Opposition Brief — International Molders & Allied Workers Union v. Howard

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w | MAY 26 199g

No. 85-1629

i | : Supreme Court, US,

In THE

Supreme Court of the United States

Octoser Term, 1985

INTERNATIONAL MoLDERS AND ALLIED

Workers Unioy, etc., et al.,

Petitioners,

v.

JaMES Howanrp, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

Oscar W. Apams, III

Suite 729

Brown Marx Tower

2000 First Avenue, North

Birmingham, Alabama 35203

(205) 324-4445

Counsel for Respondents

Eric ScHNAPPER

Of Counsel

JOSEPH F. SPANIOL, UR.

CCERK

Table of Contents

Page

Statement of the Case . ..... -» 1

Reasons for Denying the Writ... 8

Conclusion . . « « © e «© © « « @ « 19

Table of Authorities

Case:

Terrell v. United States Pipe

& Foundary Co., 644 F.2d

191972 (Sth Circ. 1961) . . 8,9,10,11

Thornton v. Fast Texas Motor

Freight, 497 F.2d 416

(6th Cats 1974) o * * o o * + 12

Williams v. General Foods Corp.,

492 F.2d 399 (7th Cir.

1974) eo es oe @ s s — oe a e a o 12

Title VII, Civil Rights

Act of 1964 & e e o e 2 7. oo 6

§ 703(c)(3), Civil Rights

Act of 1964 o £ J id _ se s 2 a 13

42 O6B.Ce & 1987 7 e o . . = e s . 6

No. 85-1629

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

INTERNATIONAL MOLDFRS AND ALLIED

WORKERS UNION, etc., et al.,

Petitioners,

Ve

JAMES HOWARD, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

RESPONDENTS' BRIFF IN OPPOSITION

Statement of the Case

This is an employment discrimination

action arising out of allegedly racially

discriminatory practices at the Tarrant

City, ‘Alabama, plant of the Clow Corpora-

tion, a manufacturer of industrial pipe

and fittings. Named as defendants were

Clow, Local 100 of the International

Molders and Allied Workers Union, and the

International Molders and Allied Workers

Union. The union was the collective

bargaining representative of the hourly

employees at the Tarrant City plant.

This action was filed in September,

1977. In 1980 the Tarrant City plant

closed, rendering moot all claims except

those for monetary relief. in 1982 the

company entered into a consent decree

providing monetary relief to the class

members; the union, however, declined to

enter into a similar settlement. Respon-

dents' claims aqainst the union were

tried in January, 1983.

Prior to 1965 the union had engaged

in concerted action with the employer to

exclude blacks from any of the well paid

skilled and semi-skilled positions at the

plant. (Pet. App. 24a, 27a, 28a) Blacks

were expressly forbidden to bid on these

white jobs; indeed, for years the union

opposed even the creation of any bid

system for the black jobs. (Pet.

App.30a) The union insisted that no black

worker, whatever his or her position, be

permitted to use tools of any kind, and

intervened on behalf of whites when

several blacks were discovered to be

using hammers and pliers on the job.

(Pet. App. 29a)

When Title VII was adopted represen-

tatives of the company and union met to

discuss joint action to "temporiz[e])” the

1

effects of the statute. Shortly

thereafter the company announced that,

although blacks could bid on the formerly

white jobs, any person seeking promotion

to most of those positions would have to

pass a newly adopted test. (Pet. App.

37a) The test measured an employee's

familiarity with machinery and tools,

knowledge which the union had for decades

successfully demanded be kept from its

biack members. The district court found

that this new test was successful in

preventing the movement of most black

employees into the positions at issue.

(Pet. App. 39a) Almost 90% of all blacks

who took the test failed it; whites

passed the test at a rate 5 times as high

as blacks. (Id.)

| Minutes of meeting of May 12, 1965, p.

8.

In 1970 two blacks filed a grievance

alleqing that the test violated the

anti-discrimination provisions of the

ecllective barqainina agreement. The

union refused without explanation to

process the grievance, and reached an

aqreement with the company that the test

was permissible under the union's

contract. (Pet. App. 38a-39a). On

repeated occasion blacks objected either

to the union, or the union's” chief

contract negotiator, about the test, and

the negotiator promised to "look into"

the problem. (Pet. App. 58a; Tr. 492).

The district court found, however, that

neither that negotiator nor any other

union representative during contract

negotiations ever proposed that the test

be ended or even reconsidered (Pet. App.

58a). The employer's willingness to

accede to such a proposal was starkly

demonstrated when the company abandoned

use of the test in 1977 immediately after

the filing of the instant action. (Pet.

App. 58a).

Respondent's complaint alleged,

inter alia, that the union had violated

Title VII and 42 U.S.C. § 1981 by

knowinaly acauiescing in the continued

use of the allegedly illeqal test. (Pet.

App. 47a). The District Court recognized

that a union was obligated to use

reasonable efforts to eliminate a

discriminatory practice if the union

itself was “involved in [that] Title VII

violation" (Pet. App. 51a), and held that

the union here had such an obligation to

seek an end to the iileaqal test. (Pet.

App. 57a-59a). The District Court found

that the union had made no_ effort

whatever to meet that obliaation, and was

thus liable to the respondents. (Pet.

ee a

App. 58a-59a). Because of these factual

conclusions the District Court did not

find it necessary to decide whether the

union's continued acquiescence in the

test was racially motivated. (Pet. App.

58a n.19, 76a n.1) Following a subsequent

magistrate's report, the district court

concluded that no individual class

members were entitled to any monetary

relief. (Pet. App. 76a-77a)

On appeal the union expressly

acknowledged that it would have been

obligated to seek elimination of the test

if it had ever agreed to or acquiesced in

the use of that test. The union insisted,

however, that no such aareement' or

acquiescence had in fact occurred. The

court of appeals affirmed that finding of

the district court that such an obligation

existed under the particular circumstances

of this case. The court of appeals

reversed the denial of monetary relief,

and remanded the case for the fashioning

of an appropriate remedy.

REASONS FOR DENYING THE WRIT

The decisions below do not, as

petitioners suggest, anueanaee Or apply any

rule imposing vicarious liability on an

innocent union that merely fails to

prevent employer discrimination. The

actual holding of the District Court is as

follows:

Whether a party involved in an

established Title VII violation

may be excused from liabili-

ty .. . turns upon whether that

party has proved to the full

satisfaction of the courts that

it has taken every reasonable

step to bring employment

practices into compliance with

the law.

2 Pet. App. 51a (emphasis added and omit-

ted), quoting Terrell v. United States

Pipe & Foundary Co., 644 F. P

Tet Cir. 1981).

This language is taken verbatim from the

earlier Fifth Circuit standard in Terrell

v. United States Pipe & Foundary, 644 F.2d

1112, 1129 (5th Cir. 1981), and it was the

Terrell Standard which the Fleventh

Circuit expressly applied in this case.

(Pet. App. 2a-31, 13a). Terrell and its

progeny are concerned, not with any

affirmative duties of innocent unions, but

with the legal obliqations of unions that

agreed to, acquiesced in, or otherwise

caused a violation of Title VII itself.

3

Petitioners did not question below,

Ss Petition for Rehearing, pp. 3-6 ("[Tjhe

Molders accept the ‘Terrell test' with

respect to those employment practices as

to which the Union actively participates

in creating... ."); Reply Brief of

Cross-Appellants, 8 (approving "[t]he ‘all

reasonable means' test of such cases as

Terrell v. U.S. Pipe. . ."); Brief of

Defendants-Appellees, p. 51 ("A union need

not successfully end a discriminatory

practice to avoid liability -- it need

only oppose the practice.")

» 10 «

and do not seek review by this Court, of

the actual leqal principle announced in

Terrell and applied in this case -- that a

union involved in unlawful discrimination

must take affirmative steps to bring that

discrimination to an end. Nor do peti-

tioners suqgest that there is any dis-

agreement among the circuits about that

principle. For over a generation there

has existed among the lower courts, and

within this Court, a unanimous agreement

that a defendant must take action to

disestablish discriminatory practices for

which it bears significant responsibility.

Terrell merely applies to Title VII that

universal and uniformly accepted rule.

In some instances where a_ union

bears partial responsibility for a

discriminatory practice, the union may be

unable to end that practice without the

concurrence of the employer; rather than

a 24 «

impose strict liability in such a situa-

tion, Terrell requires only that a union

do whatever is possible to aiter the

illegal practice. The “all reasonable

effort" standard in Terrell thus marks a

limitation on a defendant union's legal

obliaation. That standard was adopted in

Terrell itself at the behest of the union

defendant in that case, and the peti-

tioners in the instant case expressly

endorsed that standard in the court

wataten

When a Title VII plaintiff alleges

that a union unlawfully "caused" dis-

crimination by an employer, there will

almost invariably be difficult factual

issues regarding the extent to which the

union may have agreed to, deliberately

acquiesced in, aagravated, or perhaps

Tr

See n. 3, supra.

o ti =

promoted the practice at issue. The

appellate decisions which petitioners

assert conflict with the decision below

in reality turned on just such factual

issues. In Thornton v. Fast Texas Motor

Freight, 497 F.2d 416, 425 (6th Cir.

1974), the defendant union local had

formally requested the employer to end

the illegal practice; in Williams v.

General Foods Corp., 492 F.2d 399, 405

(7th Cir. 1974), the union had aggres-

Sively pursued a grievance challenging

the unlawful practice. Under those

circumstances the courts of appeals in

those cases reasonably concluded that the

respective unions had not "acquiesced" in

or aareed to the disputed practices. See

497 F.2d at 425. Neither the sixth or

seventh circuit disputed the obligation

- 13 -

of a union to take steps to end discri-

minatory practices for which it bore

responsibility.

The instant case presented an

essentially factual dispute that is

typical of section 703(c)(3) claims. At

trial respondents offered probative

evidence that the union had knowingly

acquiesced in the use of the discrimina-

tory test, that the employer only con-

tinued to utilize the test because of that

acquiescence, and that the test perpet-

uated the effects of earlier intentionai

union discrimination. Although there was

conflicting testimony regarding a number

of the subsidiary issues, we believe that

substantial evidence supported the

decision of the district court imposing

liability on the unicns.

- $8 «

First, the disputed test perpetuated

in a particularly noxious manner the

earlier intentional union discrimination.

The specific test at issue in this case

measured an employee's familiarity with

basic tools and machinery. When that

test was initially adopted in 1965, it

was certain to exclude virtually all

blacks seeking promotions, because the

union had for years Successfully demanded

that no black be permitted to hold a

Skilled position where he or she might

have acquired any knowledge of such

equipment. The union had = further

insisted that no black at the plant,

regardless of his or her position, should

ever be permitted to use any tool

whatever. The local union president

expressly insisted at a meeting with

company officials that "the colored

laborers are not Supposed to handle

— =

tools", and the union intervened at the

behest of white members when several

black employees were discovered using

hammers and pliers on the job. < Thus the

practical effect of the post 1965 test

was to prevent promotions of the very

black workers whom the union had insisted

be denied the experience necessary to

pass such a Sey

Second, the local union deliberately

and inexcusably refused to process a

grievance challenging the use of the

disputed test. In 1970, two blacks who

had failed the test submitted a arievance

to the union, alleging that the test

violated the anti-discrimination provi-

sion of the collective bargaining

agreement. Successful pursuit of this

: Pet. App. 29a; Tr. 204, 210-11; minutes of

meeting of March 14, 1956, pp- 2-4.

6 Pet. App. 37a.

» 6 «

grievance would have ended use of the

tests long before the filing of the

instant action, but the union refused to

process it. The district court found:

The union agreed with the company

that [the] qrievance was not Subject

to the grievance procedure.... The

union offered no reason ... as to why

it did not fursue the grievance on

behalf of these black union mem-

bers.... [T]he court finds that [the

black members] were without repre-

sentation in their grievance seeking

to prove that the employer breached

the 1968 contract. (Pet. App.

38a-39a).

Union and company representatives dis-

cussed the merits of the test at length at

a meeting on August 20, 1970, and reached

at least a tacit aqreement that the test

7

would continue.

+ iets

The petition describes this incident as a

union "protest" to the company about the

test. Pet. 5. The district court found

otherwise,

m FRi«

Third, despite repeated objections

by black union members to the use of the

test, the union refused to ever raise the

subject in contract negotiations with the

employer. In addition to the aborted 1970

grievance, a black union member com-

plained about the test at a separate

meeting during the same year (Pet. App.

58a), and in 1972 another black member on

several occasions complained directly

about the test to the union's chief

negotiator. (Tr. 49a). Although the

neqotiator promised to "look into" the

problem (Tr. 492) the district court

found that he never in fact asked the

company to change or even reconsider its

use of the test. (Pet. App. 58a). In 1975

the Company expressly invited the union

to raise with appropriate management

officials any objections the union might

o t2 «

8

have to continued use of the test, but

the union thereafter raised no such

objection.

If the collective bargaining agree-

ment in this case had expressly approved

the use of the illeaqal test, the union

would clearly have been under an obliga-

tion to attempt to end the unlawful

practice. Nothing in Title VII suggests

that such union complicity had to be

memorialized in a formal written agree-

ment; the pattern of conduct found by the

district court clearly constituted, and

communicated to the employer, union

endorsement cf the disputed test. In this

Court petitioners continue to insist

otherwise, contending that the union “had

not agreed to Clow's use of the test."

(Pet. 5). Neither court below, however,

Minutes of meeting of August 11, 1975.

o % =

accepted petitioners' factual contentions,

and the fact-bound controversy that lies

at the heart of the petition does not

warrant review by this Court.

CONCLUSION

For the above reasons the petition

for writ of certiorari should be denied.

Respectfully submitted,

OSCAR W. ADAMS, III

Suite 729

Brown Marx Tower

2000 First Avenue, North

Birmingham, Alabama 35203

(205) 324-4445

Counsel for Respondents

ERIC SCHNAPPER

Of Counsel