Petition — Local Union No. 3, International Brotherhood of Electrical Workers v. Ingram

i

Is THE

Supreme Court of the Anited States

October Term, 1983

LOCAL UNION NO. 3 INTERNATIONAL BROTHER-

HOOD OF ELECTRICAL WORKERS, AFL-CIO,

Petitioner,

v.

HENRY INGRAM, JAMES BRITT, WILLIAM MOODY

and ROY T. FLOYD, individually and on behalf of

all persons similarly situated,

and

SHELLY L. ANDERSON, JAMES L. PERRY, indivicn-

ally and on behalf of all others similarly situated,

Respondents.

Petition for a Writ of Certiorari to The United States

Court of Appeals for the Second Circuit

Norman RoTHFELD

Attorney for Petitioner

276 Fifth Avenue

New York, NY 10001

(212) 696-4010

‘

Questions Presented.

1. Do the Civil Rights Acts impose upon a union an

obligation to recruit class members when the only nexus

between the union and the class is the fact that some class

members work adjacent to union members?

2. Does this Court’s teaching in United Parcel Service

v. Mitchell mandate the application of statutes of limita-

tion contained in state Fair Employment Practices Acts,

rather than of state statutes of limitation for negligent

torts, to cases involving intentional discrimination under

§1981?

3. Is the appropriate standard for determining union

agency in Civil Rights cases

(a) this Court’s teaching in United Mine Workers vy.

Gibbs applying the clear proof standard, or

(b) this Court’s teaching in Carbon Fuel v. United Mine

Workers that unions are not held liable for damages ab-

sent proof of instigation, ratification, support or en-

couragement of the prohibited acts or

(c) applicable state law determining union liability for

members’ acts or

(d) none of the above?

4. Which, if any, of these four teachings of this Court

shouid be applied in connection with the determination of

backpay awards against unions in Civil Rights cases?

(a) the teaching that only actual futility, not a

reasonable belief of futility, excuses a union member’s

ii.

failure to appeal to all designated union officials in a fair

representation case (Clayton vy. International Union

UAW);

(b) the teaching that a claimant must mitigate damages

by taking the desired job without retroactive seniority,

without abandoning his claim for such seniority (Ford

Motor Company v. EEOC);

(c) the teaching that a misjudgment of an applicant’s

objective job qualifications which is not found to be

pretextual does not expose a defendant to liability (Texas

Department of Community Affairs v. Burdine), and

(d) the teaching that NLRB principles should guide the

courts in ta.loring Civil Rights Act remedies (7eamsters v.

United States), with respect to the abatement of union

backpay liability.

5. Is a fully compensatory award to an attorney who

obtained no class benefit for that work and who prevailed

primarily in obtaining backpay awards which he shared

through contingency retainers necessarily contrary to this

Court’s teaching in Hensley v. Eckerhart?

iii.

Table of Contents.

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The Reasons for Granting a Writ ................

1. The unconscionable affirmative obligation im-

posed upon unions by this decision.........

II. The conflict in circuits relating to Statutes of

RE at viesdus duces ponseueuenueas

III. The standard of determination of union agency

applicable to civil rights cases requires clarifi-

GE hk cu sb Sasddnecieyas pee petbuedanwaey

IV. The backpay awards appear to conflict with

four teachings of this Court ...............

(a) The requirement of clear proof of actual

PEE dnc sxe h id-dchdvetbesvankeceseoees

10

11

13

14

14

iv.

Page

(b) The requirement of acceptance of desired

jobs without retroactive seniority .......... 15

(c) The unwarranted exposure to liability with

respect to applicants deemed unqualified for

| BEEP Te Terre rr 16

(d) The NLRB teaching that union liability for

backpay abates when the union withdraws its

interference with the employment of the

SN 66 eke Kio b.c ke opens vwancurdexs 17

V. The fully compensatory award of $217,000 to an

attorney who obtained no class benefit for

that work, and who prevailed primarily in ob-

taining backpay awards which he shared

through contingency retainers, clearly is con-

trary to this Court’s teaching in Hensley v.

BEE op cenicls h hakiteewkven se tab saba 18

Conclusion. The petition for a writ of certiorari to

the United States Court_af Appeals for the

Second Circuit-should be granted... ....... 19

Appendices... .. : cra - ede Separately bound

TABLE OF*AUTHORITIES.

CASES:

Burns v. Sullivan, Ist Cir. 1980,619 F.2d 99....... 12

Carbon Fuel Co. v. Mine Workers, 444 U. S. 212

SENG an b/c S Lie on dela w ao eld Ka oe ha 13

Page

Clayton v. International Union, UAW, 451 U. S.

SUE Sos 66s ud oS tees 3 Oe cea 9,15

DelCostello v. International Brotherhood of Team-

sters, 51 U.S.L.W. 4692 (U. S., June 8, 1983) 12

Ford Motor Company v. EEOC, 102 S. ©. 3057,

LL dai haien’ acd pubide aeuuee haus 16

Hensley v. Eckerhart (U. S., May 16, 1983), 31 FEP

CUE 5:65 ocukedtneb ce daeenwebuenie 18

Martin v. Curran, 303 N. Y. 276, 101 N. E. 2d 683

SUPRA cia cc hlus 4's Lalas of naar eee ate 13

Morrissey v. National Maritime Union of America,

SUOT.. ae EP GE Ci, TOP 5 bis dens vceccces 13

Teamsters v. United States, 1977, 431 U.S. 324.... 9,10

Texas Department of Community Affairs v. Bur-

dine, 450 U. S. 248 (1981)... ww cece ween 17

United Mine Workers v. Gibbs, 383 U.S. 715 (1966) 13

United Parcel Service v. Mitchell, 451 U. S. 56

GOED oe bcs oc vwkw ekenbiee aac eeaxe eee 12

STATUTES CITED:

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

DPE. c vin dweddoWahwicksGeeeancas =

ME Als Bn Ms BEM A ad scenes tise cabsanscabeeaeead 3,4

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983.

No.

LOCAL UNION NO. 3 INTERNATIONAL BROTHERHOOD

OF ELECTRICAL WORKERS, AFL-CIO,

Petitioner,

Vv.

HENRY INGRAM, JAMES BRITT, WILLIAM MOODY, and

ROY T. FLOYD, individually and on behalf of all per-

sons similarly situated,

and

SHELLY L. ANDERSON, JAMES L. PERRY, individually

and on behalf of all others similarly situated,

Respondents.

Petition for a Writ of Certiorari to the United States Court

of Appeals for the Second Circuit.

2

Petitioner prays that a writ of certiorari issue to review

the judgment and opinion of the United States Court of

Appeals for the Second Circuit in this case.

Opinions Below.

The opinion of the Court of Appeals for the Second Cir-

Cuit is reported at 709 F. 2d 807 and at 32 FEP Cases 41

and appears in the Appendix hereto (1a). It affirmed as

modified the decisions of the United States District Court

for the Southern District of New York (Sand, J.), reported

at 482 F. Supp. 414, 21 FEP Cases 718, 482 F. Supp. 426,

32 FEP Cases 536, 482 F. Supp. 918, 32 FEP Cases 538,

535 F. Supp. 1082, 32 FEP Cases $47 and 21 FEP Cases 71

all of which appear in the Appendix. These decisions, inter

alia, awarded the plaintiffs in this class employment

discrimination suit backpay, frontpay and attorneys’ fees,

the total monetary award, with interest, being in excess of

one million dollars. The Second Circuit affirmed as not

clearly erroneous the District Court’s adjudication of

liability, and it modified the District Court’s award upon

its finding that only seven persons were victims of the

union’s discrimination, in that no more than seven class

members would have been hired as laborers absent dis-

crimination. The Second Circuit thereupon divided the

District Court’s backpay awards to seven persons, total-

ling $345,716, among the eighteen class members to whom

the District Court awarded backpay.

The Second Circuit approved the District Court’s al-

lowance to plaintiffs’ attorney of a fee ‘‘based upon 1,280

hours at $100 an hour,’’ and apparently overlooked the

fact that the effect of its modification was to fix the at-

torney’s allowance at $217,447.

3

Jurisdiction.

The judgment of the Court of Appeals for the Second

Circuit was entered on June 13, 1983. This petition for cer-

tiorari was filed within ninety days of that date. The

Court’s jurisdiction is invoked under 62 Stat. 928, 28 U.S.

C. §1254(1).

Statutes Involved.

The statutes involved are 42 U. S. C. 1981 and 42 U. S.

C. 2000, the pertinent texts of which are set forth in the

Appendix.

Statement of the Case.

A. The proceedings below.

On August 13, 1973, respondents Ingram, Britt,

Moody, and Floyd, black porters working at Madison

Square Garden for Allied Maintenance Corporation and

represented by Local 54 of the Service Employees Interna-

tional Union, filed charges against Madison Square

Garden Center, Inc. (Garden) and Allied Maintenance

Corporation (Allied) with the Equal Employment Oppor-

tunity Commission, pursuant to Title VII of the Civil

Rights Act of 1964, 42 U. S. C. §2000e ef seq., alleging

that Garden and Allied discriminated against them and

other black porters by paying them less than the white

laborers for doing similar work and by maintaining

segregated job classifications. The EEOC concluded that

the Garden and Allied were violating Title VII, and, on

October 4, 1976, following unsuccessful conciliation ef-

forts, issued right-to-sue letters to the four complainants.

On December 30, 1976, the porters filed a proposed class

4

action suit against the Garden and Allied, alleging viola-

tions of 42 U. S. C. §§ 1981 and 1985 as well as Title VII.

On June 22, 1977, Local 3 was added to the litigation by

means of an amended complaint, which charged that the

Union was actively and passively conspiring with Garden

and Allied to discourage minority cleaners from seeking

and obtaining jobs as laborers.

On November 24, 1975, respondents Anderson and

Perry, black porters who worked at the Garden, filed

discrimination charges with the EEOC against the Garden,

Allied, and Local 3. On January 16, 1978, a right-to-sue

letter issued, and on March 31, 1978, a proposed class ac-

tion complaint on behalf of the Anderson group was filed.

The District Court certified a Title VII class and a

§§ 1981 and 1985 class in both actions. In the /ngram ac-

tion, the Title VII class, whose claims, of necessity, were

limited to the Garden and Allied, consisted of all blacks

who, after February 14, 1973, had been or would be em-

ployed as cleaners at the Garden. The §§ 1981 and 1985

class consisted of all blacks and Hispanics who, after

December 30, 1973, had been or would be employed as

cleaners at the Garden. Certification of both classes in /n-

gram was conditioned on the intervention of lavatory and

bowling alley attendants and elevator operators as named

plaintiffs. Thereafter, Williams, a black lavatory attend-

ant, Milon, a black bowling alley attendant, Mitchell, a

black elevator operator, Bruton, a retired black cleaner,

and Garcia, an Hispanic cleaner, intervened. The Ander-

son classes were defined in the same manner as those of /n-

gram, except that the Title VII Anderson class limitation

was May 28, 1975, and the §§ 1981 and 1985 Anderson

class limitation was March 31, 1975, and both classes

claimed against the Garden, Allied, and Local 3.

5

On July 13, 1978, the Jngram and Anderson actions

were consolidated. On July 16, 1979, the District Court

denied the Union’s motion to decertify the classes. Subse-

quently, the plaintiffs entered into a proposed consent

decree with the Garden and Allied, in which the Garden

agreed among other things to hire five named class

members, and defendants agreed to pay $117,500 in settle-

ment of plaintiffs’ monetary claims plus $47,500 in at-

torneys’ fees. On October 23, 1979, the settlement was ap-

proved by the District Court (61a). In the meantime, the

case had proceeded to trial against Local 3 on the issue of

liability. On October 3, 1979 the District Court dismissed

plaintiffs’ §1985 claims, and held the Union liable under

both Title VII and §1981 (48a).

The District Court referred the factual remedial issues

to a Magistrate and instructed the Magistrate to award

backpay and seniority to every class member who desired a

laborer’s job as of the date of the next laborer hire that

followed his application or ‘‘qualifying desire,’’ the

backpay being subject to the 2-year limitation period of

Title VII and the 3-year limitation period applicable in

New York to §1981 (90a).

Upon receipt of the Magistrate’s Report and Recom-

mendations, the District Court, inter alia, awarded the

plaintiff's backpay, frontpay, and attorneys’ fees, the total

monetary award with interest being in excess of one mil-

lion dollars. Timely notice of appeal to the Second Circuit

was filed by the petitioner, and on June 13, 1983, a panel

of the Second Circuit affirmed as modified the decision of

the District Court.

B. The facts.

Approximately sixty permanent laborers usually are

employed at Madison Square Garden (Garden), primarily

6

to perform the strenuous stagehand work of effecting the

changeovers for Garden’s entertainment events, which re-

quires moving heavy objects and making repairs. Between

1965 and 1977, Local 3 referred 66 laborers to the Garden.

Ten, or fifteen percent, of these were either black or

Hispanic. Referrals by the Union of only seven additional

blacks or Hispanics would have raised its minority referral

percentage to approximately 26% and thus would have

altered the racial composition of Garden laborers so that it

approximated that of the general Metropolitan area

(6a-7a).

The District Court drew an inference of discrimination

from the ‘‘statistical disparity’’ evidenced by the figures

(58a) and found that Local 3 ‘‘hired /sic/ blacks or

Hispanics * * * in numbers significantly below their

percentage in the labor market surrounding the Garden’”’

(153a).

The District Court found, among other things, that the

efforts of several class members to secure laborers’ posi-

tions were deliberately frustrated by union personnel who

on several occasions ‘‘either ignored, gave evasive answers

to or just generally gave the run-around to class members

who sought information from them as to how to become a

laborer’’ [emphasis supplied], and that this ‘‘ ‘[got] the

message across’ and created an atmosphere which dis-

couraged class members from actively seeking a laborer’s

position’’ (33a-34a). The Court coupled the frustrating

conversations with the ‘‘statistical disparity’’ and the

**standardless’’ method of referral to support a finding of

discriminatory intent (120a). The only ‘‘union personnel’”’

identified as having either ‘‘ignored’’ or given evasive

answers or a ‘run-around’ to anyone was Mel Mullins, a

laborer shop steward, who played no role in the referral or

7

hiring process. Mullins became laborer steward in 1968.

No plaintiff testified that Mullins gave him a ‘runaround’

after 1971.

James O’Hara, the Union representative for the Garden

laborers and the person who made job referrals, received

over 300 requests for jobs during the period at issue, not a

single one of which came from a class member. There is

nothing in the record to indicate that, discrimination

aside, class members would have been given preference

over other applicants. Indeed, since the Union counted

4,300 blacks and Hispanics among its own members, it is

unlikely that preferred treatment would have been given to

members of another union (11a).

The porters awarded backpay had no nexus—no rela-

tionship—with the union, other than the fact that they

worked in the same areas of Madison Square Garden. The

porters were members of a rival union.

The petitioner is a conglomerate of some forty autono-

mous divisions, perhaps the smallest of which is the MSG

Division, consisting of approximately sixty laborers

employed at the Garden. Before Local 3 was added as a

defendant in the instant action at the instance of the

Garden, none of the union’s elected officers was aware of

the referral procedures at the Garden and of the resulting

racial imbalance.

Most of the eighteen men among whom the Second Cir-

cuit divided the backpay awards which the District Court

granted to the first seven applicants, never told anyone

connected with Local 3 about their interest in the laborer

job. None of these eighteen men ever so advised their own

union, which controlled laborer jobs at Yankee Stadium

and Shea Stadium and had knowledge of many laborer

jobs controlled by racially integrated Laborer unions, to

which the plaintiffs’ own union would have referred them.

Soon after the plaintiffs commenced this lawsuit against

the Garden and Allied, the petitioner’s delegate proposed

to the Garden that it promptly commence hiring plaintiffs.

The Garden replied that such hiring would await the ter-

mination of the litigation, and the Garden thereupon pro-

posed to the District Court that the petitioner be added as

a defendant. On the eve of trial, the Garden and Allied set-

tled with the plaintiffs. The settlement package included

laborer jobs for five named porters, who subsequently

were granted substantial backpay awards.

Nine of the eighteen class members awarded backpay

had received suspensions, warnings and other discipline

from Allied while they were working as porters at the

Garden. The Garden testified that it did not voluntarily

hire any persons with comparable disciplinary records.

The Reasons for Granting a Writ.

The reasons for granting a writ are:

I. This case supports the novel, significant and most

unfortunate proposition that the Federal Civil Rights Acts

impose upon unions an affirmative obligation with respect

to classes of persons who have no relationship with the

unions. This case could be cited with equal justification as

supporting the proposition that the Civil Rights Acts im-

pose a similar affirmative obligation upon employers who

have no relationship with classes of minority persons.

II. An apparent if not an actual conflict between the

Second Circuit and the First Circuit with respect to

9

whether the more appropriate statute of limitations for

Federal Civil Rights Act violations is the statute of limita-

tions contained in the applicable state Human Rights Law

or the much longer period set forth in state statutes ap-

plicable to general negligent torts.

III. This case presents the significant question, not yet

considered by this Court, when a union’s officers and

membership are unaware of an act of discrimination, of

whether the restrictions upon thie imposition of financial

liability mandated by this Court in Carbon Fuel v. United

Mine Workers and/or United Mine Workers v. Gibbs,

and/or such restrictions mandated by applicable state laws

should be applied.

IV. This case also presents the significant questions of

whether the award of backpay

(a) to persons who did not apply to the union, despite

the absence of clear proof of actual futility of such ap-

plication, is contrary to this Court’s teaching in Teamsters

v. United States, a civil rights case, and in Clayton v. In-

ternational Union, UAW, a fair representation case;

(b) to persons who did not inform their own union of

willingness to accept jobs similar to those supplied by peti-

tioner union without restrictive seniority, is contrary to

this Court’s teaching in Ford Motor Company v. EEOC;

(c) to persons who because of their disciplinary records

for nonpretextual reasons were deemed unqualified by the

employer, is contrary to this Court’s teaching in Texas

Department of Community Affairs v. Burdine,

(d) covering a period of years after the union abated its

liability in accordance with NLRB principles, is contrary

10

to the teaching of this Court in Teamsters v. United States

that NLRB law should guide the courts in tailoring

remedies under Civil Rights Laws.

V. This case presents to this Court for the firs®time the

question of whether the award of a fully compensatory fee

to a prevailing attorney in a civil rights action whose work

produced no class benefit, but produced substantial

backpay awards which the attorney shared pursuant to

contingency retainers, is permissible in the light of this

Court’s teaching in Hens/ey v. Eckerhart.

I. The unconscionable affirmative obligation imposed

upon unions by this decision.

The petitioner, a union consisting of some forty

autonomous divisions including a division consisting of

some sixty laborers employed at Madison Square Garden,

was found liable for having ignored and failed to recruit

the porters and other cleaners employed at the Garden,

which cleaners are employed by another employer and are

represented by a rival union. The only nexus between the

petitioner and the cleaners was the fact that the laborers

and the porters worked near each other.

The District Court was ‘‘not impressed’’ with the

union’s testimony relating to why it did not recruit

laborers from the membership of the rival union, because

**Local 3 had nothing to lose’’ by so doing (34a). The

union’s testimony that it did not recruit from any of the

many other trades, mostly white, also working at the

Garden was undisputed.

Adverting to the fact that the laborer steward on several

occasions ignored and gave evasive answers to porters who

11

inquired about the laborer position, the Second Circuit

said that it ‘‘*might have reached a different conclusion’’ as

to whether these incidents, coupled with the racial sta-

tistical disparity and the standardless method of referral

supported the District Court’s finding of discriminatory

intent, but the Second Circuit concluded that it could not

state that the District Court clearly erred (8a).

The Second Circuit sub silentio adopted the District

Court’s implied conclusion that the union had an affir-

mative obligation to recruit and not to ignore the Garden’s

cleaners, and that this affirmative obligation, owed to the

cleaners as a class, was greater than its obligation to other

trades working at the Garden and greater than its obliga-

tion to the 4,300 other Black and Hispanic members of

Local 3.

This decision therefore may be understood either as sup-

porting the erroneous proposition that the Civil Rights

Laws are affirmative action statutes—in which case

employers generally must share the union’s concern—or as

supporting the peculiar proposition that mere physical

proximity creates a nexus between a union and a group of

persons, which in turn creates an affirmative action on the

part of the union to recruit them and not to ignore them.

II. The conflict in circuits relating to Statutes of Limita-

tion.

Despite the facts that the Statute of Limitations con-

tained in the New York Human Rights Law is one year,

and that the Statute of Limitations in New York for inten-

tional torts is one year, and that a finding of violation of

§1981 requires a finding of intentional discrimination, the

Second Circuit declined to reconsider its use in §1981 cases

12

of New York’s three-year Statute of Limitations for

negligent torts (8a).

The First Circuit applied the six-month statute contained

in the Massachusetts Fair Employment Practices Act in a

race discrimination case, albeit one involving §1983, thus

indicating an apparent if not an actual conflict of Circuits

(Burns v. Sullivan, \st Cir. 1980, 619 F. 2d 99).

This Court in United Parcel Service v. Mitchell, 1981,

451 U.S. 56, pursuant to its teaching that the appropriate

Statute of Limitations is the one pertaining to a statute ad-

dressed to the specific factual situation rather than a

Statute of Limitations of general applicability, directed

the application of New York State’s ninety-day statute

relating to arbitrations to an action involving an arbitra-

tion award. This Court likewise recently directed the

application of the Labor Management Relations Act’s six-

month statute to actions against unions involving unfair

representation not related to racial discrimination.

DelCostello v. International Brotherhood of Teamsters,

$1 U.S.L.W. 4692 (U.S., June 8, 1983). Title VII itself re-

quires the filing of a claim with a human rights agency

within six months of the grievance.

The Second Circuit based its gross award upon the loss

of income of ‘‘the 7 class members who first desired

employment, had they applied’’ (12a). Two of the seven

men were found to have expressed an interest in the

laborer job to the laborer steward no later than /97/, and

the other five did not express such interest at all.

13

Ill. The standard of determination of union agency ap-

plicable to Civil Rights cases requires clarification.

The civil rights cases involving unions which this Court

and the Courts of Appeals have heard heretofore all ap-

pear to have involved violations which occurred with the

knowledge and approval of the officers and their member-

ship. In this case, neither the union membership in the

divisions located outside of the Garden nor any elected

union official was aware of the union delegate’s hiring

procedures at the Garden, which procedures were incon-

sistent with the union’s hiring procedures elsewhere.

With respect to various illegal acts by unions not

covered by the Labor Management Relations Act, this

Court has applied the standard of ‘‘clear proof of actual

participation in, or actual authorization of such acts, or of

ratification of such acts after actual knowledge thereof”’

set forth in the Norris-LaGuardia Act, 20 U. S. C. 106

(United Mine Workers v. Gibbs, 383 U.S. 715 [1966]).

With respect to union financial liability pursuant to a

statute which required the application of common law

rules of agency, this Court held that unions are not held

liable for damages absent proof of instigation, ratifica-

tion, support or encouragement of the strikes. Carbon

Fuel Company v. Mine Workers, 1979, 444 U.S. 212.

New York State law provides that a union may not be

held liable for money damages unless liability of the

membership is proved through participation, authoriza-

tion or ratification. Martin v. Curran, 303 N. Y. 276, 101

N. E. 2d 683 (1951). The Second Circuit in Morrissey v.

National Maritime Union of America, 1976, 544 F. 2d 19

applied Martin v. Curran, and reversed the judgment for

14

compensatory damages against the union in an action

brought under a federal statute regulating labor union ac-

tivities. The District Court, referring to but not identifying

Morrissey misstated Morrissey as relating to an award of

punitive damages only and therefore as not in point

(129a).

The Second Circuit upheld, sub silentio, the position

that no question exists with respect to what standard of

proof of union agency should be applied in connection

with an award of money damages in civil rights cases.

It may fairly be presumed that other cases involving

such standard of proof of union agency are pending. It ap-

pears appropriate that this Court address this error in the

context of the instant case, particularly because of the

large award of money damages.

IV. The backpay award appears to conflict with four

teachings of this Court.

(a) The requirement of cl<ar proof of actual futility.

The District Court made awards to nonapplicant porters

based upon its finding that

**the atmosphere at the Garden was such that class

members could reasonably have believed in the fu-

tility of seeking referral from Local 3.’’ (emphasis

added.) (137a), and that ‘‘feelings of futility

justified the victims’ failure to apply for Garden

laborer jobs’’ (emphasis added) (141a-142a).

The Second Circuit, sub silentio, adopted the District

Court’s subjective standard of reasonable belief of futility

rather than objective futility supported by clear proof.

15

This Court in Teamsters v. United States taught that

awards to nonapplicants may be made where the minority

claimants failed to make application based upon ‘‘explicit

and certain rejection’’—not upon feelings of explicit and

certain rejection—to which they did not wish to expose

and humiliate themselves (431 U.S. at 365). This Court in

Clayton v. International Union, UA W held that a plaintiff

in a fair representation case must exhaust his remedies by

applying to all available union offices unless the procedure

clearly would have been futile.

A clarification of this Court’s teaching with respect to

nonapplicants in Civil Rights cases appears indicated.

(b) The requirements of acceptance of desired jobs with-

out retroactive seniority.

None of the seven prevailing plaintiffs, most of whom

had union positions in their own union, ever advised their

own union that they were interested in becoming laborers,

even though their own union controlled laborer jobs at

Yankee Stadium and Shea Stadium and had knowledge of

many other laborer jobs and would have referred them to

the racially integrated Laborer unions which controlled

those jobs.

Section 706(g) (42 U. S. C. §2000e-5[g]), in pertinent

part provides that ‘‘amounts earnable with reasonable

diligence by the person or persons discriminated against

shall operate to reduce the backpay otherwise allowable”’

(emphasis added).

The District Court held that

‘*The course urged by defendants would permit

effective subversion of statutory purposes:

16

employers could deny an individual a higher paying

job and offer that individual the Hobson’s choice

of retaining his present job and forswearing

backpay relief or leaving his present job for a job

which, although perhaps nominally better paying,

might require the sacrifice of convenience, security

or seniority’’ (143a).

The Second Circuit, sub silentio, upheld this ruling.

This Court in Ford Motor Co. v. EEOC held that plain-

tiffs must announce their interest in a desired job which

lacked the assurance of retroactive seniority, while pre-

serving their legal claim to such seniority, even though

such announcement would have entailed giving up their

present jobs. A clarification of this Court’s teaching with

respect to the requirement of plaintiffs to mitigate their

losses therefore is needed.

(c) The unwarranted exposure to liability with respect to

applicants deemed unqualified for nonpretextual rea-

sons.

Allied Maintenance had suspended and otherwise disci-

plined, while they worked as Garden porters, nine of the

eighteen claimants among whom the Second Circuit divid-

ed the backpay awards given to the seven prevailing plain-

tiffs. The Garden testified that it would not voluntarily

hire persons with comparable disciplinary records received

while working at the Garden.

The District Court held that those disciplinary records

are ‘‘irrelevant since, during the time period in question,

the Garden never reviewed the prior work records of any

laborer referrals’’ (144a). The Second Circuit, sub silentio,

upheld this ruling.

17

This Court in Texas Department of Community Affairs

v. Burdine held that misjudgment of an applicant’s objec-

tive job qualifications does not expose a defendant to

liability unless such misjudgment is found to be proof that

the employer’s reasons are pretextual. A clarification of

this Court’s teaching with respect to whether a misjudg-

ment of qualifications may be presumed pretextual is in-

dicated.

(d) The NLRB teaching that union liability for backpay

abates when the union withdraws its interference with

the employment of the grievant.

Early in 1977 Local 3 had done all it legally could do to

abate damages, by proposing to the Garden that class

members be hired. The Garden rejected the union’s pro-

posal and stated that all subsequent hiring must await the

conclusion of its litigation—whereupon the Garden caused

the addition of Local 3 as a defendant, and itself settled in

1979 by agreeing, inter alia, directly to hire five named

persons.

The District Court held that ‘‘the defendant is liable for

the effects of such practices through the time that the

discrimination is actually remedied,’’ and that Local 3’s

abatement is irrelevant absent actual reduction in plain-

tiff’s injuries (14la). The Second Circuit, sub silentio,

upheld this ruling.

This Court in NLRB v. Teamsters stated that NLRB

principles should guide but not bind the courts in tailoring

of remedies in Civil Rights cases. The applicable NLRB

rvlings provide that where a union is responsible for an

employee’s unemployment, backpay liability usually ter-

minates when the union gives notice that it has no objec-

tion to his employment. These decisions have acted as a

18

brake upon windfalls for many years. A ruling by this

Court with respect to whether the courts should be guided

by the aforesaid NLRB decisions relating to backpay

therefore is required.

V. The fully compensatory award of $217,000 to an at-

torney who obtained no class benefit for that work, and

who prevailed primarily in obtaining backpay awards

which he shared through contingency retainers, clearly is

contrary to this Court's teaching in Hensley v. Eckerhart.

The Second Circuit awarded plaintiffs’ attorney a fully

compensatory fee of $217,000 for work which yielded no

results other than backpay awards (except for retroactive

seniority for six class members who had a legal right to de-

mand arbitration to obtain such seniority). Sixty percent

of the money judgment against the unions, including

counsel’s share of the backpay award, consisted of said

fees.

This Court in Hensley v. Eckerhart recently held that a

fully compensatory fee should be awarded only if the at-

torney obtained excellent results and significant overall

relief for the class, and that for partial or limited benefit to

the entire class the fee should be reduced. This Court's

opinion gave no clear guidance with respect to the fee fora

prevailing attorney who achieved no class benefit at all.

19

CONCLUSION.

The petition for a writ of certiorari to the United States

Court of Appeals for the Second Circuit should be

granted.

Respectfully submitted,

NORMAN ROTHFELD

Attorney for Petitioner

276 Fifth Avenue

New York, NY 10001

(212) 696-4010