Franks v. Bowman Transportation Company Reply Brief for Petitioners

    IhtjinmtP Otari nf tip llmti'ft Stairs
O ctober T e r m , 1974 

No. 74-728

I n  t h e

H arold F ra n k s  a n d  J o h n n ie  L e e ,

Petitioners,
v.

B ow m an  T ransportation  Co m pany , I n c ., e t  al.,

Respondents.

REPLY BRIEF FOR PETITIONERS

J ack G reenberg  
J am es M. N abrit , III 
M orris J .  B aller 
B arry L. G oldstein  
E ric S c h n a ppe r

10 Columbus Circle
New York, New York 10019

J o h n  R . M yeii
Crosland, Myer, Rindskopf & Terry 
2415 Nal’l Bank of Georgia Bldg.
34 Peachtree Street, N. W.
Atlanta, Georgia 30303

E liza beth  R . R in d sk o pf  
265 Church Street 
New Haven, Connecticut 06510

Attorneys for Petitioners



fe’i t f i m m ' ( t tm tr t  n f  the Muitvh States
O ctober T er m , 1974

No. 74-728

In t h e

H arold F r a n k s  a n d  J o h n n ie  L ee

v. Petitioners,

B ow m ah  T ransportation  C om pany , I n c ., et al.,

Respondents.

REPLY BRIEF f o r  p e t it io n e r s

I .

Circuit’s holdiug

was incorrect and that Petition B“  ^  ‘ '6 holdinS bel»"r 
they seek.- The g„ver, men 1 T“* *"H'W  l» •*> relief 
Circuit’s holding.. Resnondet 7 "  m W *1 #f ™ h  
Court of Appeals’ ,T J ’° B m m m  the
active seniority L y “ w  " *  tL“l " tro -
seeks affirmance of the result on a ° aWaf ded; however, it
---------- -- Ult 011 a groilnd entirely different

*42 U.S.C. § 2000e-2(Ji).
2IJSWA brief at (i <}.in 00 on a

" h if 'c n p iJ e f ,  J l C„0"ectivf bargaining repre- 
be affected by the relief sought IT̂ AVa-! 10nty standing would 
Circuit erred carries p a r t ®  w jjh t C°,,CeSsio“ «>at the Fifth

3 Government brief at 14.17.



2

from any considered below.4 * Although the briefs offer 
slightly different interpretations of § 703(h) and its legis­
lative history, none of these interpretations would sustain 
the ruling below.6 On the only question concerning the 
application of § 703(h) which is before the Court, all the 
parties agree: the Fifth Circuit’s ruling that § 703(h) 
prohibits any award of retroactive seniority is erroneous.

The remedial scheme of Title VII, which centers on 
§ 706(g),7 is a comprehensive one reflecting a national com­
mitment of highest priority. Alexander v. Gardner-Denver 
Co., 415 U.S. 36, 44-45; Johnson v. Railway Express 
Agency, Inc., 421 U.S. 454, 459 (1975); Albemarle Paper 
Co. v. Moody, 45 L.Ed.2d 280, 297 (1975). Remedial limi­
tations should, therefore, be found only where clearly in­
tended by Congress or required by policy.8

4 Co. brief at C, 12-13; see part 2, infra, pp. 5-6.
6 Even the Fifth Circuit has recently indicated uncertainty as 

to whether Franks was correctly decided. See, e.g., United States v. 
T.I.M.E.-D.C., Inc., 517 F.2d 299, 317 n.33 (5th Cir. 1975).

6 The Union and Bowman argue that § 703(h) precludes senior­
ity relief designed to remedy the continuing effectsof discrimina­
tory refusals to hire which occurred prior to the effective date of 
the Act (July 2, 1965). USWA brief at 29, n.33a; Bowman brief 
at 6 13 • see Government brief at 18. While this Court need not 
reacii this question in this case there is persuasive authority that 
the legislative history does not preclude such relief (see infra at 
pp 3-5) and that in fact Title VII requires a remedy designed 
to terminate as quickly as possible all continuing adverse effects 
of prior discrimination. Petitioners’ brief at 29, n.41, 35-37; Note, 
Last Hired, First Fired Layoffs and Title VII,  88 Harv. L. Rev. 
1544, 1556 (1975).

M2 U.S.C. § 2000e-5(g).
8 Elsewhere the Fifth Circuit has observed, “Title VIT is stron 

judicial medicine and we refuse to vitiate its potency by glossin 
it with judicial limitations unwarranted by the strong remedial 
spirit of the act.” (Footnote omitted) Johnson v. Goodyear Tire 
& Rubber Co., 491 F.2d 1364, 1317 (5th Cir. 1974).

aq 
CJQ



3

In the absence of any precise definition of the key term 
of § 703(h), “bona tide seniority or merit system,” in the 
section’s text or legislative history,9 no applicable remedial 
limitation should he found here. Generalities about “pref­
erential treatment” and “rightful place” 10 are not conclu­
sive; the crucial fact is the lack of evidence that Congress 
addressed any specific seniority issues, such as retroactive 
■seniority relief, in adopting § 703(h). Nothing in the legis­
lative history shows that the Clark-Case materials11 reflect 
any specific Congressional intention as to seniority.12 More­
over, those materials say nothing pertinent to this case 
about the legality of Bowman’s seniority system.13

Respondents’ reliance on II. K. Porter Co. v. NLRB, 397 
U.S. 99 (1970), as precedent for finding implied remedial 
restrictions in a provision that defines unlawful conduct is

9 See Petitioners’ brief at 20-21, 24-31.
10 Cf. USWA brief at 9-12, 20-21.
11 The Clark-Case Interpretative Memorandum, 110 Cong. Rec. 

7212-15 (1964); Interpretative Memorandum prepared by Depart­
ment of Justice, 110 Cong. Rec. 7206-07 (1964) ; answers prepared 
by Sen. Clark to questions presented by Sen. Dirksen, 110 Cong. 
Rec. 7215-17 (1964). See Petitioners’ brief at pp. 25-26, nn. 34-36.

12 Pipefitters Local Union No. 562 v. United States, 407 U.S. 385 
(1972), which USWA cites for the proposition that a Congressional 
sponsor’s interpretation must, be controlling, is inapposite here. 
This Court in Pipefitters adopted Sen. Taft’s statements constru­
ing §304 of the Tuft-Hartley Act because (1) he was explicating 
provisions already before the Senate in the form finally adopted; 
(2) their meaning was unambiguous; (3) that meaning was in 
full accord with the statutory scheme; and (4) Sen. Taft’s state­
ments were made in floor colloquy with colleagues who sought 
specific reassurance as to the scope of the limiting effect of § 304. 
The Clark-Case materials lack these indicia of an authoritative 
construction.

13 The Clark-Case materials do not even address the issues raised 
by seniority systems, like Bowman’s, which freeze the effects of 
post-Title VII hiring discrimination. Here, black workers are 
“low man on the totem pole,” cf. 110 Cong. Rec. 7207, precisely 
because of their race and Bowman’s past policy of racial exclusion.



4

unpersuasive. Tlie definitional provision involved there14 
was not, as is § 703(h), vague or subject to divergent inter­
pretations; it states quite clearly what Congress intended 
the NLRB not to order.15 16 This Court merely held in 77. K. 
Porter Co. that in the face of unambiguous language estab­
lishing that employers were not to be compelled by the 
statutory scheme to accept particular terms, the general 
remedial provision of the Act15 should not be read to allow 
the Board to compel such acceptance, 397 U.S. at 107-08. 
But § 703(h) and its legislative history, in contrast, do 
not clearly indicate what the Congressional policy is with 
respect to particular seniority issues under Title VII.

Rather than adopting any vague generalities incorporat­
ing prohibitions on full seniority relief, the courts should 
look to § 703(h) as the starting point for an equitable 
analysis in light of the remedial purpose of Title VII and 
the broad scope of § 706(g).17 See Note, Last Hired, First 
Fired Layoffs and Title VI I , 88 Harv. L. Rev. 1544, 1551-57 
(1975). That analysis would, in each case, carefully weigh

14 Section 8(d) of the Labor Management Relations Act (1947),
29 U.S.C. § 158(d).

16 The duty to bargain collectively, enforceable by the Board, 
“does not compel either party to agree to a proposal or require 
the making of a concession.” 29 U.S.C. § 158(d).

16 Section 10(e), 29 U.S.C. § 160(c).
17 The Fifth Circuit’s recent decision in Watkins v. United Steel­

workers of America, Local No. 2369, 516 F.2d 41 (5th Cir. 1975), 
rev’ing 369 F. Supp. 1221 (E.D. La. 1974), is consistent, with 
Petitioners’ position. In Watkins, the Court of Appeals reversed 
a holding that layoffs which adversely affect black employees of an 
employer that long ago refused to hire blacks are necessarily un­
lawful. The Court in Watkins limited its holding to certain facts 
presented there. In particular, it precluded a remedy only in the 
case of employees who had not been subjected to a prior system of 
discrimination and who were alreadjT in their “rightful place,” 
516 F.2d at 44-46. The facts and rationale of Watkins make it 
inapplicable to the instant case.



5

the facts to achieve a just (remedy, cf. Meadows v. Ford 
Motor Co., 510 F.2d 939, 949 (6th Cir. 1975), petition for 
certiorari pending, No. 74-1349. In this case, the propriety 
of retroactive seniority is manifest.

2.

Bowman’s attempt to save the result beloAv on the theory 
that it embodies a proper exercise of remedial discretion is 
unfounded in the record or in law.

Both the District Court and the Court of Appeals denied 
relief because they viewed retroactive seniority as being 
barred by a rule of law.18 But the District Court, in a 
cryptic and unsupported comment, added that retroactive 
seniority was also denied “in the exercise of discretion,” 
Pet. A.54. This unexplained assertion of “discretion,” de­
rived from an erroneous view of controlling legal prin­
ciples,19 has nothing in common with the purposeful equita­
ble analysis required by Albemarle Paper Co. v. Moody 45 
L.Ed.2d 280, 296 (1975).

Bowman’s “discretion” argument ignores the cardinal 
principles, recently clarified by this Court, governing equi­
table discretion in Title VII cases, Albemarle Paper Co.

18 See Pet. A.53-A.54; 495 F.2d at 417-18, Pet. A.30-A.31. Far
taTpifH 0P-Ilg aily x̂erelse of discretion by the District Court, 
tne 1 utii Circuit holding removes retroactive seniority from the 
array of equitable remedies available under Title VII.

19 The District Court held retroactive seniority barred because 
in its view, (1) only named plaintiffs who had filed EEOC charms 
could recover individual relief, and (2) Title VIPs preference for 
conciliation precludes class-wide remedies. Those rules of Jaw 
iave been repudiated by the Fifth Circuit in this case, 495 F.2d at 
r b  i-T I f ; 39, and b-y this Court, Albemarle Paper Co v

™  t d 28°- 294-95 n.8 (1975). Yet Bowman still ad­
vances them as proper foundations for the District Court’s pur­
ported exercise of discretion. Co. brief at 25-30. 1

*



6

v. Moody, supra, 45 L.Ed.2d at 296-298. Any attempt to 
justify denial of retroactive seniority in this case as “dis­
cretionary” would be incompatible with this Court’s recog­
nition that the fundamental Congressional purpose which 
district courts have discretion to achieve is to “make whole” 
the victims of discrimination; and that Title VII confides 
broad equitable powers to the district courts to “securfe] 
complete justice,” Albemarle, supra, 45 L.Ed.2d at 297.20

Finally, m light of its continuing bad-faith policies of 
discrimination,21 Bowman may not even properly invoke 
the principles of equity to support its defense, Albemarle 
supra, 45 L.Ed.2d at 299. Accordingly, the District Court 
could not make Bowman the beneficiary of equitable dis­
cretion.

3 .

, n ^ treJ er precise meaninS tllis Court attributes to § 703 
(h) of Title VII and its legislative history, no limitation 
on retroactive seniority thereby attaches to 42 U.S.C. § 1981. 
This Court’s decision last term in Johnson v. Railway Ex 
press Agency, Inc., 421 U.S. 454 (1975), pretermits any 
aigument that purported limitations on Title VII relief can 
be engrafted onto the broad provisions of the earlier statute 
In Johnson the Court held,

that the remedies available under Title VII and under 
§ 1981, although related, and although directed to most 

dent Same 011 dS’ aie Separate’ dif?tinct, and indepen-

f i q s ^ 'e f  461' The COnrt ° bserved that some respects § 1981 offers more relief than Title VII, and in other re-
SP6CtS lGSS’ sec 421 U-S- at 458-61. Of particular pertinence

21 See Petitioners’ brief at 6-10.

4)



7

here, this Court reasoned in Johnson that despite Title 
VII s “range and its design as a comprehensive solution 
for the problem of invidious discrimination in employment 
the aggrieved individual clearly is not deprived of other 
remedies he possesses and is not limited to Title VII in his 
search for relief,” 421 U.S. at 459. The Fifth Circuit, there­
fore, erred in failing to award relief under 42 IT S C 
§ 1981.22

Respondents do not dispute the correctness of Petition 
ers’ position on the $ 1981 issue; rather they urge that the 
Couit cannot reach it because they assert this issue was 
not squarely raised below. Both Franks’ complaint and 
Lees complaint specifically stated claims under §1981 as 
a l af S of ^ d i c t i o n  and an alternative basis for all the 
rebel S°ught (4a ff; 14a ff). T ie case was fried on this 
basis23 Because the Fifth Circuit’s ruling 
injected the 5 703(h) bar issue into this case, the parties 
had neither briefed nor argued it below, nor had they speci­
fically .argued whether 5 1981 provides an additional ground

t Z m t l r  T p p p ’ 0 ,6  i  1981 i5Sue ™  c ,c » r iy  b e fo re  11 Cult. Petitioners’ brief on appeal specified that
their complaints sought relief under 42 U S C 1981 
ivell as Title V II, see brief in Fifth Circuit, No.' 72-3239 at
Z-G.

F o ^ sZ '% io ‘Ĉ W°rk*’ «  m
tiorari, No. 74-1064. The Fifth C i r c u i ? 0n f ctltl?n for M 
on § 1981 relief “consiltant! T S ?
50 {Slh CirfC19*?5)*C"  °f  America> Local N°- 2369, 516 F.2d 4

' S e ^ h t ^  ^

°" Whether retroactive senio,
to either Title VII or § 1981. ^  CaSe an 1SSUe equally applicabl



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fe .

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8

Petitioners squarely presented the retroactive seniority 
issue under 42 U.S.C. § 1981 in their Petition for a W rit of 
Certiorari, and Respondents did not then object to the 
grant of certiorari on that question. This Court, having 
issued the writ to review that properly presented question 
of law, which is of national significance, should not be 
deterred from deciding the question merely because the 
lower courts did not specifically address Ihis question in 
their opinions.25

I

•
>

i

i

Respectfully submitted,

J ack  Greenberg  
J a m es  M. N abrit, III 
M orris J. B aller 
B arry L. G oldstein  
E ric  S c h n a ppe r

10 Columbus Circle
New York, New York 10019

i|
i

J o h n  R. M yer

Crosland, Myer, Rindskopf & Terry 
2415 Nat’l Bank of Georgia Bldg.
34 Peachtree Street, N. W.
Atlanta, Georgia 30303

: i

■!}\
E l iz a b e t h  R. R in d sk o pf  

265 Church Street 
New Haven, Connecticut 06510

\ i
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|

Attorneys for Petitioners ■{
\ . . i

26_Tlie decisions cited by Bowman (brief at 17) and USWA 
(brief at 33) are inapposite. The Court lias refused to decide is­
sues winch were not presented by the pleadings, McCullough v 
Kammercr Corp., 323 U.S. 328 (1945); which were not assigned 
as error to the Court of Appeals (where required), McCullough v. 
Kammercr Corp., supra; Duignon v. United States, 274 U.S. 195, 
200 (1927) ; where no appeal was taken from an adverse district 
court decision and where the Court of Appeals did not consider 
the issue, Adickcs v. S.H. Kress and Co., 398 U.S. 144, 147 n 2 
(1970); or which were not raised in the petition for certiorari 
Zellcrbach Paper Co. v. Helvcring, 293 U.S. 172, 182 (1934). ’

*