Opposition Brief — United Transportation Union Lodge No. 550 v. Rock

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In THE

Supreme Court of the United States

OcroBer Term 1975

No, 75-1220

NorFoLtK anp Western Ratiway, Co.,

Petitioner,

vs.

Rosert Rock, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

JACK GREENBERG

10 Columbus Circle

New York, New York 10019

Wituiam T. Mason, Jr.

419 Granby Street

Norfolk, Virginia 23510

Morris J. BALLer

145 Ninth Street

San Francisco, California 94103

Attorneys for Respondents

Robert Rock, et al.

INDEX

PAGE

Supplemental Statement of the Case 00.00.0000... 1

Reasons for Denying the Writ ......................cccccccccsseee 4

I. Questions as to Allocation of Liability Are Not

By Te III essicecicseshaccncintasiinansteheieniedaiebncsnionesnans 5

Il. The Court of Appeals’ Holding Presents No

Novel, Important, or Unsettled Issues ...0............ 6

A. The Purposes of Title VII Do Not Preclude

a Back Pay Award Against N & W; They

INTE IO: Sinsinssdcanssetsusiuaenioaundntnudipageneinantions 6

B. The Fourth Cireuit’s Holding Does Not Con-

flict With Other Appellate Decisions —............. 8

EAPO: -sscetbescesioilcneimibbiteainsanaacelat POPE KATO MRE A 11

TABLE OF AUTHORITIES

Cases:

Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975

4,6, 7,10, 11

Baxter v. Savannah Sugar Refining Corp., 495 F.2d

ee ts BOO sasha sensad esaionabaitieinnibeticicttidedtenntiae 7

Carey v. Greyhound Bus Co., 500 F.2d 1372 (Sth Cir.

STE easiness saieednsan iste ied ehldeaipodlashasbelthecbahppiisaled Sablon ain, 9

tamble v. Birmingham Southern R. Co., 514 F.2d 678

| SA aR oe on tO SRM 9

Griggs v. Duke Power Co., 401 U.S. 424 (1971) 00.00... 6

Guerra v. Manchester Terminal Corp., 498 F.2d 641

i Sek ee oO ee 8, 9, 10

BLEED THROUGH

D RICA ORR BS

ii

PAGE

Head v. Timken Roller Bearing Co., 486 F.2d 870 (6th

Ra SOIR isccsnolcscanmtnnseonnisoieinceshanplbpteteietebioegianinenninviaarsiese 7

Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364

REE II: UNITE TY s/cicccnrhantohiccestnacberucetibbadicdahassincseheediicwusisosheerhie 7, 9, 10

Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.

REE TR AY TURRET Cee Rene ES Ce 10

Stevenson v. International Paper Co., 516 F.2d 103

Re I PN cteictaatidisiscenia ccobesdshuennnssrusintatanieniantnicaninhaats 8, 9

United States (Ford) v. United States Steel Corp., 520

eI EI IN A APOIO ccceccnnscieeneeieercrineev cnet nccnninietis 9

Other Authorities:

Title VII of the Civil Rights Act of 1964 (as amended

1972), 42 U.S.C. $§2000e et seq. 0... eee passim

a I eielesdichc asinine hi tesnsnntulalinatacblactesnnindinmsioniae 7, 8,11

IN THE

Supreme Cowt of the United States

Octroser TERM 1975

No. 75-1220

NorroLtk anp Western Rariway, Co.,

Petitioner,

vs.

Roxsert Rock, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

Supplemental Statement of the Case’

1. Segregation of the two yards of Norfolk Terminal

resulted initially from racially discriminatory hiring prac-

tices. Both courts below found that these practices pre-

-ailed after as well as before 1965 (A-55-6, A-41, A-3),

until enjoined by the district court (A-65), These practices

are not just remote historical background to this case, Af-

ter July 2, 1965, petitioner N & W continued to use the

same pre-1965 hiring system and continued to hire mostly

blacks into the Barney Yard and mostly whites into the CT

1This supplemental statement is made necessary because the

petitioner's statement omits or mischaracterizes some of the facts

pertinent to its petition.

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Fhe he tea as Mae er etl

5 An Ee hil ct

2

Yard.2 N & W was solely responsible for this hiring dis-

crimination (A-52, A-40).

2. Petitioner’s ineffectual offer of “dovetailing” in 1968

was tardy, half-hearted, and designed to fail—which of

course it did. N & W did not begin to consider proposing

a merger of rosters until after respondents Rock, Johnson,

and the formerly black local union, Lodge 974 (“plaintiffs”),

filed their May 15, 1967, EEOC charge demanding the right

to work throughout Norfolk Terminal (Pl. Ex. 36). N& W

fully expected that its merger proposal of October 31, 1968,

would be rejected by the union respondents, as the railway’s

Rules Supervisor testified (AI 607). Despite its ample

knowledge of the hostility of BRT (UTU) and the white

local, Lodge 550, to dovetailing or any roster merger,

N & W took no steps to communicate its “offer” to the in-

tended beneficiaries, the Barney Yard men (AI 128-29, 247).

After the union’s predictable rejection of the “offer” in

December 1968, the railway never again raised the subject

of seniority roster merger, but simply filed away the docu-

mentation of its futile offer (AI 630-31). In 1969-70 N & W

and UTU engaged in 65 days of intensive collective bar-

gaining negotiations which resulted in a new 1970 labor

contract containing seniority provisions virtually identical

to those N & W purportedly wanted to change in 1968

(AI 701-03, 765, 793-802). Although these negotiations were

conducted by the same officials who had previously dis-

cussed the roster merger question, neither N & W nor UTU

ever mentioned the merger issue during these negotiations

(AI 699-700, A 701-704).*

*See figures at p. 2, n. 2 of respondents’ brief in opposition in

No. 75-973.

* This course of conduct by N & W suggests nothing so much

as a well-counselled potential litigant making a record against

its co-defendant in anticipation of a liability-shifting defense. The

3

3. The 1968 dovetailing “offer” was in fact kept a secret

from plaintiffs, as the Fourth Cireuit found (see A-4).

Soth the local chairman and the president of Local 974 in

1968 testified that they had never heard of the purported

offer until trial (Al 127-9, 247). The BRT International

Vice-President in charge of responding to the offer test-

fied that neither he nor, to his knowledge, anyone else,

had told the Barney Yard men about the railway’s proposi-

tions (Al 763-4). No witness—Barney Yard or otherwise—

testified to the contrary.‘

4. N & W has downplayed certain facts of lesser impor-

tance in order to appear innocent of wrongdoing or to

understate the effects of its discriminatory actions. In

fairness these assertions or suggestions require brief re-

buttal. The full and correct facts cast N & W in a less

sympathetic light. These facts are discussed in the margin.®

only reasonable inference to draw from N & W's cat and mouse

game is that—as the Fourth Circuit found—the railway was not

serious about accomplishing any roster merger (as contrasted to

just discussing it) (see A-7, n. la).

4 Had either N & W or UTU had any such evidence, it would

have obviously been to its advantage to produce that proof.

5 (i) N & W suggests that its only discriminatory hiring prac-

tice was use of a benigniy paternalistic word-of-mouth recruitment

system (Pet. 6). In fact, the root of hiring discrimination was its

maintenance of separate hiring offices for the two segregated yards.

(ii) N & W suggests that the local unions’ leadership had “pro-

vincial interests” in opposing dovetailing (Pet. 7). While this is

certainly true as to the white local. it is emphatically false as to

Lodge 974, whose officers filed the EEOC charge and were plain-

tiffs and principal witnesses in this lawsuit.

(iii) N & W also suggests that the membership of Lodge 974

did not want dovetailing (Pet. 7). The record belies this assertion.

In filing the charge of discrimination and this action, plaintiffs

were carrying out the wishes of the membership to which they were

responsible. Indeed, Lodge 974 is a plaintiff.

BLEED THROUGH

4

Fairly viewed, the record as a whole portrays N & W asa

typical discriminatory employer that in the years following

enactment of Title VII once or twice talked about modify-

ing its illegal policies, but in actuality did nothing.

Reasons for Denying the Writ

We note preliminarily that petitioner apparently no

longer disputes the right of the plaintiff class to recover

back pay in this case. Rather, petitioner’s main thrust is

that the other defendants should pay the award. While it

lists six separate questions presented by the petition (Pet.

2-3), five of those questions boil down to the same alloca-

tion of liability issue (questions 1-5). What the petition

primarily seeks, therefore, is review by this Court of an

as-yet-unspecified division of an as-yet-undetermined money

judgment.™

(iv) N & W exaggerates the significance of the fact that a num-

ber of Barney Yard men out-earned their CT Yard contemporaries

(see Pet. 7, n.2). N & W's figures are meaningless: in gross income

comparisons of over 100 Barney Yard men (with a range of in-

comes) to over 300 CT Yard men (with a range of incomes), ob-

viously many isolated comparisons favorable to the former can be

contrived. But a fair survey of all the data shows that, with im-

pressive consistency, CT Yard employees enjoyed higher incomes.

Indeed, they averaged 17% more—nearly $1200 per man per year

—than their Barney Yard counterparts (see A II 342-364, 249,

261, and especially A II 402).

5@ The sixth question presented by petitioner challenges certain

factual conclusions of the court below (Pet. 3, 21-23). We do not

respond to most of petitioner's arguments on this point, since we

believe them adequately refuted in our supplemental statement of

the case and in our brief in opposition to certiorari in No. 75-973

at pp. 5-6.

Petitioner does raise one new point regarding the Nickel Plate

merger agreement (see Pet. 22). As with back pay, consideration

of this issue is premature. The Fourth Circuit simply remanded

the Nickel Plate issue for initial determinations of fact by the dis-

trict court in accordance with principles announced by this Court

last term in Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975).

I,

Questions as to Allocation of Liability Are Not Ripe

for Review.

The district court has not entered any judgment in this

case allocating back pay liability between the petitioner

and co-defendant unions. In fact, the district court has not

yet entered any judgment awarding back pay to any plain-

tiff or class member; nor has it determined the method for

deciding the amounts due, the individuals in whose favor

judgment will be entered, or the precise legal and factual

basis for such awards. Beyond directing that some “back

pay must be awarded” (.A\-4), the Court of Appeals left

the determination of the back pay judgment entirely open

for the district court under broad guidelines (A-6-A-9).

With respect to allocation of the liability for an eventual

back pay judgment the Fourth Circuit held only that, on

the facts of this case, N & W could not completely escape

liability (A-7).° It left the exact division of liability to

“the fact finding function and the exercise of discretion . .

vested in the first instance in the district court” (A-9). The

absence of a lower court judgment leaves this Court with

nothing to review. To grant certiorari on the questions

presented by N & W could only iead to an advisory opinion

on a question neither litigated nor decided below. Denial

of certiorari would remit this issue to the trial court where

it belongs.

® The Court of Appeals did not rule as a matter of law that em-

ployers must always pay. It simply held that an employer as

guilty of discrimination as N & W must bear at least some of the

financial burden (A-7, n.la).

BLEED THROUGH

Il.

The Court of Appeals’ Holding Presents No Novel,

Important, or Unsettled Issues.

The Court of Appeals holding that petitioner cannot

completely escape back pay liability presents no question

worthy of review. The holding is founded on explicit find-

ings that N & W was, to at least as great a degree as the

unions, responsible for the discriminatory practices that

give rise to plaintiffs’ back pay claim, and that N & W had

taken no effective action to mitigate the economic impact

of those practices. In these circumstances, the holding is

plainly correct.

A. The Purposes of Title VII Do Not Preclude a Back Pay

Award Against N & W; They Require One.

The primary “prophylactic” objective of Title VII is “to

achieve equality of employment opportunity and remove

barriers” to them, Griggs v. Duke Power Co., 401 U.S. 424,

429-30 (1971); Albermarle Paper Co. v. Moody, 422 U.S.

405, 417 (1975). The statutory purpose is not to encourage

empty gestures toward equal opportunity, but to require its

accomplishment. “Back pay has an obvious connection with

this purpose. If employers face only the prospect of an

injunctive order, they would have little reason to shun

practices of dubious legality,” Albermarle, supra, 422 U.S.

at 417. Apropos of this case we might add that if employers

ean fend off back pay liability by mere words without

consequences, they would have little reason to pursue the

achievement of equal opportunity—which so often entails

expense and structural change. The prophylactic purpose

of the Act therefore requires that employers not be

7

exonerated where their discrimination continues unabated

despite verbal gestures toward reform.’

Petitioner argues that it could not have done more than

it did (Pet. 14,19). This is incorrect. The court below did

not assume “that the N & W could unilaterally have dove-

tailed the seniority rosters” (Pet. 14). The court found

only that to escape liability N & W “must demonstrate a

more assiduous effort ... to eliminate discrimination than

has been shown here” (A-8, n. la). Surely, N & W could

have effectively insisted on negotiating a seniority change

with the unions, rather than retreating into “passive ac-

ceptance” of discrimination after its 1968 offer (id). Apart

from the ongoing opportunity to raise any matter after

1968 and the golden opportunity presented by the prolonged

collective bargaining sessions leading to the 1970 contract,

N & W could have availed itself of the specific provisions of

Section VI of the Railway Labor Act, 45 U.S.C. $156. That

section provides an enforceable mechanism for compulsory

bargaining.’ Nothing in the Railway Labor Act’s purpose

7 The leading cases approving back pay awards against employers

—except this one—all involved employers who had partially dis-

mantled or alleviated their discrimination practices. Sce, Albe-

marle, supra, 422 U.S. at 422-23; Head v. Timken Roller Bearing

Co., 486 F.2d 870, 873, 877 (6th Cir. 1973); Johnson v. Goodyear

Tire & Rubber Co., 491 F.2d 1364, 1369, 1376 (Sth Cir. 1974);

Barter v. Savannah Sugar Refining Corp., 495 F.2d 437, 441 (5th

Cir. 1974) cert. denicd 419 U.S. 1033 (1974). But N & W changed

nothing.

8 The section provides:

Carriers ... shall give at least thirty days’ written notice of

an intended change in agreements affecting rates of pay. rules,

or working conditions, and the time and place for the be-

ginning of conference between the representatives of the par-

ties interested in such intended changes shall be agreed upon

with 10 days after the receipt of said notice.

The provisions of 45 U.S.C. $156 impose a duty to bargain on the

employee representatives, when a carrier serves such a_ notice.

(See A I 698).

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cas pcbhauindd

8

requires a carrier’s “passive acceptance” of discrimination

or forebearance from using established RLA machinery to

overcome it; and nothing in that purpose conflicts with

Title VII as applied by the court below.

Petitioner asserts that the decision below would exoner-

ate UTU despite the breach of its duty of fair representa-

tion (Pet. 14), This contention, at best premature, will

surely prove wrong when the district court has allocated

liability, The Court of Appeals’ decision strongly suggests

that the unions should share the burden of liability (A-8-

A-9), Doubtless they will, in light of the facts presented

here as to “whether they combined with N & W to deprive

black employees of income opportunity” (A-9),°

B. The Fourth Circuit’s Holding Does Not Conflict With Other

Appellate Decisions.

N & W misstates the rule in the Fifth Cireuit, in an

attempt to manufacture a conflict with the Fourth Cireuit’s

holding, The Fifth Cireuit has never formulated a rule

that would insulate discriminatory employers from all

liability, or that would require union co-defendants to pay

judgments “directly” (ef. Pet. 16). The Fifth Cireuit’s

rule, as reflected in Guerra v. Manchester Terminal Corp.,

498 F.2d 641 (5th Cir. 1974)’ and Stevenson v, Interna-

®°The only liability so far determined by the district court was

for plaintiffs’ attorneys’ fees. The court assessed one-third of its

award against the unions (A-72). This was before N & W stopped

resisting plaintiffs’ prayer for the basic dovetailing remedy.

1° In Guerra the district court entered a joint and several judg-

ment for back pay against all defendants, but granted the em-

ployer a judgment for its share against the union; the Fifth Cir-

cuit affirmed this allocation, 498 F.2d at 645, n.3. This is con-

sistent with the result to be anticipated here ander the Fourth

Circuit's guidelines,

9

tional Paper Co., 516 F.2d 103 (Sth Cir. 1975)," is the same

as the Fourth Cireuit’s: liability should be assigned among

co-defendants according to their respective responsibility

for the economie injury. In Guerra, the court stated, “nor

do we mean to suggest that employers can avoid paying

for their civil rights violations by standing passively by

as unions take the active role,” 498 F.2d at 656, And in

Stevenson the Court of Appeals remanded the initial alloea-

tion decision to the district court for determinations as to

responsibility, 516 F.2d at 113-4. Other recent lifth Cir-

cuit decisions are also fully consistent with the ruling be-

low, See, eg., Carey v, Greyhound Bus Co,, 500 k.2d 1872,

1379 (Sth Cir, 1974) 3"? Gamble ve Birmingham Southern

R, Co,, 514 F.2d 678, G86 (Sth Cir, 1975), and United States

(lord) vy, United States Steel Corp, 520 2d 1043, 1060

(Sth Cir, 1975); and see Johnson v, Goodyear Tire &

Rubber Co,, 491 F.2d 1364, 1581-2 (Sth Cir, 1974). The

"In Stevenson the Court of Appeals suggested the possibility

of reducing employer liability on a “substantial injustice” theory

only for that part of the injury stemming from a government-

imposed interpretation of a seniority provision which the company

had previously construed in a manner without discriminatory

effect. The government acted at the union defendant's behest. See

516 F.2d at 108. The possibility of separate union liability in these

circumstances is obviously distinguishable from the issue presented

here.

“In Carcy back pay was assessed jointly against the company

and union, The union was held liable despite “a thin veneer of

racial neutrality” because it had not “taken the affirmative step

to initiate negotiations with Greyhound” to diminish discrimina-

tion, 500 F.2d at 1379. Like N & W, the union in Carcy unsuccess-

fully argued that the national labor laws prevented it from uni-

laterally changing the seniority system, ¢d.

Tn both Gamble and Ford the Fifth Circuit remanded to the

district court for the exercise of its primary fact-finding function

and discretion in allocating liability, as the Fourth Cireuit did here.

"In Johnson the Filth Circuit stated ;

[I]t would be difficult to fasten liability on one party to the

labor contract which was a substantial cause of the diserim

BLEED THROUGH

SRC a elec ete)

10

Fourth Cireuit in this ease specifically approved these

Fifth Cireuit authorities and directed the district court to

follow them (A-9). The two circuits stand together on the

issues raised by this petition.

Petitioner also mischaracterizes the facts of this case in

its attempt to create the appearance of a confliet of circuits.

In arguing the purported conflict with Guerra, N & W

relies on an irrelevant and misleading factual distinetion,

Guerra, of course, involved an employer marginally in-

volved in the discrimination and a union that was “prinei-

pally responsible,” 498 F.2d at 656, N & W asserts that

here, in contrast, “the employer was not responsible at all

for the failure of the unions to dovetail rosters” (Pet, 16),

But back pay liability arises in this case not because of the

failure to dovetail, but because of the discriminatory

practices causing economic injury—for which N & W bears

full responsibility. To impose liability exelusively on the

unions for failure to take remedial aection—while exonerat-

ing the company from the consequences of discriminatory

practices which created the need for a remedy—would

be inequitable and punitive. Title VII requires back pay

awards as compensation, not punishment, Albermarle

Paper Co. v. Moody, supra, 422 U.S. at 422, Johnson vy.

Goodyear Tire and Rubber Co., supra, 491 F.2d at 1382.

The case at bar bears no resemblance to state female

protective law decisions, which petitioner urges conflict

with the Court of Appeals holding herein (Pet. 18-19).

N & W distorts the facts in arguing that it “was no less

inatory employment practices and grant total immunity from

such liability to the other party, 491 F.2d at 1381,

This logic follows the Fourth Circuit's earlier holding in Robinson

Vv, Lorillard Corp,, 444 F.2d 791, 799 (4th Cir, 1971), cert, dis-

missed 404 US, 1006 (1971), that “if a discriminatory contract

provision is acceded to, the bargainee as well as the bargainor will

be held liable.”

11

trapped between conflicting duties under different federal

statutes” than employers in those cases (Pet. 19). The

Railway Labor Act did not require N & W to maintain

separate, segregated yards and hiring offices, nor to con-

struct a dual seniority system with racially discriminatory

impact. Nor did the RLA preclude insistence on newotia

tion of seniority changes; indeed it provided a ready

mechanism that N & W chose to ignore (see pp. 7-8, supra),

The rationale of the state female protective law eases is

twofold: employers had a duty to comply with state legis:

lation until the federal courts invalidated it; and emplovers

had a right to presume the legality of such duly enaeted

state legislation, Neither rationale applies here, N & W's

racial practices were not statutorily mandated, and were

blatantly unlawful and wrong, This court had no diffieulty

in rejecting the same “Sevilla and Charybdis” argument of

the employer in dAlbermarle, 422 U.S, at 423 1. 18, Peti-

tioner’s contention here is equally insubstantial.

CONCLUSION

The Petition for a Writ of Certiorari should be denied.

Respectfully submitted,

JACK GREENBERG

10 Columbus Circle

New York, New York 10019

Wituiam T. Mason, Jr.

419 Granby Street

Norfolk, Virginia 23510

Morris J. Batter

145 Ninth Street

San Francisco, California 94108

Attorneys for Respondents

Robert Rock, et al,

BLEED THROUGH