Opposition Brief — International Longshoremen's Ass'n Locals 329 & 851 v. Equal Employment Opportunity Commission

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION

LocaLs 329 AND 851, AFL-CIO, ET AL.,

PETITIONERS —

ot

v.

EQuaAL EMPLOYMENT OPPORTUNITY COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

Rex E. Lze

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

JOHNNY J. BUTLER

General Counsel (Acting)

Equal Employment Opportunity Commission

Washington, D.C. 20507

QUESTION PRESENTED

Whether the district court abused its discretion in select-

ing the ratio-rank method for merging the seniority lists of

four local unions.

(1)

—— o— ——__

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

EEOC v. ILA:

511 F.2d 273, cert. denied, 423 U.S. 994 ....... 2

623 F.2d 1054, cert. denied, 451 U.S.917 ...... 2

Firefighters Local Union No. 1784 v.

Stotts, No. 82-206 (June 12, 1984) .......... 7,8

Franks v. Bowman Transportation Co.,

i es Le eden ke 6 eee she eee ces ees 5

Smith v. Baltimore & O.R.R.,

EE SW ASC DF Sess 6cccccnvense 5

Truck Drivers Local 568 v. NLRB,

i ieee deen deka becavsseepeans 5

Statutes:

Civil Rights Act of 1964, Tit. VII,

i i, vc cntvceb ev eas heen 2

A ED vec wcsccescctdacnevese 2

ee SED bcd cbeserssevavecaneds 2

(IIT)

IV

Page

Miscellaneous:

Kennedy, Merging Seniority Lists, in

Labor Arbitration & Industrial Change —

Proceedings of the 16th Annual Meeting

of the National Academy of Arbitrators

Ce SUD onc cevadedveceseneveses 5-6

Iu the Supreme Court of the Hnited States

OCTOBER TERM, 1984

No. 84-1004

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION

LocALs 329 AND 851, AFL-CIO, ET AL.,

PETITIONERS

V.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-2a) and

the order of the district court (Pet. App. 6a-10a) were

unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 17, 1984. A petition for a writ of certiorari was filed

on December 17, 1984. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

- STATEMENT

Petitioners challenge the method used to merge the

seniority lists of previously segregated longshoremen’s

locals.

(1)

2

1. In 1969, the United States Attorney General filed this

action under Title VII of the Civil Rights Act of 1964, 42

U.S.C. 2000e et seq., against the International Longshore-

men’s Association (ILA), the South Atlantic and Gulf

Coast District of the ILA, and 37 local unions (Pet. App.

34a-35a).' The Attorney General sought to end the practice

of maintaining segregated longshore locals in the ports of

Texas. In 1975, the court of appeals held that the practice

was unlawful and ordered that the locals be merged. EEOC

v. ILA, 511 F.2d 273 (Sth Cir.), cert. denied, 423 U.S. 994

(1975). Five years later, the court reaffirmed its merger

order in an appeal involving only the four Galveston locals,

including petitioners. EEOC v. ILA, 623 F.2d 1054 (Sth

Cir. 1980), cert. denied, 451 U.S. 917 (1981).

Prior to the merger, the Port of Galveston consisted of

four longshore locals segregated on the basis of race and

national origin. The petitioners, Locals 851 and 329, were

black; Local 307 was white; and Local 1576 was Mexican-

American (EEOC v. ILA, 623 F.2d at 1055). The white

local and the larger black local, 851, performed “deep sea”

cargo work. The smaller black local, 329, was permitted to

work only for four stevedoring companies. The Mexican-

American local was confined to “green fruit” work. Pet.

13-14. There was little green fruit work available at the time

the Mexican-American local came into existence; at the

‘Effective March 1974, the Attorney General’s authority to bring a

Title VII action alleging a pattern or practice of discrimination was

transferred to the Equal Employment Opportunity Commission

(EEOC). Pursuant to 42 U.S.C. 2000e-6(d) and (c), this suit was con-

tinued without abatement and the EEOC was substituted as a party.

3

time of the merger, however, this work comprised approx-

imately a quarter of the total longshore work in Galveston,

and was gradually increasing (Pet. App. 7a).’

The locals each used different criteria for determining

seniority. The Mexican-American local’s requirements for

a year’s seniority were low — until 1968 a‘worker could

obtain one year’s seniority by working only one boat per

year; from 1968 to 1972 the requirement was 20 boats per

year; and in 1972 it was changed to 300 hours. The smaller

black local always required 400 hours of work each year for

a year’s seniority. The larger black local and the white local

have, since 1951, required at least 700 hours each year to

obtain a year’s seniority. Pet. 5.

2. The district court established in each port, including

Galveston, a merger committee of the local unions to

resolve all merger issues (see Pet. App. 30a). If acommittee

could not agree, the governing ILA District was directed to

make recommendations (ibid.).3 Because the four local

unions in Galveston could not agree on a method for merg-

ing their seniority lists, the ILA District submitted its

recommendation (Pet. App. 7a). The ILA District recom-

mended that individual longshoremen be given credit for

seniority in accordance with the criteria recognized by each

local and that no local experience either a windfall or a

significant loss of work opportunities because of the merger

2For the years 1980 through 1982, the white local performed 38% of

the work, and had 35% of the workers; the larger black local performed

30% of the work with 21% of the workers; the smaller black local

performed 6% of the work with 9% of the workers; and the Mexican-

American local performed 26% of the work with 34% of the workers.

C.R. 334, at 19 (“C.R.” refers to the clerk’s record in the district court.)

3The court explained that “decisions affecting the day-to-day opera-

tions of longshoremen’s unions are best made by longshoremen not

federal courts” (see C.R. 334, at 4),

4

(see C.R. 29a; Memorandum in Support of District’s

Recommendations Regarding Seniority Roster 9). It

recommended use of a modified “ratio-rank” method as the

most effective means of achieving that goal (C.R. 330;

3/11/83 Tr. 25, 27-28). Under that method, each long-

shoreman’s position on the merged list approximates his

position on the former list of his local, with some weighting

to reflect the differing sizes of the three locals. Thus, if a

worker was located in the top 25% of his local’s seniority

list, he retains that position in the merged list; if the worker

was in the bottom quarter, he retains that position (com-

pare C.R. 370A and 370B).

After entertaining objections and counterproposals to

that recommendation the district court adopted the ILA

District recommendation, finding that the ratio-rank

method “precludes a windfall or loss to any group” and that

(Pet. App. 7a),

[g]iven the unique relationship and history among the

various locals in Galveston, and the fact that Local

1576 [the Mexican-American local] is actually “bring-

ing” work to the merger that was not heretofore avail-

able to members of other locals, the Court finds that

the application of the ratio-rank method would effect

the fairest merger of seniority lists in Galveston.

The court directed that the local seniority rosters be merged

on the ratio-rank basis (id. at 7a-8a).!

The two black locals appealed and the court of appeals

affirmed (Pet. App. 1a-2a). The court of appeals found that

the district court had not abused its discretion in ordering

‘The district court first ordered that the seniority rosters of the two

black locals be merged on a straight “length of service” basis, with ties

decided by lot, in order to equalize the size of the black, white and

Mexican-American lists (P*t. App. 7a). No party has objected to this

part of the court’s order.

5

use of the ratio-rank method. The court concluded: “Pre-

serving the work expectancies [of the longshoremen] through

use of the ratio-rank formulation for merger of seniority

lists of existing unions into new Local 20 at the Port of

Galveston was a fair resolution of the equitable issues pre-

sented to the district court” (ibid.).

ARGUMENT

Petitioners do not suggest any sound reason why the

Court should review the court of appeals’ decision that the

district court did not abuse its discretion in ordering use of

the “ratio-rank” method.

1. Title VII vests the district courts with broad equitable

discretion to fashion appropriate orders to remedy unlaw-

ful discrimination. Franks v. Bowman Transportation

Co., 424 U.S. 747, 763 (1976). In undertaking the complex

task of merging the Galveston locals’ seniority lists — a task

that has been termed “notoriously difficult” (Truck Drivers

Local 568 v. NLRB, 379 F.2d 137, 142 (D.C. Cir. 1967)

—- the district court acted well within the scope of its dis-

cretion in selecting the ratio-rank method.° Indeed, where,

as here, the merging entities’ seniority standards are vastly

different, it is considered preferable to utilize a ratio-rank

procedure in order substantially to maintain the same

seniority privileges as persons enjoyed prior to the merger

(see Kennedy, Merging Seniority Lists, in Labor Arbitra-

tion & Industrial Change — Proceedings of the 16th

5Merger of seniority systems is frequently a thorny issue when bar-

gaining units are consolidated because of business mergers, and “courts

have approved a wide variety of systems for merging seniority lists of

entities that are consolidating their operations” (Smith v. Baltimore &

O.R.R., 485 F. Supp. 1026, 1029 (D. Md. 1989)).

6

Annual Meeting of the National Academy of Arbitrators

(M. Kahn ed. 1963)).®

Petitioners have cited no cases that suggest that the ratio-

rank method of merging seniority systems is an inapprop-

riate remedy under Title VII. Instead, conceding “that a

merger of the seniority lists in a manner that is equitable is

at best difficult” (Pet. 14),’ they propose that this Court

order the use of one of two alternative methods. Petitioners

propose, first, that the seniority systems should be merged

on a “follow the work” principle. Under this approach,

seperate seniority lists would be maintained for different

types of work so that workers would be able to continue to

perform the type of work they performed previously (ibid.).

However, as petitioners acknowledge (ibid.), the “follow

the work” method is inappropriate because the object of

this litigation was to merge the unions and end segregated

work opportunities. It would run counter to the entire

purpose of Title VII relief to establish separate seniority

lists and allocate placement on those lists using the past

limitations on the type of work each local could undertake.

That would perpetuate, not eliminate, segregation.*

*As stated by Professor Kennedy (at 27 (citation omitted)):

[the ratio-rank method] eliminates the windfalls and losses in

seniority rights which occur if the length of service principle is

employed to consolidate two seniority lists which have considera-

ble difference in their length-of-service structure. When the ratio-

rank principle is used, the employees retain their relative positions

on the merged seniority list. It is argued that “this substantially

maintains the same seniority privileges as the persons enjoyed

under the two separate lists.”

’As the district court aptly observed, “only the good Lord himself

could design a system that all of [the union members would] think is

perfect. * * * So I've just got to do what is the fairest for the most”

(C.R. 385; Tr. 58.

*Petitioners suggest (Pet. 15) that this problem might be avoided by

merging the four seniority lists in a manner that they do not explain, but

7

Petitioners’ second alternative, the “length of service”

proposal (Pet. 15), is also flawed. As we understand it,

longshoremen would be slotted into a merged seniority

roster according to their years of service, as defined by the

standard of the local to which each belonged. This method

would treat longshoremen “as if they had always been

employed by the same company” (Pet. 15) when, in fact,

they were not. The main result of the application of this

method would be enhancement of the seniority of black

workers at the expense of Mexican-American workers.’

Petitioner cites no authority establishing that the length of

service method is mandatory, or even preferable.

2. Petitioners claim (Pet. 8-13) that the court’s remedial

order conflicts with Firefighters Local Union No. 1784 v.

Stotts, No. 82-206 (June 12, 1984), because it “divests” their

members of accrued seniority. This argument misconstrues

the nature of the district court’s order. The fact that the first

man on the roster of the Mexican-American local may have

earned credit for one year of service by working 300 hours a

year, whereas the first man on petitioners’ roster may have

had to work 700 hours to earn a year’s credit, does not alter

the fact that each was at the top of his roster and was

that sounds like the “absolute-rank” method (see Kennedy, supra, at

22-26). Application of this method is warranted only when all seniority

lists are about the same size (id. at 24-25). If applied as petitioners

appear to suggest, it would provide a windfall to their members, since

they are the two smallest locals.

*Under petitioners’ length of service approach, the Mexican-American

local would receive only 3 of the first 50 and 17 of the first 100 slots on

the merged roster, though they are bringing 34% of the workers and

26% of the work to the merger. Petitioners, on the other hand, with 30%

of the men and 36% of the work, would garner 32 of the first 50 and 58 of

the first 100 slots. See C.R. 370B. At the other end of the list, members

of the Mexican-American local would occupy 40% of the bottom half of

the slots, while petitioners’ members would occupy only 24.3% of those

slots (ibid.).

entitled to work at will. It is that work expectation which

the court sought to protect by the use of the ratio-rank

method to merge the seniority lists. No one has been div-

ested of anything.'!® The court’s decision is not inconsistent

with Firefighters’ Local Union No. 1784 v. Stotts, supra,

which did not involve the merger of seniority systems.

Nothing in the Court’s opinion is contrary to the district

court’s decision in this case, which did not divest workers of

their seniority rights, but rather sought to protect those

rights by using the ratio-1ank method to maintain substan-

tially the same work opportunities for employees on the

merged roster as they had on their prior seniority lists.

CONCLUSION

For the foregoing reasons the petition for certiorari

should be denied.

Respectfully submitted.

Rex E. Lee

Solicitor General

JOHNNY J. BUTLER

General Counsel (Acting)

Equal Employment Opportunity Commission

FEBRUARY 1985

Petitioners suggest in passing (Pet. 8) that the district court’s order

somehow affects post-employment benefits. There is no support for this

contention, since the merged seniority list only determines day-to-day

hiring prioirities. In any case, petitioners do not explain how their

members have been divested of any such benefits.

DO)-1965-02