

Crouch-Walker Corp., 552 F. 2d 1277 (7th Cir. 1977). Thus the

court concludes that its evaluation of the evidence would be the

same and that plaintiffs cannot prevail under either or both of

the two statutes.

Judgment accordingly will be entered in favor of the defend-

ant on all claims by separate order to be filed con-

temporaneously herewith.

DONE this 29th day of June 1979.

/s/ J. Foy Guin, Jr.

J. Foy Guin, Jr.

United States District Judge

23a

Appendix A

ARBITRATION BEFORE

H. CARLTON BRYAN, JR., ARBITRATOR

HEARD APRIL 15, 1976

PULLMAN-STANDARD a division

of PULLMAN, INCORPORATED,

Employer

and

UNITED STEELWORKERS OF AMERICA, AFL-CIO,

Union

GRIEVANCE OF EDWARD LOFTIN

APPEARANCES:

For The Employer: C. V. Stelzenmuller, Esquire

Thomas, Taliaferro, Foreman

Burr and Murray, Attorneys

1600 Bank For Savings Building

Birmingham, Alabama 35203

For The Union: Jimmie L. Williams, Esquire

Sub-Director, United Steelworkers

of America, AFL-CIO

409 2ist Street, North, Suite 202

Birmingham, Alabama 35203

OPINION AND AWARD

I. ISSUES

Was the discharge of grievant Edward Loftin proper under

the contract. If not, what is the remedy.

Defendant’s Exhibit 8

24a

II. FACTS

Grievant was employed about 24 or 25 years ago as an

unskilled employee and has continued in similar employment

with the Employer until his discharge on December 23, 1975.

He has been the recipient of numerous disciplinary notices.

On one occasion the Employer agreed to withdraw a disciplina-

ry notice upon the Union’s guarantee that the Employer would

have no more trouble from grievant.

F or the past year and one-half the Employer has been haras-

sed by inflamatory and communistic literature being passed

out at its gates by strangers. Such literature has also been

passed out at the gates of other industrial plants in the Birm-

ingham area. Practically all such literature has contained at

least one article defaming Pullman-Standard, referring to it as

a vampire, bloodsucker and other such words designed to

inflame employees. Such accusations have also been made

against the union, accusing it and the Employer of conspiring

against the employees. No claim is made that grievant partici-

pated in such distribution at the gates.

It is alleged that, on December 17, 1975, grievant dis-

tributed within the plant premises a piece of literature which,

among other things, suggested a slowdown in work in violation

of the contract. After an investigation of this, he was dis-

charged on December 23, 1975.

Union Position

Is is the Union’s position that grievant did pick up and handle

the literature he is alleged to have distributed to other employ-

ees in the bath house on December 17, 1975, but that such

literature was already in the bath house before he arrived and,

based on e time he arrived at his clock station and the

distance from such station to the bath house, it was impossible

for grievant to have distributed the literature as alleged. It is

the Union’s further position that it isn’t even alleged that

grievant had any connection with the inflamatory material

passed out at the gate by strangers and that such literature

25a

should not be considered in the instant case. It is also the

Union’s position that grievant’s past disciplinary record was

not discussed at the fourth step of the grievance and should not

be considered now. It takes the position grievant should be

reinstated and made whole, without penalty.

Employer’s Position

It is the Employer’s position that, upon being advised

grievant had, on December 17, 1975, passed out to employees

in the bath house literature advocating a slowdown in violation

of the contract, it instituted an in depth investigation of this

matter, including a lengthy interview of grievant in the pre-

sence of a Union representative. It takes the position this

investigation clearly showed grievant’s guilt. In view of this,

and after carefully considering grievant’s employment record

as a whole, it determined discharge was warranted and that

the discharge of grievant on December 23, 1975, should be

allowed to stand.

III PERTINENT CONTRACT PROVISIONS

AGREEMENT

This A ment dated September 30, 1974 is between

PULLMAN-STAIIDARD, a division of Pullman In-

rated (hereinafter referred to as the “Com 92.

UNITED STEELWORKERS OF AMERICA

international labor organization, (hereinafter referred to

as the “Union”).

SECTION XXVII

TERMINATION DATE

A. This Agreement of September 30, 1974, effective

October 1, 1974, except as otherwise provided herein,

shall continue in effect subject to the following provi-

sions.

B. Except as otherwise provided below, the Ln

shall terminate 60 days after either hall give

written notice of — 4 — to the other 4 but in

26a

ay ovens shall not terminate earlier than October 1,

SECTION 1

PURPOSE AND INTENT OF THE PARTIES

The purpose of the Company and the Union in entering

into this Labor A ment is to set forth their ment

on rates of pay, hours of work, and other — — of

employment so as to promote orderly and peaceful rela-

tions with the employees, to achieve uninterrupted opera-

tions in the plants, and to achieve the highest level of

employee performance consistent with safety, good

health, and sustained effort.

The Company and the Union encourage the highest

possible degree of friendly, cooperative relationships be-

tween their respective representatives at all levels and

with and between all employees. The officers of the Com-

pany and the Union realize that this goal depends on more

than words in a labor agreement, that it depends primarily

on attitudes between people in their respective organiza-

tions and at all levels of responsibility. They believe that

— — attitudes must be based on full understanding of

for the respective rights and responsibilities of

both the Company and the Union. They believe also that

proper attitudes are of major importance in the plants

where day-to-day operations and administration of this

Agreement demand fairness and understanding. They be-

lieve that these attitudes can be encouraged best when it

is made clear that Company and Union officials, whose

duties involved negotiations of this Agreement, are not

anti-Union or anti-Company but are sincerely concerned

with the best interests and well being of the business and

all employees.

By such arrangement the ies believe that they, as

men of good will with sound purpose, may best protect

private my and its efficiency in the interest of all,

as well as the legitimate interest of their respective

organizations within the framework of a democratic socie-

ty in which regard for fact and fairness is essential.

27a

SECTION III

RESPONSIBILITIES OF THE PARTIES

B. The Union (its local and international officers and

representatives, at all levels) and all employees are

bound to observe the provisions of this Agreement.

D. In addition to the responsibilities that may be pro-

vided elsewhere in this Agreement, the following shall

be observed:

3. There shail be no strikes, work sto 8, or in-

terruption or impeding of work. No officer or

representative of the Union shall authorize, in-

stigate, aid or condone any such activities. No em-

ployee shall participate in any such activities

4. The —— procedures of this Agreement will

be followed for the settlement of all grievances.

SECTION IV

MANAGEMENT

. . . The rights to manage the business and plants and to

direct the working forces include the right to hire, sus-

pend or discharge for cause, . . .

SECTION XII

ADJUSTMENT OF GRIEVANCES

Step 4.

In the event that either party concludes that further

Step 4 meetings cannot contribute to the settlement of a

grievance, the dissatisfied party ey A written notice

served on the other party within ten days from receipt of

the answer of the last Step 4 meeting, appeal the griev-

ance to an impartial arbitrator to be appointed by mutual

agreement of the parties. The expense and salary

incident to the services of the arbitrator shall be 7

jointly by the Company and the Union. The decision of the

arbitrator shall be final.

. . . The arbitrator shall have jurisdiction and authority

only to — apply or determine compliance with the

provisions of this Agreement and such local working con-

ditions as may be or hereafter be in effect in the plants of

the Company, insofar as shall be necessary to the

28a

determination of grievances appealed to the arbitrator.

The arbitrator shall not have jurisdiction or authority to

add to, detract from or alter in any way the provisions of

this Agreement.

4. WAIVER OF GRIEVANCE PROCEDURE

Notwithstanding the procedure herein provided, any

grievance may be submitted to arbitration at any time by

agreement of the parties to this Agreement.

a. The effective date for adjustment of grievances relat-

ing to:

(1) Suspension and discharge cases. . shall be deter-

mined in accordance with the provisions of Section XIII -

DISCHARGE CASES.

SECTION XIII

DISCHARGE CASES

Any employee who may be discharged shall be deemed

suspended for a period of five (5) days following his dis-

charge If the disc employee believes he has

been unjustly dealt with, then a protest of said discharge

shall be filed with the Works Manager within the said five

(5) day — of suspension; the matter shall be taken up

promptly under the method of adjusting grievances herein

provided . . If no protest is filed within the suspension

period or if one is filed and the investigation reveals that

the employee is guilty, the discharge shall be deemed

permanent.

SECTION XVIII

SAFETY AND HEALTH

E. DISCIPLINARY RECORDS ,

Written records of disciplinary action against the em-

ployee involved for the violation of a safety rule but not

involving a — 1 ne off will not be used by the

Company in any arbitration proceeding where such action

one or more years prior to the date of the event

which is subject of such arbitration.

29a

When an employee has completed thirty-six (36) con-

secutive months of work without discipline involving a

penalty of time off for violation of a safety rule, prior

disciplinary penalties for such offenses not exceeding four

days’ suspension shall not be used for further disci

action.

IV. DISCUSSION

Both parties were afforded an opportunity to present evi-

dence and to examine witnesses. Both filed post hearing briefs.

It was stipulated the matter in dispute was properly before the

arbitrator for decision.

The evidence, testimony and briefs have been carefully con-

sidered and, therefrom, it appears we may be faced with three

questions. The first question is whether grievant did, in fact,

distribute to employees in the bath house on December 17,

1975, literature advocating a slowdown as alleged. The second

question is, if he did, did it constitute improper conduct

warranting discipline. The third question is, if he did and if it

was, was his discharge on December 23, 1975, the proper

penalty. We shall address ourselves to these questions and in

that order.

With respect to whether grievant did, in fact, pass out to

employees in the bath house on December 17, 1975, literature

advocating a slowdown, the Employer submitted numerous

copies of statements of employees taken at the time, some of

which indicate that he did, some of which indicate a lack of

knowledge. Inasmuch as there were employees available who

could give direct testimony regarding this and a number of

such employees were presented as witnesses by both the Em-

ployer and the Union, I am inclined, with one possible excep-

tion, to consider such statements only as evidence the Employ-

er did make an in depth investigation of the matter.

Grievant was present during the hearing. It would have

been helpful to have listened to his testimony as to exactly

what happened and, through direct and cross examination as

30a

well as observing his demeanor and responses, to have formed

some opinion as to his credibility. However, he was not pre-

sented. Instead, the Employer offered as an exhibit a memor-

andum of a meeting held on December 18, 1975, at which time

grievant was interviewed regarding the bath house incident of

December 17th. The interview was conducted in the presence

of the Union president. The Union stated it was willing for this

memorandum to be a joint exhibit. We shall take up later the

nature and content of the literature grievant is alleged to have

passed out to employees in the bath house, but first we shall

determine whether he did or not.

At grievant's interview on December 18th, he stated the

literature in question was already in the bath house when he

arrived on the morning of the 17th. He stated he saw fellow

workers looking at copies. He also stated a bunch of them was

laying right in front of his locker. At one point he stated he

wasn't reading the literature. At another point he stated fellow

employees asked him what he was reading and he replied,

“Here’s you some.” He claimed he got to work that morning

between 6:20 and 6:25, that the literature was already scat-

tered throughout the bath house, that a pile of it was in front of

his locker and that he gave copies “out of my hand” to only one

or two employees who asked for one. With respect to a fellow

employee, Albert Tabb, shop steward, grievant stated when

he arrived Tabb had a copy of the literature in his hands but

they did not discuss it. With respect to another employee,

W. A. Miller, grievant stated he asked Miller if he wanted a

copy and Miller replied he “didn’t want none of that” (obscen-

ity). Grievant also stated he asked another employee, Ted

Brooks if he wanted one. At another point grievant changed his

story from claiming there was a stack of the literature in front

of his locker to an admission that he had 7 to 10 copies in his

hand and that fellow employees asked him for copies. With

respect to fellow employee McKinley Hayze, grievant first

stated Hayze had gone when he got to the bath house. He then

stated Hayze may not have been gone.

3la

At the hearing Hayze testified grievant punched him with

his finger and then gave him a copy of the literature. With

respect to this and other accounts immediately below we are

dealing with events occurring in the bath house at Pullman’s

plant on the morning of December 17, 1975, and the literature

referred to is the particular document grievant is alleged to

have passed out at that time. Hayze testified another employee

by the name of Small was also present and grievant gave hima

copy.

Employee Jack B. Gilmore testified several employees were

sitting in the bath house when grievant came around a corner

and started handing out copies to each. He testified grievant

had not yet changed to work clothes, that the time was some-

where between 6:15 and 6:30 A.M. He stated grievant also

gave copies to employees, A. Z. Arnold, Jerry Gwin and Solon

Sellers.

A. Z. Arnold testified grievant came in and was handing out

copies, giving them to J. B. Gilmore, Sellers and Gwin. He

stated grievant had a stack one to one and on- half inches thick.

William J. Smith testified that, when he came in, grievant

gave him a copy and said there was a little song on the back. He

stated grievant had several copies in his hand and he saw him

give copies to Billy Porter and Spurgeon Fields. He stated

there were about a dozen employees in the bath house, sitting

around reading the literature in question.

Billy E. Porter testified he came into the bath house and

changed clothes. He stated that grievant, sitting about 3 lock-

ers down, said, “You like to read. Here is something to read”

and handed him a copy. He did not notice Arnold reading but

did see copies on the floor about 6:50 to 6:55 A.M. He equated

the literature handed him by grievant as about the same as that

passed out at the gate.

W. A. Miller testified that, at about 6:20 A.M. he and Ted

Brooks were changing clothes when grievant came down and

handed him and Ted Brooks copies. Miller felt very strongly

32a

about such literature, relating it to literature being passed out

at the gate by strangers. He also related it to a shoot-out he

experienced a number of years ago. The literature being

passed out at the gate had evoked a fight at the Union hall and,

to him, such literature was designed only to create dissention.

He stated grievant had a bundle of such literature, probably

one-half inch thick. Because of this background he stated he

told grievant, “I don’t want that pile of (obscenity). I don’t

appreciate it and I don’t appreciate your running it in here to

me.”

Albert Tabb, shop steward, testified he arrived at the bath

house at about 6:15 to 6:20 A.M. He stated there was no

literature in the bath house when he arrived. He changed

clothes and then went out for coffee. In a few minutes he

returned and, at that time, saw copies of the literature in

question all around the bath house. He saw no one distribute or

hand out such literature. He stated that, when he returned

with coffee, he saw grievant changing shoes.

Harry L. Mixon testified he believed he started to work at

6:30 A.M. on December 17th, which would mean he arrived at

the bath house some time before that. He stated he did not see

grievant, who normally arrived later. He stated he saw copies

of the literature in the bath house when he arrived, did not pay

too much attention and did not notice anyone reading it but did

notice that McKinley Hayze was in the bath house.

Willie Johnson testified he got to the bath house at about 6:40

A.M. and that grievant was sitting by his locker, about 5 or 6

lockers away, changing his shoes. He stated he saw copies of

the literature and asked grievant, “What you got there?” He

picked up a couple of copies, saw what it was, and put it back.

Alex White testified he got to the bath house at about 6:25

A.M. He stated that, at that time almost everyone in the bath

house was reading a copy of the literature in question but hedid

not see anyone passing it out and did not see grievant that day.

33a

Although there are variations in memories of precisely what

happened and there is a dearth of evidence regarding who

brought the literature into the bath house, the overwhelming

preponderance of the evidence clearly shows that grievant did,

in fact, on December 17, 1975, pass out to other employees in

the bath house copies of the literaiure in question, and I so find.

We must next examine the literature in question. It is a

yellow sheet of paper 8-1/2 inches by 14 inches, with red print-

ing on both sides. On one side is a drawing and, in large print,

the words “The Boss Says: Let ‘em go!’ The text states, in part,

that the Employer needs profits like a vampire needs blood. !t

demands “an end to the vicious speed-up” and states “We will

build on the beginnings of resistance. On the other side of

the sheet appears the words and music of a song titled “Slow-

down.” The first verse of this song is, “Slowdown You work too

fast. Slow down Try to make it last. Slow down.” The song,

throughout, advocates a slow down of work.

Section III B of the contract states, “The Union. . . and all

employees are bound to observe the provisions of this Agree-

ment.” Part D.3. of this section provides, “There shall be no

strikes, work stoppages or interruption or impeding of work.

No officer or representative of the Union shall authorize, in-

stigate, aid or condone any such activities. No employee shall

participate in such activities. There is an exception to this

provision not here applicable. To pass out literature to employ-

ees advocating that they engage in a slow down of production is

certainly instigating an interruption or impeding such activity. -

Thus, in passing out such literature, grievant violated the very

contract he is now invoking to protest his discharge. Such

conduct certainly warrants disciplinary action and I so find.'

' Federal-Mogul-Bower Bearings, Inc., 41 LA 1253; Rich Manu-

facturing Co., 48 LA 154.

34a

There is a further consideration. It would be redundant to

repeat it here but Section I, Purpose and Intent of the Parties,

set out above in Item III, is just as much a part of the contract

as is the grievance section and the agreement must be con-

sidered as a whole. Among other things, Section I states that

the Company and the Union encourage the highest possible

degree of friendly, cooperative relationships between their

respective representatives at all levels and with and between

all employees. With this in mind it should be noted that, for

over a year now, strangers have been passing out to employees

at the gate literature designed to create and advocating dis-

sension among employees, not only against the Employer but

the Union as well.

Over the Union’s strenuous objection, based on the fact it

isn’t even alleged that grievant had anything to do with passing

out literature at the gate, the Employer was permitted to

introduce into evidence numerous copies of such literature. It

was the Employer’s contention that this literature had caused

such dissession among employees as to have resulted in fights

and, in this atmosphere, the literature passed out by grievant

on December 17th was designed to and did have the effect of

more of same. The literature was received for that limited

purpose, with the burden on the Employer to prove its perti-

nence.

On this basis the literature has been carefully examined and

testimony relative thereto carefully considered. Two pieces of

the literature have been disregarded completely because they

show by the dates they bear they were distributed in 1976,

much after the incident involving grievant. Interestingly

enough, one of these two is the only one using the phrase “The

Boss Says: Let ‘em go!” The others contain articles attacking

the Employer as well as the Union. Some attack so called

speedups at Pullman. Much of the literature is not just what is

Elkouri and Elkouri, “How Arbitration Works” at pages 307, 308.

35a

sometimes referred to as communist inspired. It actually bears

the communist label and refers to “our common enemy, the

capitalist class.” It is clear that such literature is designed to

create dissention among employees and is directed against the

Employer and the Union. Also presented were several copies

of literature captioned “Pullman Sparks The Rank & File

Speaks.” It is stated this literature is published by Pullman

workers rank and file committee. These, also, refer to the

Employer’s so called speed-up campaign. It seems clear that

the literature passed out by grievant did appear to be “more of

same” and, thus, became more onerous. Witness the reaction

of employees Miller and Porter, supra. Such literature was

inflamatory and defamatory as well as advocating a violation of

the contract. Such literature clearly tends to disrupt employee

morale and interfere with the orderly and efficient operation of

the plant. The Employer was well within its rights to discipline

for such activity.“

In presenting its case the Union indicated it felt grievant had

not been treated in an even handed manner in that another

employee had posted inflamatory and defamatory literature on

the bulletin board in the plant, without penalty. The evidence

shows that the Employer made an investigation first to obtain

the facts, after which the employee in question was dis-

charged.

The Union’s post hearing brief cited Grievance No. XVI-

C80-61, Arbitration Case No. 65, Continental Can Co., Inc., in

which the grievance was sustained on the ground the Company

had failed to present convincing proof that grievants were

guilty of participating in an illegal work stoppage, as alleged.

That case is clearly distinguishable as, in the instant case, the

evidence is overwhelming that grievant is guilty of the alleged

conduct which was the basis for his discharge. The Union also

gave a citation regarding injunctions which is not here applica-

ble.

* Beaver Precision Products, Inc., 51 LA 853.

36a

The Employer stated that, in determining to discharge

grievant, it not only considered the evidence disclosed by its in

depth investigation of grievant’s actions on December 17th but

that it examined and considered his disciplinary record as a

whole. In this connection it presented a summary of such

record as well as numerous supporting documents and testi-

mony. In examining and considering this evidence it is noted

that one incident, dated 6-20-63 involved a three day layoff fora

safety violation. Another, dated 1-12-72, also involved a warn-

ing but no layoff for a safety violation. Both of these are barred

from consideration by Section XVIII, subsection E, of the

contract. From June, 1963 to November, 1975 there were 15

countable written warnings, several involving 3 to 30 day

layoffs. One warning involving possible discharge was with-

drawn upon the Union’s guarantee grievant would give no

more trouble. In spite of this, he was given a 3 day disciplinary

layoff on 4-8-75, a written warning for a safety violation on

5-5-75 and another written disciplinary warning on 11-11-75.

On this date he was advised that future incidents could result in

discharge.

And, so, we come to our third question of whether discharge

of grievant on December 23, 1975 was a proper penalty. Con-

sidering the entire circumstances of his violation of the con-

tract on December 17th and his disciplinary record as a whole,

it appears the Employer was fully justified in discharging

grievant, and I so find.

V. AWARD

The grievance is denied.

/s/ H. CARLTON BRYAN, JR.

H. Carlton Bryan, Jr.

Arbitrator

Birmingham, Alabama

August, 19, 1976

37a

Appendix B

In re: Pullman Standard Division Of Pullman, Inc. And

Local 1466, United Steelworkers of America

ARBITRATOR: James P. Whyte, selected by the parties

APPEARANCES: For the Company — C. V. Stelzenmul-

ler, Esq. For the Union — John C.

Falkenberry, Esq.

GRIEVANCES: _ February 5, 12 and 13, 1976

HEARING: July 27, 1976, Carmen Zegarelli, Repor-

ter, transcript received August 19, 1976;

posthearing briefs received September

28, 1976.

AWARD: October 15, 1976

The Grievances. Grievant, Louis Pinkard has filed three

grievances which have been consolidated for hearing. The first

(J x2), dated February 5 (all dates are in 1976 unless otherwise

stated) alleges he was granted relief from work on February 4

to attend to Union business but was thereafter denied the right

to discuss the matter with the plant manager and was made the

subject of an investigation. The relief requested is that this be

made the gist of an unfair labor practice.

The second grievance (J x3), dated February 12, protests his

having been discharged and requests reinstatement and back

pay.

The third grievance (J x4), dated February 13, alleges his

discharge was because of race and union activity particularly

as related to the filing of grievances alleging racial discrimina-

tion.

The National Labor Relations Board, upon receiving an

unfair labor practice charge based on the grievance of Febru-

ary 5, remanded the matter for arbitration under the Collier

doctrine (R. 27). An arbitration hearing was subsequently held

resulting in this Award.

38a

Background. It has been Company’s practice, from time to

time, to enlist the assistance of Union Stewards and Commit-

teemen in cautioning employees about such matters as habitual

tardiness. Track Foreman, Dave Mason, a Black man, so util-

ized Grievant, a Black Committeeman, in January to speak to

one King about his tardiness record. However, apparently

unknown to Grievant, Mason also issued a written warning to

King dated January 23 (R. 44, 81, 230-231, C x).

Subsequently on February 4, Mason was advised by Bell,

then acting Grievance Committee Chairman, that the warning

given King was being discussed. Shortly thereafter Grievant,

classified as an Assembler in the Steel Erection Department

where Mason is in charge, approached Mason and asked for a

reliefman so that he could go to the office of General Foreman

(Moss) to discuss the warning given King. Mason replied he

would secure the reliefman when he had the time (R. 43, 47, 86,

234-236). Mason then went to Moss’ office and relayed

Grievant’s requests for the reliefman and the meeting. Moss

approved both requests, relief for Grievant was provided and

he came to Moss’ office (R. 48, 49, 87, 118-119, 138).

When Grievant and Mason came to Moss’ office, Moss and

Gilbert, assistant to Moss, were working on reports. Although

the evidence as to what transpired is not clear, it appears that

Grievant spoke first but for a moment or two was greeted with

silence while Moss continued working on his report. Grievant

stated he’d just as soon go to the main office since no one would

speak to him. When, then, Moss asked Grievant what he

wanted, or what he could do for him, Grievant stated he

wanted King brought to Moss’ office to discuss the warning

given King in January. Moss replied that the proper procedure

had been followed and that it was not necessary for King to be

present. To this Grievant replied that if King couldn't be pre-

sent, “forget it” (R. 50, 51-52, 8789, 91, 120, 129-130, 138, 239).

It may parenthetically here be noted that no written grievance

has ever been filed over the warning given King (R. 48, 120).

Grievant next turned to Mason and asked if he could go to the

main office to see the Works Manager. Mason denied this

39a

request and told Grievant to go back to work since there’d beno

meeting in Moss’ office. While Grievant denied being told to

return to work, he admits leaving the office and then returning

in three or four minutes to tell Mason he wanted to secure a

witness to hear Mason deny him permission to go to the main

office. Mason said “OK” and again told Grievant to go back to

work. Grievant then again left Moss’ office (R. 53, 55, 92, 94,

95, 119, 122, 139, 142, 239-240).

After Grievant left Moss’ office and Moss and Mason talked

about the situation, Moss called Frank Hyde, an industrial

relations assistant, concerning what to do about Grievant.

Moss then told Mason to bring Grievant to Hyde’s office (a

small office in the steel fabrication department) for another

meeting. Mason believed the meeting was to concern King but

Moss meant for it to concern Grievant and his conduct toward

Mason (R. 55, 57, 96, 113, 123, 143).

Mason, complying with Moss’ direction, found Grievant

about 100 to 150 feet from his work area some twenty-five

minutes later (C x2). Mason did not ask Grievant where he had

been but told him there would h a meeting in Hyde’s office. To

this Grievant replied that Company did not select with whom

he’d meet (to discuss grievances) and that he wasn’t going

anywhere. Mason then reminded Grievant that he’d been told

to return to his job. Grievant replied that Mason was a liar, that

he had not told Grievant to go back to work. Mason then told

Grievant that if he wasn’t going to Hyde’s office to go back to

work and Grievant did so. During all this time Grievant’s

replacement was still on the job (R. 57-58, 66-67, 68, 69, 97,

241).

According to Grievant it would have been useless for him to

go back to his job, aside from the fact he was seeking a witness

to hear Mason deny him permission to go to the main office,

even if Mason had so ordered because of equipment malfunc-

tion. Company admitted there was an electrical problem at this

time but denied it interfered with work in any way. Company

work records in fact show no interruption of production in

40a

Grievant’s work area at the time in question (R. 242-243, 301, C

x15).

Upon Grievant’s refusal to come to Hyde's office Mason

reported this fact to Moss. He also told Moss and Hyde that

Grievant had not followed his order to return to work. Moss

and Hyde further investigated the matter and ultimately

Grievant received a notice of discharge dated February 12 (R.

69, 70, 71, 126, 146, 190, C x3, 5). The reasons given Grievant

for his discharge were insubordination to Mason, failure to use

the grievance procedure properly and his overall work record

(R. 73, C x3). Meanwhile on February 9 a meeting was held at

Grievant’s request upon his allegation that Mason harrassed

him in requesting a reason for his having been off work. Actual-

ly Grievant had permission to be off at the time in question and

normally Mason would have been so advised. But communica-

tions failed accounting for Mason’s inquiry (R. 74, 104-105,

245-247).

Grievant commenced work with Company in July, 1962. In

1971 he became a Shop Steward in the Steel Erection Depart-

ment. This was followed by his becoming a Union Grievance

Committeeman in 1973 in the same department. At time of

hearing he was serving as Vice-President of his local union (R.

228-229).

Except for oral admonitions, Grievant has never heretofore

been disciplined (U x1). Yet Company’s evidence was directed

to showing that his work record was poor and that he abused

the grievance procedure both by failing to use it properly and

by overusing it (R. 116, 221). Four specific examples of

troublesome conduct were stated (R. 198, C x6). On May 5,

1971, Grievant was orally reprimanded for attempting to have

employees sign a petition requesting Company to reduce

protection from twelve to eight cars per day. He was advised to

follow the grievance procedure if he had a complaint. Later, on

May 24, 1971, a greivance was filed on the matter but was

withdrawn on September 17. On May 6, 1971, meanwhile,

Grievant filed an EEOC charge alleging Company had

4la

threatened to fire him because he had complained about work-

ing conditions. This charge was dismissed on March 27, 1974

for lack of reasonable cause (R. 258).

On May 7, 1971, Grievant, then a Steward, made no effort to

end a 30-minute unauthorized work stoppage about which no

grievance was ever filed but as a result of which one employee

was terminated. Thereafter Grievant cooperated poorly in

Company’s investigation of the incident (R. 259).

On February 20, 1973, Grievant, along with three others,

was orally warned for failing to work an overtime assignment

on February 19, 1973. It was alleged that he walked off the job

without giving his foreman any reason in violation of a local

working conditions agreement providing one could be excused

from overtime for reasonable cause. Grievant denied that any

overtime was worked on said February 19 (R. 260).

Finally, on May 21, 1975, Grievant was advised to follow the

grievance procedure when he wanted to pull certain employees

off the job and take them to the main office to discuss a com-

plaint about job assignments. The assignment had Black work-

ers performing housekeeping duties while white workers in

the same area at the time were not so assigned. Grievant was

not aware that this matter had been entered in his record (R.

157-158, 177, 265).

In general it was said that Grievant requested relief two or

three times a week to attend to Union business without filing

grievances (R. 160, 173). In Company’s opinion this was ex-

cessive compared to Grievant’s predecessor as Committeeman

(R. 170). Yet it was admitted that Grievant was granted per-

mission to see the General Manager about grievances and had

constantly to be reminded to follow the grievance procedure

(R. 155). During much of Grievant’s tenure as Committeeman,

Company permitted two employees to serve full time as griev-

ance investigators (R. 172). Grievant complained about this

practice and, as a result, it was stopped in favor of adherence to

the grievance procedure (R. 173, 201, 238, C x7).

42a

Although Moss maintained that grievances were normally

processed according to the contractually prescribed grievance

procedure, Grievant maintained that he, upon Moss’ invita-

tion, had often discussed complaints with him without a writ-

ten grievance having been filed. Gilbert, further, acknowl-

edged it was not unusual for Committeemen to see Moss with

oral complaints. And first line supervisors (“A” foremen) to

whom oral complaints are submitted frequently discuss them

with Moss, the General (“C”) Foreman. Of course, some com-

plaints are settled without a written grievance ever having

been filed (R. 131, 140, 183, 237).

As to Grievant’s abuse of the grievance procedure by over-

use, the evidence tended to show that between July 3, 1975 and

July 23, 1976, Grievant filed 14 of 31 grievances in the Steel

Erection Department exclusive of those relating to his dis-

charge. One resulted in reduction of a written warning to an

oral reprimand, Company granted three, three were being, or

had been, processed to arbitration, six were denied and one

was dropped. In contrast since Grievant's discharge only one

grievance has been filed exclusive of those relating to his

discharge (R. 204, 207, 225-226, C x8, 14).

Previously, between August 14, 1969 and December 19,

1975, Grievant filed, not including those relating to his dis-

charge, a total of 29 grievances in the Steel Erection Depart

ment. Three were processed to arbitration, two were denied,

one was sustained and the balance were either withdrawn,

abandoned or Company’s reply was accepted (R. 208, X x10).

Even earlier, on July 28, 1969, a grievance filed by Grievant

about work assignments was withdrawn by the Union on Au-

gust 26, 1969 without prejudice (R. 207, C x9).

Although admitting he haa been warned that his job was in

jeopardy if he did not follow the grievance procedure (R.

286-287), Grievant believed that his discharge was racially

motivated. He was assigned a remote work area upon return-

ing from a Union convention in August, 1973 (R. 270), but

Company explained this was because he was then the only

13a

Black Committeeman and it was thought he would be more

accessible to grieving employees. Notwithstanding Grievant

protested this assignment with the result that Company

agreed to pay him a wage differential (R. 271). Otherwise,

without being specific, Grievant claimed to have filed grie-

vances alleging racial discrimination which upset Company to

the point they were never processed (R. 272-273).

Company, of course, denied that any actions were taken

against Grievant because of his race (R. 166). It was pointed

out that there are, in fact, two Black Committemen (R. 167)

and that disciplinary actions taken against Blacks and five

whites had been discharged for insubordination. In processing

of grievances hereon five Blacks were denied in Step three, one

denied in Step four and one was denied by an arbitrator.

Grievances filed by whites resulted in two being denied in Step

three, two were apparently not contested and one was denied

by an arbitrator (R. 216, C x13).

Otherwise Company denied that Grievant was discharged

because he was a Committeeman or that his having filed EEOC

charges was a factor in his termination (R. 166).

Other Proceedings. After trial in the United States District

Court for the Northern District of Alabama, Company and

Union were absolved of practicing racial discrimination.

Grievant was one of the class of plaintiffs and the judgment was

rendered September 13, 1974 (R. 211, C x11). The case is now

on appeal (R. 213, C x12).

The Contract. Section XII deals with adjustment of grie-

vances. The first step is for an aggrieved employee to discuss

his complaint with his foreman, with or without the presence of

a steward or committeeman. If the matter is not here seta

within two days, it must be filed in writing within 30 days after

the event giving rise to the complaint to be considered further.

The writing is on a prescribed form and is to be signed by the

employee and his steward or committeeman. It is to be pre-

sented to the employee’s foreman. If satisfaction is still not

obtained, the matter may be appealed to the superintendent.

dia

Here the steward or committeeman may discuss the matter

with the superintendent. If not resolved the matter may be

appealed to the Manager of the Works or his representatives in

connection with regular meetings of the grievance committee.

Section XIII deals with discharge cases and provides, in

substance, that one who believes he has been unjustly dis-

charged may grieve according to a procedure not questioned in

this case.

The Issue. Although not stipulated before or at hearmg, the

evidence in this case and the arguments advanced in post-

hearing briefs permit the issue to be stated:

Was Grievant unjustly discharged? If so, what remedy?

Company position. Company did not violate the contract by

not permitting Grievant to meet with the Manager of Works or

in the way it handled King’s grievance. Section XII establishes

the procedures for processing a grievance and King never filed

a written Grievance. There was thus nothing for Grievant to

discuss with Moss. In any event there is no proviso permitting

a Committeeman alone to discuss an oral complaint with the

Manager of Works.

Grievant’s unorthodox methods of handling grievances both

before and after the events precipitating his discharge were in

violation of the contract. Union activity is not protected when

contrary to a labor agreement. In fact a union official should be

held to a high standard of contract enforcement.

One of Grievant’s most disruptive activities, in addition to

filing multiple (many?) grievances, was to demand meetings

with whatever Company officials struck his fancy. Not only

does continually filing unsubstantiated grievances constitute

just cause for discharge, being a union official is not an excuse

for repeatedly ignoring grievance procedures. Moreover

Grievant went beyond merely ignoring grievance procedures.

By repeatedly ignoring the prescribed procedures in the face of

constant warnings he was continually insubordinate.

45a

Company had good cause to discharge Grievant for in-

subordination on February 4. At this time he failed to follow

the grievance procedure, called his foreman a liar, disobeyed

an order to return to work and disobeyed an order to meet with

an assistant personnel manager.

That Grievant was a Committeeman constitutes no excuse

for his disobedience. He was conducting no union business with

which Mason’s order to return to work interfered: he had

dropped the King matter and had been refused an extra-

contractual request to see the Manager of Works. Moreover

the excuse of production breakdown was not well-founded.

Grievant was not discharged for engaging in protected union

activity. Actions outside the scope of a labor agreement are not

protected. Nor does aggresiveness excuse contract violations.

Nor was Grievant discharged because of his race. The only

evidence relating to this claim is that Grievant was assigned to

the sand pile. Yet he admits this was preferential treatment.

The penalty imposed was not excessive. Insubordination

constitutes adequate cause for discharge.

Union Position. The confrontation between Grievant and

Mason was nothing more than a normal, heated exchange

between a Union official and his management counterpart.

Grievant, further, did not call Mason a liar, but simply told him

not to lie.

Grievant was not insubordinate. He was gone from his job

only 20-25 minutes. During this time he had several discussions

with Mason, attempted a meeting with Moss, and went to

locate another Union official to help him. At all times Grievant

was in the role of Union official and had obtained permission to

leave his job.

Grievant did not file an excessive number of grievances.

Many were valid and some concerned his own case. Furth-

ermore he was responsible for establishing correct grievance

procedures by filing a grievance which resulted in elimination

of the “free” men.

46a

Discussion. I. The evidence in this case is insufficient to

show that Grievant abused the grievance procedure because of

the number of grievances filed by him. There is no evidence

that he filed “multiple” grievances in the sense of filing several

grievances pertaining to one set of facts. And, although he may

have filed more grievances than either his predecessor or

successor as Committeman, it is not possible to say that any

grievance filed by him was frivolous on its face and therefore

filed with the intent not to press an employee’s complaint but to

annoy and vex Company. The evidence shows, contrary to

Company’s contentions, that many grievances filed by

Grievant were sound and resulted in their being sustained at

one stage or another of the grievance/arbitration procedure.

Be this as it may, that a union steward or committeeman is now

always correct in his interpretation of a collective bargaining

agreement or in analysis of a fact situation does not mean that

he is abusing the grievance procedure.

Il. Neither does the evidence support Grievant’s allega-

tion that his discharge was motivated by racial considerations.

While it is possible that one Black may show prejudice against

other Blacks in order to curry favor with white management,

nothing in Mason’s dealings with Grievant show such to be the

case in their various relationships on February 4 or at other

times. Nor does the fact that Grievant was once assigned to the

sand pile prove Company discriminated against him so far as

his discharge is concerned. Following this assignment,

Grievant processed a grievance which was resolved, short of

arbitration, in his favor. In any event, there was nothing in this

assignment suggesting racial motivation.

Notwithstandiung, Grievant’s contention at hearing was

that the racial prejudice resulted from his having filed a num-

ber of grievances on behalf of various employees which alleged

racial discrimination. But nothing specific was introduced into

evidence to prove this charge. As the evidence stands, there-

fore, the mere accusation of racial discrimination is too slender

a reed upon which to base a finding of racial discrimination as a

fact.

47a

III. Whether or not Grievant’s discharge was for just

cause depends on whether or not he was insubordinate on

February 4, upon whether or not his previous work record

supported imposition of the penalty of discharge and upon

whether or not his actions were in any way privileged because

of his position and activity as a Union representative.

Company has maintained that Grievant was insubordinate in

disobeying Mason’s order to return to work, in calling Mason a

liar, in refusing to attend the meeting with Moss and the

assistant personnel manager and in misuse of the grievance

procedure by insisting on meetings with Company supervisors

contrary to the grievance. procedure. Each of these accusations

will be considered separately.

It must first be observed that while Mason did tell Grievant

to get back to work and that while Grievant failed to do so, the

order to return to work was ambiguous. Grievant had told

Mason he wanted to obtain the presence of another Union

official to hear Mason deny Grievant permission to see the

Manager of Works about the King matter. Mason assented to

this request but, nearly in the same breath, also told Grievant

to get back to his job. Since Grievant was intent on the King

matter, it was quite natural for him to believe he could seek the

assistance of the desired Union official before returning to

work. Thus Grievant’s intent was not to refuse an order to

work, which clearly would have been insubordinate, but to find

a Union official to corroborate Mason’s refusal of permission to

carry the King complaint to the Manager of Works. It follows

that Grievant’s failure to return to work was not insubordina-

tion.

Although Union has insisted that Grievant did not call

Mason a liar when Mason told Grievant to come to the meeting

with the assistant personnel manager and reminded Grievant

that he had been told to get back to work, the evidence pre-

ponderates in showing that Grievant did, in fact, call Mason a

liar. Moreover this accusation took place in the vicinity of other

employees and tended to erode the authority of Mason as a

48a

foreman. Although one acting as a Union representative in

pursuit of union business is immune from discipline for merely

being militant or zealous, a rule of reason must be applied. See,

Bates Landrer Co., 65-1 ARB para. (Abernathy 1964) and

Lawndale Industries, Inc., 46 LA 220 (McGury 1966). Mason

did nothing to provoke Grievant’s reaction. Nor were

Grievant’s words justified by the situation. See, Bordon Com-

pany, 31 LA 652 (1958). It must be concluded that Grievant was

insubordinate in calling Mason a liar. Even though this was

done in the general area of Grievant pursuing what he con-

sidered to be Union business, it tended to degrade the griev-

ance procedure. More of this later.

Grievant was also insubordinate in refusing to attend the

meeting with the assistant personnel manager. Not only was

Mason’s order in this regard within the scope of his authority, it

followed Grievant’s request for a meeting with supervision to

discuss the King matter. Grievant's refusal, then, was a dem-

onstrated willful disregard not only for the authority of his

foreman but also for the interests of peaceful (albeit irregular)

labor relations. A Union Committeeman who strongly urges a

meeting with management and then refuses to attend one,

even if not on the same subject, cannot be said to be pursuing

Union business. At this point his conduct is not merely zealous

or even merely aggressive. It becomes obstructive so far as

employer-employee relations are concerned.

There is no doubt that Grievant acted extra-contractually by

insisting on the meeting with Moss and by requesting a meet-

ing on the same subject with the Manager of Works let alone

demanding the presence of another Union official to hear

Mason deny him permission to see the latter. There is also no

doubt that such conduct was fairly routine so far as Grievant's

grievance handling was concerned. Nor is there doubt that this

course of grievance-processing varies from the contractually

prescribed method.

Yet had Company condoned Grievant’s actions so as to estop

it from accusing him of abusing the grievance procedure?

49a

There is creditable evidence to the effect that grievances were

discussed with Moss prior to being reduced to writing. But

there is also creditable evidence, which Grievant did not deny,

to the effect that he had been warned that his job was in

jeopardy if he continued to ignore the prescribed grievance

procedure. It is fair to conclude, therefore, that although Com-

pany often allowed Committeman latitude in grievance

processing, perhaps because of uncertainty as to the extent

union business should be accommodated with production

needs. Grievant was on notice that his irregular manner of

handling grievances would not forever be tolerated.

In a most significant sense the success of grievance/

arbitration as an aspect of collective bargaining depends on

adherence to the methods prescribed by the labor agreement.

It is the duty of both employees and union officials to pursue

the remedies established by the labor agreement in accordance

with the procedures there detailed meanwhile refraining from

insubordination and other forms of self-help. Failure to follow

prescribed grievance procedures serves only to erode and

ultimately destroy safeguards of employee rights. This is a

result which both union and employer should wish to avoid at

all costs. See, National Radio Co., 60 LA 78 (Cox 1973).

Although Grievant has not heretofore been suspended or

even warned in writing about his conduct, he has been orally

reprimanded and warned upon a number of occasions both for

his conduct as a Committeeman and as an employee. By claim-

ing to be unaware that one incident was entered in his record,

he tacitly admitted that he knew his personnel file included the

others. In each previous instance of misconduct either as a

‘union officer or employee, Grievant’s status as a union official

was recognized and, accordingly, he was permitted some lati-

tude so far as degree of discipline was concerned. But this does

not estop Company from insisting upon adherence to the clear,

unambiguous provisions of the grievance procedure, especially

in view of the numerous warnings given Grievant, nor from

taking disciplinary action when such abuse of the grievance

procedure is coupled with insubordination. These circum-

50a

stances justify Company’s consideration of Grievant’s work

record in determining his penalty. It cannot be said that Com-

pany acted arbitrarily, capriciously or unreasonably in coming

to the conclusion that it had just cause to discharge Grievant.

Award. For the foregoing reasons the grievances are de-

nied.

/s/ James P. Whyte

JAMES P. WHYTE

Arbitrator

5la

APPENDIX B

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CIVIL ACTION NO. 76-G-0226-S

Louis PINKARD; EDWARD LOFTON;

RICHARD HOLSTON; and DONNIE SEALIE,

Plaintiffs,

V.

PULLMAN-STANDARD a division

of PULLMAN, INCORPORATED,

Defendant.

FILED IN CLERK’S OFFICE

NORTHERN DISTRICT OF ALABAMA

JUN 29 1979

JAMES E. VANDEGRIFT, CLERK

UNITED STATES DISTRICT COURT

BY: JANE T. DOAXE

FINAL ORDER OF JUDGMEN,

In conformity with the separte Memorandum Opinion filed

contemporaneously herewith, it is

ORDERED, ADJUDGED and DECREED that final judgment in

this action be, and the same hereby is, GRANTED in favor of the

defendant and against the plaintiffs; and it is

FURTHER ORDERED that the plaintiffs have and recover noth-

ing of the defendant in this action.

Costs are taxed against the plaintiffs.

DoE and ORDERED this 29th day of June 1979.

/s/ J. Foy Guin, Jr.

J. Foy Guin, Jr.

United States District Judge

53a

APPENDIX C

PINKARD v. PULLMAN-STANDARD

U.S. Court of Appeals,

Fifth Circuit (New Orleans),*

Unit B

PINKARD, et al.

v.

PULLMAN-STANDARD A Division OF

PULLMAN, INCORPORATED,

June 10, 1982

I.

The four plaintiffs-appellants in this case Louis Pinkard.

Edward Lofton, Richard Holston, and Donnie Sealie—appeal

from a judgment entered in favor of defendant-appellee

Pullman-Standard, a division of Pullman, Inc., after a bench

trial below. They present a number of issues for our review.

Because no members of this panel agree upon all of the issues,

we preface the separate opinions with this summary of our

positions to explain the disposition of the appeal.

All four plaintiffs, former employees of defendant, brought

suit claiming defendant discharged them because of their race.

In addition, plaintiffs Pinkard and Lofton claimed they were

discharged because they opposed racially discriminatory prac-

tices of defendant. The suit ripened as one with the four claims

of racially-based discharge presented under 42 U.S.C. § 2000e-

2 and 42 U.S.C. § 1981. The claims of retaliatory discharge

Former Fifth Circuit case, Section 9(1) of Publie Law 96-452—

October 14, 1980.

54a

made by Pinkard and Lofton were presented under 42 U. S. C.

§ 2000e-3 and 42 U.S.C. § 1981.' Plaintiffs sought to bring the

suit as a class action, but the district court denied certification.

After a trial on the merits, the court entered a memorandum

opinion and granted defendant judgment as to each of the

claims.

Most of the issues presented provoked no dissent among us.

We are in agreement that the district court properly denied

class certification. In addition, we agree that the judgment is

to be affirmed as to plaintiffs Holston and Sealie. We also agree

that the judgment is to be affirmed as to the § 1981 claims of

racially-based discharge made by plaintiffs Pinkard and

Lofton.

We part ways only with respect to the Title VII claims of

Pinkard and Lofton and Pinkard's § 1981 claim of retaliatory

discharge. Even as to the latter, our dispute is narrow. Furth-

ermore, all agree that the judgment is to be affirmed as to

Lofton’s § 1981 claim of retaliatory discharge. Judge Kravitch

and Judge Clark, however, with Judge Lynne dissenting, find

that the district court erred in granting dee it judgment as

to Pinkard’s § 1981 retaliatory discharge cla . Accordingly,

the judgment must be reversed as to that one claim. This is the

only aspect of the judgment to be reversed.

Our positions as to the Title VII claims of Pinkard and Lofton

are somewhat more involved. Pinkard and Lofton had not

received the requisite right-to-sue notices from the Equal Em-

ployment Opportunity Commission at the time they filed suit

under Title VII; subsequently, they did receive notices. Judge

Kravitch and Judge Lynne conclude, over Judge Clark’s dis-

sent, that the notices Pinkard and Lofton received satisfied the

right-to-sue notice requirement and consequently that the Ti-

For convenience, we will refer to the claims under 42 U.S.C.

§ 2000e as the Title VII claims and those under 42 U.S.C. § 1981 as

the § 1981 claims.

55a

tle VII claims of Pinkard and Lofton were properly before the

district court, which thought it had no jurisdiction over these

claims but proceeded to consider them “out of an excess of

caution.” Judge Lynne would affirm the district court’s dis-

position of both Lofton’s and Pinkard’s Title VII claims. Judge

Kravitch, however, would affirm as to Lofton’s Title VII

claims and Pinkard’s claim under 42 U.S.C. § 2000e-2, but

would rever e as to Pinkard’s claim under 42 U.S.C. § 2000-3.

Because of Judge Lynne’s position and Judge Clark’s view that

the claims were not properly before the district court, the

judgment must be affirmed as to the title VII claims of Pinkard

and Lofton.

In accordance with the foregoing summary, we reverse the

judgment as to Pinkard’s § 1981 claim of retaliatory discharge

and remand for a determination of damages. In all other re-

spects, the judgment is affirmed.

II. Class Action Denial

Louis Pinkard and Edward Lofton filed suit under 42 U.S.C.

§ 2000e on February 17, 1976, prior to receipt of right-to-sue

letters from the Equal Employment Opportunity Commission.

Plaintiffs moved to add Richad Holston as a party plaintiff

shortly after February 19, 1976, when Holston was notified by

the EEOC of is right to sue. Like Pinkard and Lofton, Holston

alleged in his EEOC complaint that Pullman discriminatorily

discharged him because of his race. On July 28, 1976, Pinkard

and Loftom moved to add Donnie Sealie as a party plaintiff, and

the court granted the motion on August 11, 1976. Sealie had

originally filed an employment discrimination charge against

Pullman-Standard on May 6, 1975, alleging that he had been

discharged because of his race. The Birmingham District

Office of the Equal Employment Opportunity Commission

issued Sealie a right-to-sue letter on June 15, 1976. On August

18, 1978, prior to the pretrial hearing in the case, the EEOC

56a

issued Pinkard and Lofton notice of their right to sue the

company.“

On October 12, 1978, plaintiffs proceeded with a Fed. R-

Civ. P. 23 class certification hearing in district court. Plaintiffs

sought to certify a class of all black employees of defendant

company who were discharged . . . within 180 days prior to the

earliest filing with the EEOC of a charge of discrimination by

any of the four named plaintiffs.” The court refused to certify

the class on the ground that the plaintiffs failed to carry their

burden of proving “typicality of claims,” as required under

Fed. R. Civ. P. 23(a)(3).*

It is well settled that, where a case requires detailed in-

vestigations of the circumstances surrounding the claims of

individual class members, that case does not lend itself to

treatment as a class action. Reddix v. Lucky, 252 F.2d 930 (5th

Cir. 1958). Similarly, this court recently refused to reverse a

district court which had denied class certification in Crawford

v. Western Electric Co., Inc., 614 F. 2d 1300, 22 FEP Cases819

(5th Cir. 1980), stating that:

The fact that plaintiffs are members of the same race as

other employees and rejected job applicants whom they

seek to represent in a class action is not enough in itself to

require a finding under Rule 23 that their representation

was adequate or that their claims were typical of the class.

Id. at 1304.

The reason given for the issuance of Pinkard and Lofton’s right-

to-sue letters was that suit was pending in federal district court

regurding the identical issues, and therefore the Equal Employment

Opportunity Commission charges were being dismissed.

Fed. R. Civ. P. 23(a)(3) states, in relevant part:

(a) One or more members of a class may sue or be sued as

representative parties on behalf of all only if. . .

(3) the claims or defenses of the representative parties are

typical of the claims or defenses of the class

57a

In the instant case the four named plaintiffs bring forward

claims which are factually distinct. Consequently, we affirm

the district court’s finding that plaintiffs failed to meet the

procedural requirements justifying class certification. The dis-

trict court properly distinguished the Fifth Circuit decision,

Hebert v. Monsanto Company, Texas City, Texas, 576 F.2d

77, 18 FEP Cases 102 (5th Cir. 1978), that plaintiffs cited as

contrary to the Reddix “typicality” test. Although this court in

Hebert reasoned that, lil class actions were limited to factual

typicality, class actions under Title VII would be impossible

because, except in rare cases, the facts would not be identical,”

the court’s decision to certify that class was based additionally

upon the fact that plaintiffs had produced substantial statistic-

al evidence of company-wide discriminatory policies. The trial

court properly focused upon this distinction, concluding that

“the [Hebert] decision is clearly hung on the breadth of the

defendant’s policies involved there and the wide scope of the

statistical evidence . . pertinent to show these pol cies.” Rec-

ord Excerpts, at 13. Consequently, we agree that Hebert does

not provide a sufficient justification upon which to confer “typi-

cality” in the face of the significant factual dissimilarities of

plaintiffs’ claims. Accordingly, we affirm the denial of class

III. Title VII

A. Jurisdietion

1. Circuit Judge Kravitch With District Judge Lynne,

Concurring.

Appellants Pinkard and Lofton filed charges with the EEOC

on February 13, 1976 and commenced this civil action four days

later. Neither party had received a right-to-sue letter from the

EEOC at that time. They did, however, receive right-to-sue

letters on August 18, 1978, prior to the pretrial order and

approximately four months before trial. Nevertheless, on June

29, 1979, seven months after the trial, the district court dis-

missed Pinkard’s and Lofton’s Title VII claims, holding in its

58a

memorandum opinion that it lacked jurisdiction over the claims

because the appellants failed to await the issuance of their

right-to-sue letters before filing suit. We hold that receipt of a

right-to-sue letter is a condition precedent to a Title VII claim

rather than a jurisdictional prerequisite, and that here receipt

of the letters by appellants prior to dismissal of their Title VII

claims cured their failure to initially satisfy the condition pre-

cedent. Accordingly, we reverse the district court.

Before instituting a Title VII action in federal district court,

a private plaintiff must file an EEOC complaint against the

discriminating party within 180 days of the alleged discrimina-

tion and receive statutory notice of the right to sue the respon-

dent named in the charge. 42 U.S.C. § 2000e-5(f)(1); Alexander

v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S. Ct. 1011, 1019, 39

L.Ed.2d 147, 7 FEP Cases 81 (1974); Nilsen v. City of Moss

Point, Mississippi, 621 F.2d 117, 24 FEP Cases 1077 (5th Cir.

1980). 42 U.S.C. S 2000e-5(f)(1) states in pertinent part:

Ifa filed with the Commission pursuant to subsec-

tion (b) of this section is dismissed by the Commission, or if

within one hundred and eighty days from the filing of such

charge or the expiration of any period of reference under

subsection (c) or (d) of this section, whichever is later, the

Commission has not filed a civil action under this section or

—— — ae —

involving a government, governmental agency, or politi-

cal subdiviston, or the — 2 has not entered int a

conciliation agreement to which the person aggrieved is a

, the Commission, or the Attorney General 22

involving a government, governmental agency, or politi-

eal subdivision, shall so notify the person aggrieved and

within — 1 — er the giving of such notice a civil

action may be brought against the respondent named in

the charge (A) by the person claiming to be lieved or

(B) if such charge was filed by a member of the Commis-

sion, by any person whom the charge alleges was

aggrieved by the alleged unlawful employment practice.

(Emphasis added). This court has not explicitly addressed the

question whether the receipt of a right-to-sue letter is a juris-

dictional prerequisite, which if not satisfied deprives federal

59a

courts of subject matter jurisdiction or whether the require-

ment is a condition precedent subject to equitable modifica-

tion. In answering this question, however, we are guided by

the Supreme Court’s analysis in Zipes v. Trans World Airlines,

Inc., 455 U. S., 102 S.Ct. 1127, 71 L.Ed.2d 234, 28 FEP

Cases 1 (1982), in which the Court expressly considered for the

first time whether a precondition to a Title VII action con-

stitutes a jurisdictional prerequisite.

In Zipes, the Court addressed whether the timely filing of an

EEOC charge is a jurisdictional prerequisite or a requirement

akin to a statute of limitations, which is subject to equitable

modification. See Coke v. General Adjustment Bureau, Inc.,

640 F. 2d 584, 25 FEP Cases 433 (5th Cir. 1981) (en banc). The

Court held “that filing a timely charge of discrimination with

the EEOC is not a jurisdictional prerequisite to suit in federal

court, but a requirement that, like a statute of limitations, is

subject to waiver, estoppel and equitable tolling.” Id. 455 U.S.

at , 102 S.Ct. at 1132. In so holding, the Court first

observed that 42 U.S.C. § 2000e-5(f)(3),‘ which confers

jurisdiction on federal district courts over claims brought

under Title VII, “does not limit jurisdiction to those cases in

which there has been a timely filing with the EEOC,” and that

the timely filing requirement does not speak in jurisdictional

terms. Second, the Court found that the sparse legislative

history indicates that Congress intended the filing require-

ment to operate more like a statute of limitations. Third, it

concluded that to find the filing requirement a jurisdictional

prerequisite would be inconsistent with a prior case law, e.g.,

Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n. S, 95S.Ct.

2362, 2370 n.8, 45 L.Ed.2d 280, 10 FEP Cases 1181 (1975);

42 U.S.C. § 2000e-5(f(3) states in pertinent part:

Each United States district court and each United States court of a

place subject to the jurisdiction of the United States shall have

jurisdiction of actions brought under this subchapter.

60a

Mohasco Co. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65

L.Ed.2d 532, 23 FEP Cases 1 (1980). Finally, the Court

reasoned that holding the requirement to be not a jurisdiction-

al prerequisite but a requirement subject to equitable

modification furthers the remedial purpose of the act without

negating the particular purpose of the filing requirement,

which is to give prompt notice to the employer. id. 455 U.S. at

— — 102 S.Ct. at 1132-1134.

The application of the factors considered in Zipes v. Trans

World Airlines, Inc. to the precondition involved in this case

compels the conclusion that the receipt of a right-to-sue letter

is not a jurisdictional prerequisite, but rather is a condition

precedent subject to equitable modification. Firs’, we note

that 42 U.S.C. § 2000e-5(f)(3), the relevant jurisdictional pro-

vision, does not limit jurisdiction to those cases in which a

plaintiff has received a right-to-sue letter. Nor does section

2000e-5(f)(1), which requires that plaintiffs receive statutory

notice of the right to sue before bringing a Title VII action,

speak in jurisdictional terms. Moreover, nothing in the legisla-

tive history indicates that Congress intended the receipt of a

right-to-sue letter to constitute a jurisdictional prerequisite.

Thus, we are not inclined to deviate from the plain meaning of

the statute. See, e.g., State of Alabama v. Marshall, 626 F.2d

366, 368-69 (5th Cir. 1980).

The decisions of the Supreme Court and Fifth Circuit are

also inconsistent with holding the receipt of a right-to-sue

letter to be a jurisdictional prerequisite. Rather the decisions

clearly indicate that the requirement is a condition precedent

subject to equitable modification. See, e.g., Zipes v. Trans

World Airlines, Inc., 455 U. S., 102 S.Ct. 1127, 71

L.Ed.2d 234, 28 FEP Cases 1 (1982); Mohasco v. Silver, 447

U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532, 23 FEP Cases 1

(1980); Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct.

2362, 45 L.Ed.2d 280, 10 FEP Cases 1181 (1975); Sessions v.

Rusk State Hospital, 648 F.2d 1066, 26 FEP Cases 779 (5th

Cir. 1981); Coke v. General Adjustment Bureau, Inc., 640 F. 2d

584, 25 FEP Cases 433 (5th Cir. 1981) (en banc); Clanton v.

6la

Orleans Parish School Board, 649 F. 2d 1084, 26 FEP Cases 740

(5th Cir. 1981). For example, both the Supreme Court and

Fifth Cireuit have held that relief under Title VII may be

awarded members of a class who neither filed an EEOC com-

plaint nor received a right-to-sue letter. See United Air Lines,

Inc. v. McDonald, 432 U.S. 385, 389 n.6, 97 S.Ct. 2464, 2467

n.6, 53 L.Ed.2d 423, 14 FEP Cases 1711 (1977); Franks v.

Bowman Transportation Co., 424 U.S. 747, 771, 96 S. Ct. 1251,

1267, 47 L.Ed.2d 444, 12 FEP Cases 549 (1976); Albemarle

Paper Co. v. Moody, 422 U.S. 405, 414 n. S, 95 S. Ct. 2362, 2370

n.8, 45 L.Ed.2d 280, 10 FEP Cases 1181 (1975); Miller v.

International Paper Co., 408 F.2d 283, 1 FEP Cases 647, 70

LRRM 2743 (5th Cir. 1969). This court in Crawford v. United

States Steel Corp., 660 F.2d 663, 27 FEP Cases 1084 (5th Cir.

1981) extended the rationale of those decisions to nonfiling

plaintiffs in a multiple-plaintiff, nonclass action, holding that in

an action involving claims of several persons arising out of a

similar discriminatory treatment, not all of them need to have

filed EEOC charges as long as one or more of the plaintiffs had

satisfied the requirement. Id. at 665. If the exhaustion of the

preconditions to a Title VII action, including the receipt of a

right-to-sue letter, were jurisdictional, neither this court nor

the Supreme Court could modify the requirements to permit

nonfiling plaintiffs to obtain relief under Title VII. See Zipes v.

Trans World Airlines, supra, 455 U.S. at —, 102 S.Ct. at

1134. Coke v. General Adjustment Bureau, Inc., 640 F.2d 584,

589, 25 FEP Cases 433 (5th Cir. 1981) (en banc). Only Congress

can modify those requirements that it has deemed must be

satisfied to permit lower federal courts to exercise jurisdiction

over a cause of action. See Lockerty v. Phillips, 319 U.S. 182,

187, 63 S.Ct. 1019, 1022, 87 L.Ed. 1339 (1943).

Furthermore, both the Supreme Court and Fifth Circuit

have found that the requirement that a plaintiff's Title VII

action may be filed within 90 days after receiving a right-to-sue

letter is not a jurisdictional prerequisite. See Mohasco Corp. v.

Silver, supra; Sessions v. Rusk State Hospital, supra. In

Mohasco Corp. v. Silver, supra, the Supreme Court observed

62a

that the respondent had not satisfied the requirement that a

party file suit within 90 days after receiving a right-to-sue

letter. However, rather than dismissing the action swa sponte

as it would have done were the requirement a jurisdictional

prerequisite, the Court considered the case properly before it

because “(petitioner did not assert respondent’s failure to file

the action within 90 days as a defense.” Id. 447 U.S. at 811 n.9,

100 S.Ct. at 2489 n.9. See Zipes v. Trans World Airlines, Inc.,

supra 455 U.S. at , 102 S.Ct. at 1134. In Sessions v. Rusk

State Hospital, 648 F.2d 1066, 26 FEP Cases 779 (5th Cir.

1981), this court expressly held that the 90-day filing require-

ment is not a jurisdictional prerequisite, but rather a require-

ment subject to equitable modification. The requirement that a

plaintiff receive a right-to-sue letter before filing suit is implied

from the provision that a plaintiff may bring suit within 90 days

after receiving statutory notice of the right to sue. We discern

no reason for treating the 90-day filing requirement as a condi-

tion precedent in the context of determining whether a civil

action has been timely filed and treating that same require-

ment as a jurisdictional prerequisite when considering

whether a plaintiff received statutory notice of the right to sue

before bringing suit.

Finally, in Clanton v. Orleans Parish School Board, 649 F. 2d

1084, 26 FEP Cases 740 (5th Cir. 1981), we considered circum-

stances similar to those in this case. There, the appellee con-

tended that the district court lacked Title VII jurisdiction

because the right-to-sue letter was issued by the EEOC rather

tan the Attorney General as required in a case involving a

governmental entity under section 2000e-5(f)(1). We rejected

this contention, stating “[wJhatever the merits of this conten-

tion, the fact that the wrong agency issued the initial right-to-

sue letter is not dispositive, for on August 2, 1974, Streams,

Marion Davis and Clanton received right-to-sue letters from

the Attorney General, and under established law, this sub-

sequent issuance of proper right-to-sue letters cured any de-

fect that existed with respect to the original right-to-sue let-

ter.” Id. at 1095 n.13. See Henderson v. Eastern Freight

63a

Ways, Inc., 460 F.2d 258, 4 FEP Cases 726 (4th Cir. 1972),

cert. denied, 410 U.S. 912, 93 S. Ct. 976, 35 L.Ed.2d 275, 5FEP

Cases 1224 (1973). Here, Lofton and Pinkard had not yet

received their right-to-sue letters when they filed suit.

Unquestionably, the action was subject to dismissal without

prejudice at that time; however, our decision in Clanton v.

Orleans Parish School Board makes clear that the subsequent

receipt of the right-to-sue letter cures the defect with respect

to the original filing of this action.

The fourth factor considered in Zipes v. Trans World Air-

lines, Inc., supra, is also satisfied in this case. Treating the

requirement that a plaintiff receive statutory notice of the

right to sue before filing a civil action as a condition precedent

that may be satisfied by the receipt of a right-to-sue letter

while an action is still pending furthers the remedial purposes

of the act without undermining the particular purpose of that

requirement, to give the EEOC an opportunity to fulfill its

function of investigating the charge and attempting concilia-

tion. A Title VII action filed prior to the receipt of statutory

notice of the right to sue does not preclude the EEOC from

performing its administrative functions, and it is unlikely that

permitting the subsequent receipt of a right-to-sue letter to

cure the filing defect will encourage plaintiffs to attempt to

bypass the administrative process because premature suits are

subject to a motion to dismiss at any time before notice of the

right to sue is received. Such a dismissal would be without

prejudice, and the plaintiff could bring a new action upon

receipt of a right-to-sue letter. To distinguish such an action,

once dismissed and then renewed, from an uction where the

defect is cured while the action remains pending is to distin-

guish between a glass half full and a glass half empty. Barring a

Title VII plaintiff, who received his right-to-sue letter after

filing suit, from ever pursuing his Title VIi claim would not

only be anomolous, but also would be an extreme sanction,

contrary to the general policy of the law to find a way to

prevent the loss of valuable rights, not because something was

done too late, but rather because it was done too soon. Avery v.

64a

Fischer, 360 F. 2d 719, 723 (5th Cir. 1966). It would also con-

travene our well-established policy not to interpret Title VII's

procedural requirements in a manner that bars substantive

claims. “Mindful of the remedial and humanitarian underpin-

nings of Title VII and of the crucial role played by the private

litigant in the statutory scheme, courts construing Title VII

have been extremely reluctant to allow procedural technicali-

ties to bar claims under the Act.” Sanchez v. Standard Brands,

Inc. , 431 F.2d 455, 2 FEP Cases 788 (5th Cir. 1970). See Love

v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30

L.Ed.2d 679, 4 FEP Cases 150 (1972).

In light of the forgoing, we conclude that the receipt of

statutory notice of the right to sue is not a jurisdictional prere-

quisite, which if not satisfied deprives courts of subject matter

jurisdiction; rather, the receipt of a right-to-sue letter is a

condition precedent, which on proper occasion may be equitab-

ly modified. Here, we hold that the receipt of a right-to-sue

letter subsequent to the commencement of a Title VII action,

but while the action remains pending, satisfies the precondi-

tion that a plaintiff obtain statutory notice of the right to sue

before filing a civil action under Title VII.

In this case, Pinkard and Lofton filed the Title VII suit as a

class action four days after filing their complaint with the

EEOC. Two months later, Holston, who had received a right-

to-sue letter, was added as a named plaintiff. Since the com-

plaint was framed as a class action, the jurisdictional prere-

quisites were arguably satisfied at that time. See Crawford v.

United States Steel Corp., supra; Miller v. International Pap-

er Co., supra. Except for the addition of Sealie, the case rested

in this posture over two years until the district court denied

class certification.’ In the meantime, Pinkard and Lofton had

> In it memorandum opinion denying class certification, the district

court stated that “[wJhile it appears that there are absent as to

plaintiffs Louis Pinkard and Edward Lofton allegations of charges

having been filed with the Equal Employment Opportunity Commis-

65a

received their right-to-sue letters. The reason given by the

EEOC for issuing the letters was that this lawsuit was pend-

ing. Though the reason given was not one of the published

conditions for which the EEOC issues right-to-sue letters, see

29 C. F. R. $§ 1601.19, 1601.28, the letters were nevertheless

effective. Both letters explicitly stated that the EEOC had

dismissed the charges and that issuance of the notice termin-

ated administrative processing. Whether the EEOC was cor-

rect in dismissing the charges for the reason given is immate-

rial. Cf. Hefner v. New Orleans Public Service, Inc. 605 F.2d

893, 895-96, 21 FEP Cases 193 (5th Cir. 1979) (EEOC letter,

which stated that the complainant’s file had been administra-

tively closed because the EEOC lacked jurisdiction to in-

vestigate the charge, was sufficient to trigger the ninety-day

filing period whether or not the EEOC’s conclusion was cor-

rect). Furthermore, more than 180 days had elapsed since

Pinkard and Lofton first filed charges with the EEOC, and

they had a right to obtain their statutory letters simply upon

sion (EEOC) and of ‘Notice of Right to Sue’ letters having been

issued, defendant admits their existence.” Pinkard v. Pullman-

Standard, 80 F.R.D. 287, 18 FEP Cases 723, 76-G-0026-S (N.D. Ala.)

(filed Oct. 31, 1978). The memorandum opinion was filed less than 90

days after Pinkard and Lofton had received their right-to-sue letters.

Assuming arguendo that receipt of the letters did not cure appellants’

error in prematurely filing this civil action and that the court at that

time had dismissed the suit, appellants Pinkard and Lofton could

have refiled their Title VII action within the requisite 90 days after

receipt of their right-to-sue letters. 42 U.S.C. § 2000e-5(f)(1). But by

the time district court dismissed the appellants’ Title VII claims

some eight months later, the 90-day limitation period for filing suit

had run, leaving the appellants barred by statute from refiling suit

under Title VII. Our holding condoning the premature filing of Title

VII actions, protects plaintiffs such as appellants from iosing their

right to sue under Title VII where either the defendant has been

dilatory in moving for dismissal of the suit or the court fails to act on

such a motion prior to the plaintiffs receipt of their right-to-sue

letters.

66a

request, regardless of further administrative processing. 42

U.S.C. § 2000e-5(f)(1). Because Pinkard and Lofton had re-

ceived right-to-sue letters while this action was pending, we

find that the district court erred in dismissing their Title VII

claims for lack of subject matter jurisdietion.“

2. Circuit Judge Clark’s Dissent On Jurisdiction

I dissent from the court’s determination, in the immediate

preceding section, that the receipt of a right-to-sue letter after

suit has been filed cured the failure to exhaust administrative

remedies. The issue is not one of jurisdiction as classified by the

majority, but one of exhaustion of administrative remedies. As

a condition precedent to suing an employer for unlawful dis-

criminatory discharge, an employee must first seek relief

through the EEOC mediation machinery. The majority is tell-

ing every employee in the circuit that this procedure is no

longer necessary; merely file your EEOC claim first, then file

your lawsuit the next week, and after the expiration of 180

days obtain a right-to-sue letter from the EEOC in which it can

say mediation has been obviated by the pending lawsuit. Pink-

ard and Lofton filed suit in February 1976 and received their

right-to-sue letters in August of that year. The EEOC took no

action because of the lawsuit. Pinkard and Lofton did not give

the administrative procedures an opportunity to be activated.

»The dissent asserts that the majority condones and encourages

the filing of Title VII claims without the receipt of a right-to-sue

letter and that our holding will cause the EEOC to cease its mediation

efforts when a suit is prematurely filed. The dissent misinterprets

our holding. We do not in any way approve the filing of suit prior to

the receipt of a right-to-sue letter. As we have noted a prematurely

filed suit is subject to dismissal upon proper motion at any time prior

to the receipt of statutory notice of the right to sue. Moreover,

contrary to the implications of the dissent, the filing of a Title VII

action simply does not require the EEOC to terminate its mediation

efforts or issue a right-to-sue letter.

67a

The majority approves of this by saying that a dismissal of the

lawsuit would accomplish nothing because a lawsuit could be

immediately refiled for the same claim. This is true because the

statute permits filing suit if 180 days has expired. However,

such leniency extended to Pinkard and Lofton now permits

every every employee to simultaneously file with the EEOC

and the court, and the EEOC will naturally defer to the courts.

This is contrary to the statute and puts our blessing on such

unauthorized procedures.

I agree that the district court had subject matter jurisdic-

tion. That question has now been fully answered by the Su-

preme Court in Zipes v. Trans World Airlines, 455 U. S.,

102 S.Ct. 1127, 71 L.Ed.2d 234, 28 FEP Cases 1 (1982), as it

had been the former Fifth Circuit in Coke v. General Adjust-

ment Bureau, 640 F.2d 584, 25 FEP Cases 433 (5th Cir. 1981)

(en banc). However, a district court must look to see whether a

plaintiff has a plausible explanation for not having pursued the

congressionally-mandated EEOC administrative procedures.’

The relevant portion of 42 U.S.C. § 2000e-5(f)(1) states:

If a charge filed with the Commission pursuant to subsection

(b) of this section is dismissed by the Commission, or if within

one hundred and eighty days from the filing of such charge or the

expiration of any period of reference under subsection (c) or (d)

of this section, whichever is later, the Commission has not filed a

civil action under this section or the Attorney General has not

filed a civil action in a case involving a government, governmen-

tal agency, or political subdivision, or the Commission has not

entered into a conciliation agreement to which the person

aggrieved is a y, the Commission, or the Attorney General

in a case involving a government, governmental agency, or

poli ical subdivision, shall so notify t — aggrieved and

within ninety days after the giving of such a notice a civil action

may be brought against the respondent named in the charge (A)

ley person claiming to be aggrieved or (B) if such charge was

by a member of the Commission, by any person whom the

charge alleges was aggrieved by the unlawful employ-

ment practice.

68a

Title VII requires a claimant to file his discrimination claim

with the EEOC within 180 days of the incident giving rise to

the claim. The EEOC then sets into motion the administrative

machinery designed to reconcile the employee-employer dis-

pute. If EEOC efforts fail, it issues to the employee a right-to-

sue letter. The employee must then file suit within 90 days

after the receipt of the letter. In order to prevent undue delays

if the EEOC’s mediation machinery is overloaded, an employ-

ee may obtain a right-to-sue letter and may sue the employer

within 180 days after the filing of his EEOC claim. Any lawsuit

filed before the receipt of the right-to-sue letter is premature

and subject to dismissal.

The legislative history of Title VII is somewhat sparse. This

is largely due to the fact that it was just part of the momentous

Civil Rights Act of 1964. Other parts of that Act attracted more

attention in Congress. However, the Title VII procedural

requirements are clear on their face and nothing in the legisla-

tive history contradicts this facial intent. It is clear that Con-

gress did not intend for every employee who had an allegation

of employment discrimination to have a cause of action in

federal court absent the pursuit of EEOC administrative rem-

edies. Thus, the EEOC effectively stands at the door of the

courthouse in the congressional scheme.

One factor that motivated Congress to construct Title VII

administrative framework was the belief that voluntary com-

pliance with Title VII’s mandate was preferable to compelled

compliance. Dent v. St. Louis-San Francisco Railway Com-

pany, 406 F. 2d 399, 402, 1 FEP Cases 583, 70 LRRM 2284 (5th

Cir. 1969); Stebbins v. Nationwide Mutual Insurance Com-

pany, 382 F. 2d 267, 268, 1 FEP Cases 235, 66 LRRM 2133 (4th

Cir. 1967). Thus, the EEOC was instituted to effectuate this

desire.

Another powerful motivating factor in this scheme is the

protection of the work load of the courts. If the administrative

procedures which are conditions precedent to filing lawsuits

are eliminated, the courts would sink under an intolerably

69a

oppressive burden. Indeed, in 1975 for example, the EEOC

had a backlog of over 120,000 charges (B. Schlei & P. Gross-

man, Employment Discrimination Law 769 (1975)). The

EEOC, if fully given the chance to operate, may solve many

employer-employee disputes through mediation. Thus, many

potential lawsuits and the resulting court congestion may be

avoided by giving the EEOC an opportunity to perform its

statutorily-mandated function. The procedural formalities of

Title VII should be respected for this reason.

The court’s ruling today on this issue will have major

adverse consequences. No plaintiff now need wait for the

EEOC to mediate his claims with the employer before filing

suit in the district court. Rather, in an attempt to get to trial

earlier, plaintiffs will file complaints with the EEOC and the

district court simultaneously. The EEOC, as in the instant

case, may issue a right-to-sue letter simply because suit has

already been filed in the district court. Thus, by holding that

the receipt by Pinkard and Lofton of right-to-sue letters from

the EEOC after their filing suit cures the procedural defect,

the court invites abuse from Title VII plaintiffs.

Lofton and Pinkard wanted to sue under Title VII without

pursuing their EEOC remedies. They filed their EEOC claims

and promptly filed their lawsuits, after which they received

their right-to-sue letters. Indeed, the reason the EEOC issued

the right-to-sue letters was because this lawsuit was already

pending in the district court. Thus, Pinkard and Lofton did not

give the EEOC a chance to reconcile their differences with

Pullman. This may well impose a significant burden upon the

courts and it frustrates the congressional scheme. This situa-

tion should not be allowed to come to pass.

Requiring exhaustion of administrative remedies, unless

there is some equitable reason for not doing so, is in accord with

Gibson v. Kroger Co., 506 F.2d 647, 8 FEP Cases 1286 (7th

Cir.), cert. denied, 421 U.S. 914, 95 S.Ct. 1571, 43 L.Ed.2d

779, 12 FEP Cases 555 (1975). However, this position is not

inconsistent with such cases as Henderson v. Eastern Freight

70a

Ways, Inc., 460 F.2d 258, 4 FEP Cases 726 (4th Cir.), cert.

denied, 410 U.S. 912, 93 S.Ct. 976, 35 L.Ed.2d 275, 5 FEP

Cases 1224 (1972) and Clanton v. Orleans Parish School Board,

649 F.2d 1084, 26 FEP Cases 740 (5th Cir. 1981). Equitable

considerations can validate a right-to-sue letter received after

suit has been filed or even eliminate the necessity of obtaining

one.

In Henderson, supra, relied upon by the majority, for ex-

ample, the Fourth Circuit was confronted with a bizarre fac-

tual situation which mandated a finding for the plaintiff. The

plaintiff there filed three charges at various times with the

EEOC. The first charge was filed against the employer, the

second was filed against the employer and the union, and the

third was filed against the union. A copy of the second charge

was submitted with the third charge. The first charge was

dismissed by the EEOC with the plaintiff taking no action on it.

The Commission issued a right-to-sue letter on the third

charge in May 1969. The second charge followed “an erratic

course” in the bureaucracy, “bobbing back and forth” until a

right-to-sue letter was issued in early 1970. The plaintiff filed

suit in August 1969 on charges two and three. It was unclear

whether the right-to-sue letter issued in May 1969 covered

charge two. Although the EEOC subsequently determined

that it did not and issued another right-to-sue letter, the court

of appeals ruled that the right-to-sue letter issued in 1970

cured any problem the plaintiff had with filing suit on charge

two in 1969. Given the equities of that situation, the holding

was clearly proper. :

Although relied upon by the majority, Clanton v. Orleans

Parish School Board, 649 F.2d 1084, 1095, 26 FEP Cases 740

(5th Cir. 1981), is inno manner similar on its facts or supportive

of the majority’s opinion. In that case, the EEOC, rather than

the Attorney General, as arguably required by 42 U.S.C.

§ 2000e-5(f)(1), issued the right-to-sue letter. The panel held

that a subsequent right-to-sue letter issued by the Attorney

General rectified the situation, assuming arguendo, that the

71a

Attorney General and not the EEOC was required to issue the

right-to-sue letter.

This court in Crawford v. United States Steel Corp., 660

F. 2d 663, 27 FEP Cases 1084 (5th Cir. 1981), was also con-

fronted with equitable factors which mandated a holding that

when several men have claims of similar discriminatory treat-

ment at the hands of an employer, only one of them must file

with the EEOC. Crawford arose out of the protracted and

bitter litigation involving the employment practices of U.S.

Steel at its Fairfield, Alabama plant. Originally, twenty-one

black employees, most of whom had complied with all the Title

VII requirements, filed suit against U.S. Steel. All of these

plaintiffs had been eligible for backpay tenders under the na-

tionwide steel industry consent decree approved in United

States v. Allegheny-Ludlum Industries, Inc. , 517 F.2d 826, 11

FEP Cases 167 (5th Cir. 1975) and were also members of the

so-called “new Ford class” that first made its appearance in

this circuit in United States v. United States Steel, 520 F.2d

1043, 11 FEP Cases 553 (5th Cir. 1976). However, the plain-

tiffs were dissatisfied with the relief offered them in

Allegheny-Ludlum, which prompted them to file suit. Before

the commencement of discovery the plaintiffs sought leave to

amend their complaint to allege a class action. The district

court denied this motion and also granted summary judgment

against seven of the twenty-one plaintiffs because they had not

followed the proper EEOC procedures prior to filing suit. This

court affirmed the district court’s denial of class certification

but reversed the summary judgment against the seven plain-

tiffs who had not filed EEOC complaints.

The panel in Crawford announced that the claims of the

seven plaintiffs who failed to file the EEOC charges were

substantially similar to the fourteen who followed the proper

procedures. All claimed that they were given improper senior-

ity dates, passed over for promotion, and denied adequate

union representation. Further, the court stated that the pur-

pose of the filing requirement was not served by requiring each

72a

plaintiff to file essentially identical charges. The mediation

channels were already filled with claiins substantially similar

to the seven in question. Given the fact that the claims were

virtually identical, the existence of the consent decree, and

that nothing could be achieved through the administrative

process, compelling reasons existed for waiving the formal

requirements of Title VII actions.

In Clanton, Henderson, and Crawford, equitable factors

were present which required a setting aside of the strict pro-

cedural requirements of Title VII. In Clanton, as in Hender-

son, an unusual factual situation brought about by the govern-

ment’s mishandled paperwork existed. In both cases, plaintiffs

who in good faith attempted to comply with the EEOC require-

ments would have found their access to the courts barred

through the fault of the government. Neither court could allow

that scenario to come to pass. There are no such equities in the

instant case. Instead of good faith, there is bad faith on the part

of Pinkard and Lofton.

In Crawford, claims were so similar and the possibility of

settlement was so unlikely, it would clearly have been un-

reasonable to force each individual plaintiff to rigidly comply

with Title VII's requirements. Again, we have no such equities

present here. Al! that Pinkard and Lofton have in common

with Sealie and Holston (or, indeed, with each other) is that

they are black and that they were fired by Pullman. Each of the

four disputes were quite distinct and arose from very different

factual situations. Therefore, Crawford too is inapposite.

Pinkard and Lofton ignored the statutorily-mandated

EEOC procedures with no justification. Thus, the subsequent

issuance of the right-to-sue letters did not cure the failure to

exhaust as mandated by Congress.

Lastly, I note in passing that the fourth factor considered by

the Supreme Court in Zipes v. Trans World Airlines, supra, is

not satisfied in this case. The EEOC did not fulfill its function of

investigating the employee’s charge and attempting concilia-

tion in the instant case. Rather, it simply issued a right-to-sue

73a

letter because the action was already pending in the district

court. Thus, the statutorily-mandated procedures have been

ignored both in form and in substance in the instant case

For the above reasons, I am unable to accept the court’s

opinion on this issue. Therefore, I dissent.

B. Merits Of The Title VII Claims

1. Cirevit Judge Kravitch

The district court held that none of the plaintiffs proved that

they were discriminatorily discharged in vivlation of Title VII.

I agree with the district court’s disposition of the Title VII

claims raised by plaintiffs Sealie, Holston, and Lofton for the

reasons discussed in Part III of this opinion. Similarly, I would

affirm the district court’s finding that Pinkard failed to estab-

lish that he was the victim of racial discrimination in violation of

42 U.S.C. § 2000e-2," however, for the same reasons for which

we reverse the district court’s denial of Pinkard’s § 1981 claim,

Part III infra, the record compels the conclusion that Pullman-

Standard Co. discharged Pinkard in retaliation for his opposi-

tion to unlawful employment practices in violation of 42 U.S.C.

§ 2000e3,° and accordingly I would reverse the district court’s

disposition of Pinkard’s Title VII claim raised under that sec-

tion.

*42 U.S.C. § 2000e-2 states in pertinent part:

(a) It shall be an unlawful emplo reren

er to fail or refuse to hire or to y individual, with

respect to discrimina‘e against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual's race, color, religion, sex, or pr ne

origin.

42 U.S.C. § 2000e-3 states in pertinent part:

— — SS —

discriminate his employees or applicants f.

or em-

ployment, for an po Bee agency, or joint labor-

management committee controlling or other

training or retraining, including on-the-job training programs,

T4a

2. Cireuit Judge Clark

As noted above, I do not believe that he Title VII claims of

Pinkard and Lofton were properly before the district court.

Therefore, I do not believe that they are entitled to a recovery.

3. District Judge Lynne

The logical analysis of the jurisdictional issue, authored by

Judge Kravitch, is unanswerable. In concurring therewith, I

add by way of emphasis that what we review is the court's

conclusion that “it lacks jurisdiction over the claims of plaintiffs

Pinkard and Lofton relating to Title VII,” for the reason that

neither had received a right-to-sue letter before filing his com-

plaint. That the court erred is made crystal clear by Zipes v.

Trans World Airlines, Inc., 455 U. S., 102 S.Ct. 1127, 71

L. Ed. 2d 234, 28 FEP Cases 1 (1982). If filing a timely charge of

discrimination with the EEOC is not a jurisdictional prere-

quisite to suit in federal court, it follows ineluctably that neith-

er is the issuance of a letter which is triggered only by the filing

of such a charge. I cannot agree that the doctrine of exhaustion

of administrative remedies is apposite to the issue before us. It

is noteworthy that in Zipes the Supreme Court did not bow in

its direction in holding that the district court had authority to

award relief.

Notwithstanding our holding that the district court erred in

its determination that it lacked jurisdiction over the Title VII

claims, I would affirm for the reason that the discharges com-

plained of were expressly found by the court to have been for a

legitimate, non-pretextual reason, a defense equally available

to discriminate against any individual, or for a labor organizat =

to discriminate against any member thereof or applicant f

made an

75a

to a claim of discriminatory discharge posited either upon 42

U.S.C. § 2000e-3(a) or 42 U.S.C. § 1981. In my opinion that

finding was not clearly erroneous.

4. Conclusion

Because the majority of the panel, although for different

reasons, would deny the Title VII claims, the district court’s

disposition of these claims is affirmed.

IV. The § 1981 Claims

We now turn to whether the trial court erred in concluding

that the plaintiffs failed to establish a case of racial discrimina-

tion under 42 U.S.C. § 1981.“ In this circuit, it is well settled

that “Section 1981 is a parallel remedy against discrimination

which may derive its legal principles from Title VII.“ There-

fore, in considering the merits of this appeal, we apply the now

familiar McDonnell Douglas guidelines, as interpreted in

Texas Dept. of Community Affairs v. Burdine,“ for proving

racial discrimination.” Plaintiff must first establish the prima

facie elements of a discriminatory discharge. The defendant

42 U.S.C. § 1981 states:

All persons within the jurisdiction of the United States shall

have the same right in every State and Territory to make and

enforce contracts, to sue, be parties, give evidence, and to the

Sh end eq — of ol lowe and for the securit

Soe poy pat Ane by white citizens, and shal

subject to — taxes, nses,

and exactions of every kind, pope —

Blum v. Gulf Oil Corp., 597 F.2d 936, 938, 20 FEP Cases 108 (5th

cir. 1979), and see Garcia v. Gloor, 609 F. 2d 156, 164, 21 FEP Cases

884 (5th cir. 1980).

450 U.S. 248, 101 S.Ct. 1089, 67 L. Ed.2d 207, 25 FEP Cases 113

(1981).

Me Donnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,

36 L.Ed.2d 668, 5 FEP Cases 965 (1973).

76a

then has the burden of coming forward with a legitimate

nondiscriminatory reason for its actions, after which the bur-

den shifts back to the plaintiff to prove that the employer's

stated justification is pretextual.

A. Pinkard’s Claims

1. Cireuit Judge Clark With Circuit Judge Kravitct.,

Concurring

Louis Pinkard was hired by Pullman-Standard in July 1962.

He was assigned initially to the stee! erection department as a

freight assembler, a department which was 98% black with the

sole exception of the riveter and foreman, who were white. For

eight years, from 1962 until 1970, when Pinkard became a shop

steward, Pinkard was a responsible and competent employee.

Pinkard's disciplinary record during that time was exemplary.

For over eight years he was never reprimanded, warned, or

disciplined for any of his work-related or union activities.

Neither did he initiate, nor participate in, the filing of any

grievances.

The appellant began to rise through the ranks of union

leadership in 1970. He first became a union shop steward, and

then in August 197i, Pinkard was elevated to the position of

foreman over the company’s newly created night shift. The

appellant held that position from August until November, and

it was about this time that the relationship between Pinkard

and the company began to change.

The first sign of conflict between the parties occurred in

June 1971 and involved the circulation of a petition to change

the number of cars which were produced on the production

lineup within a given day. The union had authority, under the

contract, to permit grievance committeemen to file such grie-

vances, although Pinkard was at that time only a shop steward.

The incident is significant because it demonstrated the nature

of Pinkard’s shifting relationship with the company.

a

The petition was initiated at a union meeting at the local

union hall. That afternoon Pinkard and several other employ-

ees took the petition over to the home of Perry Thompson,

President of the Local, who was ill at the time. As Pinkard

testified:

He [Thompson] was ill at the time and he advised me that I

should take this list and go in the plant the next morning at

work and seek as many signatures as I deen to present to

the other grievance committeemen .

Record, vol. 3, at 390.

After successfully gathering an impressive list of signatures

the next day, Pinkard was called to James Hudson's office,

Director of Industrial Relations for the company, and told that

he was in violation of the contract prohibiting solicitation of

signatures during company time. While the evidence regard-

ing whether Pinkard actually solicited signatures during work

time as conflicting, Pinkard was nonetheless informed “that

this would be placed on his record.” Id. at 391.

In June 1973, Pinkard was elevated to the position of griev-

ance committeeman. Pinkard was the sole black committee-

man among six. From this time forward the relationship be-

tween the appellant and the company became increasingly

strained. During the three years between 1973 and 1976, Pink-

ard championed minority and union rights and filed numerous

grievances alleging racial discrimination in various aspects of

the company’s operations. Although the court below found that

some of these grievances “were frivolous,” the court also found

that “many were not.”

In 1974, one year after becoming a grievance committtee-

man, Pinkard became involved in a major employment dis-

— lawsuit against Pullman-Standard alleging that

the company’s departmental seniority system perpetuated the

effects of past discrimination. That lawsuit culminated in

Swint v. Pullman-Standard, 539 F.2d 77, 13 FEP Case 604 (5th

Cir. 1976), after remand, 624 F. 2d 525, 23 FEP Cases 748 (5th

Cir. 1980), rev'd. and remanded, 456 U.S., 102 S. Ct. 1781,

72 L.Ed.2d , 28 FEP Cases 1073 (1982).

78a

Throughout the Swint litigation, Pinkard assumed a major

role. He attended each of the sixteen days of trial, sat at

counsel table, and assisted counsel in preparing for trial. He

served a subpoena on at least one company official and was in

every respect a highly visible and vocal participant throughout

the proceedings. Everything in the record suggests that Pink-

ard was a major, if not the primary, force behind the litigation.

The Swint case proceeded to trial, and the trial court ruled in

favor of the company. Although Swint was reversed on appeal

in this court, between the issuance of the district court opinion

and the appellate court’s reversal, Pinkard was fired.

In cannot be doubted that Pinkard's participation in the

Swint trial further exacerbated the relationship between Pink-

ard and the company. The increased strain can readily be

evidenced by a November 8, 1974 grievance which Pinkard

filed against the company. In that grievance, Pinkard alleged

that:

For some time now I have had the feeling that there is a

conspiracy at the company to fire me. Is it because I filed

c s at EEOC —_— the company? Is it because I

testified in Federal Court against the company?

XR X *

Two of the 23 representatives have made state-

ments to Larry ullough that they were going to fire

me.

Record, vol. 3, at 573.

The grievance was investigated by the company, resulting in

the release to Pinkard of his complete employment and dis-

ciplinary records. The company, however, concluded that

At here is no conspiracy on the part of the company to dis-

charge Louis Pinkard.” Id. Although this court draws no con-

clusions regarding the existence or nonexistence of the alleged

conspiracy, we do consider this grievance, following

immediately on the heels of the Swint trial, to be a significant

indicator of the charged atmosphere that existed on February

4, 1976, the day Pinkard’s alleged “insubordination” prompted

the company to discharge appellant.

79a

The incidents for which Pinkard was discharged occurred on

February 4, 1976. We focus primarily on the events which

occurred that day despite management’s contention that prior

incidents, including the petition circulation incident described

above, contributed to their decision to discharge appellant. We

do not consider the 1971 petition circulation or the alleged 1974

work stoppage to have been major contributing factors to

Pinkard’s discharge, and accordingly, we focus our attentions

on the events of February 4.

The incident which precipitated Pinkard's discharge in-

volved insubordination toward a black foreman, Dave Mason.

On February 4, shortly after arriving for work, Pinkard was

approached by Neal Bell, a shop steward, and was asked to

handle a written warning directed at an employee. On a pre-

vious occasion, Pinkard had orally reprimanded this employee

for tardiness, and the written warning which Pinkard had been

requested to give him concerned the identical incidents for

which the employee had been orally reprimanded.

Based on this request, it was Pinkard’s opinion that the

employee was being subjected to disciplinary “double jeopar-

dy,” prompting Pinkard to ask the foreman, “Mr. Mason, how

about you, Mr. Moss [Plant Manager] and myself and [the

employee] having a little meeting to discuss this, because, we

are supposed to have already settied it.” Record, vol. 3, at 410.

Although Mason stated that he believed such a meeting would

serve no purpose, Pinkard requested that Mason find a relief

man so that Pinkard could leave his assigned wor! area in order

to resolve the matter, and Mason granted the request.

Pinkard and Mason then went to James Moss’ office (the

plant manager) to discuss the matter. Conflicting testimony

was given as to what next transpired. According to both Pink-

ard and Mason, when the two men entered the room, Moss and

another foreman were present, and Moss was in the process of

writing the company’s daily work reports at his desk. Pinkard

said “good morning,” but Moss and the other foreman con-

tinued their paperwork. Although Mason’s testimony corrobo-

rated Pinkard’s testimony, the two men differed slightly as to

80a

the amount of time Pinkard was left standing in the office. As

Pinkard testified:

Neither man spoke. A few minutes later Dave said,

“Okay, Mr. Pinkard, — with your complaint.“ I said

2 the won't won't speak. They might not

talk,” just li e that. Well. bm whirled around in his chair

said, “Do you want to make something out of it?”

Record, vol. 3, at 410.

Mason’s description of the incident correlates substantially

with Pinkard’s, except that Mason did not mention Moss’

alleged retort to Pinkard. As Mason testified:

I don’t know whether it was several minutes or not, but

they kept working on their paper.

Q. [by counsel] Nobody was saying anything during that

time?

A. Mr. Pinkard was talking to me. He said, “These peo-

ple don’t seem like they want to speak. I just as soon

go to the front office.

Record, vol. 4, at 901.

Moss’s testimony is only slightly different from Mason’s and

Pinkard’s, although it permits inferences somewhat more

favorable to the company. As Moss testified:

So, I looked up and spoke to Mr. Pinkard when he came in

the door. I just went on filling my report out—I don’t

know, a matter of two or three minutes. Mr. Pinkard said,

“These people don’t even want to talk to me. I just as well

to go down to the main office.”

By Pinkard’s reference to the “front office,” Pinkard had

expressed his desire to go to the company’s central office in

order to press further his claim for a meeting at which the

disciplined employee could be personally present to discuss the

written warning. When Moss refused both of Pinkard’s re-

quests, Pinkard asked if he could obtain a witness who could

testify that management had refused to allow Pinkard to seek

out the plant manager.

8la

At this point the testimony becomes even more conflicting.

Mason and Moss both testified that Mason ordered Pinkard to

return to work. Pinkard denied this. The district court found

that the evidence as to whether Mason had so directed was

conflicting, and therefore refused to base its decision upon

Pinkard’s alleged refusal to obey an order to return to work.

Pinkard then left Moss’ office and tried to locate Neal Bell, a

shop steward. Upon discovering that Bell had left his regular

work station, Pii.kard returned to his job and found Mason and

Bell waiting for him. Approximately fifteen minutes had

elapsed. Mason then stated to Pinkard that he had told Pinkard

to report back to his job. Pinkard replied that Mason had not

told him to return to the job, and when Mason insisted that he

had so directed Pinkard, Pinkard stated, “Dave, you are lying.

You didn’t tell me that.” Mason replied, “I have got two witnes-

ses that heard me tell you that.” Pinkard responded, “Dave,

your two witnesses would be lying.” Record, vol. 3, at 411.

Mason then informed Pinkard that he should accompany

Mason to the industrial relations assistant’s office. Pinkard

refused to come to the meeting. Mason then told him, “well,

you go back and go on your job,” which Pinkard did. Mason

then reported back to plant management, telling them that

Pinkard had refused to attend the meeting. At that point the

industrial relations management decided to conduct a full in-

vestigation in order to determine whether Pinkard should be

disciplined for insubordination.

During the next eight days, Pul!man conducted its investiga-

tion, talked with each witness and employee involved, and

worked in fulll cooperation with its highest level of industrial

relations management in Chicago. The result was a letter

issued on February 12, 1976, which had been prepared by the

industrial relations department and signed by Moss. The letter

stated:

After careful consideration of your conduct of last week,

the Company has concluded that you have been guilty of

serious misconduct, including acts of insubordination to

Track Foreman Dave Mason. You have been repeatedly

82a

warned and — in the past to follow the contractual

grievance procedure in the handling of your own com-

plaints or those of — ere. - . Based on these

matters and a careful review o f your entire disciplinary

and work record, we have decided to discharge you effec-

tive immediately upon your receipt of this notice."

As soon as Pinkard was discharged, the company and

management experienced an immediate lessening in tension.

There can be no question that all the parties involved, with the

possible exception of Pinkard, were relieved. A few excerpts

from the testimony will convey this. James Moss testified, for

example, that prior to Pinkard’s discharge he had received

approximately thirty-one grievances during the past year, but

that after he [Pinkard] left it was just like a different place to

work. There wasn’t no grievances.” Record, vol. 4, at 848.

Similarly, Dave Mason testined that, “after Mr. Pinkard got

fire, everything went nice out there. You didn’t have that kind

of trouble. It was a whole lot better place to work.” Id. at 898.

The trial court held that the plaintiff “gave the defendant

ample justification for his discharge . . . and the court nothing

to substantiate his charge of racial discrimination.” The court

relied upon two grounds in so holding, appellant’s abuse of the

contractual grievance procedures and his insubordination.

[4] Turning first to appellant’s alleged abuse of the con-

tractual grievance procedures, our own consideration of the

transcript leads this court to find that the trial court’s con-

In evaluating management's response to the events of February

4, we note that no Pullman employee previously had been discharged

for calling his foreman “a liar.” Although the facts surrounding other

name-calling incidents were less extreme than those involved in the

instant case, we nevertheless acknowledge that A.L. Hulsey, a white

union official, testified that he had heard other employees tell fore-

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