Opposition Brief — Bartman v. Allis-Chalmers Corp.

No. 86-1117 (3)

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

RAYMOND BARTMAN, et al.,

Petitioners,

Vv.

ALLIS-CHALMERS CORPORATION and

INTERNATIONAL UNION UNITED

AUTOMOBILE AEROSPACE & AGRICULTURAL

IMPLEMENT WORKERS OF AMERICA, et al.,

Respondents.

On Petition for A Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

BRIEF FOR ALLIS-CHALMERS CORPORATION

IN OPPOSITION

Of Counsel: THEOPHIL C. KAMMHOLZ

DALE L. MATSCHULLAT (Counsel of Record)

1205 South 70th Street RICHARD H. SCHNADIG

Milwaukee, WI 53214 MICHAEL G. CLEVELAND

115 South LaSalle Street

ree hos on ga Chicago, Illinois 60603

312) 781-2300

115 South LaSalle Street )

Chicago, Illinois 60603 STANLEY R. STRAUSS

1919 Pennsylvania Ave., N.W.

Washington, DC 20006

(202) 828-5035

Attorneys for

Allis-Chalmers Corporation

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether, in the circumstances of this case, the

Court of Appeals properly held that Allis-Chalmers

Corporation did not constructively discharge or other-

wise discriminate against employees eligible for early

retirement, and therefore did not violate the Age Dis-

crimination in Employment Act of 1967, 29 U.S.C.

621, et seq.

(i)

ii

RULE 28.1 STATEMENT

Petitioner, Allis-Chalmers Corporation, is the only

parent corporation. The following are the only sub-

sidiary or affiliate companies of Allis-Chalmers

Corporation:

AAF Heat Recovery, Limited

A-C Furesa Andina, S.A.

A-C Iberia, S.A.

Orissa Sponge Iron, Limited

TABLE OF CONTENTS

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STATUTORY PROVISIONS INVOLVED ....................

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B. The District Court’s Decision ................... ie ere

C. The Decision of the Court of Appeals ..................

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APPENDIX

(iii)

Page

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iv

TABLE OF AUTHORITIES

Cases: Page

Bibbs v. Block, 778 F.2d 1318 (8th Cir. 1985)......... 14

Dothard v. Rawlinson, 433 U.S. 321 (1977) ............. 12

EEOC v. Bordens, Inc., 724 F.2d 1390 (9th Cir.

IE. chip cine soneecciieninds inceicnancamibld sede aaeb ble aie talicentasindnwns 14

EEOC v. Federal Reserve Bank, 698 F.2d 633 (4th

a 9

EEOC v. Westinghouse Electric Corp., 725 F.2d

BD Ge i BE pissiscoiskcchieissxsconssscreseinanacbccioninnccce 14

Geller v. Markham, 635 F.2d 1027 (2nd Cir.

5, MER eS RE RV TR CAR Le ote = SCART ORS PERCT NRT OP OO 14

Griggs v. Duke Power Co., 401 U.S. 424 (1971)... 12

Leftwich v. Harris-Stow State College, 702 F.2d

Ce RE me I i 14

Mulier v. U.S. Steel Corp., 509 F.2d 923 (10th Cir.

1975), cert. denied, 423 U.S. 825 (1975).............. 9

NLRB v. Jamaica Towing, Inc., 602 F.2d 1100

Ce SB aia icin dnaidasbaticnphdllaadpihocatanes 11

NLRB v. M.A. Harrison Manufacturing Co., 682

if 2 i £+ AE: : pee 11

C.K. Smith & Co., 227 NLRB 1061 (1977).............. 11

Thompson v. McDonnell Douglas Corp., 552 F.2d

SOE Mn I IY Bae ei a 9

Tice v. Lampert Yards, Inc., 761 F.2d 1210 (7th

A. BRAS at eve Rien aa RRS A en ne 10

Transworld Airlines, Inc. v. Thurston, 469 U.S.

, 105 S. Ct. 618, 83 L.Ed.2d 523 (1985)........ 13

Williams v. General Motors Corp., 656 F.2d 120

Eg SRR revue ernlnere VERE ne rEEO ee 10

Statutes:

Age Discrimination In Employment Act of 1967,

- oS ° oi ¢ EP a” RRS Retn arene mec 2, 7, 8, 10, 12, 13

I ae a la

all aan

IN THE

Supreme Court of the Hnited States

OCTOBER TERM, 1986

No. 86-1117

RAYMOND BARTMAN, et al.,

Petitioners,

V.

ALLIS-CHALMERS CORPORATION and

INTERNATIONAL UNION UNITED

AUTOMOBILE AEROSPACE & AGRICULTURAL

IMPLEMENT WORKERS OF AMERICA, et al.,

Respondents.

On Petition for A Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

BRIEF FOR ALLIS-CHALMERS CORPORATION

IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Appeals (Pet. App.

1-10) is reported at 799 F.2d 311. The decision and

order of the United States District Court for the

Eastern District of Wisconsin (Pet. App. 11-30)

is unreported.

2

JURISDICTION

The judgment of the Court of Appeals (Pet. App.

32-33) was entered on August 20, 1986. On October

1, 1986, the Court of Appeals denied a petition for

rehearing and suggestion for rehearing en banc (Pet.

App. 34). The petition for a writ of certiorari was

filed on December 30, 1986. The jurisdiction of this

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

STATUTORY PROVISIONS INVOLVED

This case involves the Age Discrimination in Em-

ployment Act of 1967, as amended, “ADEA,” 29

U.S.C. 621, et seg. The relevant statutory provisions

are set forth in the Appendix to this brief.

STATEMENT OF THE CASE

The Court of Appeals affirmed the District Court’s

grant of summary judgment to Respondent Allis-

Chalmers Corporation (“Allis-Chalmers’”) and Re-

spondent International Union United Automobile,

Aerospace & Agricultural Implement Workers of

America and its Local 248 (“the Union”). Peti-

tioners are a group of some fifty-seven former Allis-

Chalmers employees who retired from Allis-Chalmers’

employ in November 1982. Petitioners’ complaint in

the District Court alleged that Allis-Chalmers’ fail-

ure to assure them that their retirement benefits

would remain unchanged during collective bargain-

ing negotiations between Allis-Chalmers and _ the

Union in November 1982 “resulted in their con-

structive discharge” in violation of the ADEA. The

complaint also alleged that the Union violated the

ADEA by failing to obtain through collective bar-

gaining with Allis-Chalmers an opportunity for Pe-

titioners to rescind their retirements.

A. The Facts

1. Allis-Chalmers, a manufacturer of industrial

equipment, has had a series of collectively-bargained

labor contracts covering the production and mainte-

nance employees at its West-Allis, Wisconsin, plant.

Employees covered by the labor contracts were also

covered by a series of separate Pension Agreements,

likewise collectively-bargained between Allis-Chalm-

ers and the Union. The Pension Agreements, the

expiration dates of which coincided with the labor

contracts’ expiration dates, functioned to establish

the Allis-Chalmers Pension Plan. Among other bene-

fits, the Plan afforded Allis-Chalmers’ employees an

early retirement option, under which employees with

30 or more years of service could retire before age

62 and receive an unreduced retirement benefit, in-

cluding a supplemental allowance. Although, by its

terms, the expiration of a governing Pension Agree-

ment did not automatically result in the termination

of the Pension Plan, the Plan document itself gave

Allis-Chalmers the right unilaterally to modify, sus-

pend, or discontinue the Plan upon the expiration of

the applicable Pension Agreement (Pet. App. 2-3;

Equitz Aff.—S/J Mot.).’

2. During 1981, the business of Allis-Chalmers

was in substantial decline. A net loss was sustained

in 1981 and substantial additional losses were antici-

pated for 1982 (Pet. App. 12). In these circum-

stances, Allis-Chalmers announced that it would seek

concessions on wages and benefits from the Union,

and requested the Union to open early negotiations

for successor agreements to the 1980-1982 labor con-

1 Affidavit references in the text, set forth as “——— Aff.—

S/J Mot.,” are to affidavits filed in the District Court in sup-

port of Allis-Chalmers’ motion for summary judgment.

+

tract and Pension Agreement. Contract negotiations

began in October 1981 and continued intermittently

until July 31, 1982, when they were suspended be-

cause the parties were unable to achieve agreement.

They resumed in October 1982, but an agreement

was not reached before the November 1, 1982, expi-

ration date of the labor contract and Pension Agree-

ment. By agreement, that expiration date was ex-

tended to November 15, on which date the contracts

terminated. Allis-Chalmers and the Union encour-

aged employees, however, to continue working beyond

November 15, with Allis-Chalmers announcing on

November 12 that work would be available for all

employees at the wage rates of the expired labor con-

tract. The plant continued to operate on this basis

until a new labor contract, agreed to on January 24

and ratified on February 6, 1983, came into being

(Pet. App. 2-3, 14).

During the contract negotiations, Allis-Chalmers

made no proposal to reduce pension benefits. Its only

pension proposal was to change the manner in which

the Pension Plan was funded. The Union, on the

other hand, sought improvement in the pension bene-

fits. In the agreement ultimately reached in 1983,

pension benefits remained unchanged (Equitz Aff.—

S/J Mot.).

3. As the November 15, 1982, expiration date of

the 1980-1982 labor contract and Pension Agreement

approached, employees with early retirement eligi-

bility, including the Petitioners, became concerned

about the status of their retirement benefits under

the Company’s Pension Plan. Their concern was not

about the sufficiency of retirement benefits under

whatever new agreements would be negotiated, but

5

was rather with what might happen to the benefits

during the so-called “window” period between the

expiration of the existing labor contract and Pension

Agreement and the ratification of new ones (Pet.

App. 3, 5, 15).

In early November 1982, some employees eligible

for early retirement asked Daniel F. Kern, Manager

of Employee Relations and Communications Services

for the West Allis Plant, whether there would be any

changes in the pension benefits if an agreement on a

new labor contract was not reached by November 15,

1982. Kern replied that the Company was not plan-

ning to change the pension benefits if the labor con-

tract and Pension Agreement expired on November

15; and he assured the employees that if the Com-

pany position changed, the Union would be given

timely notice, so that eligible employees could retire

before any pension change became effective (Pet.

App. 4; Equitz Aff.—S/J Mot.).

On or about November 12, 1982, Allis-Chalmers

managers responsible for the formulation of bargain-

ing strategy discussed a Union bargaining request

that Allis-Chalmers issue a written statement prom-

ising employees advance warning of any pension plan

changes. The managers concluded that no such state-

ment would or should be issued, basing their decision

on the following considerations: (1) Allis-Chalmers’

long-standing policy of not becoming involved in in-

fluencing employee retirement decisions, including a

previous instance when the Company had attempted

unsuccessfully to persuade employees not to retire;

(2) a desire to avoid additional unfair labor practice

charges; (3) the effect that issuing such a statement

might have on the parties’ contract negotiations; and

6

(4) the possibility that such a statement could be

deemed to act as a waiver by Allis-Chalmers of im-

portant rights under the Pension Plan, such as the

Company’s right to amend or discontinue it (Pet.

App. 3-4, 16-17; Equitz Aff.—S/J Mot.).

4. A substantial number of eligible employees,

including the Petitioners, opted for early retirement

before November 15, 1982, the expiration date of the

1980-1982 labor contract and Pension Agreement.

Although Allis-Chalmers refused to issue the written

“advance warning” statement requested by the Union,

the Company waived the seniority termination provi-

sions of the labor contract and permitted employees

retiring during November 1982 to rescind their re-

tirements and return to work by November 30 with-

out loss of seniority. Allis-Chalmers informed all the

retiring employees of this permissive policy at the

time they signed their pension applications. A total

of 320 employees retired between October 31 and

November 15, 1982, not including 61 employees who

took advantage of the opportunity to rescind their

retirements and return to work without loss of senior-

ity (Pet. App. 44, 17; Equitz and Price Affs.—S/J

Mot.).

5. During the 1982 contract negotiations, the

Union filed with the National Labor Relations Board

a number of unfair labor practice charges concerning

Allis-Chalmers’ bargaining conduct. Acting thereon,

the Board’s General Counsel issued an unfair labor

practice complaint against Allis-Chalmers. In Janu-

ary 1983, additional charges relating to Petitioners’

retirements were filed with the Board and the Gen-

eral Counsel sought to amend the complaint to include

the substance of these charges. As part of the con-

7

tract settlement, and upon the ratification of the new

labor contract in February 1983, the unfair labor

practice charges were withdrawn and the complaint

was dismissed (Pet. App. 4, 8, 18).

B. The District Court’s Decision

As stated, the District Court granted summary

judgment in favor of Allis-Chalmers and the Union.

Although “sympathetic to [Petitioners’] predica-

ment,” the District Court held, insofar as Allis-

Chalmers was concerned, that the Petitioners had

been unable to establish a prima facie case of age dis-

crimination because they had been unable to show

that they had been constructively discharged (Pet.

App. 22). The District Court found (1) that Allis-

Chalmers “did nothing to make the [Petitioners’]

working conditions intolerable,” (2) that Allis-

Chalmers had no duty to issue the written assurance

about pension benefit changes that the Petitioners

and other employees had sought, and (8) that the

Petitioners “retired based on their own speculation

about what might happen in the future” (Pet. App.

26-27). The District Court noted that the Petitioners

were “seek[ing] to escape retirement decisions that,

while agonizing, were voluntary,” and concluded that

the Petitioners’ retirement choices were not “involun-

tary” (Pet. App. 24, 28).

The District Court held further that the Union’s

conduct had not been shown to be discriminatory

within the ADEA’s meaning (Pet. App. 28-30).

C. The Decision of the Court of Appeals

The Court of Appeals affirmed the District Court’s

grant of summary judgment to Allis-Chalmers and

the Union. 799 F.2d at 312, 316; Pet. App. 2, 10. At

8

the outset, the Court noted that, in reviewing a sum-

mary judgment, it was obligated to review the whole

record and to reverse “‘if it is revealed that inferences

concerning material facts contrary to those of the

trial court may be drawn.” 799 F.2d at 312; Pet.

App. 2. Sub silentio, the Court of Appeals found that

no such “contrary” inferences could be drawn.

The Court of Appeals agreed with the District

Court that the Petitioners had failed to demonstrate

that their retirements amounted to constructive dis-

charges. Applying the principle that “[a]n employer

constructively discharges an employee only ‘if it

makes an employee’s working conditions so intolerable

that the employee is forced into an involuntary resig-

nation,’ ” the Court held that Allis-Chalmers took no

action that “made” the Petitioners’ situation appar-

ently intolerable; rather, the Court said, the situation

resulted from the expiration of the Pension Plan, it-

self an event brought about by the failure of the

parties’ contract negotiations, and the passage of

time. 799 F.2d at 314; Pet. App. 6. Additionally, the

Court held that Allis-Chalmers did not violate the

ADEA under a disparate impact theory, rejecting the

Petitioners’ contention that during the “window” pe-

riod Allis-Chalmers’ extension of the opportunity for

employees to work at old contract rates adversely

affected employees eligible for early retirement. 799

F.2d at 315; Pet. App. 6-7.

The Court of Appeals held further that the reasons

exonerating Allis-Chalmers from violating the ADEA

also exonerated the Union to the extent that the Peti-

tioners’ claims against the Union rested on its acqui-

esence in Allis-Chalmers’ conduct. Nor did the Union

violate the ADEA, the Court held, by making prag-

9

matic collective bargaining decisions adverse to Peti-

tioners’ interest, thereby resolving, in the interest of

the entire Union membership, the Union’s conflicting

obligations to current and retired employees. 799

F.2d at 315-316; Pet. App. 7-10.

ARGUMENT

1. The decision of the Court of Appeals with

respect to Allis-Chalmers* was predicated on the

unique facts of this case and is correct. The case’s

singularity derives from the specific collective bar-

gaining agreements between Allis-Chalmers and the

Union, Allis-Chalmers’ option of effecting pension

changes during the so-called “window” period of the

parties’ negotiations, and, in the Court of Appeals’

words, from “the expiration of the Pension Plan

[which was] an event brought about by the failure of

the contract negotiations and the passage of time.”

799 F.2d at 314; Pet. App. 6.

2. The Court of Appeals correctly concluded, in

agreement with the District Court, that Petitioners

were not constructively discharged by Allis-Chalmers.

No evidence was adduced that even remotely showed

that Allis-Chalmers intended to cause Petitioners’

retirements. See HEOC v. Federal Reserve Bank,

698 F.2d 633 (4th Cir. 1983); Thompson v. McDon-

nell Douglas Corp., 552 F.2d 220 (8th Cir. 1977) ;

Muller v. U.S. Steel Corp., 509 F.2d 923 (10th Cir.

1975), cert. denied, 423 U.S. 825 (1975). Further,

no evidence showed that Allis-Chalmers created intol-

erable working conditions which could be said to have

2We do not address herein arguments in the certiorari

petition with respect to the Petitioners’ claims against the

Union.

10

caused Petitioners’ retirements, much less that Allis-

Chalmers created such conditions with a view toward

Petitioners’ ages and in order to cause their retire-

ments.°

Nor was Allis-Chalmers under a legal obligation to

issue the written statement Petitioners sought that

would have assured them’ that there would be no

reduction in retirement benefits. The ADEA imposes

no obligation to reassure potential retirees that their

benefits will remain the same. The ADEA is not an

affirmative action statute. See, e.g., Tice v. Lampert

Yards, Inc., 761 F.2d 1210, 1217 (7th Cir. 1985) ;

Williams v. General Motors Corp., 656 F.2d 120, 129

(5th Cir. 1981), cert. denied, 455 U.S. 943 (1981).

Contrariwise, Petitioners would impose upon Allis-

Chalmers an obligation to take affirmative steps that

would have enabled them to avoid the risks that are

inherent for all employees in the collective bargaining

process. Petitioners, however, are not entitled to be

exempt from the latter risks simply because of their

ages.

Further, as the Court of Appeals recognized (799

F.2d at 314, n.3; Pet. App. 9), in an analysis of the

3 There was no direct evidence of intentional age discrimi-

nation. Further, there was no indirect evidence of age-based

motive. No economic reason existed for Allis-Chalmers to

reduce the number of its older employees by coercing retire-

ments. Indeed, Petitioners’ retirements and their replace-

ment by workers recalled from layoff was more costly to

Allis-Chalmers than would have been the case had the Peti-

tioners remained as employees. (Angermeier Aff.—S/J Mot.).

Further, the most telling fact is that Allis-Chalmers offered

all already-retired employees the opportunity to rescind their

retirements and some 61 employees accepted and returned to

work. 799 F.2d at 313; Pet. App. 4.

11

facts, Allis-Chalmers’ bargaining situation is “impor-

tant.” For Allis-Chalmers to have issued the written

reassurance statement that Petitioners sought, after

having refused the Union’s request that such a state-

ment be issued, would have been contrary to Allis-

Chalmers’ duty under the National Labor Relations

Act to recognize and bargain with the Union alone as

exclusive collective bargaining representative of its

employees. See, e.g., NLRB v. M.A. Harrison Manu-

facturing Co., 682 F.2d 580 (6th Cir. 1982); NLRB

v. Jamaica Towing, Inc., 602 F.2d 1100 (2nd Cir.

1979) ; C.K. Smith & Co., 227 NLRB 1061 (1977),

enf'd, 569 F.2d 162 (1st Cir. 1977), cert. denied, 436

U.S. 957 (1978). Moreover, for Allis-Chalmers to

have made a concrete commitment on a key fringe

benefit issue would have interfered seriously with the

normal collective bargaining process between Allis-

Chalmers and the Union.

Finally, Petitioners were not confronted with

actual, existing intolerable conditions of the sort nec-

essary to support a constructive discharge conclusion.

Petitioners were concerned only about what might

happen, about what their future employment condi-

tions and pension benefits would be, and not about

what their existing employment conditions and pen-

sion benefits in fact were. See paragraph 5 of the

boilerplate affidavit of Petitioner Monar at Pet. App.

38-40. In short, Petitioners were confronted with

uncertainty—uncertainty that there might not be a

new collective bargaining agreement, or that changes

might be made in their retirement benefits. But such

uncertainty is typical of what may confront any em-

ployee who is covered by a collective bargaining

agreement with respect to any number of terms and

conditions of employment. And it was precisely the

|

12

sort of uncertainty that, to a greater or lesser degree

confronted all Allis-Chalmers employees when the

1980-1982 agreements expired, including those

younger employees who also had an interest in their

retirement benefits, although perhaps not as immedi-

ate as Petitioners’.

8. The Court also concluded properly that Allis-

Chalmers did not violate the ADEA under a disparate

impact theory. The essence of the disparate impact

theory is that a facially neutral policy is nevertheless

unlawful because it falls more severely on a protected

group than on another group. See Griggs v. Duke

Power Co., 401 U.S. 424, 480-431 (1971) ; Dothard v.

Rawlinson, 4383 U.S. 321, 328-29 (1977). Here, the

correct answer to Petitioners’ disparate impact con-

tention that Allis-Chalmers deprived older workers of

an employment opportunity offered younger workers

by not announcing that pension benefits would remain

unchanged (Pet. App. 25-29), is the one that the

Court of Appeals stated: “This argument must fail

because there is no act by Allis-Chalmers involved;

rather [Petitioners] complain about the absence of

an act. .. Allis-Chalmers was not obligated to

rescue [Petitioners] from a predicament for which it

was not responsivle. To require it to do so would

require Allis-Chalmers to treat older workers better

than workers generally. The ADEA imposes no such

obligation.” [Emphasis in original]. 799 F.2d at

315; Pet. App. 7.

Because there was “no act” by Allis-Chalmers, it

did the precise opposite of maintaining or applying a

policy. Thus, in the context of disparate impact anal-

ysis, Allis-Chalmers’ decision not to issue a “reassur-

ance” statement was the equivalent of not having, for

13

example, a severance pay policy or not requiring em-

ployees to take tests. It cannot be seriously main-

tained that an employer which does not have a sever-

ance pay policy or which does not give tests to its

employees nonetheless may be held liable under the

disparate impact theory because some members of a

protected group later assert that they would have

been better off had the employer implemented such

policies. Yet this, in essence, is Petitioners’ position.

If the position were to be accepted, any protected

group could point to a situation where an employer

had taken no action—had no policy—and could claim

post hoc that the employer violated the law because

if the employer had issued a policy (designed, of

course, by the claimants) they would have been better

off. Employers would thus be endlessly subject to sec-

ond guessing and rationalization. No court has ever

adopted such an approach; and this Court, like the

Court of Appeals, should reject it here.*

* Petitioners’ reliance (Pet. App. 26-28) on Transworld

Airlines, Inc. v. Thurston, 469 U.S. , 105 S. Ct. 613, 83

L.Ed. 2d 523 (1985) is misplaced. In that case, the airline

maintained a policy of permitting captains disqualified from

serving in that capacity for reasons other than age to transfer

automatically to the position of flight engineer, while requir-

ing age-disqualified captains to bid for flight engineer va-

cancies and to retire if no vacanies occurred prior to their

60th birthdays or if they lacked sufficient seniority to bid for

those vacancies that did occur. The Court held that the air-

line’s transfer policy denied 60-year-old captains a “privilege

of employment” on the basis of age, saying: “The Act does

not require TWA to grant transfer privileges to disqualified

captains. Nevertheless if TWA does grant some disqualified

captains the ‘privilege’ of ‘bumping’ less senior flight engi-

neers, it may not deny this opportunity to others because of

'

14

4, Finally, contrary to Petitioners’ contention

(Pet. App. 32-34), the Court of Appeals’ decision

here is not in conflict with decisions of other Circuits.

Bibbs v. Block, 778 F.2d 1818 (8th Cir. 1985), one

such case cited by Petitioners to support this conten-

tion, involved an issue as to the quantum of proof

necessary in a mixed-motive situation to establish

intentional discrimination and liability under Title

VII. This case, of course, is not a mixed-motive case,

there being no showing that Allis-Chalmers took any

action whatever, much less that it acted for both dis-

criminatory and non-discriminatory reasons. Simi-

larly inapposite are the other cases Petitioners cite in

this context: HEOC v. Bordens, Inc., 724 F.2d 1390

(9th Cir. 1984); EEOC v. Westinghouse Electric

Corp., 725 F.2d 211 (8rd Cir. 1984) ; Geller v. Mark-

ham, 685 F.2d 1027 (2nd Cir. 1980), cert. denied,

451 U.S. 945 (1981); and Leftwich v. Harris-Stow

State College, 702 F.2d 686 (8th Cir. 1983). In the

Bordens and Westinghouse cases, the employers ac-

tually maintained policies which denied severance pay

to older workers; in the Geller case, the employer

maintained a policy of only hiring teachers below a

level of experience, thereby disadvantaging an older

teacher; and in Leftwich, the employer adopted a

faculty-selection plan that discriminated on the basis

of age. Here, as the Court of Appeals stated, and as

we have repeatedly pointed out, Allis-Chalmers took

no action and maintained no policy or plan that can

be said to have disadvantaged Petitioners.

their age.” 83 L.Ed. 2d at 533. Here, of course, as stated

in the text, Allis-Chalmers maintained no policy which in any

context could be said to have denied Petitioners a “privilege

of employment.”

15

CONCLUSION

For the foregoing reasons, further review by this

Court is not warranted and the petition for a writ of

certiorari should be denied.

Respectfuuly submitted,

Of Counsel: THEOPHIL C. KAMMHOLZ

DALE L. MATSCHULLAT (Counsel of Record)

1205 South 70th Street RICHARD H. SCHNADIG

Milwaukee, WI 53214 MICHAEL G. CLEVELAND

115 South LaSalle Street

VEDDER, PRICE, KAUFMAN Chicago, Illinois 60603

AND KAMMHOLZ (312) 781-2300

115 South LaSalle Street

Chicago, Illinois 60603 STANLEY R. STRAUSS

1919 Pennsylvania Ave., N.W.

Washington, DC 20006

(202) 828-5035

Attorneys for

Allis-Chalmers Corporation

January, 1987

la

APPENDIX

RELEVANT STATUTORY PROVISIONS

Section 4, of the ADEA, as amended, 29 U.S.C.

623, provides in relevant part:

Prohibition of age discrimination

‘(a) Employer practices

It shall be unlawful for an employer—

(1) to fail or refuse to hire or to discharge

any individual or otherwise discriminate against

any individual with respect to his compensation,

terms, conditions, or privileges of employment,

because of such individual’s age;

(2) to limit, segregate, or classify his em-

ployees in any way which would deprive or tend

to deprive any individual of employment oppor-

tunities or otherwise adversely affect his status

as an employee, because of such individual’s

age; or

(3) to reduce the wage rate of any employee

in order to comply with this chapter.

* * * *

(c) Labor organization practices

It shall be unlawful for a labor organization—

(1) to exclude or to expel from its member-

ship, or otherwise to discriminate against, any

individual because of his age;

(2) to limit, segregate, or classify its mem-

bership, or to classify or fail or refuse to refer

for employment any individual, in any way

2a

which would deprive or tend to deprive any

individual of employment opportunities, or

would limit such employment opportunities or

otherwise adversely affect his status as an em-

ployee or as an applicant for employment, be-

cause of such individual’s age;

(3) to cause or attempt to cause an employer

to discriminate against an individual in viola-

tion of this section.

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