Philip Morris Incorporated v. Lewis Brief of Appellant

    ^ lu itcb  S t a t e s  (Gintrt nf A p p e a ls
FOR THE FOURTH CIRCUIT

RECORD NOS. 76-1998 76-1999

PHILIP MORRIS INCORPORATED, et al.

Appellants

NORA LEWIS, et al

Appellees

BRIEF OF APPELLANT
TOBACCO WORKERS' INTERNATIONAL UNION

Jay J. Levit 
STALLARD & LEVIT
2120 Central National Bank Building 
Richmond, Virginia 23219

Janies F. Carroll
1120 Connecticut Ave., N.U.
Suite 940
Washington, D.C. 20036

Counsel for Appellant
Tobacco Workers' International Union

FRED  R. SU RFA CE & ASSOC. INC., HER ITAGE BU ILD IN G , RICHMOND, VA. (804) 643-7789



TABLE OF CONTENTS
Page

STATEMENT OF ISSUES I
STATEMENT OF THE CASE 2

District Court's Orders and Defendants'
Appeals Therefrom 2
The District Court's Definition of the
Class 4
The Substantive Issues at Trial 4
The District Court's Ruling With Respect 
to the Quarles Decision 5
The District Court's Finding of Local
Union Liability 6
The District Court's Finding of Inter­
national Union Liability 8
The District Court's Theory That the 
Plaintiff Class Was Ignorant of the 
Long-Standing, Non-Discrimination Employ­
ment Policy d

ARGUMENT 10
1. The International Union Can Not Be

Held Liable In Any Event Because The 
Evidence And Stipulations At Trial 
Show That The International Union Was 
Not The Collective Bargaining Agent For 
Members Of The Plaintiff Class, And There 
Is No Basis To Predicate International 
Union Liability Simply Upon Local Union 
Liability 10

CONCLUSION 17



age

9

12,

12

12

12

12

12

12

12

12

12

12

12

12

AUTHORITIES CITED
(Cases)

Quarles v. Philip Morris, Inc., 279 
F. Supp. 505 (E.D. Va., 1968)
United Mine Workers v. Gibbs, 383 
U.S. 715 (1966)
Coronado Co. v. United Mine Workers,
268 U.S. 295, 299 (1925)
United Mine Workers v. Coronado Co.,
259 U.S. 344, 393 (1922)
United Construction Workers v. Ha is lip 
Baking Company, 223 F. 2d 872 (CA 4), 
cert, denied, 350 U.S. 847 (1955)
Di Giorgio Fruit Corporation v. NLRB,
191 F. 2d 642 (D.C. Cir.), cert. denied,
342 U.S. 869 (1951)
Pennslyvania Mining Co. v. United Mine 
Workers, 28 F. 2d 851 (CA 8), cert. denied 
279 U.S. 841 (1928)
Axel Newman Co. v. Sheet Metal Workers,
37 LRRM 2038 (D. Minn. 1955)
SIU (Upper Lake Shipping), 139 NLRB 216 
(1962)
Int'l. Longshoremen (Sunset Line and Twine 
Company), 79 NLRB 1487 (1948)
National Union of Marine Cooks (Irwin-Lyons 
Lumber Company), 87 NLRB 54 (1940)
General Electric Company, 94 NLRB 1260 
(1951), modified sub nom.,
NLRB v. Local 743, Carpenters, 202 F. 2d 
516 (CA 9, 1953)
Bay counties District of Carpenters (United 
Slate, Tile & Composition Roofers, 117 NLRB 
958 (1957)

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Page

Coronado Coal Co., 259 U.S. at
395-96 13
Coronado Coal Co. v. United Mine Workers
268 U.S. 295, 304-05 (1925) 13
United Construction Workers v. Haislip 
Baking Co., 223 F. 2d 872 (CA 4, 1955)
cert, denied 350 U.S. 847 (1955) 13
International B otherhood of Electri­
cal Workers (Franklin Electric Construction Co.)
121 NLRB 143, 42 LRRM 1301, (1958) 13
Amalgamated Meat Cutters (Iowa Beef Packers,
Inc.,), 188 NLRB 5, 6, 76 LRRM 1273 (1971) 14
Gray v. Asbestos Workers, Local 51,
416 F. 2d 313 (CA 6, 1969) 14
Morgan Drive-A-Way, Inc. v. Teamsters,
268 F. 2d 871 (CA 7, 1959) cert.
denied, 361 U.S. 896 (1959) 14
Baisfoot v. International Brotherhood of
Teamsters, 424 F. 2d 1001 (CA 10, 1970) 14
Le Beau v. Libbey-Owens-Ford Company, 484 F 2d
798 (CA 7, 1973) 15
Jamison v. Olga Coal Co., 335 F. Suppl 454
(S.D. W. Va., 1971) 15
Butler v. Local 4 and Local 269, Laborers’
International Union, 308 F. Supp„ 528
(N. D. 111. 1969) 15
Moody v. Albemarle Paper Co., 271 F.
Supp. 27 (E.D. N.C., 1967) 15
United Mine Workers (Blue Diamond Coal Co.)
143 NLRB 795, 797, 798 (1963) 15
Associated Builders v. NLRB, 532 F. 2d 749 
(No. 75-1716, January 27, 1976, 78 LC Para. 
11,312 16



UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

Nos. 76-1998 -- 76-1999

NORA LEWIS , et al. Appellees, •
v .
PHILIP MORRIS INCORPORATED, et al. Appellants.

BRIEF ON BEHALF OF APPELLANT 
TOBACCO WORKERS' INTERNATIONAL UNION

Statement of Issues

1. Can the International Union be held liable even though 
it was not the collective bargaining agent for members of the 
plaintiff class; can International Union liability simply be pre­
dicated upon Local Union liability?

2. Can the International Union be held liable when the 
District Court has found exclusive and fair representation of 
the plaintiff class by the Local Union?

3. Can the International Union be held liable when the 
record is devoid of International Union knowledge, authorization, 
or ratification of Local Union acts or omissions?

1 ...



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STATEMENT OF THE CASE

District Court's Orders and Defendants' Appeals Therefrom.

On July 7, 1976, the District Court entered its judgment order and 

memorandum (Tt. App. , 112 et sea.) giving judgment to the plaintiffs 

against the defendants. Defendant Local Union No. 203 filed its no­

tice of appeal therefrom on August 6, 1975 (Jt. App., 140), as did 

defendant Tobacco Workers' International Union (Jt. App., 141). On 

September 2, 1976, the District Court entered an order adopting plain­

tiffs' back pay and injunctive relief guidelines (which were attached 

thereto) (Jt. App., 142 et seg.), and both defendant Unions filed amended 

notices of appeal therefrom on Ocotober 1, 1976 (Jt. App. , 153-154) . The 

defendant Company also filed a timely notice of appeal from the District 

Court's said September 2, 1976 order on September 29, 1976 (Jt. App., 8). 

On September 27, 1976, plaintiffs filed their motion with the District 

Court for supplemental findings of fact and conclusions of law to support 

plaintiffs' back pay and injunctive relief guidelines which the District 

Court had already adopted in its September 2, 1976 order (Jt. App., 8).

On October 6, 1976, the defendant Unions filed their opposition with the 

District Court to the plaintiffs' said motion, on the grounds that the 

said motion was untimely and the defendants had perfected their appeals 

(Jt. App., 8). The defendant Company filed its memorandum inqoposition 

to the plaintiffs' said mctLon on October 5, 1976 (Jt. App., 8).

iJ jW Pj W W ' . .... . W I I I I I P . I  .P-HW..UI i. p y j m  .............................. .. I . -----



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On October 5, 1976, the defendant Company also filed its oppo­

sition with the District Court to plaintiffs' motion for award of inter­

im attorned fees, and the defendant Unions filed their opposition to said 

motion on October 6, 1976, (Jt. App. , 3). On November 17, 1976, the 

District Court entered an order vacating its said September 2, 1976, order 

which had adopted plaintiffs' back pay and injunctive relief guidelines 

(Jt. App.., 159). Two cays prior thereto, on November 15, 1976, the Dis­

trict Court entered an order awarding attorneys' fees to the plaintiffs 

(Jt. App 157). On or about November 29, 1976, the defendant Company 

transmitted to counsel for the plaintiffs the Company's check in t *̂ie 

amount of $50,000 as payment of the attorneys' fees pursuant to the 

Court's said November 15, 1976, order. This payment was accepted by 

plaintiffs' counsel. On or about November 17, 1976, the District Court's 

order dated October 12, 1976, was filed with the District Court clerk, 

and copies were mailed to counsel for the parties on November 17, 1976.

The District Court's said October 12, 1976, order, which, was not filec 

with the District Court clerk until on or about November 17, 1976, stayed 

the District Court's said September 2, 1976, order adopting plaintiffs 

back pay and injunctive relief guidelines, as well as all other proceed­

ings in the District Court during the pendency of the appeal (Jt. App.,

9, 139).
Although the District Court stated that it had had second thoughts 

about the plaintiffs' guidelines for back pay and irrpnetive relief pre­

viously adopted and thereafter vacated by the District Court pending the

mwmm mmmm



appeal, the District Court stated to counsel for the parties in open 

court that this did not necessarily mean the District Court would make 

changes to the said guidelines (Jt. App. , 181). On this same date 

in open court, November 3, 1976, the District Court advised counsel 

for the parties that it would stay the case (Jt. App., 181). On or 

about October 29, 1976, plaintiffs filed with this Court their motion 

to dismiss the appeal as being premature, defendants thereafter filed 

their respective oppositions thereto, and as of the writing of this 

brief the Court has not ruled on plaintiffs' said motion. In their 

opposition to plaintiffs' said motion to dismiss the appeal, among 

ether things defendant Unions advised this Court that the defendant Com­

pany had already partially complied with a portion of the back pay and 

injunctive relief guidelines subsequent to the District Court's adop­

tion thereof, and prior to the District Court's order vacating its order 

adopting said guidelines (cf. the September 28, 1976 District Court 

docket entry, Jt. App., 8).

The District Court's Definition of the Class. For purposes of 

the trial below, the District Court had certified the class as consist­

ing of the named plaintiffs and all females and black males, whether 

currently employed or no longer employed for any reason, who were em­

ployees of the defendant Company's Green Leaf Stemmery on or after 

July 2, 1965 (Jt. App., 116).

The Substantive Issues at Trial. On April 17, 1975, an agree­

ment between the Equal Employment Opportunity Commission and the defen­

dant Company was filed with the District Court clerk in Civil Action



•5-

No. 181-73-R, in settlement of the Commission's suit which had been 

brought against the Company only, alleging Title VII discrimination 

by the Company gainst black and female employees and prospective 

employees because of their race and sex. In the settlement agreement, 

the Company expressly denied any discrimination on its part (Jt. App., 209) . 

On March 17, 1975, counsel for the defendant Company and the plaintiffs 

(but not Union counsel) entered into an agreement limiting the issues of 

the trial below (Jt. App., 90). The issues thus framed for trial by plain­

tiffs and the Company were as follows:
(a) Whether the members of the class were hired into the Stem- 

mery rather than into permanent employment as a result of racial or sexual 

d iscriminati on;
(b) whether the transfer, promotion, seniority, initial job 

assignment and wage rate policies discriminated against class members on 

the basis of race or sex, except in the selection of supervisory and 

craft personnel; and
(c) if discrimination were found, the appropriate injunctive re­

lief, back pay, costs, expenses, and attorneys' fees would be determined. 

Further, all claims for affirmative relief sought on the basis of alleged 

discriminatory working or disciplinary conditions were withdrawn, and the 

maternity leave issue was expressly reserved. The District Court so 

found (Jt. App. , 118) .
The District Court's Ruling With Respect to the Quarles Decision.

The District Court ruled that its prior decision in ftusrles_ v. P h i p



-6-

MSEiLlLSi_IiiG.• « 279 F. Supp. 505 (E.D.VA., I960) , was not dispositive of

the race discrimination claims asserted at trial. The District Court 

conceded that in Quarles the class did include Green Leaf Stemmery em­

ployees (dt. App. , 1?.].) , but the District Court ruled that in Quar3.es 

the failure to enter an order directing all class members to be noti­

fied of the action so that they could champion their own interests 

violated due process standards, so that the Stemmery employees were not 

parties in any meaningful sense in the Quarle3 action, and were not 

bound by that decree (Jt. App., 125-126). The District Court made this 

ruling notwithstanding the fact that in Quarles, then District Court 

Jugge Butaner found no evidence of discrimination in tlie Stemmery in 

initial or additional job assignments, pay, transfer and promotion 

policies, or selection of employees for craft, skilled and supervisory 

positions. Counsel for the plaintiffs in Quarles were the same as 

counsel for the plaintiffs in the case at bar.

The District Court's Finding of Local Union Liability. The Dis­

trict Court conceded that the defendants produced evidence indicating 

that blacks are more willing to accept employment at the Seasonal faci­

lity (Stemmery), and that the permanent departments have a substantial 

proportion of black workers (Jt. App., 129). However, the District 

Court apparently found Company and Union liability based on the testi- 

mo, y of one single witness who testified for plaintiffs in part that 

"if you want to get hired, you know, being black, your best chance would 

be to go through the Stemmery and then transfer to permanent employment 

later" (Jt. App., 132). The District Court further conceded that it



could not find the Company * a 'bxcessive assignment of blacks to the Stem- 

mery was purposefully undertaken by the Company to covertly continue its 

historical system of segregated departments" (Jt. App., 133). However, 

the District Court found that the Company, even though it assigns new 

hires without regard to their race, "has unfortunately done nothing to 

dispel the belief, founded on its past acts of discrimination, and held 

by 3 substantia 1 number of black applicants, that it still assigns to de­

partments new hires on the basis of race. Such a belief has translated 

itself into a set of circumstances that has continued to place blacks 

at a disadvantage when seeking employment at Philip Morris" (Jt. App., 133 

The District Court thereafter concluded that "all those class members that 

were not so informed when they were hired into the Stemmery, and that be­

lieved that their race substantially limited their initial employment to 

the Stemrnery are entitled to recover for their losses" (Jt. App., 134).

The District Court then further concluded that "it is the duty 

and the burden of the defendants to inform all potential applicants for 

the various openings of said openings a3 they develop and that these 

openings would be filled without regard to sex or race. Those appli­

cants in the class that were not so informed and that would have applied 

for any such openings if informed, are entitled to recover" (Jt. App., 135) 

Referring to it3 rationale aa "theories" (Jt. App., 136) , the District 

Court then held the Local Union liable along with the Company under the 

District Court's said theories. The District Court stated that the Local 

Union had to "share the responsibility for informing its members that

'  1 W W W " T



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all jobs are open in all departments without regard to race or sex so 

as to mollify members' present understandings as based on past history.

Its failure to perform this function makes it jointly liable with the 

Company to those plaintiffs entitled to recover” (Jt, App., 136). The 

District Court further made the following additional findings with res­

pect to Union liability:

(a) there is no evidence of Union arbitrary action or bad 

faith conduct toward class members in the handling of class members' 

grievances (Jt. App., 136);

(b) there is no evidence of Union arbitrary action or bad 

faith conduct toward class members in the collective bargaining pro­

cess with the Company (Jt. App., 136);

(c) collective bargaining contract seniority, transfer, and 

promotional provisions need not be changed (Jt. App., 135)7 and

(d) there has been no breach of the Union statutory duty of 

fair representation (Jt. App., 136).

In it3 written motion to dismiss filed prior to trial (Jt. App., 

43), the Local Union in part relied upon the District Court's prior de­

cision in Quarles, and the Local Union at trial also moved to dismiss 

the complaint as against it because there was no evidence to show a 

breech of the Local Union's duty to faidy represent the members of the 

plaintiff class (Jt. App., 961-962).

The District Court's Finding of International Union Liability. 

Noting that the International Union was not served with notice of the 
EEOC charges, nor approached by the EEOC in conciliation negotiation

i .m li p . . ,  mi I i m  P  m i — H -Li i .  ' . ■ ■ n n n u i  in i - . m m  " iyn i ' np i iin . i . n  ■ p ji. - n m i i     w n m i ^ w  ip m » M > n - i p j in ) mi n i i. i y  ■



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(Jt. App., 119), the District Court found International Union liability 

because "the International was an active advisor to the Local, and sat 

in on most of the Local's negotiations with the Company for collective 

bargaining agreements" (Jt. App., 139). The District Court so ruled not­

withstanding its finding that the employees involved were represented 

by the Local Union only (Jt. App., 114-115), and that counsel for the 

parties had so stipulated in stipulations numbers 8, 52 and 53, to the 

express effect that the collective bargaining agreements involved were 

entered into and negotiated by and between the Company and the Local 

Union only (Jt. App., 96, 108). In its written motion to dismiss filed 

prior to trial (Jt. App., 45), the International Union relied in part 

upon the District Court's prior decision in Quarles, and at trial the 

International Union relied upon the said stipulations of the parties 

(Jt. App., 962-964) .
The District Court's Theory That the Plaintiff Class Was Ignoram 

of the Loni-Standing, Non-Discrimination Employment Policy. The District 

Court adhered to its liability theory that the plaintiff class was igno­

rant of the long-standing, non-discrimination employment policy, not­

withstanding the stipulation of counsel for the parties that since 1963 

"the bargaining committee of Local 203 has included both wnite and black 

employees" (Jt. App., 97).



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Argument

It is submitted that the District Court's finding of lia­
bility on the International Union's part is erroneous for the 
same reasons advanced by the Local Union in its brief concerning 
the District Court's finding of liability on the Local Union's 
part. Additionally, as follows hereinafter, the District Court 
erred with respect to the International Union.

1. The International Union Can Not Be Held Liable In 
Any Event Because The Evidence And Stipulations At Trial Show 
That The International Union Was Not The Collective Bargaining 
Agent For Members Of The Plaintiff Class, And There Is No Basis 
To Predicate International Union Liability Simply Upon Local 
Union Liability.

The District Court correctly found that Local Union No. 203 
was the duly designated exclusive collective bargaining agent 
for the plaintiffs and the class they represent (Jt. App., 114- 
115). In stipulations Nos. 8, 52 and 53 (Jt. App., 97, 108), 
counsel for the parties stipulated at trial that the pertinent 
collective bargaining agreements and negotiations therefor were 
by and between defendant Company and Local Union No. 203. Stip­
ulation No. 53 expressly states that "labor rates . . . are estab­
lished exclusively by negotiation between the Company and the 
Local Union . . . since before 1960." Union witnesses Mergler
(Jt. App., 887-888), and Pearce (Jt. App., 906), so testified, 
and the recognition clauses of the collective bargaining agree­
ments in evidence which define the parties thereto so state. As 
both Mergler and Pearce testified, and their testimony was not



11-
contradicted, the International Union assisted the Local Union 
in negotiations only at the request of the Local Union, and the 
negotiated contract provisions were approved by the Union mem­
bership. Final contract approval by the International Union 
was only for the purpose of assuring that there were no vio­
lations of law incorporated therein (Jt. App., 867, 906)„ As 
Mergler's uncontradicted testimony showed, "all Local Unions 
are self-autonomous, and only the membership themselves can 
reject or accept any contract. And this is done with or with­
out the approval of any of the officers of the International 
Union" (Jt. App., 867).

Accordingly, the District Court's finding of International 
Union liability soley because the International Union "sat in 
on most of the Local's negotiations with the Company" (Jt. App., 
139), is clearly erroneous and it is not supported by the record. 
This is especially so in view of the District Court's correct 
conclusion that at all material times Union representation of 
the plaintiffs' and the class they represent was fair and proper, 
and that collective bargaining contract provisions concerning 
seniority, transfer, and promotion need not be changed (Jt. App., 
135-136).

International Union liability predicated simply upon a fin­
ding of Local Union liability is likewise clearly erroneous. Here, 
the District Court found the Local Union liable because it sup­
posedly did not advise its membership of the long-standing, non­
discrimination employment policy applicable to the membership, 
and because the membership was supposedly ignorant of that fa­
vorable employment policy. The condemned omission of the Local 
Union which the District Court found was a failure to advise,

* — ........ . ................— —  — ■*— ■--------------------------------— ■— —   ---------- ------ --— ■— — — —  -------------------------



-12-

rather than some actual misconduct. Since there is no question 
in the record below that the Local Union was in charge of the 
day-to-day collective bargaining affairs of its membership and 
the bargaining unit which it represented, clearly the Interna­
tional Union can not be held liable for having incited or en- ^
couraged the Local Union's supposed failure to advise its mem­
bership. United Mine Workers v. Gibbs, 383 U.S. 715 (1966).

The Local Union, as the evidence showed, was self-autonomous, 
an entity separate from the International Union, self-governing 
and independent thereof. Under these circumstances, it is firmly 
established Court and National Labor Relations Board law that 
the International Union can not be held responsible for the acts 
or omissions of the Local Union. Coronado Co. v. United Mine 
Workers, 268 U.S. 295, 299 (1925); United Mine Workers v. Coro­
nado Co., 259 U.S. 344, 393 (1922); United Construction Workers 
v. Haislip Baking Company, 223 F. 2d 872 (CA 4), cert. denied,
350 U.S. 847 (1955); Pi Giorgio Fruit Corporation v. NLRB, 191 
F. 2d 642 (D.C. Cir,), cert. denied, 342 U.S. 869 (1951); Pen- 
nsiyvania Mining Co. v. United Mine Workers, 28 F. 2d 851 (CA 
8), cert. denied, 279 U.S. 841 (1928); Axel Newman Co. v. Sheet 
Metal Workers, 37 LRRM 2038 (D. Minn. 1955); SIU (Upper Lake 
Shipping), 139 NLRB 216 (1962); Int’1■ Longshoremen (Sunset Line 
and Twine Company), 79 NLRB 1487 (1948); National Union of Marine 
Cooks (Irwin-Lyons Lumber Company),87 NLRB 54 (1940)| General 
Electric Company, 94 NLRB 1260 (1951), modified sub nom., NLRB 
v. Local 743, Carpenters, 202 F. 2d 516 (CA 9, 1953); cf. Bay 
counties District of Carpenters (United Slate, Tile & Composition 
Roofers), 117 NLRB 958 (1957).

i . . ’■’" q M P M M ^ * * **** ....i' J ■■■I'.tWJ' —---



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A local union is not, per se, an agent of its parent inter­
national union. In the leading decision in United Mine Workers 
v. Coronado Coal Co., supra, an action under the Sherman Anti- 
Trust Act against an international union, several local unions, 
and various individuals was taken. Noting that it was faced 
with a question of the agency of the local unions to act for the 
international union, the Supreme Court examined the union con­
stitution and determined that no such agency existed and that 
the motion of the international union for a directed verdict 
should have been granted. Coronado Coal Co., 259 U.S. at 395-96. 
See also Coronado Coal Co. v. United Mine Workers, 268 U.S. 295, 
304-05 (1925).

The fact that local unions are separate entities from their 
parent international organizations was recognized by this Court 
in United Construction Workers v. Iiaislip Baking Co., 223 F. 2d 
872 (CA 4, 1955), cert. denied 350 U.S. 847 (1955), a suit under 
Sec. 301(a) of the Labor Management Relations Act, 29 USC Sec. 
185(a), to recover damages for the alleged breach of a collective 
bargaining agreement.

Likewise, the National Labor Relations Board, the agency 
most familiar with the operations of labor organizations, has 
consistently ruled that, except in cases where an international 
union's constitution grants it substantial control over its af­
filiated local unions, each local union is a separate entity, and 
therefore, the parent international union is not responsible for 
the unlawful conduct of the local without a specific showing of
some agency or participation by the international union. In Inter-

11,



-14

national Brotherhood of Electrical Workers (Franklin Electric 
Construction Co.), 121 NLRB 143, 42 LRRM 130] (1958), the Board
refused to find a violation by an international union since the 
local union which engaged in a secondary boycott was a legal en­
tity in itself, stating:

"The overwhelming weight of judicial authority, 
including the Supreme Court of the United States, is 
that a local union is a legal entity apart from its 
international and that it is not a mere branch or arm 
of the latter. That too has been the position of the 
Board.

* * *
"An international union's constitution regulates 

and controls the operations of its constitutent locals. 
But that regulation is rarely so complete as to make 
the local merely a branch of the international. 'In 
the main these provisions (of international's consti­
tution and local's by-laws) delineate the jurisdiction 
of the confederation and the affiliated units with ref­
erence to collective bargaining, membership and discip­
line, assessments for the common cause, participation 
of the local units in the affairs of the association, 
and the regulation of the locals . . . . These provi- 
sions lay restraints upon the activities of the local 
union, but they do not deny its separate existence and 
make of its a mere "administrative arm" of National'."

See also Local No. P-575, Amalgamated Meat Cutters (Iowa 
Beef Packers, Inc,,), 188 NLRB 5, 6, 76 LRRM 1273 (1971).

In numerous contexts, the courts have held that local unions 
are not the agents of their parent international organizations.
For example, officers of local unions are not agents of inter­
national unions for receipt of service of process. See, e .g .,
Gray v. Asbestos Workers, Local 51, 416 F. 2d 313 (CA 6, 1969);
Morgan Drive-A-Way, Inc, v. Teamsters, 268 F. 2d 871 (CA 7, 1959)£ert. 
denied, 361 U.S. 896 (1959); Barefoot v. International Brother­
hood of Teamsters, 424 F. 2d 1001 (CA 10, 1970).

Many Courts in actions brought under Title VII have dismissed

-tr ......."W i w w r w "  f g - - "



•15-

rt *

international or other labor organizations superior to local 
unions when the local, but not the parent organization, was 
named in the charge filed with the EEOC. See e .g ., Lo Beau v.
Libbey-Owens-Ford Company, 484 F. 2d 798 (CA 7, 1973); Jamison 
v . Olga Coal Co., 335 F. Supp. 454 (S.D. W. Va . , 1971); Butler 
v. Local 4 and Local 269, Laborers' International Union , 308 F .
Supp. 528 (N.D. 111. 1969); Moody v. Albermarle Paper Co., 271 
F. Supp. 27 (E.D. N.C., 1967). In Jamison and Butler, the Courts 
specifically rejected the plaintiff's claim that it should be 
relieved of the requirement of naming the international union in 

the charge filed with the EEOC since the local was named. Plain­
tiff's agency argument was rejected.

Finally, it is submitted that important policy considerations 
underlay the necessity for preserving the present law of agency 
as it relates to international-local union relationships. In 
United Mine Workers v. Gibbs, 383 U.S. 715, 738, 739 (1966), the
Court set forth the proposition that national labor policy --
whether in a Norris-LaGuardia or National Labor Relations Act 
context —  encourages international unions to conduct normal 
union functions even in explosive situations. In order that par­
ent organizations would not be "chilled" in exercising their re­
straining and mediating influences, the Court recognized that 
"it would be inconsistent with national labor policy to infer 
ratification" of a local union's activities from the mediating 
efforts of its international. However, the Court further recog­
nized that this beneficial and salutary international presence woulc 
be unlikely if the parent union were required to repudiate or dis­
avow the acts of its local. Accord, United Mine Workers (Blue 
Diamond Coal Co.), 143 NLRB 795, 797, 798 (1963).

—  M m  — 1 l’» 1 D. m w > U w n ww m M T ......... T *"~



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This is precisely the rationale of this Court as shown in 
its decision in Associated Builders v. NLRB, unpublished decision 
listed in table at 532 F. 2d 749 (No. 75-1716, January 27, 1976), 
78 L C Para. 11,312, For the convenience of the Court a copy 
of the Associated Builders decision is reproduced at the back of 
this brief. Agreeing with the above-stated rationale of the 
National Labor Relations Board, and citing the Board's 1958 
Franklin Electric decision, this Court in Associated Builders- 
found that "the International Union did not have knowledge of the 
unlawful activities of the two Locals and that it did not autho­
rize or ratify them. Legally, the relationship between the Inter­
national Union and the Locals was not such that the conduct of 
the Locals should be attributed to the International short of 
knowledge, authorization or ratification."

In the case at bar, the Local Union's supposed wrongful 
failure to advise its membership of a long-standing, non-discrimi­
nation employment policy applicable to the membership, of which 
the membership supposedly was unaware pursuant to the novel theory 
of the District Court, can not be attributed to the International 
Union short of knowledge, authorization, or ratification. The 
record below is devoid of any evidence thereof, and the District 
Court should have granted the International Union's motion to 
dismiss.

I " " ' .......... .............. ....... — --- -



-3 7-

Conclus ion

The District Court's finding of International Union lia­
bility is clearly erroneous for the following reasons:

1. For the reasons that the District Court's finding of 
Local Union liability is clearly erroneous;

2. Further, because the International Union was not the 
collective bargaining agent for the plaintiffs or the class 
they represent, the Local Union being the exclusive collective 
bargaining agent; and

3. The Local Union was not the agent of the International 
Union; further, the supposed omission (failure to advise member­
ship) of the Local Union, upon which the District Court theorized 
Local Union liability, was not attributable to the International 
Union.

Jay J. Levit 
STALLARD & LEVIT 
2120 Cen. Natl. Bank Bldg. 
Richmond, VA 23219
James F. Carroll
1120 Connecticut Ave., N.W.
Suite 940
Washington, D.C. 20036
Counsel for Tobacco Workers' 
International Union

Respectfully submitted
TOBACCO WORKERS' INTERNATIONAL 
UNION

Cbunsel

-- ’— 1 -r’- r.



-18-

CERTIFICATE

In accordance with Rule 25 of the Rules of the U.S. Court 
of Appeals, Fourth Circuit, I hereby certify that I have this 
15th day of December, 1976, filed the required copies of the 
Brief of Appellant Tobacco Workers' International Union in the 
Clerk’s office, and have served the required copies of the said 
brief on Lewis T. Booker, Esq., Company counsel, 707 E. Main Street 
P. 0. Box 1535, Richmond, Virginia 23212; and Plaintiffs' counsel, 
Henry L. Marsh, III, Esq., 214 East Clay Street, P. 0. Box 27363, 

Richmond, Virginia 23261.

Jay J . Levit

▼"I. -



ASSOCIATED BUIi,' ERS v. NLRB 
U.S. Court of Appeals,

(Richmond)
ASSOCIATED BUILDERS AND 

CONTRACTORS, INC. v. NATIONAL 
LABOR RELATIONS BOARD and 
LABORERS’ INTERNATIONAL UN­
ION OF NORTH AMERICA, AFL-CIO, 
Intervenor, No. 75-1716, January  27, 
1976
LABOR MANAGEMENT RELATIONS

ACT
—Restra in t or coercion — Unlaw­

ful conduct of local unions — Re- 
_spons^U ^tv of in ternational iTHTSTT

NLRB held warran ted  in not hold­
ing international union jointly re­
spond Me with two local unions for 
their  coercive picketing activities in 
violation of Section 8 1 b > 11' < A) of 
LMRA, since (1) in ternational did not 
have knowledge of locals’ unlawful 
activities and it did not authorize or 
ra tifv  them; and (2) relationship 
between International and its locals is 
not such th a t  locals’ conduct should 
lie a ttr ibu ted  to international short of 
knowledge, authorization, or ra t if ica ­
tion

Petition for review' of an NLRB 
order (90 LRRM 1126, 219 NLRB No.
23' Dismissed

N. Pete: i.areau (A. Samuel Cook, 
Joseph H Kaplan and Venable. 
Baetjet. and Howard, on briefs), 
Baitimoie, Md., for petitioner associa­
tion

Robert G. Sewell (John C. Miller, 
Acting General Counsel, John  S. I rv ­
ing, Deputy General Counsel, Elliott 
Moore, Deputy Associate General 
Counsel, and Thomas A. Woodley, 
with him on brief), for respondent 
NLRB.

Arthur M Schiliei (Robert J. Con 
tie; (on, Jules Bernstein, and T heo­
dore T. Green, on brief), Washington. 
D C . for intervenor union

Before WINTER, CRAVEN, and 
BurZNER, Circuit Judges,

91 L R R M  25G0

Full Text  of Opinion  
PER CURIAM:—Associated Build­

ers and Contractors, Inc. seeks to set 
aside the Board's  order declining to 
find responsibility on the p a r t  of L a­
borers' In te rna tiona l  Union of North 
America, AFL-CIO, for the coercive 
picketing activities of two local u n ­
ions found to be In violation of 5 8 
(b)(1)(A) of the Act.

From our review of the record and 
a f te r  hear ing  argum ent and  consid­
ering the briefs, we conclude th a t  the 
B oard’s order is unassailable and the 
petition to set it  aside should be dis­
missed. There is substantial evidence 
to support the Board's factual de­
term ination  th a t  the In te rna tiona l  
Union did not have knowledge of the 
unlawful activities of the two locals 
an d  th a t  it  did no t authorize or ra tify  
them. Legally, the  relationship be­
tween the In te rna tiona l Union and the 
locals was not such th a t  the conduct 
of the locals should be a ttr ibu ted  to 
the  In te rna tiona l  short of knowl­
edge, authorization  or ratification. See 
I.B.E.W. (Franklin Electric), 121 
NLRB 143, 42 LRRM 1301 (1958), 

PETITION DISMISSED.