Newman v. Avco Corporation Appellant's Brief

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT
NO. 20669

ROBERT F. NEWMAN,
Appellant, 

v .

AVCO CORPORATION, et al., 
Appellees.

Appeal From The United States District Court 
For The Middle District of Tennessee 

Nashville Division

APPELLANT'S BRIEF

CLARENCE W. OLMSTEAD, JR. 
53 Wall Street 
New York, N.Y. 10005

AVON N. WILLIAMS, JR.
Suite 1414, Parkway Towers 
404 James Robertson Parkway 
Nashville, Tennessee 37219

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN C„ AMAKER 
WILLIAM L. ROBINSON 
SYLVIA DREW

10 Columbus Circle 
Suite 2030
New York, New York 10019

JONATHAN R. HARKAVY Attorneys for Appellant
2 Wall Street 
New York, N.Y. 10005
Of Counsel



INDEX

Page
Statement of the Case ....................................
Statement of the Facts..........  2
Questions Presented ......................................  6
Argument..................................................  5

I. The District Court Erred In Granting
Defendants Motions For Summary Judgment
On The Stated Ground That In Pursuing
The Collective Bargaining Procedure Through
An Arbitrator's Final Decision Plaintiff
Made A Binding Election Of Forum For His
Title VII Claim And Is Thus Foreclosed From
Maintaining An Action In The Federal Courts. . . .  6

II. Plaintiff Is An Adequate Representative Of 
The Class Of Discriminatees Alleged In The 
Complaint, And The District Court Therefore 
Erred In Dismissing Plaintiff's Claim As 
A Class Action................................... 21

TABLE OF CASES
Beamer v. Alsco, Inc., ___ F. Supp. ___; 62 Lab.

Cas. f 942 4 (N.D. Ohio 1970)..........................  9,13
Bowe v. Colgate-Palmolive Company, 416 F.2d 711

(7th Cir. 1969)......................................  8,9
Boys Markets, Inc. v. Retail Clerks Union, Local

770, 398 U.S. 235 (1970)....................  8,11,12,13,14
Culpepper v. Reynolds Metal Company, 421 F.2d

888 (5th Cir. 1970)..................................  11,13
Dewey v. Reynolds Metals Co., F.2d 63

Lab. Cas. f9455 (6th Cir. 1970) reh'g den.,
___ F. 2d ___; 63 Lab Cas. H9497........ 6,7,8,11,12,13,14,20

Glover v. St. Louis-San Francisco Ry. Co.,
393 U.S. 324 (1969)..................................  3,19

Hutchings v. United States Industries, Inc.,
___F.2d ___; 63 Lab. Cas. f9465 (5th
Cir. 1970)...................... 10,11,12,13,17,18,19,20,21

Jenkins v. United Gas Corporation, 400 F.2d 28
(5th Cir. 1968)......................................  16

1



Page
Johnson v. Georgia Highway Express, Inc.,

417 F.2d 1122 (5th Cir. 1969) reversing
47 F.R.D. 327 (N.D. Ga. 1968)............................  22

Local Union No. 12, United Rubber C.L. & P.
Wkrs. v. N.L.R.B., 368 F.2d 12 (5th Cir.
1966), cert. den. 389 U.S. 837, reh. den.
389 U.S. 1060 (1967)....................................  9

Local 53 etc. v. Vogler, 407 F.2d 1047 (5th Cir. 1969). . . .  19
Sanchez v. Standard Brands, Inc., F.2d ;

63 Lab. Cas. f9473 (5th Cir. 1970)......................  18

STATUTES
Civil Rights Act of 1964, Title VII

42 U.S.C. §2000e. . . 1,4,5,7,8,10,11,12,13,14,15,16,17,18,19,20,21
42 U.S.C. §706 (g)..........................................  19
28 U.S.C. §1291 ...........................................  i

OTHER AUTHORITIES
Federal Rules of Civil Procedure, Rule 23 ................  1
Moore, Federal Practice, ^0,415 ..........................  21
M. Sovern, Legal Restraints on Racial Discrimination

in Employment (1965)..................................  16,19

l i



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT
NO. 20669

ROBERT F. NEWMAN,
Appellant, 

v .
AVCO CORPORATION, et al.,

Appellees.

Appeal From The United States District Court 
For The Middle District of Tennessee 

Nashville Division

APPELLANT'S BRIEF 

STATEMENT OF THE CASE
This appeal is from two orders of the United States District 

Court for the Middle District of Tennessee dated March 26, 1970 
and June 10, 1970. (A. 34, A. 45). The Court of Appeals has
jurisdiction pursuant to 28 U.S.C. §1291.

On December 30, 1968, plaintiff, Robert F. Newman, the 
Appellant herein, instituted this class action pursuant to Rule 
23 of the Federal Rules of Civil Procedure, 28 U.S.C., and Title 
VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq.



(hereinafter Title VII) against defendants, Avco Corporation - 
Aerospace Structures Division (Avco) and the International 
Association of Machinists and Aerospace Workers, Aero Lodge No.
735 (Union). The complaint alleges that defendants unlawfully 
discriminated on the basis of race against plaintiff and a class 
of similarly situated employees and prospective employees of 
Avco. (A. 6-12).

The District Court construed the third defense in the Union's 
answer as a motion for summary judgment. Avco also answered and 
formally moved for summary judgment. On March 26, 1970 the 
District Court granted defendants' motions for summary judgment 
and, sua sponte, dismissed the class action for lack of adequate 
representation. Thereupon, plaintiff filed a motion for relief 
from the judgment of the court. The District Court denied the 
motion in its order dated June 10, 1970. On June 22, 1970 
plaintiff timely filed his Notice of Appeal from the designated 
judgments and orders. (A. 47).

STATEMENT OF THE FACTS
Plaintiff began working for Avco on May 9, 1951 and became 

a member of the Union sometime in 1957. From October 16, 1952 
until his discharge in 1966 plaintiff acquired more than a 
decade of seniority at the Nashville plant. (A. 8). Until 1962 
plaintiff, as well as all of the other Negroes in the employ of 
Avco, were placed only in menial laborer positions at the

2



Nashville plant. In 1962 plaintiff and four other Negro 
employees of Avco filed a claim of discrimination against 
Avco with the President’s Committee on Equal Employment Oppor- 
ûnity» a predecessor of the present Equal Employment Opportunity 
Commission (hereinafter EEOC). Subsequent to this claim plaintiff 
was reclassified as an incentive worker in the Nashville plant.
On December 21, 1965 plaintiff was assigned to the position of 
Stove Lifter in Department 380 of the plant and, on December 27,
1965 plaintiff was suspended from work in the plant. During 
this six-day period in a new job which required a substantial 
degree of physical dexterity plaintiff did not receive any 
training period which he claims was due to him under the Collective 
Bargaining Agreement (CBA) between Avco and Union.

Plaintiff alleges in his complaint that he was involved in 
an automobile accident on the day that he was temporarily sus­
pended from work. (A. 9). Following recuperation from the effects 
of the accident plaintiff reported back to work on January 17,
1966 but was told upon his return that he would have to come back 
one week later. After waiting through yet another week without 
work plaintiff again returned to the plant on January 24, 1966

1/

1/ By way of important background plaintiff refers this Court to 
the complaint in the District Court and especially to its alle­
gations with respect to the pattern and practice of racial 
discrimination at the Nashville plant. (A. 6, 7, 8). Cf. Glover 
v. St. Louis-San Francisco Ry. Co., 393 U.S. 3 2 4  (1969). The 
perspective to be gained from plaintiffs' allegations of unlawful 
behavior by both the employer and the union makes clear the import 
of plaintiffs' argument that fundamental fairness mandate that his 
claim of discrimination against federally protected rights be 
heard at least once by a federal court.

3



and was assigned again to the position of Stove Lifter. As 
noted above this job requires substantial physical strength. 
Plaintiff alleges that because of an injury to his left knee 
which he had sustained in the automobile accident just a few 
weeks prior to being reassigned as a Stove Lifter, he could not 
at that time perform the job assigned to him. At the request 
of Avco's Director of Industrial Relations plaintiff was examined 
by his own private physician who corroborated plaintiff's exam. 
Subsequently, Avco ordered plaintiff to see a physician employed 
by an insurance company. The company's doctor wrote a report 
which found plaintiff to be physically fit. Plaintiff alleges 
that the Avco doctor, however, did not actually examine plaintiff. 
After being reassigned again to the position of Stove Lifter on 
January 31, 1966 plaintiff was dismissed on February 1, 1966.
There is no indication in the record that the Union fought any 
of plaintiff's battles for him or that the Union took an interest 
in or even investigated plaintiff's claim against Avco.

On February 2, 1966 plaintiff filed a grievance with the 
proper authorities claiming unlawful discharge and asking for 
back pay and reinstatement. The original grievance did not 
allege racial discrimination, but plaintiff amended his grievance 
on February 7, 1966 expressly to state such a claim.

On April 21 and 22, 1966 the arbitrator conducted a hearing 
at which plaintiff was represented by private counsel. At this 
hearing Avco denied the charges of racial discrimination and 
violation of Title VII. The Union, however, neither concurred 
in nor supported in any way plaintiff's charges of racial

4



discrimination. On June 28, 1966 the arbitrator rendered his 
decision denying relief to the plaintiff. The arbitrator found 
that the sole cause of plaintiff's discharge was his alleged 
failure satisfactorily Lo perform his job. The arbitrator 
additionally found that Avco had not practiced racial discrimi­
nation against plaintiff.

Almost two months before the arbitrator rendered his decision 
on the merits of the contract controversy plaintiff filed a charge 
with the Equal Employment Opportunity Commission (EEOC)7^ The 
charge to the EEOC alleged that both Avco and the Union had
discriminated against plaintiff in violation of his statutory 
rights.

On July 19, 1967 the EEOC informed plaintiff that there was 
reasonable cause to believe that plaintiff was the victim of 
unlawful discrimination on the basis of his race. Conciliation 
efforts by the EEOC failed, and on October 1, 1968 plaintiff 
was notified that informal efforts to secure the relief requested 
were not proving fruitful. On December 12, 1968 the EEOC issued
a letter to plaintiff authorizing him to bring suit pursuant to 
Title VII.

act by itself is conclusive evidence of plaintiff's intent 
ele£t his contractual remedies to the exclusion of any 

statutory benefits accruing to him. Plaintiff did not await^the 
outcome of the arbitrator's decision and then decide to take"two
Court a Ra^herPP defendants suggested to the Districtand I n ? th' ' .pfai:ntlff elected to pursue both his contractual and statutory rights m  their proper foro.

5



QUESTIONS PRESENTED
1. Whether the District Court erred in granting defendants' 

motions to dismiss on the ground that an election of forum 
doctrine limits an employee's access to the federal courts in 
the Title VII proceeding where the employee has pursued his 
contractual remedies through an arbitrator's final decision?

2. Whether the District Court erred in dismissing plaintiff's 
claim as a class action on the stated ground that plaintiff was 
not a member of the class of alleged discrimmatees?

ARGUMENT
I

The District Court Erred In Granting Defendants 
Motions For Summary Judgment On The Stated Ground 
That In Pursuing The Collective Bargaining Pro­
cedure Through An Arbitrator's Final Decision 
Plaintiff Made A Binding Election Of Forum For 
His Title VII Claim And Is Thus Foreclosed From 
Maintaining An Action In The Federal Courts.

A. Dewey v. Reynolds Metals Co., does
not foreclose plaintiff's litigation 
of this important issue of access to 
the federal courts.

The District Court's order of June 10, 1970 held that
Dewey v. Reynolds Metals Co., ___ F.2d ___; 63 Lab. Cas. f9455
(6th Cir. 1970) Reh1g den. ___ F.2d ___; 63 Lab. Cas. f9497,
foreclosed further litigation of whether plaintiff made a 
binding "election of remedies" between a federal court claim 
under Title VII and an arbitration claim under the CBA. On 
reconsideration, the District Court interpreted Dewey as follows:

6



In Dewey the issue was framed in terms of 
"whether suit may be brought in court after 
the grievance has been finally adjudicated 
by arbitration." The Court's conclusion 
was that it cannot, saying: "Where griev­
ances are based on an alleged civil rights 
violation, and the parties consent to 
arbitration by a mutually agreeable arbi­
trator, in our judgment the arbitrator has 
a right to finally determine them."

Clearly, this holding applies with equal 
force in the instant case. (A. 45)(Emphasis 
by the Court).

Plaintiff submits that the District Court incorrectly 
applied the holding in Dewey to the facts of this case. In 
Dewey, plaintiff initiated his Title VII action after the 
arbitrator had issued a final decision adverse to plaintiff.
In its decision in Dewey, this Court emphasized this chronology. 
However, in the instant case the facts conclusively show that 
plaintiff initiated this Title VII action almost two months 
prior to completion of the collective bargaining procedure.
The arbitrator did not render a decision on plaintiff's claim 
until June 28, 1966. (A. 36) Yet plaintiff elected to have
his Title VII claims adjudicated in the proper forum -- the 
federal courts -- on May 2, 1966 when he initiated proceedings 
in this action by filing a charge with the EEOC. Thus, this 
case falls outside the purview of Dewey; and plaintiff submits, 
for the reasons stated infra herein, that this Court should
decline to extend Dewey and reverse the decision below.3/

3/ If the Court disagrees that this case is distinct from Dewey 
in a way which makes a difference, plaintiff respectfully submits, 
again for the reasons stated infra herein, that this Court should 
overrule its decision in Dewey.

7



B. The decision of the District Court 
is contrary to the weight of 
authority on the issue of the binding 
effect of an arbitrator's decision on 
a claim grounded on federal law.

As noted above, the District Court v/as not strictly bound
by Dewey - the only decision of this Court relating to the issue
presented herein. Moreover, the Supreme Court has not yet spoken

1/to this issue, and other Courts of Appeals which have considered 
the issue have arrived at a reasonable accommodation between 
the jurisdiction of the arbitrator and the citizen's right to 
the redress of federally protected rights in a federal forum.

The Seventh Circuit recently reversed a district court 
determination similar to the one in the instant case. Bowe v . 
Colgate-Palmolive Company, 416 F.2d 711 (7th Cir. 1969). In 
Bowe, plaintiffs, who are female employees of the defendant, 
filed a complaint under Title VII alleging that a job classi­
fication system, which deprived them of various opportunities in 
the plant and subjected them to discriminatory layoffs by reason 
of their sex, violated rights guaranteed to them by Title VII.
The District Court required plaintiffs to make an election 
between proceeding with the federal court action or seeking 
relief through arbitration pursuant to the CBA. The Court of

4/ This Court intimated in Dewey that Boys Markets, Inc, v. 
Retail Clerks Union, Local 770, 398 U.S. 235 (1970) requires 
a decision in favor of foreclosure. Bovs Markets, however, did 
not in any way involve Title VII and, as is noted infra herein, 
does not require either affirmance here or this Court's decision 
in Dewey.

8



Appeals held that it was error to require such an election:
"[W]e hold that it was error not to 

permit plaintiffs to utilize dual or parallel 
prosecution both in court and through arbitra­
tion so long as election of remedy was made 
after adjudication so as to preclude duplicate 
relief which would result in unjust enrichment 
to the plaintiffs." 416 F.2d 711, 715. Accord:
Beamer v. Alsco, Inc., ___ F. Supp. ___; 62 Lab.
Cas. f9424 (N.D. Ohio 1970).

Plaintiff, of course, concurs in the limitation on the utiliza­
tion of dual fora as expressed by the Seventh Circuit. Plaintiff 
does not argue for windfall or unjust enrichment by asking this 
Court to grant him access to a federal judge on the merits of 
his federal claim. Rather, plaintiff falls squarely within the 
rationale of Bowe in seeking vindication of his rights in federal 
court and then electing a remedy so that Avco and the Union will 
not be beset by the prospect of awarding duplicate relief. 
Finally, the rationale of Bowe is not undercut by the fact that 
the arbitrator there had not yet rendered a decision on the 
merits of the Title VII claim. The Court in Bowe clearly was 
addressing itself, albeit in die turn, to all conflicts of remedy.
A narrower reading of Bowe is neither justifiable in light of 
the Seventh Circuit's rationale nor defensible in view of the 
fact that federal court jurisdiction would be made to depend 
solely on how quickly an arbitrator renders a decision.

The Fifth Circuit, which has dealt before with the conflict 
between Title VII jurisdiction and the congressional policy of 
fostering collective bargaining, e,g., Local Union No. 12,
United Rubber C.L. & P. Wkrs. v. N.L.R.B.. 368 F.2d 12 (5th Cir. 
1966), cert, den. 389 U.S. 837, reh. den. 389 U.S. 1060 (1967),

9



recently has faced squarely the question presented on this 
appeal.

In Hutchings v. United States Industries, Inc., ___ F.2d
___; 63 Lab. Cas. f9465 (5th Cir. 1970) the Court of Appeals
held that pursuit of CBA procedures through a final decision on 
the merits by an arbitrator did not bar plaintiff from access to 
the federal courts on a Title VII claim. In Hutchings plaintiff 
had twice pursued through a CBA grievance procedure a claim that 
his employer had discriminated against him in violation of Title 
VII by refusing him a promotion because of his race. The first 
grievance was prosecuted through the third step of the grievance 
procedure but was not thereafter submitted to arbitration. The 
second grievance was prosecuted through all three steps of the 
grievance procedure and was then submitted to arbitration. The 
arbitrator decided the grievance adversely to plaintiff.

Approximately 16 days after the arbitrator's final decision
on the merits of plaintiff's claim, plaintiff filed a charge
with the EEOC which subsequently found reasonable cause to
believe that plaintiff had suffered a violation of rights

5/
guaranteed to him by Title VII. Upon failure of conciliation 
efforts plaintiff initiated an action in a federal district 
court. The District Court granted summary judgment for defendant

5/ Plaintiff Newman's case is even stronger than the one in 
Hutchings since Newman elected to proceed under Title VII long 
before the arbitrator's decision. See the discussion in part 
IA of this brief.

10



on the ground that plaintiff had made an election of remedies 
by processing his claim through arbitration. The Court of 
Appeals reversed, holding that . .[A]n arbitration award,
whether adverse or favorable to the employee, is not per se 
conclusive of the determination of Title VII rights by the 
federal courts. . ." Hutchings v. United States Industries, Inc.,
63 Lab. Cas at 6871. Cf. Culpepper v. Reynolds Metal Company,

6/
421 F.2d 888 (5th Cir. 1970).

Plaintiff respectfully invites this Court to clarify its 
decision in Dewey and rule here, in accord with the Fifth and 
Seventh Circuits, that plaintiff's pursuit of his contractual 
remedies through a final decision by the arbitrator does not 
foreclose him from vindicating his federally guaranteed rights 
in the federal courts.

C• The District Court's decision is not 
in accord with well established 
principles of national labor relations 
policy.

Plaintiff concurs in this Court's solicitous regard for 
arbitration as a means of achieving settlement of employer- 
employee disputes in the interest of fostering industrial peace. 
(See Dewey v. Reynolds Metals Company, supra). Moreover, such 
respect for and encouragement of arbitration has recently been

6/ Plaintiff is fully aware of this Court's comments on the 
effectiveness of Hutchings in light of the Supreme Court's 
decision in Boys Markets, Inc, supra. The impact of Boys 
Markets Inc, on the issues presented by this appeal is dis­
cussed fully in part C. infra herein.

11



authoritatively reiterated in Boys Markets, Inc, v. Retail 
Clerks Union, Local 770, 398 U.S. 235 (1970).

Contrary, however, to this Court's discussion in Dewey, 
plaintiff respectfully submits that regard for the encourage­
ment of arbitration requires that an aggrieved employee be 
allowed to pursue his contractual remedies unfettered by the 
fear that by doing so he has waived his right to proceed with 
Title VII claim in the federal courts. If aggrieved employees 
may proceed with a claim under the CBA only at the risk of 
waiving access to the federal court, the result will be serious 
discouragement of the use of grievance arbitration procedures
when claims arguably cognizable under Title VII are involved

7/and do not involve immediate consequences such as discharge. 
Accordingly, the Court in Hutchings concluded:

U  In cases involving immediate consequences such as discharge, 
the "choice" open to an employee is wholly illusory. On the 
one hand, he can begin grievance proceedings which hold out the 
real possibility of quick reinstatement to his job. Or he can 
file a complaint with the EEOC, wait for an investigation, 
conciliation attempts, permission to sue, file an action in 
federal court, and perhaps two years later be reinstated in 
his job, if he wins. Faced with such a choice the chances are 
overwhelming that an employee will choose arbitration —  indeed, 
few lawyers would advise him otherwise. Win or lose, that 
choice, according to Dewey bars him from proceeding under Title 
VII. The result could only be a great diminution in such actions 
under Title VII and a consequent undermining of the vital national 
interest expressed by it —  that enforcement of equal employment 
rights is of the highest priority.

12



"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 frustrat­
ing the grievance procedure." Culpepper v.
Reynolds Metals Company. 421 F.2d 88S, 891-892 
(5th Cir., 1970) quoted in Hutchings v. United 
States Industries, Inc., supra at 6872.

Similarly, a district court in this circuit, which held that
invocation of CBA remedies was not a bar to a federal court
action, concluded that ". . .[a] rule which denies access to
the Courts to those who first pursue contractual remedies would
render the effectiveness of the Civil Rights Act dependent upon
a disregard for grievance procedures contrary to well-established
legislative labor policy." Beamer v. Alsco, Inc., 62 Lab. Cas.
at 6662.

Boys Markets, Inc., supra, is in accord with plaintiff's 
arguments as well as with the Fifth Circuit's decision in 
Hutchings. First, it is important to note that Boys Markets.
Inc., in no way dealt with or intimated an opinion upon the 
issue presented by this appeal. However, as this Court has 
noted in Dewey, the Supreme Court was profoundly concerned with 
the role which Congress intended arbitration to play in the 
achievement of industrial peace. Plaintiff has already indicated 
his views on that important matter. Second, the Fifth Circuit 
was well aware of Boys Markets, Inc., at the time of its 
decision in Hutchings and was careful to point out that its 
decision comported with the Supreme Court's ruling.

13



This Court, however, in Dewey stated that the rationale
of Boys Markets, Inc., mandated a totally binding effect for
an arbitrator's decision because " . . .  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." Dewey v. Reynolds Metals
Company, 63 Lab. Cas. 6995-10. Assuming arguendo that an
employer's reaction to arbitration clauses would be wholly

8/
dictated by such wariness, the Court's conclusion is unjustified 
for the following reasons. The quoted language from Mr. Justice 
Brennan's opinion in Boys Markets, Inc., with respect to 
mutuality of obligation concerned specifically the weapons of 
economic warfare. The Supreme Court was not there concerned 
with an important instrument of social policy such as Title VII. 
The struggle in Boys Markets, Inc., was wholly within the frame­
work of a single Congressional purpose: the achievement of
industrial peace. The Supreme Court did not purport to pass 
upon any case involving two important Congressional policies: 
the protection of human rights and the achievement of industrial 
peace.

This Court's conclusion in Dewey is also unjustified 
because no one is arguing that arbitration is generally binding 
only on an employer. With respect to claims not cognizable

8/ This is, perhaps, a rash assumption since the scope of 
arbitration extends far beyond claims under Title VII. An 
employer would probably want such a clause regardless of 
judicial decisions with respect to Title VII claims.

14



exclusively in other fora, ordinary rules of finality would 
bind both employer and employee alike. All plaintiff argues 
here is that federally guaranteed rights are always redressable 
in a federal forum. Most day-to-day disputes would fall outside 
the category of federally based rights and would be redressable 
by an arbitrator - and his decision would be mutually binding. 
This kind of accommodation is in full accord with both national 
labor relations policy and the important Congressional purpose 
of fostering equal employment opportunity. Because the District 
Court failed to effect such an accommodation between these 
important policies, this case should be reversed.

D. The District Court failed to recognize 
that the power to adjudicate claims 
arising under Title VII is vested 
solely in the federal courts.

It is clear from the statutory framework of Title VII and 
a comparison of the grievance arbitration and judicial processes 
that the power to enforce Title VII is vested solely in the 
Federal courts and that access to the Federal courts by one 
alleging a claim under Title VII should not be barred because 
the plaintiff pursued to completion any or all procedures avail­
able to him under the CBA.

Although it is true that Title VII does not expressly 
indicate the accommodation which must be made between the 
grievance arbitration features of collective bargaining agree­
ments and the enforcement of the Civil Rights Act of 1964, 
the framework of Title VII clearly indicates that Congress 
intended that the Federal courts be the sole guardians of rights

15



guaranteed under Title VII. Enforcement of rights guaranteed 
by Title VII is, most assuredly, not vested in the EEOC.
In fact, the lack of "cease and desist" power in the EEOC
has provoked both scholarly comment and proposed legislative

1/amendment. E.g., M. Sovern, Legal Restraints on Racial 
Discrimination in Employment (1965). Nor is enforcement of 
individual rights under Title VII entrusted to the Attorney 
General of the United States. Only in cases where the Attorney 
General determines that a case is of "general public importance" 
or that an employer or group of employers is engaged in a 
"pattern or practice" which violates Title VII can the Attorney 
General initiate and conduct a proceeding. Thus, it is clear 
that Congress, by drafting this statute so as to provide the 
individual citizen with direct access to the federal courts, 
has determined that the federal courts are to be the prime 
guarantors of rights arising out of Title VII. Cf. Jenkins v. 
United Gas Corporation, 400 F.2d 28 (5th Cir. 1968)("The 
individual . . . takes on the mantle of Sovereign.")

The Fifth Circuit in Hutchings recently gave the required

i1/ EEOC's role under the statutory scheme is mainly that of 
investigator and conciliator. Before an individual can commence 
an action in a federal court under Title VII, he must first file 
a charge with the EEOC. If the EEOC determines after investiga­
tion that there exists reasonable cause to believe that the 
charge is true, it must try to eliminate the alleged unlawful 
practice by the informal methods of conference, conciliation 
and persuasion. If these methods are unavailing the individual 
may then commence an action in federal court.

16



effect to the Congressional will by finding that:
"Congress, however, has made the federal 
judiciary, not the EEOC or the private 
arbitrator, the final arbiter of an 
individual's Title VII grievance. The 
EEOC serves to encourage and effect 
voluntary compliance with Title VII.
So also may the private arbitrator serve 
consistent with the scope of his authority.
Neither, however, has the power to make 
the ultimate determination of Title VII 
rights." Hutchings v. United States 
Industries, Inc., 63 Lab. Cas. at 6873 
(citation omitted).

It cannot be overstated that if resort to the federal 
courts by an individual with a Title VII claim is to be barred 
on the ground that an arbitrator has gratuitously or otherwise 
made a "final" determination on such claim, enforcement of 
important civil rights will be substantially undermined. 
Removal of this bar, on the other hand, will accord to the 
arbitrator and the federal courts complementary roles in the
enforcement of both civil rights and labor contracts. The 
Fifth Circuit recently summarized the point plaintiff is making 
here in the following fashion:

"The importance of the private litigant 
in the context of Title VII cannot be over­
emphasized. His role assumes great signifi­
cance because of the unusual nature of the 
EEOC. 'Unlike so many Governmental structures 
in administrative law, [the] EEOC is an 
administrative agency without the power of 
enforcement.' Pettway v. American Cast Iron 
Pipe Co., 5 Cir. 1969, 411 F.2d 998, 1005.
The Commission has no power to issue cease- 
and-desist orders, nor is it even empowered 
to bring suit in the courts. On the contrary, 
when conciliation has failed, the aggrieved 
party himself must bring suit against the 
alleged discriminator. See Pettwav v. American 
Cast Iron Pipe Co., supra, 411 F.2d at 1005;

17



Jenkins v. United Gas Corp., 5 Cir. 1968,
400 F.2d 28, 32-33. As the Seventh Circuit 
has said, 'The statute gives the Commission 
no enforcement powers through the adjudicatory- 
process. It allows the Commission only to 
investigate charges and attempt to gain com­
pliance by informal methods of conference, 
conciliation, and persuasion. Enforcement of 
the rights of aggrieved parties resides 
exclusively in the federal courts.' Choate 
v. Caterpillar Tractor Co., 7 Cir. 1968, 402 
F.2d 357, 359. Thus it is obvious that the 
private litigant's right of access to the 
courts must be vigilantly protected, for if 
the courthouse door closes in his face, 
enforcement of the Act ceases to exist."
Sanchez v. Standard Brands, Inc., __ F.2d
___; 63 Lab. Cas. <[9473, n. 1 at 6900 (5 Cir.
1970).

Plaintiff further submits that the District Court, in 
refusing to recognize that enforcement of Title VII is 
entrusted solely to the federal courts, overlooked the sub­
stantial differences between the grievance - arbitration and 
judicial processes. The Fifth Circuit in Hutchings ably out­
lined the differences in available remedies:

"In the arbitration proceeding, then, the 
arbitrator's role is to determine the 
contract rights of employees, as distinct 
from the rights afforded them by enacted 
legislation such as Title VII. The arbi­
tration process is a private one essentially 
tailored to the needs of the contracting 
parties, who have agreed upon this method 
for the final adjustment of disputes under 
their contract. The arbitrator, in bringing 
his informed judgment to bear on the problem 
submitted to him, may consider himself con­
strained to apply the contract and not give 
the types of remedies available under Title 
VII, even though the contract may contain 
an anti-discrimination provision. Conversely, 
of course, a court may not be able to delve 
into all the ramifications of the contract,

18



as viewed under the law of the shop, or 
to afford some types of relief privately 
available through arbitration." Hutchings 
v. United States Industries, Inc., 63 Lab.
Cas. at 6872. Accord: Bowe, supra.

In addition the district courts under Title VII are 
invested with a broad range of discretion in formulating a 
remedy to effect compliance with the statutory mandate. See 
§706 (g), Title VII; Local 53 etc, v. Voder, 407 F.2d 1047,
1052 (5th Cir. 1969).

In addition to these differences in remedies, there are 
also substantial differences between the litigatory processes 
in the two fora. A proceeding under Title VII involves more 
directly the public interest - as Congress intended. Hutchings 
v. United States Industries, Inc., 63 Lab. Cas. at 6872. This 
is especially true where, as in the instant case, the plaintiff 
brings the action as the representative of a class of alleged 
discriminatees. Thus, more than the individual grievance is 
at stake in a Title VII action.

The arbitrator's role, on the other hand, is a narrower 
one aimed at resolving what is essentially a private dispute 
between employer and employee. Indeed, it should be noted that 
in a Title VII complaint the grievance arbitration process itself 
might be attacked as part of the pattern of discrimination.
See M. Sovern Legal Restraints on Racial Discrimination in 
Employment, p. 145-46 (1965). Cf. Glover v. St. Louis-San 
Francisco Ry Co., 393 U.S. 324 (1969). Thus, although it may 
be true that the public interest is usually served by the CBA 
procedures plaintiff strongly submits that the combatants in

19



the arbitral process are only private entities whereas the 
combatants in a Title VII court action are both private and 
public.

Plaintiff respectfully urges that the conclusion to be 
drawn from this examination of the statutory framework of 
Title VII and the differences between the grievance arbitra­
tion and judicial processes is the one stated by the Fifth 
Circuit in Hutchings:

"[T]he arbitrator's determination under the 
contract has no effect upon the court's 
power to adjudicate a violation of Title 
VII rights." 63 Lab. Cas. at 6873

Since the District Court erroneously failed to recognize that
the enforcement of Title VII is entrusted solely to the federal
courts and since it therefore failed to utilize its power as
urged by the plaintiff, it is respectfully submitted that this
Court should reverse and remand this case to the District Court
for an adjudication of plaintiff's claims.

E. The District Court's decision is not 
in accord with the principles of 
res judicata

The District Court's suggestion (A. 37) that the arbitrator's 
finding has the effect of precluding a later claim in federal 
court is erroneous under the well settled principles of finality. 
Apparently, this Court also embraced a principle of finality 
in its opinion in Dewey. Whether a claim is precluded by prior 
litigation, however, depends upon the identity of the causes of 
action - something which is ordinarily measured by the facts 
needed to prove the elements of the claim. See generally IB

20



Moore, Federal Practice 50,415. Since the claim of an aggrieved 
employee to an arbitrator is necessarily based on facts outside 
the scope of his authority to adjudicate (see part IE herein), 
a binding effect could not possibly be accorded to any finding 
which the arbitrator might make with respect to Title VII. The 
Fifth Circuit in Hutchings made clear the point which plaintiff 
is urging here:

"In view of the dissimilarities between the 
contract grievance - arbitration process 
and the judicial process under Title VII, it 
would be fallacious to assume that an employee 
utilizing the grievance - arbitration machinery 
under the contract and also seeking a Title VII 
remedy in court is attempting to enforce a 
single right in two forums." 53 Lab. Cas. at 
6872-6873.

Res judicata, therefore, has no application to the instant 
case. Therefore, plaintiff respectfully submits that the district 
Court erred in granting defendant's motions for summary judgment.

II
Plaintiff Is An Adequate Representative Of 
The Class Of Discriminatees Alleged In The 
Complaint, And The District Court Therefore 
Erred In Dismissing Plaintiff's Claim As A 
Class Action.

Plaintiff's complaint alleged that he is an adequate 
representative of a class of ". . . Negroes . . . who are or
were likewise employed by the defendant [Avco] and are or were 
members of the defendant [Union] and . . . are likewise dis­
criminated against . . . because of their race by the defendants.
. . . Other members of the class are Negro applicants and/or
prospective applicants for employment . . . and for membership. ...
(A. 2)

- 21 -



Despite these allegations the District Court, sua sponte. 
found that because of the arbitrator's decision with respect 
to plaintiff's claim of discrimination " . . .  plaintiff is not 
a member of a class of discharged former employees of Avco and 
members of the Union who have been subjected to racial discrimi­
nation." (A. 38). Although such a finding may be the logical 
result of the District Court's decision on the motions for 
summary judgment, it must fail on the strength of plaintiff's 
argument that his claim i_s cognizable in federal court. See 
part I herein.

Moreover, subsequent to the District Court's first decision, 
the Fifth Circuit reversed the case upon which the District Court 
primarily relied in finding that plaintiff could not maintain 
his action as a class action. Johnson v. Georgia Highway Express. 
Inĉ . , 417 F.2d 1122 (5th Cir. 1969) reversing 47 F.R.D. 327 (N.D. 
Ga. 1968). The Fifth Circuit, relying in part upon a district 
court decision from this circuit, said:

"The first point raised by appellant involves 
the district court's narrowing of the class, i.e., 
that the appellant, a discharged Negro employee, 
could only represent other discharged Negro employees. 
This was error as it is clear from the pleadings 
that the scope of appellant's suit is an 'across the 
board' attack on unequal employment practices alleged 
to have been committed by the appellee pursuant to 
its policy of racial discrimination. . . .
While it is true, as the lower court points out, 
that there are different factual questions with 
regard to different employees, it is also true 
that the 'Damoclean threat of a racially discrimi­
natory policy hangs over the racial class [and] 
is a question of fact common to all members of the 
class.' Hall v. Werthan Bag Corp., M.D. Tenn. 1966,
251 F. Supp. 184. Moreover, this court, in Jenkins 
v. United Gas Corp., 5 Cir. 1968, 400 F.2d 28, a 
Title VII Civil Rights action, refused to narrow a

22



class based upon reasoning that there are different 
facts and circumstances involved in employment 
decision, jobs, and qualifications. And assuming 
subsequent intervention after remand, if the lower 
court feels that it would be too burdensome due to 
the inapplicability of some issues to other members 
of the class, resort may be made to the use of sub­
classes. See Oatis v. Crown Zellerbach Corp., 5 
Cir. 1968, 398 F.2d 496. . . .

In this case it is clear that the appellant is 
a member of the class, i.e., a discharged Negro 
employee of the appellee, and his claim of racial 
discrimination is typical of the claims of the class. 
Whether he will adequately represent the class is a 
question of fact to be 'raised and resolved in the 
trial court in the usual manner, * * *.' Harris v.
Palm Springs Alpine Estates, Inc., 9 Cir. 1964, 329
F.2d 909, 913. Therefore, the court below, if it 
doubted appellant's ability to protect the interests 
of the class, could have had, and on remand still can 
have, an evidentiary hearing on the issue." 417 F 2d 1122, 1124.

Since the District Court's finding must fall on the strength 
of plaintiff's argument in part I of this brief, there can be no 
dispute that plaintiff will then be ipso facto a member of the 
class of discriminatees at the Nashville plant.

Wherefore, for the foregoing reasons, plaintiff submits 
that the District Court's decision should be reversed.

Respectfully submitted

Suite 1414, Parkway Towers 
404 James Robertson Parkway 
Nashville, Tennessee 37219Nashville

CLARENCE W. OLMSTEAD, JR 
53 Wall Street 
New York, N.Y. 10005

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN C. AMAKER 
WILLIAM L. ROBINSON

JONATHAN R. HARKAVY 
2 Wall Street 
New York, N.Y. 10005

SYLVIA DREW
10 Columbus Circle 
Suite 2030
New York, New York 10019

Of Counsel Attorneys for Appellant

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CERTIFICATE OF SERVICE
This is to certify that I served copies of Appellant's 

Brief in the above referenced case on F. J. Naphin, Naphin, 
Banta & Cox, 105 West Adams Street, Chicago, Illinois,
William Waller, Esq., American Trust Building, Nashville, 
Tennessee, Cecil D. Branstetter, Esq., Branstetter, Moody & 
Kilgore, 216 Third Avenue, North, Nashville, Tennessee and 
Stanley Herbert and Charles Reischel, Equal Employment 
Opportunity Commission, 1800 G Street, N.W., Washington, D.C., 
this 14th day of September, 1970, by depositing same in the 
United States mail, air mail, postage prepaid.

Attorney for Appellant

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