Franks v. Bowman Transportation Company Reply Brief for Petitioners
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January 1, 1974

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Brief Collection, LDF Court Filings. Franks v. Bowman Transportation Company Reply Brief for Petitioners, 1974. ce25c25f-b29a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/02bfa42e-5453-4cee-92ac-60d195b35d2f/franks-v-bowman-transportation-company-reply-brief-for-petitioners. Accessed April 29, 2025.
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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 •» ' > '»<s& fe . > t \ 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 M | 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). ’ *