Amicus Curiae Brief — Goodman v. Lukens Steel Co.

"

Nos. 85-1626 and 85-2010

Jn the Supreme Court of the Anited

OCTOBER TERM, 1986

CHARLES GOODMAN, ET AL., PETITIONERS

V.

LUKENS STEEL COMPANY, ET AL.

UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC,

ET AL., PETITIONERS

V.

CHARLES GOODMAN, ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

CHARLES FRIED

Solicitor General

WM. BRADFORD REYNOLDS

Assistant Attorney General

DONALD B. AYER

Deputy Solicitor General

MICHAEL CARVIN

Deputy Assistant Attorney

General

ROGER CLEGG

Assistant to the Solicitor

General

DAVID K. FLYNN

ROBERT J. DELAHUNTY

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

a

ER SE EE TS A LT SS

QUESTION PRESENTED

Whether a labor union can be held liable under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. 2000¢ ef seq., or

42 U.S.C. 1981 on the ground that it has passively ac-

quiesced in the employer’s discrimination by the manner in

which it has handled grievances.

TABLE OF CONTENTS

Page

Interest of the United States ........ 6.6.60 eee eee |

en cc 2

Summary of argument ........--.-- esse eee reer rere eee es 6

Argument:

1. The courts below erred in finding the unions liable

for discrimination under Title VII .........----+-- 7

A. Plaintiffs did not establish, and the courts below

did not find, conduct by the unions amounting

to disparate treatment or resulting in a disparate

impact on blacks ........---- 22 eee ee errr: 7

B. Unions are not liable under Title VII merely for

failing to take affirmative steps to combat

discrimination by the employer ........------ 12

il. The courts below erred in finding the unions liable

under 42 U.S.C. 1981 ..... 0... eee eee eee eee 25

Cem onc ccc ccc ccc cc en sce cesescresecceces 28

TABLE OF AUTHORITIES

Cases:

Alexander v. Choate, 469 U.S. 287 (1985) ...... . 21

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) . ve 19,

23, 24

Babrocky v. Jewel Food Co. & Retail Meatcutters Union,

773 F.2d 857 (7th Cir. 1985) ..... re 12

Barrentine v. Arkansas-Best Freight System, 450 U.S.

F assoc aaats are 22

Bryant v. United Mine Workers, 467 F.2d 1 (6th Cir.

1972), cert. denied, 410 U.S. 930 (1973) 19

California Brewers Ass'n v. Bryant, 444. U.S. $98 (1980) y

Carpenters Local 46 v. Eldredge, 459 U.S. 917 (1982)... 25

Chrapliwy v. Uniroyal, Inc., 458 F. Supp. 252 (N.D.Ind.

1977) . - eee 1]

Dickerson v. United States Steel Corp., 439 F. Supp. 55

(E.D. Pa. 1977), later proceeding, 472 F. Supp. 1304

(1979), vacated and remanded sub. nom. Worthy \

United States Steel Corp. , 616 F.2d 698 (3d Cir. 1980) 11

Dothard v. Rawlinson, 433 U.S. 321 (1977) 21

Electrical Workers v. Foust, 442 U.S. 42 ( 1979)

(i111)

IV

Cases — Continued Page

Electrical Workers v. NLRB, 341 U.S. 694 (1951) ....... 14

Emporium Capwell Co. v. Western Addition Community

Organization, 420 U.S. 50 (1975) ... 2... 0. ee eee ee. 14, 23

Firefighters Local Union No. 1784 v. Stotts, 467 U.S.

PN <5 0b ce sandeedadennt Sebaacaueswenkuceds 26

Ford Motor Co. v. EEOC, 458 U.S. 219 (1982) ......... y

Ford Motor Co. v. Huffman, 345 U.S. 330 (1953)... .. 15, 21-22

Furnco Construction Co. v. Waters, 438 U.S. 567 (1978). 6, 7,

10, 25

General Building Contractors Ass’n vy. Pennsylvania,

ee es SO ED 0's 0K desde hoe’ bdKEeeeceobevi 6, 7,

16, 20, 24, 25, 26, 27

Griggs v. Duke Power Co., 401 U.S. 424 (197!) .. 2.2... y

Humphrey v. Moore, 375 U.S. 335 (1964) .............. 15, 16

Jefferson v. Hackney, 406 U.S. 535 (1972)... 2.00000... 21

J.1. Case Co. v. NLRB, 321 U.S. 332 (1944) .......... 20-21, 23

Macklin v. Spector Freight Systems, Inc., 478 F.2d 979

eh Fone eer Tree eee ee eee 5, il

McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273

EE iia 1:4 % Ga Heb 5044066004 bakeedeRi ed ehabedeue 11

Monell vy. New York City Dep’t of Social Services, 436

ee ED x v0 4560400555 acueens ule sioanks 14, 24, 25

Motor Coach Employees v. Lockridge, 403 U.S. 274

re ee ree ee Tree Ferree 16, 22

NAACP v. FPC, 425 U.S. 662 (1976) ................. 18

New York City Transit Authority v. Beazer, 440 U.S. 568

POE 9.45.58 545 co Ckd eat oes Lae ek chee cette Ooae 9, 21

NLRB v. Allis-Chalmers Mfg. Co., 388 U.S 175 (1967) .. 21, 22

NLRB vy. Insurance Agents, 361 U.S. 477 (lyo00) ... 2... 16

NLRB vy. Jarka Corp. of Philadelphia, 198 F.2d 618 (3d

Sy MRED 55 bn wee piadneddheeeaddeteineceboava 14

NLRB vy. Teamsters, 317 F.2d 746 (2d Cir. 1963) ........ 14

Northwest Airlines, Inc. v. Transport Workers, 451 U.S.

RE Pern ey rans pera 18

Personnel Administrator v. Feeney, 442 U.S. 256 (1979). 7, 8,

21, 26

Polk County v. Dodson, 454 U.S. 321 (1981) ........... 24

Rizzo v. Goode, 423 U.S. 362 (1976)... 2. ee. 24

Romero v. Union Pac. R.R., 615 F.2d 1303 (10th Cir.

ED and utis ene nkacue wee eeee eae ae 1]

Rosen v. Hotel & Restaurant Employees, 637 F.2d 592

(3d Cir.), cert. denied, 454 U.S. 898 (1981) 0.00000... 18-19

V

Cases — Continued Page

Steele v. Louisville & Nashville R.R., 323 U.S. 192

GIDORD oo ccc cece ceccvenscnscvenrencsrsssccccccss 15, 20

Tate v. Weyerhaeuser Co., 723 F.2d §98 (8th Cir. 1983),

cert. denied, 469 U.S. 847 (1984) ... 6... - ee eee eee 12

Teamsters v. United States, 431 U.S. 324 oy, eee ‘vs ae

Terrell v. United States Pipe & Foundry Co., 644 F.2d

1112 (Sth Cir. 1981), vacated, 456 U.S. 955, cert.

denied, 456 U.S. 972 (1982) ...... 6-5 - eee cece reese: 11

Thornton v. East Texas Motor Freight, 497 F.2d 416

(6th Cir, 1974)... ccc ccccccccceceeereeccceccsces 12

TWA v. Hardison, 432 U.S. 63 (1977)... 666 ee eee eee 14

United Steelworkers v. Weber, 443 U.S. 193 (1979) ...... i4

Vaca v. Sipes, 386 U.S. 171 (1967) ...-.--- eee eee ees 16, 23

Wallace Corp. v. NLRB, 323 U.S. 248 (1944) ........--. 15

Washington v. Davis, 426 U.S. 229 errr 21

Wilson v. Garcia, 471 U.S. 261 (1985) ... 6.66 ee eee ee |

Wimberly v. Labor & Industrial Relations Comm'n,

No. 85-129 (Jan. 21, 1987) .. 0... - eee eee eeee 21

WR. Grace & Co. v. Rubber Workers, 461 U.S. 757

|, Serer eye ee 14

Statutes:

Civil Rights Act of 1964, Tit. Vil, 42 U.S.C. 2000e ef

~ rerrerrrrrrrr yr ttt tie A 2

§ 701(a), 42 U.S.C. 2000e(a) ....---- eee eee eee eees 20

§ 701(b), 42 U.S.C. 2000e(b) ....---- eee eee eres 20

§ 703(a), 42 U.S.C. 2000e-2(a) ... 6-6. eee eee eens 20

§ 703(c), 42 U.S.C. 2000e-2(c) ... eee eee 12, 13, 20

§ 703(c)(1), 42 U.S.C. 2000e-2(c)(1) .. eee §, 6, 13, 21

§ 703(c)(2), 42 U.S.C. 2000e-2(C)(2) ... eee ee 5, 13

§ 703(c)(3), 42 U.S.C. 2000e-2(c)(3) ©. eee 5, 13

$ 706(f), 42 U.S.C. 2000e-S(f) «6... eee ee eee eee |

$ 717, 42 U.S.C. 5, errr rr Tree ere l

Employee Retirement Income Security Act, 29 U.S.C.

TC. eee 18

Equal Pay Act, 29 U.S.C. 206(d) ...--. 6. seer e eres 18

National Labor Relations Act, 29 U.S.C. 151 ef seq.:

$ 8(b)(2), 29 U.S.C. STP se ee 14

§ Qa), 29 U.S.C. 199(a) ... 2. eee eee eee 15, 16, 22

VI

Statutes — Continued Page

Occupational Safety and Health Act, 29 U.S.C. 651 ef

SU 5 dks REP Ok NoRA OE bdnew 5 dasetendddedians ves 18

REE oo cds ncunan sob ess 8s 000 000s Cees eee »?

3, 6, 24, 25, 26, 27

SC ce eui le beta ede cided eae eneee es kat 24

ED i. 82 ob ae sb iw aa eea wee ewenkendeenst 13

Miscellaneous:

110 Cong. Rec. (1964):

een ctedcah kt bepeeeet hn dbabebuees 13

i a6 a6 yk 60d 6 4.40 ,0446 26046389 OKE - 15

ee ee i i ee a eee eM ee eu au eee 17

a oo ag Cd tk Chale e x ae wae 17

Pn aletde sel eedas dane leusstnan Kesh enes oes 18

H.R. Rep. 914, 88th Cong., Ist Sess., Pt. 2 (1963) ....... 14

1 A. Larson & L. Larson, Employment Discrimination

ee ee

12, 14, 23

Note, Union Liability for Employer Discrimination,

93 Harv. L. Rev. 702 (1980)

13, 21, 23

In the Supreme Court of the Anited States

OCTOBER TERM, 1986

No. 85-1626

CHARLES GOODMAN, ET AL., PETITIONERS

V.

LUKENS STEEL COMPANY, ET AL.

No. 85-2010

UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC,

ET AL., PETITIONERS

Vv.

CHARLES GOODMAN, ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

The United States has responsibility for enforcing

statutes prohibiting discrimination in employment on ac-

count of race. See, e.g., 42 U.S.C. 2000e-5(f). The federal

government, as the nation’s largest employer, will also be

affected by the outcome of this case in its dealings with

unions representing federal employees. See 42 U.S.C.

2000e-16.

The United States has no significant interest or par-

ticular expertise in the questions presented by the petition

in No. 85-1626 —i.e., the appropriate period of limitations

for actions brought under 42 U.S.C. 1981 and the retro-

spective application of Wilson v. Garcia, 471 U.S. 261

(1985) —and accordingly we will not address those issues In

this brief.

(1)

STATEMENT

1. The plaintiffs in this case are seven black employees

or former employees of Lukens Steel Company

(“Lukens”), and the United Political Action Committee of

Chester County. They represent the class of all blacks who

have been employed by Lukens since June 14, 1967. The

defendant unions, the United Steelworkers of America

and two of its locals, Local 1165 and Local 2295, are the

certified collective bargaining agents of Lukens’ hourly

employees. This action was filed in July 1973, alleging in-

ter alia that Lukens had discriminated against plaintiffs

with respect to wages, promotions, transfers, discipline,

testing, discharges of probationary employees, and

workplace environment, all in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. 2000e ef seqg., or 42

U.S.C. 1981. The unions were also allegéd to have been

liable for violations of these statutes. Pet. App.' Sa-6a,

56a, 59a-61a.? Of particular relevance to this case is plain-

tiffs’ allegation that the unions violated Title VII by

“(flailing to fairly and adequately process grievances on

behalf of black employees”; “[flailing to represent black

persons effectively by passively permitting the employer to

discriminate against black persons”; and “[fJailing to act

affirmatively to cause the employer to refrain from

discriminating against black employees” (J.A. 7).

The case was tried in 1980. See J.A. 1-2. In February

1984, the district court issued findings of fact and conclu-

sions of law, holding that plaintiffs had proven some but

not all of their claims. Pet. App. 50a-150a; see also /d. at

Sa-6a.

' Pet. App. citations refer to the petition filed in No. 85-2010.

? Local 2295 has about 80 members, and since 1967 has never had

more than 12 black members. Local 1165 has about 2,600 members,

of whom about 25% are black. Blacks have been active in this local.

Pet. App. 133a.

3

a. With respect to the unions, the district court found

that the departmental seniority system was created and

maintained by the unions and Lukens in good faith, and

that both black and white employees overwhelmingly

preferred it to a plant-wide system. Blacks participated ac-

tively in negotiating the collective bargaining agreements

that embodied this system, and never suggested a change

in it. Pet. App. 7la.

The district court also found that while there were defi-

ciencies in the way the unions processed employees’

grievances, there was no proof that this resulted in any

greater disadvantage to blacks than to whites. The defi-

ciencies were apparently created at least in part by the

volume of grievances — about 8,000 were filed during the

limitations period (which the district court held to have

run from April 7, 1971, onwards under Title VII, and

from July 15, 1967, onwards under Section 1981 (Pet.

App. 58a)). The number of grievances steadily increased

each year, resulting in a backlog. To meet this problem,

the unions gave priority to certain grievances, i.e., those

that involved a discharge or a suspension lasting more

than four days. Of the grievances which were processed

through to arbitration, those asserted on behalf of black

members were proportionate to their numbers in the

workforce. Black grievants had a higher success rate than

whites in arbitrated complaints. Jd. at 135a-137a; see also

id. at 93a-94a, 10a.

Indeed, the district court found that the unions had ob-

jected to certain discriminatory practices by the company.

For instance, in 1968, the unions protested during collec-

tive bargaining negotiations against Lukens’ continued use

of the Wonderlic Test for screening promotions —a prac-

tice that the district court found to have had a racially

disparate impact that was not defensible as job-related. ’

’ The district court found that “company representatives dismissed

the challenge as being asserted merely on behalf of ‘minorities.’ ” Pet.

App. 90a.

4

And it was found probable that the unions’ use of the

grievance procedure protected nonprobationary

employees from discriminatory discharges. Pet. App. 90a,

1Ola.

b. The district court did, however, find some inaction

by the unions to be grounds for liability, on the theory that

“mere union passivity in the face of employer-

discrimination renders the unions liable under Title VII

and, if racial animus is properly inferrable, under § 1981

as well” (Pet. App. 139a). The condemned inaction was

found in the unions’ “failures, during the limitations

period, to include racial discrimination as a basis for

grievances or other complaints against the company” (id.

at 137a). In this connection, the court made three findings.

First, the court found that the unions had a uniform

policy of not filing grievances on behalf of probationary

employees, for any reason (Pet. App. 137a). And, con-

cluded the court, “[t]he union knew that blacks were being

discharged by Lukens at a disproportionately higher rate

than whites” (ibid. (citations omitted)).*

Second, while the unions objected to Lukens’ use of all

types of tests, they did not base the objections on the tests’

racially disparate impact, although they were “chargeable

with knowledge” of the disparity (Pet. App. 137a).

Third, the unions had decided not to assert racial

discrimination as the basis for grievances generally,

although apparently they would process such complaints

on other grounds (Pet. App. 138a; but cf. J.A. 731-732).

The unions argued that this policy was a tacticai response

* The unions argued in the court of appeals that prior to 1974 they

had not believed that they had a right to file grievances on behalf of

probationary employees, and that after 1974 there were relatively few

discharges of probationary employees. Unions’ C.A. Br. 53-57. The

district court did not dispute the date of most of the discharges (Pet.

App. 103a; see also id. at 101a), but it did conclude that the unions

should have challenged pre-1974 racial discharges (id. at 137a).

to Lukens’ reluctance to admit discriminatory practices;

the district court also found that the company “preferred

to avoid confronting racial issues if at all possible” (Pet.

App. 119a). Nonetheless, the court rejected this justifica-

tion, on the grounds that racial harassment grievances

could not be recast and because “[t]he clear preference of

both the company and the unions to avoid addressing

racial issues served to perpetuate the discriminatory en-

vironment” (id. at 138a).°

Accordingly, the district court enjoined the unions from

“failing to challenge discriminatory discharges of proba-

tionary employees” (Pet. App. 155a), “failing or refusing

to assert meritorious claims of racial discrimination” (id.

at 157a), and “tolerating or giving tacit encouragement to

racial harassment” (id. at 158a).

2. The court of appeals affirmed the district court on

the issue of the unions’ liability. The court listed the rele-

vant provisions of Title VII as Sections 703(c)(1) and (3),

42 U.S.C. 2000e-2(c)(1) and (3). While noting the

criticisms that have been made of Macklin v. Spector

Freight Systems, Inc., 478 F.2d 979 (D.C. Cir. 1973), the

court apparently endorsed “its premise that there is an af-

firmative duty on the part of the unions to combat

discrimination in the ‘vorkplace” (Pet. App. 25a), and

therefore rejected the unions’ argument that they had done

nothing to “cause” an employer to discriminate under Sec-

tion 703(c\(3) of Title VII. Further, it stated that “the

unions intentionally avoided asserting claims of discrim-

ination,” thereby “violat{ing] the duty of fair representa-

tion owed to their members” and “the duty to enforce the

‘A fourth finding by the district court, that the unions were

answerable for Lukens’ discriminatory initial assignments, was

vacated by the court of appeals. No plaintiff adequately represented

the class on this claim. Pet. App. 20a.

© It did not list Section 703(c)(2), 42 U.S.C. 2000e-2(c)(2), as re-

levant.

6

collective bargaining agreement” (Pet. App. 26a (citations

omitted)); this violated Section 703(c)(1) of Title VII, too

the court continued, because by their policy the unions

“discriminated against the victims who were entitled to

representation” (Pet. App. 26a). Finally, the court of ap-

peals held that “[t]he district court’s finding of intentional

discrimination [sic] properly supports the claims under

§ 1981 as well” (id. at 26a-27a).

SUMMARY OF ARGUMENT

I. A. Liability under Title VII conventionally requires

a finding of disparate treatment or disparate impact.

Furnco Construction Corp. v. Waters, 438 U.S. 567,

581-582 (1978) (Marshall,J., concurring in part and dis-

senting in part); Teamsters v. United States, 431 U.S. 324,

335-336 n.15 (1977). Here, the courts below found neither

with respect to the unions, and accordingly the finding of

liability under Title VII should be reversed.

B. Nor should liability be predicated on an alternative

theory resting on the unions’ failure to file particular

grievances in a particular manner against the employer’s

discrimination. There is no more laudable goal for a union

than combatting an employer’s racial discrimination. But

unions have only finite resources, and to hold them liable

under Title VII for failing to give absolute priority to this

goal cannot be squared with the language or intent of Title

VII, fails to afford unions the flexibility they must have as

representative bodies, and is antithetical to the basic prin-

ciple that one has a duty only to police one’s own ac-

tivities.

Il. With regard to the court of appeals’ 42 U.S.C. 1981

holding, we think General Building Contractors Ass’n v.

Pennsylvania, 458 U.S. 375 (1982), is dispositive. That

decision required discriminatory intent on the part of the

defendant, and here there was no finding that the unions

had such intent. The fact that the unions deliberately

adopted their grievance policies does not suffice, any more

than did the fact that the employer in General Building

Contractors deliberately adopted its hiring policies, since

“ “(djiscriminatory purpose’ * * * implies more than intent

as volition or intent as awareness of consequences.” Per-

sonnel Administrator v. Feeney, 442 U.S. 256, 279 (1979)

(citation omitted).

ARGUMENT

i. THE COURTS BELOW ERRED IN FINDING THE

UNIONS LIABLE FOR DISCRIMINATION UNDER TI-

TLE Vil

A. Plaintiffs Did Not Establish, And The Courts Below Did

Not Find, Conduct By The Unions Amounting To Disparate

Treatment Or Resulting In A Disparate Impact On Blacks

Neither of the courts below rested its conclusion of

union liability on either of the two theories— disparate

treatment or disparate impact—upon which Title VII

liability has conventionally been predicated. Furnco Con-

struction Co. v. Waters, 438 U.S. 567, 581-582 (1978)

(Marshall, J., concurring in part and dissenting in part);

Teamsters v. United States, 431 U.S. 324, 335-336 n.15

(1977). Nor will the record in this case support liability on

either theory with respect to the unions.

There was no finding of intentional discrimination by

the district court, and no basis on which such a finding

could have been supported. While the court of appeals

referred to the district court’s finding that “the unions in-

tentionally avoided asserting claims of discrimination,”

the unions’ “deliberate choice not to process grievances,”

and “{tjhe district court’s finding of intentional

discrimination” (Pet. App. 26a-27a), such statements are

in context completely ambiguous. The unions’ policies cer-

tainly were “intentional” and “deliberate” in the sense of

being advertent. It does not, however, follow that they

were motivated by racial animus. See Personnel Admin-

istrator v. Feeney, 442 U.S. 256, 279 (1979) (citation

omitted) (“ ‘Discriminatory purpose’ * * * implies more

than intent as volition or intent as awareness of conse-

quences”).

The district court’s more specific findings do not suggest

that racial animus existed. The court found objectionable

the unions’ policy “to intentionally avoid[] asserting

discrimination claims * * * regardless of whether, as a

subjective matter, [the unions’] leaders were favorably

disposed toward minorities” (Pet. App. 139a-140a), and

its policy of not bringing grievances on behalf of proba-

tionary employees even though “(t]he union[s] knew that

[black probationary employees] were being discharged by

Lukens at a disproportionately higher rate than whites”

(id. at 137a). But these policies applied equally to black

and white employees and thus cannot constitute a case of

disparate treatment. While the district court used the

words “racial animus” in finding liability under Section

1981 (Pet. App. 138a), we think it plain that such a label

was misapplied to decisions made on tactical grounds and

lacking any hint of discriminatory motive focused on the

race of the claimant.

There is likewise nothing in the record on which to base

a finding of disparate impact against the unions, a

hypothesis which has heretofore gone virtually unmen-

tioned by the parties and the courts below.’ With respect

’ The district court stated that the plaintiffs had made both

disparate impact and disparate treatment claims (Pet. App. Sla), but

it generally did not distinguish between claims made against the com-

pany and claims made against the union, nor between claims premised

on one theory rather than the other. In fact, the plaintiffs apparently

pleaded only that the transfer and seniority provisions of the collective

bargaining agreements negotiated by the unions —a quite different set

of issues — gave rise to racial disparities; they clearly did not allege that

9

to the employer’s tests, the district court pointed out that

the unions did oppose the use of the tests (Pet. App.

137a)—apparently with some success (see J.A. 331-332,

653-654, 702)—and the court did not suggest that the

unions would have been more successful in their opposi-

tion had it been based on racial grounds. As to the policy

against bringing grievances on behalf of probationary

employees, and the failure to pursue racial harassment

claims raising no other violation of the contract, there was

simply no finding regarding the effects of those policies

on any particular racial group. With regard to the handl-

ing of grievances in all other respects, the district court

found evidence of discrimination “inconclusive,” and

found that there was “no hard evidence to support an in-

ference that [the unions’] inadequacies [in processing

grievances] disadvantage blacks to a greater extent than

whites” (Pet. App. 135a; see also id. at 93a-94a, 101a).

The court of appeals noted the district court’s conclusion

that “the plaintiffs had failed to present adequate proof of

discrimination” regarding “[p]rocessing grievances by the

any of the union practices on which liability was ultimately found gave

rise to a disparate impact. See 6/14/73 Complaint — Class Action

44 48-49.

Indeed, had disparate impact analysis been at issue in the district

court, serious questions concerning the role of certain defenses would

have been explored. The limiting doctrine of “business” — here,

“union” —“necessity” (Griggs v. Duke Power Co., 401 U.S. 424, 431

(1971)) would certainly be applicable, though likely to differ in some

respects from business-necessity. Such a defense seems especially

plausible here, where tactics, backlog, and limited resources of tn

unions appear to support their decision to bring certain grievances,

and in certain ways. The possibility that certain actions may be

justifiable pursuant to a bona fide seniority system also must be

recognized and seems potentially relevant with respect to the policy of

disfavoring probationary employees with respect to grievances. See

Ford Motor Co. v. EEOC, 458 U.S. 219, 239 (1982); California

Brewers Ass’n v. Bryant, 444 U.S. 598 (1980). See also New York

Transit Authority v. Beazer, 440 U.S. 568, 587 n.31 (1979).

10

unions insofar as the complaints centered on the number

of grievances which the locals presented initially and pur-

sued through arbitration” (id. at 6a). Indeed, the district

court further observed that as to grievances reaching ar-

bitration, success was achieved by black employees at a

rate 50 percent higher than achieved by whites (id. at

136a).

Since neither disparate treatment nor disparate impact

was proven or found to exist by either of the courts below,

liability can only be justified on some alternative theory. ®

That theory rests on the unions’ perceived failure

vigorously and successfully to pursue, using the ter-

minology of racial discrimination, complaints of

discrimination by the employer. Such a theory of liability,

based on passive acquiescence in discrimination by the

employer, is without precedent in the decisions of this

* Plaintiffs might have argued in the courts below that the unions’

failure to bring grievances on behalf of probationary employees, and

their alleged failure to pursue in any way certain racial harassment

claims, gave rise to Title VII liability on the part of the unions because

that conduct had a disparate impact on black employees (as discussed,

the opinions of the courts below make clear that there was no

disparate impact on blacks resulting from the way in which the unions

pursued individual non-harassment grievances (Pet. App.

135a-137a)). It is conceivable, though not clear on the record, that

these policies may have had an impact on blacks more adve:se than on

members of other racial groups. We stress again, however, that such a

theory was neither advanced by the plaintiffs in their complaint nor

presented in the form of evidence or argument at trial. Because the

theory was at no time asserted, no defenses to it were articulated or

established by the unions. The issue not having been raised by the par-

ties, it properly played no part in the decisions of the trial and ap-

pellate courts. As a general proposition, this Court has made clear its

reluctance to consider alternative theories of Title VII liability which

were in no way dealt with in the courts below. Furnco Construction

Corp. v. Waters, 438 U.S. at 580-581. In any event, the issue is cer-

tainly of sufficient difficulty that it should be considered by this Court

only in a case which has had full litigation and consideration in the

lower courts.

1]

Court,’ though it has appeared in the jurisprudence of the

lower courts.!° It is without basis in Title VII, and for that

reason the decision of the court below must be reversed.

® This Court has not heretofore addressed the Title VII question at

issue here. The court of appeals, however, seems to have thought that

the decision in McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273

(1976), was relevant, saying that it rejected “the union’s defense that in

representing a number of employees it is sometimes necessary to com-

promise the grievance of one” (Pet. App. 26a). McDonald does not,

however, endorse the proposition that a union may never compromise

one employee’s grievance for the sake of others’ grievances; such a rule

would make it impossible for a union to represent any grievants at all.

Nor does McDonald create union liability for an employer's practices.

The most that McDonald can be construed to say is that a union is

liable to employees under Title VII if the union itself intentionally

discriminates against them—for example, if the union negotiates

penalties from the employer that take account of the employees’ race,

and that differ in severity along explicitly racial lines. 427 U.S. at

284-285. It is undisputed that such intentional discrimination would

breach Title VII; that is, however, not the present case.

'© For instance, the leading case of Macklin v. Spector Freight

Systems, Inc., 478 F.2d 979, 989 (D.C. Cir. 1973), spoke of “union

passivity” and “affirmative union obligation under Title VII.”

Chrapliwy v. Uniroyal, Inc., 458 F. Supp. 252, 282-283 (N.D. Ind.

1977), adopted Macklin’s approach, adding that union “action

[against the employer's sex discrimination] must be initiated whether

or not a female employee complains to the Union of discriminatory

treatment” (citation omitted). Dickerson v. United States Steel Corp.,

439 F. Supp. 55, 62 (E.D. Pa. 1977), later proceeding, 472 F. Supp.

1304, 1353 n.41 (1979), vacated and remanded on other grounds sub

nom. Worthy v. United States Steel Corp., 616 F.2d 698 (3d Cir.

1980), spoke in terms of “vicarious liability.” In Terrell v. United

States Pipe & Foundry Co., 644 F.2d 1112, 1120 (Sth Cir. 1981),

vacated on other grounds, 456 U.S. 955, cert. denied, 456 U.S. 972

(1982), the court said that unions have the “legal requirement of tak-

ing every reasonable step to bring employment practices into com-

pliance with the law.” Another court has said that unions must “insure

[employer] compliance” with Title VII. Romero v. Union Pac. R.R.,

615 F.2d 1303, 1310-1311 (10th Cir. 1980). A diverging line of authori-

ty, truer to the language and intent of Title VII, apparently holds that

a union is implicated in an employer’s violations only if the union

B. Unions Are Not Liable Under Title VII Merely For Failing

To Take Affirmative Steps To Combat Discrimination By

The Employer

There is no more laudable goal for a union than com-

batting an employer’s racial discrimination. But unions

have only finite resources, and to hold them liable under

Title VII for failing to give absolute priority to this goal

cannot be squared with the language or intent of Title VII,

fails to afford unions the flexibility they must have as

representative bodies, and is antithetical to the basic prin-

ciple that one has a duty only to police one’s own ac-

tivities.

1. Title VII deals separately with the liability of unions

as distinct from employers (Section 703(c), 42 U.S.C.

2000e-2(c)):

It shall be an unlawful employment practice for a

labor organization —

(1) to exclude or to expel from its membership, or

Otherwise to discriminate, against, any individual

because of his race, color, religion, sex, or national

origin;

itself treated similarly situated employees differently on racial (or

other prohibited) grounds. See, e.g., Babrocky v. Jewel Food Co. &

Retail Meatcutters Union, 773 F.2d 857, 868 (7th Cir. 1985); Tate v.

Weyerhaeuser Co., 723 F.2d 598, 606-607 (8th Cir. 1983), cert.

denied, 469 U.S. 847 (1984); Thornton v. East Texas Motor Freight,

497 F.2d 416, 424-426 (6th Cir. 1974). One commentator has noted

that “[m]Jost courts * * * appear to rely upon previous decisions for

the proposition that acquiescence alone can produce liability, with lit-

tle attention to the statute, so that the proposition survives as much on

the strength of repetition as on careful analysis.” And Macklin, the

decision most “rel[ied] upon,” “provides an infirm base upon which to

found a proposition of law, and it quite possibly states a broader rule

than is necessary.” 1 A. Larson & L. Larson, Employment

Discrimination § 44.42, at 9-27 to 9-28 (1985).

13

(2) to limit, segregate, or classify its membership or

applicants for membership, or to classify or fail or

refuse to refer for employment any individual, in any

way which would deprive or tend to deprive any in-

dividual of employment opportunities, or would limit

such employment opportunities or otherwise adverse-

ly affect his status as an employee or as an applicant

for employment, because of such individual’s race,

color, religion, sex, or national origin; or

(3) to cause or attempt to cause an employer to

discriminate against an individual in violation of this

section.

On its face, this language appears to present a prohibition

against various discriminatory acts by a union. One looks

in vain for admonitions of affirmative duty to combat or

prevent someone else’s discriminatory conduct, or any

suggestion that union liability could be predicated on such

grounds.'!' Though Sections 703(c)(1) and (2), dealing with

unions’ liability, contain catch-all phrases such as “or

otherwise to discriminate,” the structure of Section 703(c)

suggests that 703(c)(1) and (2) focus on matters of

membership and on internal union affairs, while it is Sec-

tion 703(c)\(3) which most specifically addresses the in-

teraction between the union’s conduct and the conduct of

the employer. See Note, Union Liability for Employer

Discrimination, 93 Harv. L. Rev. 702, 721 (1980). And

that provision clearly states that it is only when a unicn

“cause[s] or attempt(s] to cause” an employer’s discrimina-

tion that it is liable. Moreover, Section 703(c)(3) was taken

'' It is also instructive to examine a statutory model creating

vicarious liability for a failure or refusal to act that Congress chose

not to follow in framing Section 703(c). That statute, 42 U.S.C. 1986,

imposes liability on every person who, “having knowledge” that Sec-

tion 1985 violations are to be committed, and “having power to pre-

vent or aid in preventing the[m],” “neglects or refuses to do so, if such

wrongful act be committed.”

14

in haec verba from the National Labor Relations Act, 29

U.S.C. 158(b)(2) (Section 8(b)(2) of the NLRA), and this

section had already been given a “restricted” meaning by

the courts, narrower even than “to induce” or “to en-

courage.” Electrical Workers v. NLRB, 341 U.S. 694, 703

(1951); see also NLRB v. Teamsters, 317 F.2d 746, 749 (2d

Cir. 1963) (“suggestion” or “compulsion”); NLRB v. Jarka

Corp. of Philadelphia, 198 F.2d 618, 621 (3d Cir. 1952).

“To say that the union ‘causes’ employer discrimination

simply by allowing it is to stretch the meaning of the word

beyond its limits.” 1 Larson, supra, § 44.50, at 9-40. Cf.

Monell v. New York City Dep’t of Social Services, 436

U.S. 658, 691-692 (1978).

2. The legislative history confirms that Congress did

not intend to expand a union’s responsibility for the

employer’s wrongdoing. As a general matter, of course,

the Congress which passed Title VII insisted that

“ ‘management prerogatives, and union freedoms. . . be

left undisturbed to the greatest extent possible.’ ” United

Steelworkers v. Weber, 443 U.S. 193, 206 (1979) (quoting

H.R. Rep. 914, 88th Cong., Ist Sess., Pt. 2, at 29 (1963)).

On other occasions, this Court has cautioned against

reading Title VII so expansively that the rest of the labor

statutory scheme is disrupted. See, e.g., Emporium

Capwell Co. v. Western Addition Community Organiza-

tion, 420 U.S. 50, 69 (1975); TWA v. Hardison, 432 U.S.

63, 79 (1977); cf. W.R. Grace & Co. v. Rubber Workers,

461 U.S. 757, 771 (1983).

During the lengthy Senate debate, the bill was criticized

by Senator Hill as a threat to the labor movement because

“all of the rights which a union has under the National

Labor Relations Act [NLRA] or the Railway Labor Act

could be suspended.” 110 Cong. Rec. 487 (1964). Senator

Clark, one of the two bipartisan floor managers of Title

15

VII, made a detailed reply to these objections on April 8,

1964.'? Clark had requested the Department of Justice to

prepare a memorandum rebutting Hill’s arguments; dur-

ing his reply to the criticisms he placed this memorandum

in the record. The memorandum stated (110 Cong. Rec.

7206-7207) that “[njothing in title VII or anywhere else in

this bill affects rights and obligations under the NLRA

and the Railway Labor Act” and that “title VII would have

no effect on the duties of any employer or labor organiza-

tion under the NLRA or under the Railway Labor Act,

and these duties would continue to be enforced as they are

now.” Under the labor laws existing at that time unions

had a “duty of fair representation,” forbidding them from

engaging in discrimination, inter alia, on the basis of race.

See Steele v. Louisville & Nashville R.R., 323 U.S 192

(1944); Wallace Corp. v. NLRB, 323 U.S. 248 (1944);

Ford Motor Co. v. Huffman, 345 U.S. 330 (1953). In

Humphrey v. Moore, 375 U.S. 335 (1964), handed down

on January 6, 1964, nine days before Senator Hill claimed

that Title VII would impliedly repeal unions’ statutory

rights, the Court dealt with the scope of a union’s “duty of

fair representation” arising under Section %(a) of the Na-

tional Labor Relations Act, 29 U.S.C. 159(a), and em-

phasized the breadth of discretion allowed to unions under

national labor policy. It reaffirmed that “[aj wide range of

reasonableness must be allowed a statutory bargaining

representative in serving the unit it represents, subject

always to complete good faith and honesty of purpose in

the exercise of its discretion” (375 U.S. at 349, quoting

Ford Motor Co. v. Huffman, 345 U.S. at 338), and added

(375 U.S. at 349-350):

Just as a union must be free to sift out wholly

frivolous grievances which would only clog the griev-

'2 Senator Clark also chaired the subcommittee of the Senate Labor

and Public Welfare Committee that had held hearings on the bill and

that brought it to the Senate floor.

16

ance process, so it must be free to take a position on

the not so frivolous disputes. Nor should it be

neutralized when the issue is chiefly between two sets

of employees. Conflict between employees repre-

sented by the same union is a recurring fact. To

remove or gag the union in these cases would surely

weaken the collective bargaining and grievance proc-

esses.

The Court ruled that the union had not breached its duty

of fair representation because it “took its position honest-

ly, in good faith and without hostility or arbitrary

discrimination” (id. at 350).'3 Thus, there is no reason to

suppose that Congress intended Title VII to create a

broad, new union duty to grieve employer misconduct.

It would, of course, have been remarkable if Congress

had intended to visit liability for an employer’s discrimina-

tion on the union, or vice versa. Employers and unions

“proceed from contrary and to an extent antagonistic

viewpoints and concepts of self-interest” (General

Building Contractors Ass’n v. Pennsylvania, 458 U.S. 375,

394 (1982), quoting NLRB v. Insurance Agents, 361 U.S.

477, 488 (1960)). It is, therefore, unsurprising to find the

'3 Under post-1964 case law, and most notably under the leading

case of Vaca v. Sipes, 386 U.S. 171, 190 (1967), a breach of the

NLRA’s duty of fair representation “occurs only when a union’s con-

duct toward a member of the collective bargaining unit is arbitrary,

discriminatory, or in bad faith” (citations omitted). Indeed, this Court

has indicated that a breach requires “deliberate and severely hostile

and irrational treatment.” Motor Coach Employees v. Lockridge, 403

U.S. 274, 301 (1971).

In this case, of course, plaintiffs have not alleged a violation of Sec-

tion 9(a), 29 U.S.C. 159(a), which is the statutory source of the duty

of fair representation.

17

following exchange in the Senate debate on Title VII (110

Cong. Rec. 7217 (1964) (emphasis added)):

| [Sen. Dirksen:] If an employer obtains his

| employees from a union hiring hall through operation

of his labor contract, is he in fact the true employer

from the standpoint of discrimination because of

race, color, religion, or national origin when he exer-

cises no choice in their selection? Jf the hiring hall

sends only white males, is the employer guilty of

discrimination within the meaning of this title? If he

is not, then further safeguards must be provided to

protect him from endless prosecution under the

authority of this title.

[Sen. Clark:] An employer who obtains his em-

ployees from a union hiring hall through operation of

a labor contract is still an employer. Jf the hiring hail

discriminates against Negroes, and sends him only

whites, he is not guilty of discrimination—but the

union hiring hall would be.

Cf. General Building Contractors Ass’n v. Pennsylvania,

supra; Northwest Airlines, Inc. v. Transport Workers, 451

U.S. 77 (1981) (employer has novright of coutribution

from union for former’s liability under Title VII for

discriminatory wage differentials collectively bargained

for). If, under Title VII, an employer cannot be held _iable

for failing to identify and counteract union discrimination

in the referral of employees, there can be little basis for

holding a union liable when it fails to take affirmative

measures to combat an employer’s discrimination.

This conclusion is reinforced by the absence of any con-

trary suggestion in the lengthy debate concerning the man-

ner in which Title VII would be enforced, the resolution of

which was critical to the enactment of the 1964 Civil

| Rights Act. See 110 Cong. Rec. 12595-12596 (1964)

(remarks of Sen. Clark). Senator Humphrey stated ‘hat

the Senate’s changes in the House bill were “concerned

18

chiefly with procedures for enforcement” (id. at 12707).

Yet apparently no one, either friend or foe of the bill, sug-

gested that Title VII would impose significant enforce-

ment responsibilities on unions. Nor did Congress say that

the unions’ “duty of fair representation” was to be ex-

panded. Rather, Congress clearly left the task of enforce-

ment to private plaintiffs and specified governmental

bodies and did not contemplate implied rights of action

against nonviolators. See Northwest Airlines, Inc. v.

Transport Workers, 451 U.S. at 93-94 (footnote omitted)

(“The comprehensive character of the remedial scheme

fashioned by Congress [in Title VII] strongly evidences an

intent not to authorize additional remedies”); NAACP v.

FPC, 425 U.S. 662 (1976). It is therefore apparent from

the language and legislative history of Title VII that

unions were to retain their freedoms and prerogatives to

the extent consistent with their duty not to discriminate. '*

'4 The passive acquiescence theory adopted by the courts below

could be applied with equal facility and no less justification to a whole

array of federal statutes. If, for instance, an employer has violated

employees’ statutory rights under the Employee Retirement Income

Security Act (ERISA), 29 U.S.C. 1001 ef seg., then unions might be

held liable to the extent that they had failed to protest or to protest ef-

fectively. The Equal Pay Act, 29 U.S.C. 206(d), the Occupational

Safety and Health Act, 29 U.S.C. 651 ef seq., and other federal

statutes designed to benefit employees could also be read to imply

causes of action against unions for failure to aid in preventing

employers’ violations. Unions would become all-purpose enforcement

agencies for the entire array of employees’ statutory rights, with

respect not cnly to employer discrimination, but also to hazardous

working conditions, job-related diseases, pension funds, wages and

hours, and so on.

Such a radical conception of the union’s obligations would burden

the collective bargaining process, require unions to expend substantial

resources monitoring employers, expose them to the risk of severe

financial liabilities, and displace existing enforcement mechanisms.

And such a sweeping reordering of roles and priorities surely requires

an unequivocal mandate from Congress. See Rosen vy. Hote! &

Restaurant Employees, 637 F.2d 592, 599 n.10 (3d Cir.), cert. denied,

19

And thus their discretion over the grievance process, sub-

ject to the command that they not discriminate, was in-

tended to remain extensive.'*

3. The court of appeals would here impose liability on

the unions in a distinct set of circumstances: where the

unions at most made deliberate but good faith tactical

decisions as to how much, in which cases, and by what

arguments they would challenge allegations of discrimina-

tion by the employer, discrimination to which they had not

become a party by, for instance, signing a collective

bargaining agreement with provisions sanctioning or man;

dating discrimination. This Court has never imposed

liability on a union in this sort of case, even on a more

familiar disparate impact theory. We submit that impos-

ing liability on the union here would have significant and

unexpected implications once it is appreciated what is

distinctive about a union acting in this kind of a represen-

tative capacity.

454 U.S. 898 (1981) (denying union’s ERISA liability for “failure to

oversee” employer); Bryant v. United Mine Workers, 467 F.2d 1, 6

(6th Cir. 1972), cert. denied, 410 U.S. 930 (1973) (denying union

liability for mine operators’ failure to comply with Federal Mine Safe-

ty Code standards).

is ”

indeed, to avoid Title VII liability under an “affirmative duty

standard, unions would have to press for employers’ recognition of

the statutory rights of individuals, although Congress conceived of

those rights as independent of the collective bargaining process. See,

e.g., Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). And in

order to ensure those rights, unions would have to sacrifice their

bargaining advantages on other negotiating fronts, leaving them — and

the employees they represented —in a weaker position overall in deal-

ing with management. Ironically, the more discriminatory an

employer’s conduct, the more a union would have to concentrate its

demands on the issue of discrimination, and the weaker it would be in

all other bargaining areas. Congress clearly did not mean to force

unions (and thus employees) to seek, as a mere concession from

employers and in exchange for concessions on their part, what it chose

tO vest in employees as an indefeasible legal right.

20

The unique functions unions perform must be kept in

view when considering the Title VII liability to which they

may be subject. As we have argued, the statute itself

recognizes such a distinct role, dealing with the union’s

liability in Section 703(c) and the employer’s liability in

Section 703(a), 42 U.S.C. 2000e-2(a). Further, this in-

ference from the statutory scheme not only cautions

against some of the more expansive theories of union

liability, tending as they do to a theory of vicarious liabili-

ty,'® it invites attention to the differing role and nature of

employers and unions. Except when the union is itself an

employer (see 42 U.S.C. 2000e(a) and (b)) or when it in ef-

fect takes over employment decisions for an employer (see

General Building Contractors, supra), a union exists to

represent the bargaining unit employees’ interests and to

press their claims with the employer. A labor union under

the scheme of the national labor laws is a democratically

controlled, representative institution, compelled by law to

reflect the will of its constituents subject to the duty of fair

representation of all in the bargaining unit. An employer,

by contrast, has an altogether different relation to his

employees. They are not his constituents but rather his

agents and instruments.

In these respects a union is more like a limited purpose

governmental unit in its relations with its members. Steele

v. Louisville & Nashville R.R., 323 U.S. at 202 (“Congress

has seen fit to clothe the bargaining representative with

powers comparable to those possessed by a legislative

body both to create and restrict the rights of those whom it

represents, cf. J.J. Case Co. v. Labor Board, {321 U.S.

'¢ We would note that holding a union liable under a disparate im-

pact theory in a case like this one — where the union has done nothing

but fail to challenge (with some unspecified measure of insistence and

success) an employer’s discrimination—looks very much like the

“passive acquiescence” standard which, as we discussed earlier, is in-

consistent with the language and intent of Title VII.

21

332, 335 (1944)], but it has also imposed on the represen-

tative a corresponding duty”); see also NLRB vy. Allis-

Chalmers Mfg. Co., 388 U.S. 175, 181 (1967). Of course,

like a governmental unit, if a union intentionally

discriminates it is rightly subject to liability and sanctions.

See Note, Union Liability for Employer Discrimination,

93 Harv. L. Rev. 702, 721 (1980) (footnote omitted) (“A

union’s passivity violates [Section 703(c)(1)] only if its in-

tent in remaining inactive was to discriminate”). And when

a government (or a union) acts as an employer it is subject

to the same disparate impact analysis as other employers.

New York City Transit Authority v. Beazer, 440 U.S. 568

(1979); Dothard v. Rawlinson, 433 U.S. 321 (1977). But

this Court has declined to subject governments to liability

under more expansive theories of liability in their govern-

mental functions: a representative entity must always

balance and order the various claims and interests of those

whom it represents. Cf. Alexander v. Choate, 469 U.S.

287, 306-309 (1985); Personnel Administrator v. Feeney,

supra; Washington v. Davis, 426 U.S. 229, 246-248 (1976);

Jefferson v. Hackney, 406 U.S. 535, 549-551 (1972). A

union’s allocation of time, resources, or political capital to

one set of claims necessarily subtracts from what is

available to competing claims and interests, and Congress

in Title VII did not seek to impose any particular set of

priorities on labor unions, or to require that certain

claimants get preferential treatment. Cf. Wimberly v.

Labor & Industrial Relations Comm’n, No. 85-129 (Jan.

21, 1987), slip op. 5-6. Combatting discrimination is an

important union goal, but so is seeking a safe and healthy

workplace environment; unemployment, accident, and

sickness coverage; and higher wages. “The complete

satisfaction of all who are represented is hardly to be ex-

pected,” and a “[w]lide range of reasonableness must be

allowed a statutory bargaining representative.” Ford

22

Motor Co. v. Huffman, 345 U.S. at 338; see also Barren-

tine v. Arkansas-Best Freight System, 450 U.S. 728, 742

(1981). Thus, Congress did not contemplate an open-

ended mandate to courts to determine when a union, act-

ing consistently with its NLRA duty of fair representation

and with no racial animus, has or has not given the claims

and grievances of its minority members just the right

amount and just the right kind of attention.

As this Court discussed in Electrical Workers v. Foust,

442 U.S. 42, 48-52 (1979), unions must be afforded flex-

ibility in their grievance actions. In declining to allow a

member to receive punitive damages where the union

missed a grievance filing deadline, the Court stressed the

same factors which are most relevant here: “an employee

can recover in full from his employer” (id. at 49); awards

against unions “could deplete union treasuries, thereby im-

pairing the effectiveness of unions as collective-bargaining

agents” (id. at 50-51) and “curtail[ing] the broad discretion

that Vaca afforded unions in handling grievances” (id. at

51); if the unions are held liable, they “might feel com-

pelled to process frivolous claims or resist fair settlements”

(id. at 52); thus, “[a]bsent clear congressional guidance,

we decline to inject such an element of uncertainty into

union decisions regarding their representative functions”

(ibid.). See also NLRB v. Allis-Chalmers Mfg. Co., 388

U.S. at 180.

To be sure, unions have been held to a duty of fair

representation under Section 9(a) of the NLRA, 29 U.S.C.

159(a), but that duty recognizes that “[a] wide range of

reasonableness must be allowed a statutory bargaining

representative in serving the unit it represents, subject

always to complete good faith and honesty of purpose in

the exercise of its discretion.” Ford Motor Co. v. Huff-

man, 345 U.S. at 338; see also Motor Coach Employees v.

Lockridge, 403 U.S. 274, 301 (1971) (breach of duty re-

quires “deliberate and severely hostile and irrational treat-

NT HA

ment”); Vaca v. Sipes, 386 U.S. at 190 (breach if treatment

is “arbitrary, discriminatory, or in bad faith”). The terms

of the duty of fair representation are different and less in-

trusive upon the union’s performance of its representative

function than would be theories that imposed liability on a

union for failing to neutralize an employer’s discrimina-

tion, theories which would threaten to subvert the very

wide discretion for good faith conduct which this Court

has found to be appropriate.!’

Further, although the union’s status as exclusive

bargaining agent for all the employees of a bargaining unit

in general forces individuals or groups of individuals to

pursue their claims and grievances exclusively through the

union—Emporium Capwell Co. v. Western Addition

Community Organization, supra; J.I. Case Co. v. NLRB,

321 U.S. 332, 338-339 (1944)—it has been clearly

'? The court of appeals stated that “the district court found that the

unions intentionally avoided asserting claims of discrimination. In so

doing the unions violated the duty of fair representation owed to their

members” (Pet. App. 27a). There, indeed, is confusion compounded.

First, the odd phrase “intentionally avoided asserting claims” of

course conceals the fact that no more was proved than that there was a

knowing tactical choice to press such claims, but not in terms of racial

discrimination. See pages 7-8, supra. There is no finding of an im-

proper motive for this choice. Second, such tactical choices by no

means rise to the level of, for example, “deliberate and severely hostile

and irrational treatment” required to support an action for breach of

the duty of fair representation. Third, it is not at all clear what the

relevance to a Title VII action of such a breach of another statutory

duty would be, even if it had been pleaded (it was not) or were remote-

ly within the range of proof. Compare Emporium Capwell Co. v.

Western Addition Community Organization, 420 U.S. at 70-73 (Title

VII violation does not establish NLRA violation); A/exander v.

Gardner-Denver Co., supra; see generally | Larson, supra, § 44.20, at

9-18 to 9-22, § 44.50, at 9-40; Note, Union Liability for Employer

Discrimination, 93 Harv. L. Rev. 702, 719-724 (1980); pages 14-16,

supra.

24

established that Title VII claims may be brought outside

the usual union representational route by individuals and

groups who choose to do so, consulting only their own in-

terests. Alexander v. Gardner-Denver Co., 415 U.S. 36

(1974). And this would strongly suggest that an extension

of doctrine which would in effect compel the union to

bring such claims with some unspecified measure of priori-

ty not only was not contemplated in the overall scheme of

the labor laws; it is quite unnecessary.

4. Finally, any theory of liability which would impose

Title VII liability on a union in circumstances such as

those in this case would conflict with the basic principle

that one is liable only for one’s own misdeeds, not for

those of another; there is, in other words, generally no af-

firmative duty to stop another from violating the law. This

Court has already applied this principle in General

Building Contractors Ass’n v. Pennsylvania, supra,

discussed in the next section. The language of Section 1981

“does not speak in terms of duties,” and the statute does

not impose an “affirmative obligation,” to guarantee

minority rights “as against third parties who would in-

fringe them”; rather, it requires only that persons them-

selves “refrain from intentionally denying blacks” their

rights under the statute (458 U.S. at 396). The principle

has also been applied in several cases brought under 42

U.S.C. 1983. Polk County v. Dodson, 454 U.S. 321, 326

(1981) (“official policy must be ‘the moving force of the

constitutional violation’ ” in order to establish Section

1983 liability, quoting Monell v. New York City Dep’t of

Social Services, 436 U.S. at 694); Rizzo v. Goode, 423

U.S. 362, 376 (1976) (positing a “duty” to eliminate con-

stitutional violations for those who played no affirmative

part in committing them and a “right” for others to have

this duty performed “blurs accepted usages and meanings

in the English language in a way which would be inconsis-

tent with the words Congress chose in Section 1983”);

25

Monell, 436 U.S. at 691-692 (“language cannot be easily

read to impose liability vicariously’ where Congress

“specifically provide[d] that A’s tort became B’s liability if

B ‘caused’ A to subject another to a tort”). The clear

distinction drawn between union liability and employer

liability in Title VII, and Congress’s desire to maintain the

well-established division of rights and responsibilities be-

tween the two, indicates that this principle—of respon-

sibility only for one’s own actions — should apply a fortiori

to Title VII.'8

Il. THE COURTS BELOW ERRED IN FINDING THE

UNIONS LIABLE UNDER 42 U.S.C. 1981

Insofar as the decision of the lower courts is based on

Section 1981, it conflicts with this Court’s holding in

General Building Contractors Ass’n v. Pennsylvania,

supra. In that case, a union discriminated against blacks in

its referrals to employers from a union-operated hiring

hall. The employers in the case had agreed to hire only on

the basis of the union’s referrals. No claim was made that

the employers had themselves discriminated; nonetheless,

the lower courts had held them vicariously liable for the

union’s discrimination, on the ground that they had “a

'§ The Court made a “cf.” cite to Furnco Construction Co. v.

Waters, 438 U.S. at 577-578, a Title VII case, in General Building

Contractors tor the proposition that, in passing Section 1981, Con-

gress “did not intend to make [employers] the guarantors of the

workers’ rights as against third parties who would infringe them” (458

U.S. at 396). And in Teamsters v. United States, 431 U.S. 324, 353

(1977), this Court said it “would be a perversion of congressional pur-

pose” in passing Title VII to “place an affirmative obligation on the

parties to a seniority agreement to subordinate those rights in favor of

the claims of pre-Act discriminatees without seniority.” See also

Carpenters Local 46 v. Eldredge, 459 U.S. 917, 921-922 (1982)

(Rehnquist, J., dissenting from denial of certiorari).

26

‘duty to see that discrimination does not take place in the

selection of [their] workforce,’ regardless of where the

discrimination originates.” 458 U.S. at 392.'9

This Court reversed, holding that Section 1981 is

violated only by “purposeful discrimination,” /.e., by

“racially motivated” actions or “blatant deprivations of

civil rights, clearly fashioned with the purpose of

oppressi[on].” 458 U.S. at 388, 391. The employers were

held to have no affirmative obligation to protect those

against whom the union discriminated, since they were not

“the guarantors of workers’ rights as against third parties

who would infringe them” (id. at 396); intentional

discrimination of the kind required under Section 1981

could not be proved by showing that the employers had

“failed to ensure” nondiscriminatory employment oppor-

tunities (id. at 397). This Court has since reaffirmed that

“fujnder [Section 1981] relief is authorized only when

there is proof or admission of intentional discrimination.”

Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561,

583 n.16 (1984) (citing General Building Contractors).

In this case the plaintiffs apparently contend that the

“intent” requirement of Section 1981 was satisfied by the

finding that the unions had intentionally decided not to

grieve certain complaints, or to grieve them in certain

ways. See Pet. App. 26a. But not every volitional act will

provide the requisite intent. For liability to be found, the

unions must be shown to have made decisions from racial

motives, and no such proof exists here. See Personnel Ad-

ministrator v. Feeney, 442 U.S. at 279.?° Just as employers

'? No Title VII claim was brought against the employers. 458 U.S.

at 380.

2° Whether the union knew the employer was discriminating mat-

ters only insofar as it bears on the factual determination of whether

the union intended its action to be discriminatory (see Feeney, 442

U.S. at 279 n.25); because in this case there was no finding of the lat-

ter, the presence of the former is at this point legally irrelevant. Here,

al = Cee atin Ae. Seg Oil OA cS OG RE OGIO OE IE GE

ee

27

are not, under Section 1981, the third party guarantors

against union discrimination, so unions should not be

guarantors against employers’ Section 1981 discriminaton.

If the fundamental divergence of interests between union

and employer precludes an assumption that the latter is

liable for the former’s discrimination, no agency relation

can be presumed to run the other way either. See 458 U.S.

at 391-395; id. at 403-404 (O’Connor, J., concurring).

Hence the unions here had no duty under Section 1981 to

take affirmative steps to end Lukens’ discrimination, and

their decisions not to file grievances against the employer

in some situations cannot have been a breach of duty.

conversely, both courts below seemed to think it irrelevant whether or

not the unions were “favorably disposed toward minorities” (Pet.

App. 25a, 140a).

28

CONCLUSION

For the foregoing reasons, the judgment of the court of

appeals should be reversed.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WM. BRADFORD REYNOLDS

Assistant Attorney General

DONALD B. AYER

Deputy Solicitor General

MICHAEL CARVIN

Deputy Assistant Attorney

General

ROGER CLEGG

Assistant to the Solicitor

General

DAVID K. FLYNN

ROBERT J. DELAHUNTY

Altorneys

FEBRUARY 1987

US GOVERNMENT PRINTING OFFICE: 1987— 181 483.40207