Amicus Curiae Brief — Johnson v. Transportation Agency, Santa Clara Cty.

, Supreme Cr .t, U.S,

(ay | la FILED

‘ee

No. 85-1129 — AUG 21 1988

‘JOSEPH F. SPANIOL, JR.

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

PAUL E. JOHNSON,

Petitioner

VU.

TRANSPORTATION AGENCY, SANTA CLARA

COUNTY, CALIFORNIA, and SERVICE

EMPLOYEES INTERNATIONAL UNION

LOCAL 715,

Respondents

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE

MID-ATLANTIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

Richard B. McGlynn

(Counsel of Record)

Douglas Foster

John G. Collins

Mid-Atlantic Legal Foundation, Inc.

219 East 42nd Street

New York, N.Y. 10017

(212) 557-1350

Counsel for Amicus Curiae

August 21, 1986

PACKARD PRESS / LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA, PA. 19123 (215) 236-2000

TABLE OF CONTENTS

Page

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2). eee SNE gh ost mic Ml gee waar 2

ie cae pak ak ae a kg Oe 3

‘Tee eeevant Precedems. 5... ok 4

Eee Fame OO Pee BY. . ww ec 11

Unrealistic Nature of the Plan............... 13

Pa 8 os eee aa G wees 13

ER ae ree op a a ee Oe 15

TABLE OF AUTHORITIES

Cases: Page

Albemarle Paper Co. v. Moody, 442 U.S. 405

CRTRFOD 5 es 4 oak 5 be Se hed cae a 8

Fullilove v. Klutznick, 448 U.S. 448 (1980)....... 10

Local 28, Sheet Metal Workers International Asso-

ciation v. E.E.O.C.., U3. Oe ass OO

GE Ce ios Sb 056 be ee ee 8, 11

Los Angeles Dept. of Water & Power v. Manhart,

ge Ey 04, SR rere 10

McDonald v. Santa Fe Trail Transportation Co.,

Be RS fs Be oY RR ete ecg 4

No. 93, International Association of Firefighters,

AFL-CIO v. The City of Cleveland, U.S.

___., 94 U.S.L.W. 5005 (1986).............. 5, 6

United Steelworkers of America, AFL-CIO-CLC v.

Wear, 443 th.5. TGS (iGO ok cack. passim

University of California Regents v. Bakke, 438 U.S.

SE RAEI ws kkk FS Cp ONS behav ka kaa a 10

Wygant v. Jackson Board of Education, ____ U.S.

‘cial. OE 4h kn OR WRT CA ove 8s passim

Statutes:

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

Ps Oe BOs i Si ie sea eee Oe passim

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

DEE 35 055 AAD beh eh ee 4,5

No. 85-1129

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

PAUL E. JOHNSON,

Petitioner

Vv.

TRANSPORTATION AGENCY, SANTA CLARA

COUNTY, CALIFORNIA, and SERVICE

EMPLOYEES INTERNATIONAL UNION

LOCAL 715,

Respondents

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE

MID-ATLANTIC LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

INTERESTS OF AMICUS

Pursuant to this Court’s Rule 42, Mid-Atlantic Legal

Foundation hereby moves this Court for leave to file the

attached brief as amicus curiae. Consent was secured

from counsel for all active parties. Copies of the letters of

consent have been filed with this Court.

]

2

Mid-Atlantic Legal Foundation is a non-profit, tax

exempt corporation organized and existing under the

laws of Pennsylvania. It is a public interest law firm ,

which participates in litigation involving matters of

broad public interest such as the instant case which is

likely to impact in one form or another a substantial por-

tion of the nation’s employers and employees.

STATEMENT OF THE CASE

For the sake of brevity amicus does not separately set

forth its statement of the case but adopts that set forth by

the petitioner.

ARGUMENT |

I. Key Facts |

Respondent, Transportation Agency, Santa Clara

County, California (the “Agency”) discriminated against

petitioner, a male, on the basis of his sex, in favor of a

female.

The Agency had never discriminated against fe-

males. (Cert. App. 13a, Finding of Fact 22).'

The only discrimination of which the Agency was

guilty, therefore, was its refusal to promote petitioner in =‘

favor of a less qualified female. (Cert. App. 11la-13a,

Findings of Fact 9-16, 21). But for her sex, the less qual-

ified female would not have been promoted to Road Dis-

patcher. (Cert. App. 13a, Finding of Fact 20).

In reversing the District Court, the Court of Appeals

did not undertake to disagree with the foregoing facts.

Rather, it ignored those facts in favor of the following

rationale:

1. References to the Appendix to the petition for certiorari are

referred to as “Cert. App.

References to the Joint Appendix on ‘the merits are referred to

as “JA. :

Le Ta EO

3

“Plans like this one are usually voluntarily

adopted by employers who wish to express and

act upon their commitment to social justice.”

[Johnson v. Transportation Agency, Santa Clara

County, California, 770 F2d., at 757.]

II. Unanimity

Amicus suggests that this case presents both the op-

portunity and necessity of a unanimous opinion of re-

versal.

In the view of amicus, such an opinion will result if

prior opinions are given a straight line extrapolation.

More importantly, a unanimous opinion will be

highly desirable as a matter of judicial definition, as may

be seen by a brief consideration of the opinions of the

courts below. Both of those eminent courts have been

distracted by fine point debate from attention to the fun-

damental viewpoints on which the Justices of this Court

appear to agree. Chief among them is the point of view

that an acceptable affirmative action program, involving

at least race classifications, must be predicated upon

identifiable evidence of past discrimination which the

plan is designed to remedy.”

2. The only possible exception to this conclusion appears to be

the single opinion of Justice Stevens dissenting in Wygant v. Jack-

son Board of Education in a factual pattern involving racial violence

in an educational setting, a pattern far from that presented here.

(See, U.S. 54 U.S.L.W. 4479, 4492 (1986). But

see Justice Stevens’ statements at 10, infra.

3. “{T]he perception of racial classifications as inherently odi-

ous stems from a lengthy and tragic history that gender-based clas-

sifications do not share.” [University of California Regents v. Bakke,

438 U.S. 265, 303 (1978)]. In any consideration of exceptions to the

proscriptions of Title VII, the remedial action permitted, if any be

permitted, must bear a direct relationship to the severity of the dis-

criminatory wrong to be remedied. Temptation to sanction action

(Footnote continued)

4

When the District Court found that the agency had

never discriminated on the basis of sex and the Court

had before it only a plan which attributed under-

representation to an historic lack of interest by females in

the jobs involved, its inquiry should have ended. *

Similarly, it is quite clear that the Court of Appeals

incorrectly read Weber as an open door to the exercise by

any employer of its view of social justice, the plain lan-

guage of Title VII and the true underpinnings of Weber

be damned.°

III. The Relevant Precedents

A. This Court’s inquiry will unquestionably begin

with the plain language of Section 703 [42 U.S.C. Sec.

2000e-2], which proscribes discrimination based on race

or sex, inter alia. This Court has acknowledged that the

proscription is of discrimination against both non-whites

and whites:with respect to race and both males and fe-

males with respect to sex. [McDonald v. Santa Fe Trail

Transportation Co., 427 U.S. 273 (1976)].

A significant minority of this Court has held to the

view that this should end the inquiry. [Steelworkers v.

Weber, 443 U.S. 193, 228 (1979) (Rehnquist, J., dissent- |

ing), 443 U.S. 193, 218 (Burger, C.J., dissenting)].

Particularly when presented with a record in which

the only allegation of discrimination is of that practiced

against the petitioner, the literal language of Section 703

should be deemed to apply without further debate. Sec-

tion 703 prohibits discrimination, discrimination oc-

curred, no countervailing discrimination appears and in

(Footnote continued)

designed to remedy centuries of invidious and odious race discrim-

ination should be tamed where non-race based classifications are

involved. And, of course, in this case there was no past discrimina-

tion to remedy. (Cert. App. 13a, Finding of Fact 22).

4. The “plan” discussed herein is the Agency’s Affirmative Ac-

tion Plan set forth at JA. 29-109.

5. United Steelworkers of America, AFL-CIO-CLC v. Weber,

443 U.S. 193 (1979).

5

fact was held not to have occurred. In the view of amicus

no further search beyond the confines of 703 should be

deemed either necessary or justified.

B. This Court has declared that under certain cir-

cumstances an employer may employ race-based classi-

fications as part of an affirmative action plan.

[Steelworkers v. Weber, 443 U.S. 193 (1979)].®

It has not yet defined in detail the boundaries of such

permissible plans. [Id., 443 U.S., at 208].’

A second minority of this Court has clearly stated in

Weber, and subsequent cases involving affirmative ac-

tion by agreement and court order, that to be acceptable,

affirmative action based on race-based classifications,

must be predicated upon convincing evidence of past

discrimination which the affirmative action is designed

to remedy. |Weber, 443 U.S., at 213 (1979) (Blackmun,

J., concurring); No. 93, International Assocation of

Firefighters, AFL-CIO v. The City of Cleveland,

wales Me . , 54 U.S.L.W. 5005, 5013 (1986)

(White, J., dissenting); Wygant v. Jackson Board of Ed-

ucation, ____. US. , 54 U.S.L.W. 4479, 4481

(1986) (Powell, J., for the Court); 54 U.S.L.W., at

4484-85 (O’Connor, J. concurring)}.®

6. Amicus respectfully questions the judicial logic of permitting

an employer-citizen greater leeway than that provided to the courts

by Congress, under a statute of proscription against employer dis-

crimination.

7. Given the sort of result presented by the case at bar where

direct, one-on-one discrimination would be allowed by a Court of

Appeals because it perceives that affirmative action plans are

adopted for the benefit of social justice, amicus suggests that this

Court should clarify the holding of Weber. Please also see text, infra

at 13-14.

8. Amicus recognizes that the case presents a Title VII claim,

but urges that under the facts of the case and the philosophies cited,

the distinction between such a claim and an equal protection claim

is one without a difference. Whether the requisite evidentiary stan-

dard of “convincing” evidence be applied in Title VII statutory cases,

or some lesser standard, in no event do the decisions of this Court

(Footnote continued)

6

Indeed, for affirmative action using race-based clas-

sifications to be acceptable, a state employer must be

found to be truly remedying its own past discrimination,

if not a specific act of discrimination. [Wygant, 54

U.S.L.W., at 4485 (O’Connor, J., concurring), Firefight-

ers, 54 U.S.L.W., at 5013 (White, J., dissenting).

The majority of the Court in Wygant expressly re-

affirmed its rejection of the notion that mere societal dis-

crimination would justify affirmative action by use of

race-based classifications. As Justice Powell stated for

the Court:

“This Court never has held that societal discrim-

ination alone is sufficient to justify a racial clas-

sification. Rather, the Court has insisted upon

some showing of prior discrimination by the gov-

ernmental unit involved before allowing limited

use of racial classifications in order to remedy

such discrimination.”

(Wygant, 54 U.S.L.W., at 4481 (plur. op.); see also,

Bakke, 438 U.S., at 311-315 (1979).

In Weber, the permitted employer activity was

grounded in a long-standing intentional exclusion of

blacks from crafts and craft training programs, an odious

practice denounced in so many judicial decisions as to

make such exclusion a proper subject of judicial notice.

(Weber, 443 U.S., at 198 n. 1).

In Firefighters, this Court was presented with action

taken after long and repeated litigation against the City

of Cleveland resulting in judicial findings of wide pat-

terns and practices of race discrimination against its

potential civil servants. [Firefighters, ___._ U.S. ___.,

___, 54 U.S. L.W. 5005, 5006 (1986)).

(Footnote continued)

remotely suggest that the necessary predicate may be found in the

negative finding that no past discrimination had occurred. (See also,

Firefighters, 54 U.S.L.W., at 5013) (White, J., dissenting).

7

This Court was presented in Wygant with no more

than statistical disparities, styled societal discrimination,

and a desire on the part of the employer to establish ed-

ucational “role models.”* A majority of this Court re-

jected the planned action, reaffirming the necessity that

the action must be based on convincing evidence that it

was designed to remedy past discrimination. Even there,

however, the rejected action was grounded in “racial ten-

sion” to the point of violence. [Wygant, 54 U.S.L.W.., at

4480 (plur. op.); 54 U.S.L.W., at 4488 (Marshall, J., dis-

senting)].

By comparison, the instant case does not present the

issue of race discrimination but sex discrimination; it

does not present any evidence of past sex discrimination,

let alone convincing evidence, but presents findings of

fact that the employer never engaged in sex discrimina-

tion; it does not present any.evidence of compelling or

any like level of state interest in remedying past discrim-

ination because there was none.

All that is presented is a public agency’s viewpoint of

societal justice which would allow first, the frustration of

a man’s career in favor of the de-humanizing concept

that its workforce must ape anonyinous statistics, and

second, the frustration of Congress’ view of social justice

as reflected in Title VII and its legislative history.

C. A third minority of this Court appears more dis-

posed toward voluntary affirmative actions. As will be

seen, however, these Justices retain their commitment

9. Although some Justices of this Court have apparently taken

the position that it is not a necessary predicate for a valid affirmative

action pian that specific prior discrimination have been shown, no

Justice has taken the position that mere statistical imbalances are

sufficient. The Ninth Circuit majority was wrong when it held tha’

“a mere statistical disparity suffices to show that a job category was

‘waditionally segregated’. (Johnson v. Transportation Agency,

Santa Clara County, California, 770 F 2d., at 764, n. 1).

8

to fundamental principles at direct odds with approval of

respondent’s plan here and with the Court of Appeals’

approach.

The major premise of Justice Brennan’s opinion in

Weber was that “because blacks had long been excluded

from craft unions, few were able to present experience

credentials required of the employer there.” (443 U.S., at

198). Justice Brennan read the totality of Title VII to en-

courage the elimination of “an unfortunate and ignomin-

ious page in our country’s history.” [443 U.S., at 204,

citing Albemarle Paper Co. v. Moody, 442 U.S. 405, 418

(1975)].

The signifance with respect to this case, of Justice

Brennan’s premises in Weber, was recently highlighted

by his explanation of certain legislative history of Title

VII, viz.:

“..it is clear that the bill’s supporters only

wished to emphasize that an employer would

not violate the statute merely by having a racially

imbalanced work force, and, consequently, that

a court could not order an employer to adopt ra-

cial preferences merely to correct such an im-

balance.”

|Local 28, Sheet Metal Workers International Associa-

tion V. FE ICOM, cae UD: : 54 U.S.L.W. 4984,

4992 (1986)].

Similarly, in his dissent in Wygant, Justice Marshall,

in urging the propriety of the Jackson school system’s

collectively-bargained layoff plan, was clear in the prem-

ises of his argument and in articulation of principles

which he thought were held inviolate by the action pre-

sented in that case:

“We need not rely on any general awareness of

‘societal discrimination ’ ... [t]he imperative to

integrate these public schools was urgent. Ra-

cially motivated violence had erupted at the

9

schools, interfering with all educational objec-

tives.”

cd bad Xe

“Article XII modified contractual expectations

that do not themselves carry any connotation of

merit or achievement; it does not interfere with

the ‘cherished American ethic’ of ‘[f|airness in

individual competition,’ Bakke, supra, at 319, n.

53, depriving individuals of an opportunity that

they could be said to deserve.”!°

” a bd

“Article XII was forged in the crucible of clash-

ing interests. All of the economic powers of the

predominently white teachers’ union were

brought to bear against those of the elected

board, and the processes yielded consensus.”

* * *

“The concerns that have prompted some

Members of this Court to call for narrowly tai-

lored, perhaps court-ordered, means of achiev-

ing racial balance spring from a legitimate fear

that racial distinctions will again be used as a

means to persecute individuals, while couched

in benign phraseology. That fear has given rise

to mistrust of those who profess to take remedial

action, and concern that any such action ‘work

the least harm possible to other innocent per-

,”

sons competing for the benefit’.

CS: ; , 54 U. S. L. W. 4479, 4490-91).

10. Notwithstanding the action taken against petitioner, the in-

stant plan itself contemplates the necessity of promoting the best

qualified individual. (See, e.g., plan provisions at JA. 76-77 and 109.)

10

In like fashion, Justice Stevens has spoken elo-

quently of the proper focus on individual equality and the

counter productive nature of reverse discrimination.

“Both Title VI and Title VII express Congress’

belief that, in the long struggle to eliminate so-

cial prejudice and the effects of prejudice, the

principle of individual equality without regard

to race or religion [or sex], was one on which

there could be a ‘meeting of the minds’ among

all... and a common national purpose.”

[University of California Regents v. Bakke, 438 U.S.

265, 416 n. 19 (1978) (Justice Stevens dissenting) (in-

sertion supplied)].

“{T]he basic policy of [Title VII] requires that we

focus on fairness to individuals rather than fair-

ness to classes.”

[Los Angeles Dept. of Water & Power, 435 U.S. 702, 709

(1978)].

“The ultimate goal must be to eliminate entirely

from government decision-making such irrele-

vant factors as a human being’s race [or sex].

The removal of barriers to access to political and

economic processes serves that goal. But the

creation of new barriers can only frustrate true

progress. For as Mr. Justice Powell and Mr. Jus-

tice Douglas have perceptively observed, such

protective barriers reinforce habitual ways of

thinking in terms of classes rather than

individuals.”

[Fullilove v. Klutznick, 448 U.S. 448, 547 (1980) (Justice

Stevens dissenting) (insertion supplied)].

It will readily be seen that the Justices forming this

third minority hold fast to the protection of fundamental

principles.

11

Equally readily will it be seen that the discriminatory

action permitted by the court below violates the prem-

ises, principles and safeguards which this minority has

articulated.

This case does not present a factual pattern of in-

tentional racial exclusion as in Weber, or of gender ex-

clusion. This case is not grounded in racial tension and

resultant violence. The plan presented in this case, far

from the product of the “crucible of clashing interests,”

is the unilateral product of a single empioyer’s view of

social justice. The only remotely relevant information ap-

pearing upon the record are statistics of gender imbal-

ance, that very condition which, standing alone as it does

here, Justice Brennan has pointed out Congress decided

would not constitute discrimination. (Sheet Metal Work-

ers, 54 U.S.L.W., at 4992).

What the record does present is action taken pursu-

ant to the plan which collides head-on with, and de-

stroys, the opportunity which the petitioner merited

because he had achieved it and which he deserved. It did

so by an act of prohibited sex discrimination."

IV. The Plan Is Not Temporary

The instant plan and the discrimination worked

against petitioner find no basis in the consistent deci-

sions and opinions of this Court, as shown above. But

assuming, arguendo, that some action were to be sanc-

tioned despite that law, under, for example, the tests set

forth in Weber, the Agency’s plan fails. One such test is

whether a plan is temporary. As the District Court found,

“the Affirmative Action Plan had no end date or other

11. To promote someone less qualified over someone more

qualified, is itself an act of discrimination. When the reason for such

promotion is grounded in gender, the sin of discrimination is com-

pounded.

12

provision which would have the effect of ending prefer-

ential treatment to women.” (Cert. App. 13a, Finding of

Fact 24).

The plan in this case seeks not only to attain certain

hiring goals, but effectively seeks to maintain those goals

into an undefined future. The plan speaks often of the

need for “continuing action” with respect to establishing

and maintaining the percentages of women and minor-

ities in the Agency’s workforce.

Moreover, according to the plan, it will moderate or

amend the goals of hiring to comport with changes in the

Census data.'* Thus the plan contemplates continuing

changes in its goals to accommodate changes in the de-

mographics of the County work force.

Moreover, as hiring is a continuing process, the plan

will operate as a permanent requirement to ensure that

the work force during any given time period qualifies

with respect to the percentage goals for different groups

set by the plan. Even when those goals are achieved,

they will need to be continually applied so that the per-

centages remain constant. The plan is “timeless” in its

scope and therefore should not be upheld by this Court.

As Justice Powell stated in Wygant:

“But as the basis for imposing discriminatory le-

gal remedies that work against innocent people,

societal discrimination is insufficient and over-

expansive. In the absence of particularized find-

ings, a Court could uphold remedies that are

ageless in their reach into the past, and timeless

in their ability to affect the future.” (54

U.S.L.W., at 4482).

12. The plan established percentage long-range goals for

women and minorities based on the ratio of those groups in the area

work force, according to the 1970 Census. The plan further pro-

vided; however, that these goals would be modified “in accordance

with the data derived from the 1980 Census or other official data

that may become available.” (JA. 54)

i3

V. Unrealistic Nature of the Plan

This Court should examine the plan closely. It is a

document laced with unrealistic premises and demands,

styled “goals”, particularly with respect to the jobs that

were involved and for which it sought to establish a goal

of 36.4 percent for women. Many of the jobs admittedly

involved “heavy labor.” Indeed, certain of the job cate-

gories which had to be filled by this goal of 36.4 percent

for women, were significantly underrepresented by

women because, as the Agency acknowledged in its

plan, “few women seek entry into these positions.” (JA.

56). For example, women were “greatly under-

represented in the bus maintenance function.” (JA. 50).

That is, women were not applying and historically had

not applied to be bus mechanics. This is not surprising.

The lack of women in the heavy labor job categories,

such as mechanics and body and fender repairers, was

not the result of any discrimination, but rather repre-

sents the normal and natural desires and inclinations of

women with respect to the types of work they seek.!*

Nevertheless, the instant plan seeks unrealistically to

mechanically impose the same representation for each

and every kind of job.

VI. Public Policy

Amicus further suggests that this Court consider

seizing the opportunity presented by this case to refor-

mulate the Weber rule as a matter of sound public and

judicial policy.

The plan presented in this case is so devoid of po-

tential justification that this Court should examine the

signals which Weber sent to the courts below. Neither

13. It might be asked whether the Washington Redskins or

Dallas Cowboys are guilty of discrimination because they do not em-

ploy any women on their teams. Should the National Football

League be required to hire women to accord with the percentage of

women in the work force, and if the League did not, would it be

guilty of discrimination? Of course not.

14

court in the instant case focused on the principle that

affirmative action can only be justified to remedy past

discrimination whether that of the specific employer or,

arguendo, some broader employer discrimination. At a

minimum a clearer definition of the bounds of an ac-

ceptable plan should be announced so that other careers

which may include, as petitioner’s did here, voluntary

demotions for the sake of experience, are not destroyed

or substantially disrupted in the process of accomplish-

ing a “good result.” [cf. Weber, 443 U.S., at 219 (Burger,

C.J., dissenting)]. —

Amicus suggests more. Affirmative action which re-

sults in the provision of equal opportunity does not nec-

essarily have to involve reverse discrimination.

Amicus believes that it perceives a middle ground

that may be exemplified by a different solution which

might have been applied by the employer in Weber.

Amicus would not argue with an employer plan under

the Weber facts which simply would have removed the

experience requirement for admission to craft jobs, cou-

pled with the establishment of a non-race based training

program from which the most qualified candidates,

black or white, would be selected. The plan might well be

coupled with announcements to the surrounding public

at large of the availability of the program. In such a sit-

uation admission to the program on a statistical basis

would injure no one, provided selection or admission to

the craft job was based on merit.

Amicus would urge that a formulation such as that it

has suggested above, or a like formulation propounded

by the nine wiser heads on this Court, would be a proper

accommodation between historical underrepresentation

in a case which contained evidence of past discrimina-

tion, and Title VII’s clear prohibition against discrimina-

tion as between whites and non-whites or men and

women or as between members of any other protected

class.

15

CONCLUSION

For the foregoing reasons amicus urges this Court to

reverse the decision of the Court of Appeals for the Ninth

Circuit, with instructions to enter a judgment awarding

petitioner the relief payed for by him.

Respectfully submitted,

Richard B. McGlynn

(Counsel of Record)

Douglas Foster

John G. Collins

Mid-Atlantic Legal Foundation, Inc.

219 East 42nd Street

New York, N.Y. 10017

(212) 557-1350

Counsel for Amicus Curiae

16

CERTIFICATE OF SERVICE

I, Richard B. McGlynn, Counsel of Record for

Amicus curiae Mid-Atlantic Legal Foundation, Inc., cer-

tify that on the 21st day of August, 1986, I caused to be

served three (3) copies of the attached Motion and Brief

on the following:

Constance E. Brooks, Esq.

Mountain States Legal Foundation

1200 Lincoln Street, Suite 600

Denver, Colorado 80203

(303) 861-0244

Counsel of Record for Petitioner

Donald L. Clark, Esq.

County Counsel

County of Santa Clara, California

County Government Center, East Wing

70 West Hedding Street

San Jose, California 95110

(408) 299-2111

Counsel for Respondent, Transportation

Agency, Santa Clara County, California

David Rosenfeld, Esq.

Banbourg, Weinberg, Roger, & Rosenfeld

875 Battery Street

San Francisco, California 94111

(415) 864-4000

Counsel for Respondent,

Service Employees International Union,

Local 715

ELEY

Richard B.McGlynn

Counsel of Record for Amicus Curiae

Mid-Atlantic Legal Foundation, Inc.

219 East 42nd Street

New York, N.Y. 10017

(212) 557-1350

August 21, 1986

—* — a

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