Appendix — Alexander v. Gardner-Denver Co.

~ Excerpts from Deposition of Harrell Alexander

Defendant 's Motion for Summary Judgment

The Arbitrator’s Award

_ Excerpts from Collective Bargaining Agreement

Letter of Harrell Alexander dated October 10, 1969

| Grievance of Harrell Alexander dated October 1, 1969

Opinion of the District Court

Judgment of the District Court

Opinion of the Court of Appeals

Judgment of the Court of Appeals

Order granting motion for leave to proceed. in forma pauperis

and granting petition for writ of certiorari..............

4

8

Joa

23

“i

In the one, Court ofthe ma states

Oorom Tze, 1972

No. 72-5847

Hasrert Auexanpen, Sn, PEeTirioneEn,

v.

Ganpyner-Denver Company

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

— — — — 4e eee

SunMAnx or Retzvant Docker Enters

Date Court Item Filed

August 25, 1970 U.8. District Court Complaint

For The District

of Colorado (here-

after District

Court)

November 17, 1970 District Court Answer

January 29,1971 _ District Court Deposition of

Harrell

Alexander

February 12, 1971 District Court Motion for

Summary Judg-

ment Filed

February 12, 1971 District Court Request for

Admission

March 25, 1971 District Court Response to

Defendant’s

Request for

Admissions

July 7, 1971

July 16, 1971

August 5, 1971

November 17, 1971

August 11, 1972

August 11, 1972

November 2, 1972

November 8, 1972

December 8, 1972

January 5, 1973

February 20, 1973

2

District Court

District Court

District Court

U. S. Court of

Appeals Tenth

Circuit

U. S. Court of

Appeals Tenth

Circuit

U. S. Court of

Appeals Tenth

Circuit

U. S. Supreme

Court

U. S. Supreme

Court

U. S. Supreme

Court

U. S. Supreme

Court

U. S. Supreme

Court

Memorandum

Opinion and

Order

Judgment

Entered

Notice of

Appeal

Stipulation

Opinion and

Order Affirming

Distriet Court

Judgment

Motion for

Extension of

Time to File

Petition for

Certiorari

Order of Justice

White Granting

Extension Un-

til December 8,

1972

Motion to Pro-

ceed in Forma

Pauperis and

Petition for

Certiorari Filed

Brief in Opposi-

tion to Petition

for Certiorari

Filed

Motion to Pro-

ceed in Forma

Pauperis and

Petition for

Certiorari

Granted

In THE Unrrep States Disrmor Court von THE

117! 1 District or ColoRADO

Civil Action No. C-2476

Harpe ALEXANDER, Sn.,

. PLarxrrrr,

vs.

GanD⁰RER-DRNVER Company,

A Delaware corporation,

DEFENDANT.

Come Now the plaintiff by and through his attorney,

Philip M. Jones, and for the Complaint against the de-

fendant states and alleges as follows:

1. That jurisdiction of this Court is invoked pursuant to

28 USC § 1343 and 42 USC § 2000 et. seq. and more specifi-

cally 42 USC § 2000 e-5.

2. That the acts hereinafter complained of occurred in

the State and District of Colorado.

3. That the plaintiff is a citizen and resident of the City

of Denver and State of Colorado.

4. That the plaintiff has performed all conditions prece-

dent to the bringing of this action.

5. That at all times pertinent herein, the defendant is

and was engaged in interstate commerce, and is and was

doing business in the State of Colorado.

6. That the defendant is and was at all times pertinent

herein an employer under the meaning of 42 USC, § 2000e.

7. That the plaintiff is a person as defined by 42 USC

§ 2000e and as such is entitled to institute this action.

8. That the plaintiff was employed by the defendant in

May, 1966, and assigned to the Yard Department.

9. That on June 11, 1968, plaintiff bid on and was

awarded a position as a drill operator trainee.

10. That the plaintiff was discharged by the defendant on

September 29, 1969.

11. That the plaintiff was satisfactorily performing his

tasks at the time of his discharge and in fact was dis-

charged because he was of the Negro Race, in violation of

42 United States Code, § 2000e et. seq. and more specifically

§ 2000e-2(a) (1) to wit: .

4

4 (a) It shall be an unlawful employment practice for an

employer

(1) to fail or refuse to hire or to discharge any individ-

ual, or otherwise to discriminate against any individual

with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s race,

color, religion, sex, or national origin. 4

12. That the plaintiff filed a charge, in writing and under

oath with the Equal Employment Opportunity Commission

(EEOC). 5

13. That pursuant to 29 CFR § 1601.25 (a) a Notice of

Right to Sue was issued by the EEOC.

14. That as a result of the unlawful employment prac-

tices of the defendant as heretofore set forth, the plaintiff

has incurred damages as follows:

a. Loss of earnings since on or about September 29, 1969,

in the estimated amount of $5,720.00, the precise amount

can be determined by the records and information in the

possession of the defendant.

b. Loss of seniority benefits in an amount yet to be deter-

mined which can be determined by the records and informa-

tion in the possession of the defendant.

c. Loss of retirement benefits in an amount yet to be

determined which can be determined by the records and

information in the possession of the defendant.

Wueneroze, plaintiff prays for judgment against the

defendant as follows:

1. A permanent injunction against the defendant enjoin-

ing said defendant from engaging in or repeating its un-

lawful employment practices toward plaintiff or any other

member of the Negro race.

2. Damages in the approximate amount of $5,720.00

which sum would have been earned by the plaintiff if the

defendant not engaged in unlawful employment prac-

tices towar him, and for such additional damages as

plaintiff may have sustained for loss of seniority benefits

and retirement benefits; all such damages to be more

specifically proved at trial from information and records

now in the possession of the defendant. .

3. Interest, costs, including reasonable attorney 's fees

and expert witness fees to be taxed as part of the costs of

5

4. For such further relief as to the Court seems just and

proper.

Respectfully Submitted,

By: Philip M. Jones .

Parkview Professional Building

1839 York Street

Denver, Colorado 80206

ee 399-6360

Address of Plaintiff:

3610 Fairfax Street

Denver, Colorado

In Tse Unrrep States Distaict Court

ror TRR District or CoLoRaDo

[Title Omitted in Printing]

ANSWER

Comes Now the defendant, Gardner-Denver Company,

by its attorney, Robert G. Good, and for answer to the

plaintiff’s complaint, admits, denies and avers as follows:

First DEFENSE

1. Defendant denies each and every allegation contained

in paragraph I of plaintiff’s Complaint.

2. Defendant is without information or knowledge suffi-

cient to form a belief as to the truth of the allegation

contained in paragraph II of plaintiff’s Complaint.

3. Defendant admits the allegations contained in para-

graph III of plaintiff’s Complaint.

4. Defendant denies each and every allegation contained

in paragraph IV of plaintiff’s Complaint.

5. Defendant admits the allegations contained in para-

graph V of plaintiff’s Complaint.

6. Defendant admits the allegations contained in para-

graph VI of plaintiff’s Complaint.

7. Defendant admits that part of allegation number VII

of plaintiff’s Complaint alleging that plaintiff is a person

as defined by 42 U.S.C. Sec. 2000(e) and denies each and

every other allegation contained in paragraph VII of the

Complaint. *

8. Defendant admits the allegations contained in para-

graph VIII of plaintiff's Complaint.

9. Defendant admits the allegations contained in para-

graph IX of plaintiff’s Complaint.

10. Defendant admits the allegations contained in para-

graph X of plaintiff’s Complaint.

11. Defendant denies each and every allegation contained

in paragraph XI of plaintiff’s Complaint.

12. Defendant admits the allegations contained in para-

graph XII of plaintiff’s Complaint.

13. Defendant denies the allegations contained in para-

graph XIII of plaintiff’s Complaint.

6

7

14. Defendant denies each and every allegation contained

in paragraph XIV of plaintiff’s Complaint.

Szeconp Derense

Plaintiff’s Complaint fails to state a claim upon which

any relief may be granted against the defendant.

Tam DrErense

That portion of paragraph I of plaintiff’s prayer clause

seeking a permanent injunction enjoining the defendant on

behalf of any other member of the Negro race“ is inap-

propriate, since said Complaint does not allege a class

action within the meaning of Rule 23 of the Federal Rules

of Civil Procedure.

AFFIRMATIVE DEFENSES

Comes Now the defendant and for Affirmative Defenses

avers as follows:

First AFFIRMATIVE DEFENSE

1. That this Court is without jurisdiction over the sub-

ject matter of this action because the following conditions

precedent were not complied with prior to the issuance of

the Equal Employment Opportunity Commission’s Notice

of Right to Sue Within 30 Days“ and/or the plaintiff's

commencement of the instant action:

a. The Equal Employment Opportunity Commission

did not find reasonable cause“ as required by

42 U.S.C. Sec. 2000e-5.

b. The Equal Employment Opportunity Commission

did not attempt to obtain voluntary compliance.

c. The plaintiff did not demand in writing that Notice

of Right to Sue issue, as required by the Equal

Employment Opportunity Commission’s Proce-

dural Regulations.

d. The plaintiff’s Complaint was not timely filed

within the meaning of 42 U.S.C. Sec. 2000e-5e.

e. That the failure of plaintiff to meet the require-

ments of (a) or (b) or (e) or (d) above deprives

this Court of jurisdiction.

Szsconp Arrmmative Dersnse

1. The defendant incorporates by reference herein para-

graphs 1 of the First Affirmative Defense.

2. That the plaintiff’s failure to satisfy each and every

procedural prerequisite deprives the plaintiff of standing

to maintain the instant action.

Tam Arrmamative DerensE

1. That the plaintiff was discharged for just cause on

or about September 29, 1969.

2. That pursuant to a collective bargaining contract in

effect between the defendant and the United Steelworkers

of America, local Union No. 3029, the plaintiff filed a griev-

ance on or about October 1, 1969, alleging that he was

‘unjustly dischar red.“

3. That pursu _t to said collective bargaining agree-

ment an arbitration hearing was held on November 20,

1969, before Mr. Don W. Sears, an impartial arbitrator.

4. That said arbitrator’s award issued on December 30,

1969, dismissed plaintiff’s grievance and ruled that plaintiff

s discharged for just cause.“

5. That said arbitration award has the effect of a fiinal

judgment within the meaning of the Federal Arbitration

Act, 9 U.S.C. Sec. 9, 10 and 11.

6. That said arbitration award is binding upon the plain-

tiff and precludes the plaintiff from maintaining the in-

stant action under Title VII of the Civil Rights Act of

1964.

7. That a refusal to give the arbitration award binding

effect would be inequitable to the defendant and would

seriously undermine the operation of the grievance and

arbitration procedure.

FourtH ArrmMaTIvE DEFENSE

1. That on or about November 5, 1969, the plaintiff

filed a charge with the Equal Employment Opportunity

Commission.

2. That said charge alleged that the defendant, Gardner-

Denver Company, discharged plaintiff because of his race,

in violation of 42 U.S.C. Sec. 2000e et seq.

3. That on or about July 1, 1970, the Equal Employment

9

Opportunity Commission issued a decision which stated

that ‘‘reasonable cause does not exist to believe that Re-

spondent engaged in unlawful practices in violation of

Title VII of the Civil Rights Act of 1964.

4. That said Equal Employment Opportunity Commis-

sion decision precludes the plaintiff from maintaining the

instant action.

Frere Arrmmative DErEeNnsE

1. The defendant incorporates by reference herein para-

graphs 1, 2, 3, 4, 5, 6 and 7 of the Third Affirmative Defense

and paragraphs 1, 2, 3 and 4 of the Fourth Affirmative

Defense.

2. That as the result of the arbitrator’s award and the

Equal Employment Opportunity Commission’s decision

that plaintiff was discharged for just cause, the plaintiff

is estopped from maintaining the instant action.

Wuenrerorg, defendant prays that the Complaint be dis-

missed in its entirety and for costs, expert witness fees,

and such other and further relief as the Court deems

proper.

/s/ Robert G. Good

Attorney for Defendant

917 American National Bank Bldg.

Denver, Colorado 80202 222-7956

Address of Defendant:

1727 East 39th Avenue

Denver, Colorado 80205

10

[Certificate of Mailing Omitted in Printing]

In HE Unrrep Srares D Gora

FOR THE District or CoLoRaDo

[Caption Omitted in Printing]

Deposition or HAunXIL. ALexanper, Sn. (Taken by De-

fendant)

HannxLL Avexanper, In., the Plaintiff herein, being first

duly sworn, was examined and testified on his oath as

follows: \

* s *

[64] Q. Now, when you were suspended subject to dis-

charge, you did file a grievance on that, did you not?

A. Yes, we did.

Q. And I believe your first hearing started at Step 2,

did it not.

A. First hearing started at Step 1, which is at the time

we filed the grievance with the local union steward. Then

the next step was setting up to meet with the supervisors.

Q. And then you did meet with the supervisors?

A. Yes.

Q. What step was that?

A. Step 2.

Q. What supervisors were at that meeting?

A. I believe to my knowledge Mr. Schumacher.

Q. The general superintendent for Gardner-Denver?

A. Right.

. Who else was present at that meeting?

A. The local grievance man and myself and McFarlin.

1651 Q. The grievance man was Earl Comb?

A. Yes.

Q. And McFarlin?

A. Right.

Q. And yourself?

A. Right.

Q. Now, am I correct at that Step No. 2 you did state

that you thought you were being discriminated against and

that the scrap wasn’t excessive?

A. I don’t think a statement of discrimination was made

at that time.

Q. Which step was discrimination mentioned!

12

A. None of the union steps. I filed with the Commission.

Q. The arbitration?

A. No. I made mention there when I wrote the letter.

Q. At the arbitration?

A. Prior to that. It was to the United Steel man that

I wrote the first letter to.

Q. United Steel Workers Union?

A. Yes.

Q. You wrote a letter to them?

A. Right.

Q. When was that!

A. That was around about October—I don’t have the

[66] date. It was October of 69. It was after these first

two steps had taken place. Must have been in the neigh-

borhood of the 6th or 8th. Somewhere in there.

Q. Did you retain a copy of that letter?

Tue Wirness: Do you have a copy of that?

Mn. Joxxs: It was written in October of 69

Tue Wrrness: Yes. Letter where it was all—with the

valuable discovery that I made, and being the target of

discrimination.

Mn. Jones: I have got a copy of it.

Mn. Goop: Maybe we already have it.

Off the record.

(A discussion was then had off the record.)

Mn. Goop: Back on the record.

Q. (By Mr. Good) Your letter of October 10th to the

United States Steel Workers, Mr. Alexander, did you draft

that letter or did someone else?

A. No, I did along with the assistance of my pastor at

the time.

Q. What was his name?

A. Reverend A. L. Scott.

Q. Didn’t Mr. Scott appear at Step 4 of the grievance

as your attorney?

A. No, he did not. Not as my attorney. Lawyer and a

minister are somewhat different, I believe.

[67] O. Did he appear at some step in the grievance!

A. He was down with me, yes. We met at the United

States Steel office.

Q. And discrimination on the basis of race was raised

in that step, wasn’t it?

13

A. Yes.

Q. And what position did the company take at fan

A. I don’t know. It was presented to the United States

Steel man. He was a local man of ‘this grievance com-

mittee at the time. He was over all of them. So I don’t

know what step he followed up on.

Q. Now, at the arbitration, who represented you there?

A. The United States Steel Workers went along with

Mr. Baunhover, the union president. 2

Q. Bert? ps

A. Bert was the union man. He was there. Along with

the president of the union.

Q. Now, at the arbitration, who was it that raised the

issue of race?

A. Mr. Bert.

Q. How did he raise that?

A. By the letter that I wrote to him, explaining my

position and what I had discovered.

Q. And subsequently the arbitrator, who was Mr. Don

Sears—do you remember that name?

[68] A. Yes.

Q. He ruled that you were justly discharged; correct?

A. He stated something of that nature, along with some

other suggestions that he made. I am sure you have a

copy of it.

Q. And he did not conclude that you were discharged

because you were black; correct?

A. No, he went according to the testimony that he had

heard from the union, and they had time to prearrange

their testimony and their charges against me, which I was

inadequate in representing myself, and I should have had

the right of representation from the union, which I did

not receive at that time, in order to cope with what they

had.

Q. The union did on your behalf allege you were fired

discriminatorily ; correct?

A. They read the statement I had sent to them, and

they knew it was somethng to that effect.

Q. Yes, they did read verbatim your letter of October

10th?

A. Yeah, along with Mr. Bert. They rearranged it. It

weakened it down. The original letter I wrote—he said

discrimination was a big charge and has to be proven

and have to have witnesses and all this.

14

Q. Did you provide any witnesses at the arbitration or

any evidence of —

169] A. I was not informed to have any. This is why

I said without adequate representation from the union I

was let down.

Q. Did you testify at the arbitration?

A. Yes.

Q. And you did—wasn’t it—what did you have in sup-

port of your testimony that you were fired because you

were black?

A. Well, I didn’t have any support other than the

conversation and knowledge—a man was a journeyman

machinist, and he was qualified on the function of the

drill, and he got up and drew an illustration on the board,

and they had a piece of junk in there as scrap, saying they

couldn’t possibly drill a hole at that angle from this posi-

tion. So they outweighed me on their theories.

Q. You felt that although the union raised the race issue

at the arbitration they were really trying to water it down?

A, Yeah, I know they were.

Q. And when you took the stand did you try and water

down the race issue, also?

A. No, I didn’t. I held it up and at that time I told

them that I had already filed with the City Commission

because I could not rely on the union. All Caucasians.

Don’t have a black representative in there.

Q. When you say ‘filed with the City,“ you mean the

[70] Colorado Civil Rights Commission?

A. Yes.

Q. You say the union was all Caucasian. Isn’t it true

at one time you asked your shop steward, union steward,

Mr. Combs, if the union had a civil rights committee?

Do you recall asking him that and he responded that they

did, and then you asked him what was the color makeup

of that committee and he responded that there were several

Negroes on that committee?

A. There was a Negro.

Q. One Negro?

A. Yes, but they don’t get in the grievances. They

handle disputes in other areas. They are never called in

on a grievance.

Q. Did you feel that—well, who else was at the arbitra-

tion? Mr. Dean Schroeder, the personnel manager, was

there; correct?

15

A. Yes.

Q. Did you feel Mr. Schroeder was discriminating

against you?

A. To a certain extent.

Q. To what extent?

A. That he wouldn’t consider my return back to the

other department. N

Q. You think he did that because you were black?

[71] A. Icannot answer that. I don’t know.

Q. Did you feel the arbitrator was—was the arbitrator

white or black?

A. You know Mr. Sears personally. He’s Caucasian.

Q. We have to establish things for the record, and that’s

why I have to ask you some obvious questions.

Did you feel Mr. Sears discriminated against you because

of your color?

A. Because he’s an arbitrator he’s a man to listen to

sides, but as an arbitrator for myself, I never would have

chosen him because he pointed out that he did not know

anything about drills, didn’t know anything about the fune-

tion of drilling holes. So how can a man say who’s right

and who’s wrong if he’s going to arbitrate on a certain

incident? He made it clear in the session that he did not

know anything about hand drills nor the function of hand

drills.

Q. And so when the arbitrator’s decision came down,

you received a copy of it, did you?

A. Yes, I did.

Q. Did you disagree with his findings?

A. Yes.

Q. And, nevertheless, you felt he was wrong in not

finding that you were fired because you’re black?

A. Would you rephrase that now?

Q. That was a little sloppy.

[72] Even after you read the arbitrator’s decision, or

after you read the arbitrator’s decision, you felt that the

arbitrator was wrong in not finding that you were fired

because you were black?

A. Not necessarily because I was black, but because it

was unjust in his thinking because that night after we left

the committee meeting—that night I was assured by Mr.

Bert that he knew the arbitrator personally and from what

he could gather that it would be favorable in my behalf.

And after I received the response of his conclusion, then

16

I was somewhat let down because I had been assured this

verbally, that everything was going in my favor and that

no doubt they would consider getting my job back and

returning to work.

Q. Do you feel that if it were a white man at that arbitra-

tion instead of yourself who had the same record you had,

that that man would have been put back to work?

A. To my knowledge I don’t believe he would have even

reached that far. He would have been put back to work

earlier because it had happened—people have taken off two

or three weeks at a time without telling anybody and re-

turned and got their job back.

Q. Can you give me any names?

A. No, I cannot. It’s on the records. You can request

to see their records. What I am actually saying is it would

never have gone that far—I don’t know any other

In tHe Untrep States Disrmor Court

‘ton THE Dieracr! OF Co r

| [Title Omitted in Printing)

Motion FOR’ Summary —

Comes Now, the defendant, Gardner Denver Company, cy

its attorney, Robert d. Good, pursuant ta fhe provisions

of Rule 56 of the Federal Rules of Civil m2 105 i

respectfully moves this Court to grant summary j

in favor of the defendant.

Anp As Grounps THERETOR defendant asserts as follows:

1. That the plaintiff’s Complaint was not timely filed as

required by 42 U.S. C. A. Sec. 2000e-5e.

2. That the Equal Employment Opportunity Commis-

sion held that ‘‘reasonable cause does not exist to believe

that Respondent engaged in unlawful employment practices

in violation of Title VII of the Civil Rights Act of 1964.“

Said decision of the Equal Employment Opportunity Com-

mission is determinative of the plaintiff’s rights and pre-

cludes the plaintiff from maintaining the instant Title VII

action.

3. That before an impartial arbitrator the plaintiff

alleged that his discharge was unjust and discriminatory.

That the arbitrator’s ruling that ‘‘ plaintiff was discharged

for cause’’ is binding on the plaintiff and precludes the

plaintiff from maintaining the instant Title action.

The defendant directs this Court’s attention to the

attached Brief in Support of Motion for Summary Judg-

ment.

WuxnXronx, defendant prays this Court to grant de-

fendant’s Motion for Summary Judgment.

Respectfully submitted,

/s8/ Robert G. Good

Attorney for Defendant

915 American National Bank Building

Denver, Colorado 80202

222-7956

Address of Defendant:

1727 East 39th Avenue

Denver, Colorado 80205

[Certificate of Service Omitted in Printing]

In toe Urra Srares Distaict Cour

von THE District or CoLoRaDo

[ExursirT]

In THe Matrer or aN ARBITRATION | Grievance involv-

Between ing the discharge

Ganpyen-Denvern ComPany of Harrell Alex-

> ander, Sr.

~and- Awanb OF THE

ARBITRATOR

Unrtrep SreeLworkers or AMERICA,

Local. Union No. 3029 | December 30, 1969

This matter came on for hearing in Conference Room 8

of the Mountain States Employers Council at 1:30 p.m.

on November 20, 1969, before a single arbitrator, Don W.

Sears, appointed pursuant to the provisions of Article 23,

Section 5, Step 5 of the collective bargaining agreement in

effect between the parties at the time the instant grievance

arose. This agreement will be referred to hereafter as the

Contract.

Gardner-Denver Company, hereafter referred to as the

Company, was represented by Mr. Philip R. Moore. United

Steelworkers of America, Local Union No, 3029, hereafter

referred to as the Union, was represented by Mr. A. J.

Frantz.

WITNESSES

Forthe Company: Oscar McFarlin, Assistant Fore-

man Night Shift

Henry A. Stanley, Assistant Fore-

man

For the Union: Clyde E. Zietz, Area Grievance Man

Harrell Alexander, Sr., Grievant

Earl Colm, Area Grievance Man

Cletus Baumhover, President and

Chairman, Grievance Committee

Tue Issun

Did the Company discharge the grievant for just cause?

19

BackGRoUND or THE GRIEVANCE

‘The grievant, Harrell Alexander, Sr., was employed by

the Company in May, 1966. He was assigned to work in

the Yard Department. On June 11, 1968, he bid into and

was awarded a job as trainee in the Drill Department. He

operated Machine No. 793. The training period for this

job is twelve months, He was actually on this job fifteen

and one-half months before being discharged but he lacked

two weeks of completing the twelve month training period,

having twice been held back and not given raises to the

next labor grade.

On July 18, 1968, the grievant ran 33 parts, of which on

17 of the parts the .1865/.1885 diameter hole was exces-

sively oversized. These 17 parts had to be scrapped. Mr.

McFarlin ascertained that the grievant had not checked

each part as required by the time study sheet. A warning

notice was issued to the grievant. Company Exhibit A.

Mr. McFarlin talked to Clyde Zietz, Area Grievance Man,

about the incident and also talked to the General Foreman.

Mr. McFarlin then decided to intensify the grievant’s train-

ing. He spent approximately 80 hours with the grievant

demonstrating procedures and details step by step. The

testimony indicated that the grievant’s work performance

improved somewhat after this intensive training and he

consulted with Mr. McFarlin concerning his work problems

until he received his second warning notice from Mr. Me-

Farlin on May 15, 1969. This notice read as follows:

‘‘Your scrap as of lately has been terrific. I feel

that this is due to carelessness on your part. During

the month of April, 1969, you ran 13 pes of scrap. On

4-30-69 you were drilling S48F-17FB, Oper 6 Lot

# 1457. Six of these parts are scrap due to your

carelessness. Due to the fact that you neglected to

check your work allowing these six parts to go through

as good parts when the 3/16” drill broke out.“

The grievant then received a two-day suspension on

June 5, 1969, for faulty workmanship. Company Exhibit

B. Mr. McFarlin testified that several other employees

had been suspended for excessive scrap and their work

had subsequently improved. Mr. McFarlin said that the

grievant’s work did not improve after his suspension.

On the night of September 24 or 25, 1969, the grievant

20

was running a cylinder 8-331. He was to drill a vertical

hole 1 11/16” in depth. There was testimony that he was

spotting the hole and trying to reslign the drill in an

attempt to get a straight hole. He was not following

normal procedure in this regard. On September 30, 1969,

he was issued a suspension, subject to discharge, by Mr.

McFarlin. He was subsequently recommended for dis-

charge due to defective work. The discharge became effec-

tive as of the end of the grievant’s shift on Monday, Sep-

tember 29, 1969. See Union’s Exhibit 3.

Mr. Henry Stanley, Assistant Foreman, testified that he

was on duty on the night of September 24, 1969, He said

there was nothing wrong with the grievant’s machine on

September 23. He said that two weeks before, two new

bearings were put in the spindle but that they had nothing

to do with the angle of the drill. He testified that the only

thing that could cause the resulting angle was improper

alignment and forcing the part,

The grievant told Mr. Stanley on the night of September

24, 1969, that the machine was noisy and vibrating and

he didn’t think it was doing the job. The machine main-

tenance man, when consulted by Mr. Stanley, said that he

would not need a repair order because it only took him

30 seconds to tighten a nut, making the spindle easier to

raise. Mr. Stanley testified that even if new bearings were

improperly put into the machine, this would not cause the

spindle to operate in a crooked fashion.

The instant grievance was filed on October 1, 1969. The

parties were unable to resolve this matter at any of the

steps in the grievance procedure provided in Article 23 of

the Contract; hence they have submitted it to the Arbitra-

tor for his decision on the merits.

CowcLusions or THE ARBITRATOR

First, the Arbitrator addresses himself to the question

of which party has the burden of proof in establishing its

case, Most arbitrators have accepted the view in disci-

plinary cases that the burden of proof rests upon the

Company to show that the discipline was for just cause

within the meaning of the Contract. As both parties well

know, the Arbitrator accepts this view and has applied it

in a long line of cases,

The Arbitrator has concluded that the Company has

21

proved that the discharge of the grievant was for just

cause. H this discharge were found by the Arbitrator on

the state of the evidence in this case to be without just

cause, then the concept of cdrrective or progressive dis-

cipline as to less serious offenses, so favored by this Arbi-

trator and by others, would be dealt a severe blow indeed.

See, for example, Huntington ‘Chair Corp., 24 LA 490

(1955); Michigan Seamless Tube Co., 24 LA 132 (1955)

and Niagara Frontier Transit System, 24 LA 783 (1955),

discussed in Elkouri and Elkouri, How Arbitration Works

(Revised Edition, 1960) at pp. 423 and 424. As Arbitrator

Thompson stated in the latter case, ‘‘In industrial practice

discipline is often ‘progressive’ or ‘corrective’ in nature.

Warning is tried before suspension; suspension before

discharge. Penalties are designed to correct if possible.“

(Underlining added for emphasis).

In this case, the grievant was dealt with most patiently.

First, a warning notice followed by itensified training;

next, another warning notice and oral discussions; then

a two-day suspension without pay; and finally termination.

Arbitrator Davey held in Sheller Mfg. Corp., 40 LA 890

(1963), that the employer there was justified in taking a

similar series of disciplinary actions, culminating in dis-

charge, against an employee for careless workmanship and

poor performance. There was evidence in that case, as

here, that the employee was told or shown how to do his

job correctly on a number of occasions. The evidence also

indicated that although he could perform the job correctly,

as here he failed to correct his performance after repeated

instructions, warnings and cumulative efforts at corrective

discipline.

In its written statement presented at the Hearing, the

Union challenged the written warning notice of July 18,

1968, the warning notice issued on May 15, 1969, and the

two-day suspension of June 6 and June 9, 1969, introducing

testimony at the Hearing designed to induce the Arbitrator

to discount these various disciplinary actions. However,

the Arbitrator is not free to do so. Those earlier disci-

plinary efforts have already been adjudicated and cannot

now be. reopened. If the Arbitrator were to reconsider

them de novo in this proceeding, then non-grieved dis-

ciplinary proceedings would become chaotic and, in effect,

meaningless when a grievance is later filed concerning a

more strict disciplinary action.

22

The Arbitrator has concluded that the defective work

performed by the grievant on the night of September 24

or 25, 1969, was not due to any malfunctioning of Machine

#793. There was no probative evidence produced at the

Hearing to demonstrate that the corrective maintenance

done on the machine was incorrect or faulty or in any

way contributed to the defective work produced by the

grievant.

There is one matter remaining that troubles the Arbitra-

tor. Mr. Cletus Baumhover, President of the Union, testi-

fied that when an employee has habitually run scrap, the

Union has agreed to get the employee to transfer out of

the department back to his former department when there

is an opening. The Arbitrator has no way of knowing if

this has been the practice or not. Certainly, this unsup-

ported statement falls far short of proving a well-estab-

lished past practice. On the other hand, there was no

evidence at the Hearing to show that the grievant’s per-

formance in the Yard Department was unsatisfactory. All

we have in the record is Mr. Schumacher’s memorandum of

October 2, 1969, to this effect. In this state of affairs, the

Arbitrator simply cannot order the grievant to be trans-

ferred back to his former department when there is an

opening. He suggests, nothing more, that the Company

and the Union get together in an effort to ascertain if such

an arrangement is feasible. However, the Arbitrator wants

to make it abundantly clear that this suggestion forms no

part of his decision, set out below, and the Company

cannot be faulted or criticized by the Union if the Company

concludes that such an arrangement is impractical. Had

Mr. Baumhover testified as to numerous specific incidents

where this kind of transfer had always been granted, the

Arbitrator would feel differently.

DEcIsIon OF THE ARBITRATOR

It is the decision of the Arbitrator that the grievant was

discharged for just cause. Consequently, his grievance is

denied.

/s/ Don W. Sears, Arbitrator

An run Usrrep Srares Ge on n

' ron THE TentH Crovrr .

[Exrerr A 10 mn er

Col OTW BaRrGaINnInG — :

ARTICLE 4

MANAGEMENT

The Union recognizes that all rights to manage the Plant,

to determine the products to be manufactured, the methods

of manufacturing or assembling, the scheduling of produc-

tion, the control of raw materials, and to direct the working

forces, including the right to hire, suspend or discharge for

proper cause, and the right to relieve employees from duty

because of lack of work or other legitimate reasons, and

the right to maintain order and efficiency are vested exclu-

sively in the Company.

It is understood by the parties that all rights recognized

in this Article are subject to the terms of this Agreement.

Agriciz 5

MUTUAL RESPONSIBILITY

Section 1. The parties agree that during the term of

this Agreement there shall be no strike, slow-down or other

interruption of production, and that for the same period

there shall be no lockout, subject to the provisions of Article

26, Term of Agreement.

Section 2. The Company and the Union agree that there

shall be no discrimination against any employee on account

of race, color, religion, sex, national origin, or ancestry.

The Company further states and the Union approves that

no such discrimination shall be practiced against any ap-

plicant for employment.

ARTICLE 6

RULES AND REGULATIONS

Section 1. The Company retains the right to establish

and enforce shop rules and regulations. It is understood

Ge

g 24 &

that such rules and regulations will not impair or abridge

the provisions of this Agreement. Violation of such rules

and regulations may be cause for suspension or discharge.

Section 2. Rules and regulations governing employees

covered by this Agreement shall be discussed with the

Union prior to their effectiveness. Any disciplinary action,

taken by the Company pursuant to such rules and regula-

tions, may be made the subject of a grievance.

SECTION 13—MODIFICATION OF STANDARDS

These standards may be modified at any time by action

of the Committee subject to approval by the signatory

parties of the Apprenticeship Agreement.

Articie 22

WAGES

Section 1. The job classifications and labor grades as

set forth in the Job Evaluation Program are hereby made

a part of this Agreement. New or changed jobs will be

established in accordance with the Job Evaluation Pro-

gram.

Section 2. The basic hourly rate of pay for each labor

grade shall be as set forth in Appendix ‘‘A’’. Such basic

hourly rates of pay shall remain in effect for the duration

of the Agreement.

Section 3.

(a) If the National Consumer Price Index—All Cities

(1957-1959=100), issued by the U.S. Department of

Labor, Bureau of Labor Statistics (hereinafter re-

ferred to as the Index), for the month of May,

1969, exceeds the level of the Index for the month

of December, 1968 by 0.5 points or more, then, effec-

tive with the first pay period commencing on or after

July 16, 1969, each employee will receive a supple-

mental wage payment equal to one cent (1¢) per

hour for each full 0.5 point increase in the level of

the Index for May, 1969 over that for December,

1968.

(b) If the Index for the month of May, 1970, exceeds the

level of the Index for the month of December, 1969

by 0.4 points or more, then, effective with the first

25

pay period commencing on or after July 16, 1970,

each employee will receive, in addition to any sup-

plemental wage payment in effect under (a). of this

Section, a supplemental wage payment equal to one

cent (1¢). per hour for each full 0.4 point increase

in the level of the an for May, 1970, over that

for December, 1969.

(o) pe pplemental wage: payments. provided for in

d (b) of this Section will be paid as an add-on

each hour worked or paid for under this Agree-

ment.

Articitz 23

ADJUSTMENT OF GRIEVANCES

Section 1. The Grievance Committee shall consist of five

(5) employees designated by the Union who will be afforded

such time off as may be required:

(1) To attend meetings scheduled between the Company

and the Union.

(2) To handle necessary grievance matters within their

jurisdiction, but only after first securing permission

from their department foreman or supervisor, and

then checking out. Notice must also be given to the

head of the outside department to be visited.

Section 2. The Union may designate one Assistant Griev-

ance Committeeman to each department, excepting in

cases of smaller departments where one Assistant Griev-

ance Committeeman may represent two or more, and in

large departments, one for each twenty-five (25) employees,

the same applying to each shift. Assistant Grievance Com-

mitteemen shall confine their grievance activities to matters

arisiny in departments or department under their juris-

diction.

Section 3. The International Representative of the Union

certified as such to the Company shall have access to the

Plant for the purpose of adjusting a grievance, negotiating

the settlement of disputes, investigating working condi-

tions and génerally for the purpose of carrying into effect

the provisions and aims of this Agreement. Whenever

possible, he shall make an appointment in advance for such

visits. In any event, the Union Representative shall, on

arrival at the Plant, clear through the regular channel of

the Company for receiving. visitors, and may be accom-

panied: by a representative of the Company on any visit to

the plant. . 77 ho N

Section 4; Should a meeting be necessary in the handling

Ar in Step 2 as set forth below, the Company

all call the area grievance, committeeman, the assistant

grievance committeeman, and the aggrieved employee. Wit.

nesses may be called by joint agreement of the designated

Company and Union Representative assigned to handle

Step 2 of. the grievance procedure. Employees called to

such meetings shall be paid at their basic hourly rate or

earned rate, whichever is higher, if meetings are called by

the Company during working hours. Time spent by Union

representatives in Steps 2 and 3 will not be counted in

computing the earned rate but will be counted for the

computation of overtime if such time spent occurs during

the employee’s normal work shift.

Section 5. Should differences arise between the Company

and the Union as to the meaning and application of the

provisions of this Agreement, or should any trouble arise

in the plant, there shall be no suspension of work, but an

earnest effort shall be made by both the Company and the

Union to settle such differences promptly. Grievances must

be presented within five (5) working days after the date

of the occurrence giving rise to the grievance or they shall

be considered waived. Grievances shall be taken up in the

following manner; except that any grievance filed by the

Local Union shall be submitted in writing at Step 3 of

the grievance procedure as set forth herein:

Step 1. An attempt shall first be made by the employee

with or without his assistant grievance committee-

man (at the employee’s option), and the em-

ployee’s foreman to settle the grievance. The

foreman shall submit his answer within one (1)

working day and if the grievance is not settled,

it shall be reduced to writing, signed by the em-

ployee and his assistant grievance committeeman,

and the foreman shall submit his signed answer of

such grievance.

Step 3. If the grievance is not settled in Step 1, it shall

be presented to the Superintendent, or his rep-

resentative, within two (2) working. days after

the Union has received the Foreman’s answer in

Step 3.

Step 4.

Step 5.

27

Step 1. The Superintendent or his representative

shall submit his signed answer two (2) working

days after receiving the grievance.

If the grievance is not settled in Step 2, it shall

be presented to the manager of Manufacturing or

his representative within five (5) working days

after the Union has received the Superintendent’s

answer in Step 2. The Manager of Manufacturing

or his representative shall meet with the repre-

sentatives of the Union to attempt to resolve the

grievance within five (5) working days following

the presentation of the grievance. The Manager

of Manufacturing or his representative shall sub-

mit his signed answer within three (3) working

days after the date of such meeting.

If the grievance is not settled in Step 3, it shall be

referred to the Personnel Manager, and/or his

representatives, and the International representa-

tive and chairman of the grievance committee

within five (5) working days after the Union has

received the Step 3 answer. Within ten (10) work-

ing days after the grievance has been referred to

Step 4, the above mentioned parties shall meet for

the purpose of discussing such grievance. Within

five (5) working days following the meeting, the

Company representatives shall submit their signed

answer to the Union. The Union representatives

shall signify their concurrence or non-concurrence

and affix their signatures to the grievance.

Grievances which have not been settled under the

foregoing procedure may be referred to arbitra-

tion by notice in writing within ten (10) calendar

days after the date of the Company’s final answer

in Step 4. Within five (5) days after receipt of

referral to arbitration the parties shall select an

impartial arbitrator.

Should the parties be unable to agree upon an

arbitrator, the selection shall be made by the

Senior Judge of the U. S. Circuit Court of Ap-

peals for the Tenth Circuit. The decision of the

arbitrator shall be final and binding upon the

Company, the Union, and any employee or em-

ployees involved. The expenses and fee of the

28

9" “a¥bitrator' shall be divided équally ‘between the

Company and the Union. ‘The arbitrator shall not

amend, take away, add to, or change ‘any of the

provisions of this Agreement; and the arbitrator’s

daeeision must be based solely upon an interpreta-

tion of the provisions of this Agreement.

F ie ene einen een

Section 6 (a) No employee will be discharged, suspended

or given a written warning notice except for. just. cause.

(b) Before an employee is discharged, he will be sus-

pended for five.(5) working days. pending final determina-

tion of discipline, and the Company will promptly notify

the Chairman of the Grievance Committee in writing of

such action. At the request of the Union, a hearing will

be held, within three (3) working days after such notice to

the Union, before the Plant Superintendent or his. repre-

sentative and the Chairman of the Grievance Committee or

his representative. Either party shalt have the right to

call the aggrieved employee or employees and necessary

witnesses. Prior to the close of the five (5) day suspension

period, the Company will notify the Union in writing of its

final determination of discipline; and the Union may, within

three (3) working days after receipt of such notice, file a

grievance in writing starting with Step 3 of the grievance

procedure.

(c) In cases of suspension (other than suspension

pending final determination of discipline as set forth in

(b) above) or issuance of a written warning notice, the

Company will promptly notify the Chairman of the Griev-

ance Committee in writing of the action taken; and the

Union may, within three (3) working days after receipt of

such notice, file a grievance in writing starting with Step

2 of the grievance procedure.

(d) Failure to request a hearing or to file a grievance

within the time limits set forth in (b) or (c) of this Section

will automatically make the disciplinary action taken valid;

provided, however, such time limits may be extended by

mutual agreement of the Company and the Union.

(e) In’ any disciplinary proceeding, written warning

notices more than two (2) years old will not be considered

or submitted as evidence, 3 g

(tt) If at any time prior to the issuance of an arbitrator’s

award in a discharge case, it is concluded by the Company

thüt à discharge shall be converted into a suspension with-

In Tue Untrep States Court or Apprais

Fon Tue Tawra Cmourr = =

IIExxmrr B To Srrpvtation] —

| | | October 10, 1969

my UND STHEL WORKERS OF AMERICA

1 AFL-CIO

Local #3029

Anp To Wuom Ir May Concern:

On September 24, or there about, Mr. McFarlin the drill

foreman being off and Mr. Standley serving his stead-

I called his attention to the fact of my discovery of certain

apparent irregualarities in machine #793.

The sound of the machine pointed out the fact that the

machine was off precision and for that reason would fall

short of the perfection expected by the company as well as

the exactitude desired by me, the operator of the aforesaid

machine.

On receiving this intelligence Mr. Standley called the

M&M man, whose name I do not know yet I know him

on sight, to inspect the machine and after doing so, he

made certain adjustments, but refused to recommend shut-

ting down the aforesaid machine. After which, Mr. Stand-

ley, my superior ordered me to continue production on

this machine whose realiability I did not trust this I did

otherwise my only alternative would have been to run the

risk of becoming insubordinate in my relationship to my

superior, but when this machine did not produce I was

blamed instead of being credited with making a valuable

discovery that would have prevented this subsequent un-

just and biased indictment.

I am knowledgeable that in the same plant others have

scrapped an equal amount and sometimes in excess, but by

all logical reasoning I, Harrell Alexander, have been the

target of preferential discriminatory treatment.

In the fact of all this, it is known and understood by all

that no trainee is given enough time for adequate training,

31

because the instructor have always had an over load of

trainees. :

In the light of these facts and within the frame work of

the broadest and fairest interpretation of our working

agreements, I have every right to reinstate in the same

position without penalty.

/s/ Harrell Alexander Sr.

Humm.

Amann n.

In Tue Unrrep States Court or Arras

; Fon Tae Tawra Cmovrr

{Exauary, 0 To Srirv.ation

GRIEVANCE REPORT Frxhibit 2

Grievance No: 68-855 Date: Oct. 1, 1969

Employees Name: Harrell Alexander Clock No. 1426

Date and Time of Grievance :

Srep No. 1

Statement of Grievance:

I feel I have been unjustly discharged and ask that I be

reinstated with full seniorty and pay.

Harrell Alexander Sr.

Employee

C. A. Baumhover

Committeeman

Decision of Foreman:

Grievance Committeeman

Date

In Tue Unrrep States Disraior Court

For Tux Disraicr or CoLonaDo

Civil Action No. C-2476

HannxLL. ALEXANDER, :

PLAINTIFF,

vs.

Gab Dzxvnn Company,

DEFENDANT.

Winner, Judge

Plaintiff’s complaint charges a violation of Title VII of

the Civil Rights Act. He says that he was discharged

from his employment because ‘‘he was a member of the

Negro race.“ After an arbitration held under a union

contract (to be discussed later herein) he filed an appro-

priate complaint with the Equal Employment Opportunity

Commission, and, on July 25, 1970, that Commission ad-

vised plaintiff that it found no probable cause for plain-

tiff’s charge of discrimination. Enclosed with this advice

was a form notifying plaintiff that he had 30 days within

which to file suit in 4 United States District Court. On

August 6, 1970, plaintiff filed in this Court, (1) an ‘‘Af-

fidavit in support of Motion to Commence Action,’’ and (2)

a Motion to Commence Action Without Payment of Fees

and Costs.“ Acting on these ex parte documents, on

August 6, 1970, Chief Judge Arraj entered an order per-

mitting plaintiff to proceed in forma pauperis, appointing

counsel for him and allowing 20 days within which to com-

mence the action. The complaint in this Court was filed on

August 25, 1970 [more than 30 days after the letter from

the EEOC but within the 20 days allowed by the Court].

The case is now before the Court on defendant’s summary

judgment motion.

Defendant first asserts that the Court is without jurisdic-

tion because the complaint was not filed within 30 days of

the finding of lack of probable cause by the Equal Employ-

ment Opportunity Commission. Ordinarily, the 30-day

time limit is jurisdictional, Goodman v. City Products Corp.

(6 Cir.) 425 F. 2d 702; Cunningham v. Litton Industries,

34

(9 Cir.) 413 F. ad. 887. However, here the Court accepted

the plaintiff's documents for filing, and allowed him 20

days within which to file a complaint. Under these cir-

cumstances, the Gourt believes that plaintiff has complied

with the 30-day time limit and that defendant’s jurisdic-

tional attack on this ground must fail. tee Sentence

Defendant next says that the Court is without jurisdic-

tion because the Commission did not find reasonable cause

to believe that plaintiff’s charge was true. This contention

was disposed of by Judge Chilson in Brown v. Frontier

Airlines, Inc., (D.C. Colo.) 305 F. Supp. 827, and, We

agree and hold that a finding by the Commission, that there

is reasonable cause to believe that the charge is true, is

not a jurisdictional requirement for the maintenance of

an action brought pursuant to Section 2000-5 (e), and that

the finding by the Commission in this case that the facts do

not constitute a violation of the Act does not deprive this

Court of jurisdiction to judicially determine the plaintiff’s

claim.“ ö 5

With these preliminary questions disposed of, we come

to the vital and troublesome issue in the case. Pursuant

to the collective bargaining agreement between defendant

and its employees, before filing his charges with the Equal

Employment Opportunity Commission, plaintiff lodged a

grievance under the labor contract, That grievance was

arbitrated to Mr. Don W. Sears, the Dean of the University

of Colorado Law School. After an evidentiary hearing

the arbitrator made written findings and concluded, ‘‘that

the grievant was discharged for just cause. Consequently,

his grievance is denied.“ The arbitrator’s findings do not

discuss plaintiff’s present assertion of racial discrimina-

tion, but Alexander’s deposition taken in this case acknowl-

‘edges that this charge was before the arbitrator, and, on

this motion for summary judgment, that deposition has

been considered by the Court. er

The present posture of the case, then, is that the Com-

mission did not find probable cause that plaintiff’s charge

of discrimination was true, and, with that same charge of

‘racial discrimination before him, the Dean of the Univer-

sity of Colorado Law School, sitting as an arbitrator,

found against plaintiff and found that he was discharged

for just cause. We must decide just how many chances

plaintiff should be afforded to try to establish his claim of

discrimination. We have already held that his failure tos

35

convince the Commission that there w.

for his charge does not bar a Title VII a

and we must now decide whether subm

had run. The Court held that the statute was to

union grievance procedure, and said:

‘Racial discrimination in employment is one of the

most deplorable forms of discrimination known to our

society, for it deals not with just an individual’s shar-

ing in the ‘outer benefits’ of being an American citizen,

but rather the ability to provide decently for one’s

family in a job or profession for which he qualifies

and chooses. Title VII of the 1964 Civil Rights Act

provides us with a clear mandate from Congress that

no longer will the United States tolerate this form of

discrimination. It is, therefore, the duty of the courts

to make sure that the Act works, and the intent of

Congress is not hampered by a combination of a strict

construction of the statute and a battle with semantics.

his court has held many times that Title VII should

receive a liberal construction while at all times bearing

in mind that the central theme of Title VII is ‘private

settlement’ as an effective end to employment discrimi-

nation. In Oatis v. Crown Zellerback (5 Cir., 1968)

398 F. 2d 496, this court held that: ;

It is thus clear that there is great emphasis m

Title VII on private settlement ond the elimination of

unfair practices without litigation.’

“This view was again voiced in Jenkins v. United Gas

Corporation (5 Cir., 1969) 400 F. 2d 28, where this

court stated that:

%% HHO whose function is to effectuate the

Act’s policy of voluntary conference, persuaston and

conciliation as the principal tools of enforcement.’

It would, therefore, be an improper reading of the

36

ite yee ve were to construe the statute

strict court to permit the short statute

to h a common employee, who,

no time poder on his rights, attempts first in good

faith to reach a private settlement without litigation

in the elimination of what he believes to be an unfair,

as well as an unlawful, practice. We therefore, hold

that the statute of limitations, which has been held

to be a jurisdictional requirement, is tolled once an

employee invokes his contractual grievance remedies

in a constructive effort to seek a private settlement of

his complaint. > Culpepper also sought to settle his

complaint in 1963 through the grievance: procedures.

We do not think that Congress intended for a result

which would require an employee, thoroughly familiar

with the rules of the shop, to proceed solely with his

Title VII remedies for fear that he will waive these

remedies if he follows the rules of the shop or to do

both simultaneously, thereby frustrating the grievance

procedure.“

Hutchings v. United Industries, Inc. (1970) (5 Cir.) 428

F. 2d 303, rules squarely that as a matter of public policy

the federal courts cannot be divested of jurisdiction of a

Title VII action by any arbitration procedure under a labor

contract. Judge Ainsworth there ably sets forth the argu-

ments in support of this view, and he points out that in a

Title VII suit, the individual ‘‘takes on the mantel of the

sovereign.’’ The Court held that the matters in dispute

were subject to the concurrent jurisdiction of the federal

courts under the scheme of Title VII and of the grievance-

arbitration machinery established by the bargaining con-

9 ne held:

In view Of the dissimilarities between the contract

grievanee-arbitration process and the judicial process

under Title VII, it would be fallacious to assume that

an employee utilizing the grievance-arbitration machin-

ery under the contract and also seeking a Title VII

remedy i in court is attempting to enforce a single right

in two forums. We do not mean to imply that em-

ployer obligations having their origin in Title VII

are not to be incorporated into the arbitral process.

-When possible they should be. See generally Gould,

‘Labor Arbitration of Grievances Involving Racial Dis-

87

crimination, 118 U. Pa. L. Rev. 40 (1969). But the

arbitrator’s determination under the contract has no

effect upon the court’s power to adjudicate a violation

of Title VII rights.

Ct

‘‘Title VII outlaws certain forms of discrimination in

emplo

disputes, e.g., Boys Markets, Inc. v. Retail Clerk's

Union, Local 770, 398 U.S. 235, 90 S. Ct. 1583, 26 L. Ed.

2d 199, but also with the specific enforcement policy

of Title VII that discrimination is better curtailed

through voluntary compliance with the Act than

through Court orders. Congress, however, has made

the federal judiciary, not the EEOC or the private

arbitrator, the final arbiter of an individual’s Title VII

grievance. See Fekete v. United States Steel Corp., 3

Cir. 1970, 424 F. 2d 331. The EEOC serves to en-

courage and effect voluntary compliance with Title

VIL. So also may the private arbitrator serve con-

sistent with the scope of his authority. Neither, how-

ever, has the power to make the ultimate determination

of Title VII rights.

In this case, we conclude that the District Court erred

in holding that Hutchings was bound by the arbitra-

tor’s adverse determination regarding the October

denial of a promotion and by settled ‘third step’ deter-

mination regarding the February denial. If the doc-

trine of election of remedies is applicable at all to Title

VII cases, it applies only to the extent that the plaintiff

is not entitled to duplicate relief in the private and

public forums which would result in an unjust enrich-

ment or windfall to him. Bowe v. Colgate-Palmolive

Company, 7 Cir., 1969, 416 F. 2d 711. Hutchings, of

course, has received nothing to date. Since this case

involves Hutching’s assertion of his Title VII rights,

while the grievance and arbitration proceedings in-

volved his assertion of contract rights, res judicata is

inapplicable to this proceeding.’’

38

At the opposite pole is Dewey v. Reynolds Metal Com-

pany, (1970) (6 Cir.) 429 F. 2d 324. There Judge Weick,

speaking for a divided Court said: MAN

elt is clear that if the arbitrator of the grievances had

granted an award to Dewey, instead of to Reynolds,

dhe ‘award would have been final, binding and conclu-

sive on Reynolds. Reynolds would not have been per-

mitted to relitigate the award in the courts. This is the

teaching of the United Steelworkers trilogy, which

clearly defined the respective functions of the courts

and the arbitrator. United Steelworkers of America v.

American Mfg. Co., 363 U.S. 564 to 602, 80 S. Ct. 1343

to 1347, 4 L. Ed. 2d 1403 to 1408, 363 U.S. 574 to 592,

80 S. Gt. 1347 to 1358, 4 L. Ed. 2d 1409 to 1423, 363

U.S. 593 to 602, 80 S. Ct. 1358 to 1363, 4 L. Ed. 2d

1424 to 1431 (1960); Washington v. Aerojet-General

Corp., 282 F. Supp. 517 (C. D. Cal., 1968).

In Steelworkers, the Court said:

‘© “When the judiciary undertakes to determine the

merits of a grievance under the guise of interpret-

ing the grievance procedure of collective bargaining

agreements, it usurps a function which under that

regime is entrusted to the arbitration tribunal.’ (Id.

at 569, 80 S. Ct. at 1347)

“The arbitrator had jurisdiction to determine the

grievances. The arbitration involved an interpretation

of the collective bargaining agreement with respect to

Dewey’s claims that he had been laid off and discharged

because of his religious beliefs. In arbitration proceed-

ings, frequently questions of law and fact are resolved

by the arbitrator. Where the grievances are based on

an alleged civil rights violation, and the parties con-

sent.to arbitration by a mutually agreeable arbitrator,

in our judgment the arbitrator has a right to finally

determine them. Any other construction would bring

about the result present in the instant case, namely,

that the employer, but not the employee, is bound by

the arbitration.

‘‘This result could sound the death knell to arbitration

of labor disputes, which has been so usefully employed

in their settlement. Employers would not be inclined

to agree to arbitration clauses in collective bargaining -

agreements if they provide only a one-way street, i.e,

C ˙— ˙ ieape name ar

The tremendous increase in civil rights litigation

leads one to the belief that the Act will be used more

frequently in labor utes, Such use ought not to

destroy the efficacy of arbitration.

In the supplemental brief of EEOC as amicus curiae,

the case of Smith v. ren ren Ass’n, 371 U.S.

195, 197-198, 83 S. Ct. 267, 9 L. Ed. 2d 246 (1962), is

cited for the proposition that ‘the complainant is not

required to elect between his contractual rights or his

statutory rights but may seek to vindicate his claim in

contractual and statutory proceedings.’ (EEOC Supp.

Brief, p. 3) The writer of the brief neglected to state

that the collective bargaining agreement in Evening

News contained no grievance arbitration procedure

which had to be exhausted before recourse could be

had to the courts. 371 U.S. 196, fn 1, 83 S. Ct. 267.

„The question in our case is not whether arbitration

and resort to the courts could be maintained at the

same time; rather our case involves the question

whether suit may be brought in court after the griev-

ance has been finally adjudicated by arbitration.

„We see no good analogy between jurisdiction of the

National Labor Relations Board and that of EEOC.

The Labor Board has adjudicatory powers over unfair

labor practices, subject only to judicial | review. Orders

of the Board may be vacated on review only when

they are not supported by substantial evidence upon

consideration of the record as a whole. EEOC, on the

other hand, has no such power. The District Court con-

siders EEOC cases do novo. The legislative history,

from which we have previously quoted, indicates the

reason for the difference.

„Nor do we find any national policy for ousting ar-

bitrators of jurisdiction to finally determine grievances

initiated by employees, based on alleged violation of

their civil rights.’’

On rehearing, Judge Combs, who had filed the dissenting

40

Judge Weick added to his earlier opinion a discussion of

Culpepper, Hutchings, United Steel Workers Trilogy, 363

U.S, 564, and Boys Markets, 398 U.S. 235. He there said:

>

98

The ease of Calpepper v. Reynolds Metals Co., 421

F. 2d. 888 (Sth Cir. 1970), is relied on in support of the

proposition that an employee may utilize both arbitra-

tion and an action under Title VII of the Civil Rights

Act. In Culpepper, however, only @ grievance was

filed, which was never processed through arbitration.

Culpepper involved racial discrimination, which a

‘majority of the panel thought was so serious as to

impose—

4% the duty on the courts to make sure that

the Act works.

‘‘Cireuit Judge Coleman, who filed a concurring

opinion, disagreed rather vigorously that any such

duty was imposed on the Courts. He stated:

% Under our Constitutionally ordained form of

Government, whether an Act works or fails is the

concern of the Executive or Legislature, or both—

not the courts.’

„We do not regard it as our function to enlarge on

the plain language of a statute so as to impose on

citizens obligations never intended by Congress, in

order to make it work.

great reliance is placed upon Hutchings v. United

Industries, Inc., 428 F. 2d 303 (5th Cir. 1970), which

was decided after our decision in the present case was

announced. In our opinion Hutchings does not com-

port with Boys Markets, Inc. v. Retail Clerks Union,

Local 770, 398 U.S. 235, 90 S. Ct. 1583, 26 L. Ed. 2d

199 (1970).

„In Boys Markets, Mr. Justice Brennan emphasized

the importance of arbitration in the settlement of labor

disputes. He said:

‘¢ ‘However, we have frequently noted, in such cases

as Lincoln Mills, [353 U.S. 448, 77 S. Ct. 912, 1 L. Ed.

2d 972] the Steelworkers (363 U.S. 564, 80 S. Ct.

1343, 4 L. Ed. 2d 1403] Trilogy, and Lucas Flour

41

[369 U.S. 95, 82 S. Ot. 571, 7 L. Ed. 2d 593] the

importance which Congress has attached generally

to the voluntary settlement of labor disputes with-

out resort to self-help and more particularly to ar-

bitration as a means to this end. Indeed, it has been

stated that Lincolw Mills, in its exposition of § 301

(a), „went a long way towards making arbitration

the central institution in the administration of col-

lective bargaining contracts.“

‘The Sinclair [370 U.S. 195, 82 S. Ct. 1328, 8 1. Ed.

2d 440] decision, however, seriously undermined the

effectiveness of the arbitration technique as a method

peacefully to resolve industrial disputes without re-

sort to strikes, lockouts, and similar devices, Clearly

employers will be wary of assuming obligations to

arbitrate specifically enforceable against them when

no similarly efficacious remedy is available to en-

force the concomitant undertaking of the union to

refrain from striking.’ [footnote omitted.]

‘‘Similarly, employers would be wary of arbitration

clauses in collective bargaining agreements if, as in

the present case, the arbitration is binding on them

only and not on their employees.

Our case is even stronger than Boys Markets because

the grievance here was submitted to arbitration and

the arbitrator made an award which was final, binding

and conclusive on the parties. It is as binding as a

judgment. 5 Am. Jur. 2d Arbitration and Award, 5 147.

It remains in full force and effect.

„The amicus brief of NAACP Legal Defense Fund

candidly recognizes that ‘[i]t may be true that the

result of such an accommodation will be that the em-

ployer but not the employee will be bound by the de-

cision of the arbitrator.’ (Brief, p. 14).

„We know of no good reason why an award of an

arbitrator should not be binding on both parties, the

same as a judgment of a court.

It is difficult for us to believe that any employer

would ever agree to arbitration of a grievance if he

knew that the employee would not be bound by the

result.

42

„The importance of arbitration in the resolution of

all labor disputes is the theme of the United Steel

Workers Trilogy, 363 U.S. 564-602, 80 S. Ct. 1343, 4

L. Ed. 2d 1403 (1960). The purpose of arbitration is

thwarted if the awards are held by the courts to be

binding on employers only and not on employees.’’

Certiorari was granted in Dewey, but on June 1, 1971,

the Supreme Court announced an affirmance of the case by

an equally divided Court with Justice Harlan not par-

ticipating —U.S.—.*

Faced with this dichotomy of authority, we adopt in

their entirety the views of Judge Weick expressed in Dewey

v. Reynolds Metals Company, supra. We hold that when

an employee voluntarily submits a claim of discrimination

to arbitration under a union contract grievance procedure

—a submission which is binding on the employer no matter

what the result—the employee is bound by the arbitration

award just as is the employer. We cannot accept a

philosophy which gives the employee two strings to his

bow when the employer has only one. Congress has given

the employee one and one-half strings under the Equal

Employment Opportunity procedure. It is true that the

Commission can enter no order binding on the employer,

but with a finding of probable cause, reserving to the em-

ployee the right to sue, he is given the assistance of an

agency of the United States Government in attempting to

bring about a settlement of the claimed discrimination.

This amounts to a half string.

In Boys Markets, Justice Brennan stressed the important

public policy of promoting private, peaceful settlement of

disputes between labor and management. To hold that an

employee has a right to an arbitration of a grievance which

1 Other cases emphasizing the divergent views of the Courts on this question

are: Bowie v. Colgate Palmolive Co. (1969) (7 Cir.) 416 F. 2d 711;

Younger v. Glamorgan Pipe and Foundry Co. (1969) (D.C.W.D. Va.) 310

F. Supp. 195; McGriff v. A. O. Smith Corp. (1971) (D.C. S. C.) 3 CCH-

EPD § 8124; Voutsis v. Union Carbide Co. (1971) (D.C. S.D. N.Y.) 321

F. Supp. 830; Washington v. Aerojet General Corp. (1968) (D.C.C.D.

Calif.) 282 F. Supp. 517; Fekete v. U.S, Steel Corp. (1969) (D.C. W.D.

Pa.) 300 F. Supp. 22); Newman v. Avco Corp. (1970) (D.C. M.D. Tenn.)

313 F. Supp. 1069; Oubichon v. North American Bockwell Corp. (1970)

(D.C. C.D. Calif.) 3 CCH-EPD 78071, and cases cited in Culpepper,

Hutchings and Dewey.

43

is binding on an employer but is not binding on the em-

ployee—a trial balloon for the employee, but a moon shot

for the employer—would sound the death knell for ar-

bitration clauses in labor contracts. Such a result would

bring to a tragic end the many years of effort which have

brought about the now prevailing arbitration procedures to

resolve labor disputes. The vital importance of the rights

protected by the Civil Rights Act must not be overlooked,

but it is the employee who elected arbitration. His was a

voluntary choice, and he should be. bound by it. The Con-

stitution and Title VII demand equality; neither requires

preferential treatment of minorities. Chief Justice Burger’s

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

can be read in no other way.

Defendant’s motion for summary judgment is granted.

Dated at Denver, Colorado, this Ist day of July, 1971.

/s/ Fred M. Winner

United States District Judge

In TRA Unsrrep Staves Disraror Court

For TR Drsraicr or COLORADO

15

‘ Civil Action No.

C-2476

— ComPany,

DEFENDANT

JUDGMENT

Pursuant to and in accordance with the Memorandum

Opinion and Order signed by Judge Fred M. Winner on

July 1, 1971, in the above entitled 3 and filed in this

office on July 7, 1971.

Ir Is Hanaur Onbnanp that the action and complaint

herein be and hereby are dismissed, and that the Defendant

shall have and recover from the Plaintiff its costs, upon

the filing of a Bill of Costs with the Clerk of this Court.

Datep Ar Denver, Cotonapo, this 12th day of July, 1971.

G. Wa.ter Bowman, CLARAR

/s/ James R. Manspeaker

James R. MANSPEAKER

Deputy Clerk

GarpwEB-Denver ComPaxy,

a Delaware Corporation,

DEFENDANT-APPELLEE.

Appzat From TR Untrep States DSO Court

For Tue District or COLORADO

(District Court No. C-2476)

Henry V. ELLwoop, Denver, Colorado, for Plaintiff-Ap-

pellant.

Rosegt G. Goon, Denver, Colorado, for Defendant-Appellee.

Before Hnxz and Banrert, United States Circuit Judges,

and Laneiey, United States District Judge.

Pes Contax.

This appeal is from the granting of defendant-appellee’s

motion for summary judgment, by the United States Dis-

trict Court for the District of Colorado, in a civil action

filed pursuant to Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e, et seq., alleging racially motivated dis-

criminatory employment practices by Gardner-Denver

Company. Three grounds were advanced by Gardner-

Denver in support of its motion. The first two bases chal-

lenged the timelinesss of plaintiff’s filing suit, and the trial

court’s jurisdiction following a finding of the Equal Em-

ployment Opportunity Commission (EEOC) of no reason-

able cause to believe that Gardner-Denver had engaged in

unlawful employment practices. These were decided ad-

versely to Gardner-Denver. The third proposition asserted

that submission of the employment grievance to an im-

partial arbitrator precluded Alexander from maintaining

a Title VII civil action and that the decision of the ar-

bitrator was binding. This was decided adversely to

Alexander and forms the basis of his appeal.

46

Farrell Alexander, a Negro, was employed by Gardner-

Denver for over three years. He had advanced to a

trainee’s position in the drill department. He had been

awarded this position on June 11, 1968, after having been

employed for over two years by appellee, and had held

this same position until he was discharged on September 29,

1969. The reason assigned was Alexander's poor perform.

ance as a drill press trainee, as evidenced by his accumula-

tions of excessive amounts of scrap.

The collective bargaining agreement provided that an

employee who believed Gardner-Denver had disregarded

the labor agreement could lodge a protest within five days

of the asserted breach. Alexander filed his grievance, and

it was denied by Gardner-Denver. Further, pursuant to the

Union Agreement provision for adjustment of grievances,

the matter was submitted to arbitration. The arbitrator

concluded the discharge was for just cause following a

series of progressive industrial disciplinary practices. The

issue of racially-motivated discriminatory employment

practices was presented to the arbitrator and rejected.

Alexander had filed a formal complaint of racial dis-

crimination with the Colorado Civil Rights Commission on

October 27, 1967, prior to the arbitration hearing. That

commission failed to act on the complaint, and Alexander

filed a charge of discrimination with the EEOC. On July

24, 1970, the EEOC informed Alexander that the facts did

not constitute a Title VII violation and dismissed the

charge. The EEOC advised that a suit, if filed, must be

commenced within 30 days. On August 6, 1970, the trial

court permitted Alexander to proceed in forma pauperis,

appointed counsel to represent him, and allowed 20 days in

which to commence the action. The complaint was filed on

August 25, 1970, beyond the 30-day period following the

EEOC determination but within the 20-day period per-

mitted by the court. The motion for summary judgment

was filed on February 12, 1971, and granted by the trial

court’s memorandum opinion and order on July 7, 1971,

on the ground previously discussed, that is, that the matter

had been submitted to arbitration and the arbitrator’s de-

cision was binding on both parties.

The issue before us on appeal involves the correctness

of the trial court’s decision to uphold the decision of the

arbitrator and to deny Alexander recourse of civil action

in a federal district court following the adverse decision

47

by the arbitrator. We have examined the trial court’s

opinion and order in its disposition of the motion for sum-

mary judgment and find it exhaustive of the authorities

and conclusive in resolution of the issue.

The judgment is therefore affirmed on the basis of the

trial court’s opinion and order, as reported.

1 Harrell Alexander, Sr. v. Gardner-Denver Co, —— F. Supp. —— (0.0.

Colo. 1972).

«> “Tt

Before — Ds Brin 0. de Jauss

E. Baxeerz, Circuit Judges; and Honcnamm⁰ Kown

Lan, District Judge. SEs

—

n „ es

Ganpyes Denver CompPary,

‘a Delaware Corporation,

_ DEFENDANT-APPELLEB.

4

‘This cause dame on to be heard on the record on appeal

from the United States District Court for the District of

Colorado, and was argued by counsel.

On consideration whereof, it is ordered that the judg-

ment of said court is affirmed.

Howagp K. PALS, Clerk.

By Helen R. Bartha

Deputy Clerk.

No. 72-5847 |

v.

Gazpyze-Danvarn CompPaxy

On petition for writ of Certiorari to the United

Court of Appeals for the Tenth Circuit.

On consideration of the motion for leave

herein in forma pauperis and of the petition f

certiorari, it is ordered by this Court that

proceed in forma pauperis be, and the same

granted; and that the petition for writ of certiorari

the same is hereby, granted.

FEBRUARY 20, 1978