Taylor v. ARMCO Steel Corporation Brief of Appellants

    Hitttri) Stotra (Enurt rtf Appeals
FOR THE FIFTH CIRCUIT

IN THE

NO. 28,180

JOHN TAYLO R, ET AL, Appellants 

v.

ARM CO STEEL CORPORATION, ET AL, Appellees

BRIEF OF APPELLANTS

Of Counsel:

W il l ia m  B . G o u l d  
Wayne State University 

Law School 
Detroit, Michigan
Jo n a t h a n  K. H a r k a v y
2 Wall Street
New York, New York
A l b e r t  J. R o s e n t h a l  
435 West 116th Street 
New York, New York

N o r m a n  So r r e l l  
M a n d e l l  & W r ig h t  
1901 First National Life Building 
Houston, Texas 77002
M r s . G a b r ie l l e  K. M c D o n a l d  
M c D o n a l d  & M c D o n a l d  
1834 Southmore Boulevard 
Houston, Texas 77004
Ja c k  G r e e n b e r g  
W il l ia m  L. R o b in s o n  
10 Columbus Circle 
New York, New York 10019 
Attorneys for Appellants

Alpha Law Brief Co., M  & M  Bldg., Houston, Texas 77002



TABLE OF CONTENTS
Page

I. POINTS OF ERROR 1-2
1.............................................................................  1
2.....................................................................................  1
3.............................................................................  2

II. STATEMENT OF THE ISSUE PRE­
SENTED FOR REVIEW 2

III. STATEMENT OF THE CASE 2-5
IV. STATEMENT OF FACTS 5-11
V. STATUTES INVOLVED 12-14

VI. ARGUM ENT AND AUTHORITIES 14-35
POINT 1, RESTATED 14
POINT 2, RESTATED 28
POINT 3, RESTATED 33
CONCLUSION 35

TABLE OF AUTHORITIES

c a se s  Page
Argo v. C.I.R. (5th Cir. 1945), 150 F.2d 67 15
Astron Industrial Associates, Inc. v. Chrysler 

Motors Corp. (5th Cir. 1968), 405 F.2d 958,
960 (res ajudicata) ...........................................  32

Brotherhood of Locomotive Firemen & Engine- 
men v. Chicago R.I. & P.R. Co. (1968 ), 393
U.S. 129, 131 ....................................................... 34,35

Compania Mexicana v. Jernigan (5th Cir. 1969),
410 F.2d 718, 726 (Collateral estoppel) . . 32



II

c a s e s  Page
Denver Building & Construction Trade Council 

v. N.L.R.B. (D.C. Cir. 1950), 186 F.2d 326,
332, reversed on other grounds, 341 U.S. 675
(1951)   34

Gaston County v. United States (1969 ), 395
U.S. 285   25

Kalb v. Feuerstein (1940), 308 U.S. 433, 444 34
Local 12, United Rubber Workers v. NLRB,

368 F.2d 12, 24 (1966 ), Cert. Den’d., 389
U.S. 837 (1967) ................................................  17

Local 53, International Association of Heat and 
Frost Insulators v. Vogler, 407 F.2d 1047
(5th Cir. 1969) ..................................................  16,20

Local 189, United Papermakers and Paperwork-
ers v. United States, _____ F.2d____ , 71 LRRM
3070, 60 L.C. Para. 9289 (5th Cir. July 28,
1969) ................................  1 6 ,2 2 ,2 3 ,2 4 ,2 6 ,2 7 ,2 8 ,3 3

Louisiana v. United States (1965), 380 U.S. 145 25
Norman v. Missouri Pac. Railroad Co., 414 F.2d

73, p. 84 ..............................................................18, 19, 20
Quarles v. Philip Morris, Inc., 279 F.Supp. 505

(E.D. Va. 1968) .......................................21, 22, 27, 28
United Shoe Machinery Corp. v. U. S., 258 U.S.

451, 459 ................................................................  32
United States v. Hayes International C orp .,____

F.2d------- , 2 FEP Cases 67, 60 L.C., Para­
graph 9303 (5th Cir. August 19, 1969) . . 17

United States v. Sheet Metal Workers Interna­
tional A ssn .,-------F.2d____ , 2 FEB Cases 127,
61 L.C. Paragraph 9319 (8th Cir. 9 /1 6 /6 9 )  16

Teas v. Twentieth Century Fox Films, Inc. (5th
Cir. 1969), 413 F.2d 1263, 1267 32,33

Whitfield v. United Steelworkers of America,
Local 2708 (5th Cir. 1959), 263 F.2d 546,
Cert. Den’d., 360 U.S. 902 (1959)

1, 2, 3, 4, 5, 6, 8, 9, 14, 15, 16, 17, 22, 
2 4 ,2 6 ,2 7 ,2 8 ,2 9 ,3 0 ,3 1 ,3 3 ,3 5



Ill

Page
UNITED STATES STATUTES

Title VII of the Civil Rights Act of 1964, 42 
U.S.C., Sec. 2000e to 2000e(15) ..................

The National Labor Relations Act (Labor Man­
agement Relations Act, 1947), 29 U.S.C., Sec.
151 to 166 1 ,2 ,6 ,1 4 ,1 5 ,1 6 ,1 7 ,1 8 ,2 8 ,3 4

The Railway Labor Act, 45 U.S.C. Sec. 154, 45
U.S.C., Sec. 153 ..................................................  15, 18

The Voting Rights Act of 1965 25

TEXTS

Cooper & Sobel, Seniority and Testing Under 
Employment Laws, A General Approach to 
Objective Criteria of Hiring and Promotion,
82 Harvard L. Rev. 1598 (1969) ................ 21

Developments in the Law: Res Ajudicata, 65
Harv. L. Rev. 818 (1952) .............................. 32

Gould, The Emerging Law Against Racial Dis­
crimination in Employment, 64 Northwestern
University L. Rev. 359 (1969) ....................  16

Gould, Employment Security, Seniority and Race,
The Role of Title VII of the Civil Rights A ct
of 1964, 13 Howard L.J. 1 (1967) ................  21

Gould, Seniority and the Black Worker, Reflec­
tions on Quarles and its Implications, 47 Tex­
as L. R e v ie w .........................................................  21

IB Moore’s Federal Practice, Sec. 0.415 nn8, 21-
25 (1965) ....................................................  14, 32, 34, 35

Report of the National Advisory Commission on 
Civil Disorders, 251-264 (New York Times
edit. 1968) ...........................................................  16

Title VII, Seniority Discrimination and the In­
cumbent Negro, 80 Harvard L. Rev. 1260 
(1967)   21



Unitrii States (Lrnrt of Appeals
FOR THE FIFTH CIRCUIT

IN THE

NO. 28,180

JOHN TAYLO R, ET AL, Appellants 

v.

ARM CO STEEL CORPORATION, ET AL, Appellees

BRIEF OF APPELLANTS

I.

POINTS OF ERROR

1. The district court erred in failing to hold that 
Title VII. of the Civil Rights Act of 1964 and the 
National Labor Relations Act impose different stat­
utory obligations. Conduct held valid under the fair 
representation doctrine is not necessarily lawful and 
permissible under Title VII.

2. The district court erred in failing to find that 
appellants raise fact issues and plead circumstances 
which arose after the decision of W hitfield  and, 
therefore, even if Title VII. imposed no new obli-



2

gations upon the employer and union which differ 
from the obligations imposed under the National 
Labor Relations Act, changes in the employment re­
lationships of the parties since the W hitfield  decision 
prevent W hitfield  from controlling the plaintiffs’ and 
intervenors’ proceedings.

3. The district court erred in failing to exercise 
its discretion to limit the applicability of res judi­
cata and collateral estoppel where there are allega­
tions that there has been a significant change in 
circumstances or where the preclusionary principle 
would serve no useful end.

II.

STATEMENT OF THE ISSUE PRESENTED 
FOR REVIEW

Whether the district court erred in dismissing plaintiffs’ 
and intervenors’ complaint of racial discrimination by rul­
ing that Whitfield v. United Steelworkers of America, 
Local 2708, 263 F.2d 546, (5th Cir. 1959), cert, den’d, 
360 U.S. 902 (1959), forecloses consideration of plain­
tiffs’ and intervenors’ claims founded upon Title VII. of 
Civil Rights Act of 1964.

III.

STATEMENT OF THE CASE

Nature of the Case:

This appeal is from a final judgment of the United 
States District Court for the Southern District of Texas 
(Seals, J., presiding). The district court dismissed plain­
tiffs’ and intervenors’ claim for the vindication of rights



3

guaranteed to them by Title VII. of the Civil Rights Act 
of 1964, 42 U.S.C., Secs. 2000e-l et seq. (Title VII. here­
in). The principal legal question presented by this appeal 
is whether a 1959 fair representation decision ( Whitfield, 
supra) forecloses consideration of plaintiffs’ and inter- 
venors’ present claims based on the 1964 Civil Rights 
Statute.

On or about August 11, 1966, plaintiffs filed charges 
under oath with the Equal Employment Opportunity Com­
mission ( “EEOC”  or “Commission” herein) alleging that 
their rights under Title VII. were violated because of 
seniority and promotion arrangements negotiated by the 
defendant union and the defendant employer. The EEOC 
did not render a decision on this matter during the nine­
teen months while the charges were pending before it. 
However, in letters sent to the plaintiffs on January 17 
and February 5, 1968, the Commission gave plaintiffs 
notice that they might institute a civil action for redress 
of unlawful job discrimination. In the matter of Alfred 
James’ charge, EEOC did reach a finding of reasonable 
cause prior to his intervention in this proceeding.

Since neither the State of Texas nor the City of Houston 
has a fair employment practice statute or ordinance, as 
contemplated by Section 706 of Title VII. of the Civil 
Rights Act of 1964, plaintiffs filed a petition for relief 
in the United States District Court for the Southern Dis­
trict of Texas (Houston Division) on February 15, 1968 
(R. p. 1). Shortly thereafter, plaintiffs amended their 
complaint so as to make their suit a class action on behalf 
“ of other persons similarly situated, who are employed 
by Armco Steel Corporation at its mills, plants and/or other 
facilities (in Houston, Texas), and who are members of 
the United Steelworkers of America, Local 2708, AFL-



4

CIO. . . (R. p. 5 ). As defendants in the amended
complaint, plaintiffs named Armco Steel Corporation 
( “Armco”  or “employer” herein), United Steel Workers 
of America, AFL-CIO, and Local 2708 of United Steel­
workers of America, AFL-CIO ( “union” herein) (R. 
p. 4 ).

The defendants answered the amended complaint and 
moved to dismiss the complaint on several grounds (R. 
pgs. 16, 27 ). Thereafter Alfred James moved for and was 
granted leave to intervene as a plaintiff, and he subse­
quently filed an intervenors’ complaint (R. pgs. 39, 42). 
Only Armco answered James’ complaint. The parties 
briefed the issues and the EEOC filed an amicus curiae 
brief in support of plaintiffs’ position. Motions for leave 
to intervene were then filed by Leroy Matthew and 
Willie Glass.

On June 9, 1969, the district court issued a memoran­
dum and order denying defendants’ motions to dismiss on 
jurisdictional grounds but dismissing so much of plaintiffs’ 
and intervenors’ complaint as dealt with the discriminatory 
effect of defendants’ lines-of-progression seniority system 
(R. p. 104). The court held that the question of whether a 
Supplemental Agreement of 1966 was negotiated with “ an 
effort to discriminate” and “ was born out of racial discrimi­
nation” could be litigated provided that the issue would not 
include any reference to the issues previously litigated in 
the above-noted Whitfield case, if plaintiffs would amend 
their complaint accordingly. (R. p. 117). Plaintiffs de­
clined to amend their complaint. On July 14, 1969, the 
district court rendered a final judgment granting defend­
ants’ motions to dismiss upon the basis of defendants’ res 
judicata defense. In the final judgment the court also 
granted Matthew’s and Glass’ motions for leave to inter­



5

vene, and judgment against all intervenors was rendered 
on the same basis as against the original plaintiffs and 
their class (R. p. 121). Notice of appeal from this final 
judgment was filed on July 18, 1969 (R. p. 123).

IV.

STATEMENT OF FACTS

A  chronological review of employment practices at 
Arm co’s Houston plant will help the analysis of the issues 
of whether Whitfield, supra, precludes plaintiffs’ claims. 
From the commencement of operations at the Houston 
plant in 1942 until 1956, master collective bargaining 
contracts covering the nation’s entire steel industry pro­
vided that each local plant would establish lines of pro­
gression within each department. Pursuant to the collective 
bargaining contracts in effect since 1942, two lines of 
progression (or job lines) have been maintained in 
Armco’s Structural Mill Department, where plaintiffs and 
the class of Armco employees they represent are employed. 
In the Open Hearth Department, where James, Matthew 
and Glass are employed, there are also two job lines.

The Number 1 line in the Structural Mill Department 
encompassed jobs classified by the employer and the 
union as “ skilled” . Prior to 1956, only white employees 
staffed these jobs, which ranged in salary position from 
Class 5 to Class 17. Line 2 in such department encom­
passed job classes 2 through 9, and prior to 1956 only 
Negroes staffed these “ unskilled positions” . The job classes 
or salary positions are ranked from lowest number to 
highest number in order of increased hourly wages.

Prior to 1956, Armco retained unbridled discretion to 
screen all employees for Line 1 positions, and used this



6

power to exclude Negroes completely from Line 1. Be­
cause of complaints from Negro employees concerning 
their exclusion from skilled jobs, the defendants, com­
mencing in 1954, began to negotiate among themselves 
in order to achieve more equitable employment practices 
at the Houston facilities. The negotiations culminated in 
the “ 1956 agreement,” in which defendants agreed that 
Negro employees could bid on Line 1 jobs if they passed 
a qualification test. As part of the agreement, those em­
ployees moving from Line 2 to Line 1 would begin em­
ployment in the latter line in the lowest job class in that 
line, and with absolutely no line seniority.

Dissatisfaction with the 1956 agreement prompted some 
Negro employees to file a suit against Armco and the 
union, alleging a breach of the duty o f fair representation 
under the National Labor Relations Act, 29 U.S.C. Sec. 
159. The suit culminated in this Court’s decision in 
Whitfield v. United Steelworkers of America, supra, in 
which this Court found that “ . . . there [was] no evi­
dence of unfairness or discrimination on the ground of 
race” in the 1956 agreement. The arguments by the 
Whitfield plaintiffs that interline mobility was unlawfully 
impaired by the qualification test and the provisions as 
to loss of seniority contained in the 1956 agreement were 
rejected in an opinion by Judge Wisdom, which details 
more fully the pre-1956 circumstances in the Structural 
Mill Department. See 263 F.2d at 547-548.

For nearly a decade after Whitfield the parties labored 
under collective bargaining agreements akin to the 1956 
agreement. Gradually, interline mobility increased, and 
it is fair to note that, until the events of 1965 and 1966, 
some of the discriminatory effects of the pre-1956 seniority 
system were being very gradually eroded by a trickle of



7

qualified Negro workers moving from Line 2 to Line 1 
positions, and then moving up within Line 1. However, 
it should be noted that these few Negroes who transferred 
from Line 2 to Line 1 positions received a new line 
seniority date from the time of their transfer; no credit 
was given these employees for their accrued seniority in 
Line 2.

Meanwhile, although the hourly rate of pay theoretically 
increased as a worker progressed to a higher job class, 
certain jobs received incentive pay. Incentive pay made 
it possible, in some instances, for a worker in a lower job 
class to earn more than another employee in a higher 
job class. As a result, many employees whose seniority 
would have entitled them to fill vacancies in jobs with 
higher classifications, elected to remain in lower job 
classifications because they paid better overall.

Beginning in 1965, however, defendants once again 
began to draw out the worst in seniority systems by a 
series of maneuvers which shifted the focus of racial 
discrimination within the system from interline mobility 
to intraline mobility. Defendants instituted two major 
changes in their employment practices, the combined 
effects of which grievously violated rights guaranteed to 
plaintiffs by Title VII.

First, pursuant to an agreement among the defendants 
dated November 1, 1965, incentive pay became applicable 
to all jobs in the Structural Mill Department. While the 
pre-1965 selective incentive pay scheme had artifically 
limited the attractiveness of upward movement within 
each line of progression, when incentive pay became a 
part of all job classes the distinctions between job classes 
once again became decisive; to better one’s self economi­



8

cally, one had to continue movement up the lines of pro­
gression.

The second important change in employment practices 
occurred on August 9, 1966, when, pursuant to an agree­
ment among the defendants, all jobs from class 5 to class 
12 (Finishing Shear Operator) in Line 1 were opened 
to bids based solely on line seniority. By this 1966 agree­
ment defendants upset the orderly progression within a 
line based on bids taken first from the class immediately 
below the job opened up. The 1966 agreement substituted 
for this orderly procedure an arbitrary bid system. Such 
new system is not grounded on relevant job qualifications, 
and its effect is to discriminate against qualified employees 
who lack only line seniority (by virtue of past discrimina­
tion because of their color).

It should be noted at this point that the Whitfield 
decision, upholding the provision of the 1956 agreement 
that Negroes transferring from Line 2 into Line 1 had 
to do so at the bottom rung and without seniority, was 
based on the premise that “ [t]he jobs start with the 
easiest in terms of skill, experience, and potential ability 
and progress step by step to the top job in the line. The 
knowledge acquired in a preceding job is necessary for 
the efficient handling of the next job in the progression.” 
263 F.2d at 548. But in 1966 the defendants made 
abundantly clear that they no longer regarded the knowl­
edge acquired in a preceding job as necessary to the 
efficient handling of the next job in the progression. And 
by making line seniority the decisive factor in advance­
ment, they gave fresh life to the pre-1956 discrimination 
against Negro employees just when there were signs that 
some of the consequences of that discrimination were 
beginning to disappear.



9

By way of illustration, prior to the August 9, 1966, 
Supplemental Agreement, the progression in Line 1 would 
operate as follows:

“A  job in Class 10 becomes open, no employee in 
Class 9 wishes the job. The man with the least line 
seniority in Class 8 wishes to obtain the Class 10 
job and does obtain it. This man has less seniority 
than anyone in Class 9. Later, a job becomes vacant 
in Class 11. The man who, with less line seniority, 
has recently risen from Class 8 to Class 10, would 
have preference over anyone in Class 9 for the 
opening in Class 11.” (R . pgs. 10, 11).

Under the Supplemental Agreement, however, the em­
ployee with the greatest Line 1 seniority, regardless of 
what class work he was performing, would have the first 
opportunity to bid for the top jobs. And since Negroes 
had been barred from Line 1 before 1956, this past 
discrimination would rise up still another time to deprive 
them of jobs in the higher classes, in favor of white 
employees with longer line seniority but who had never 
done the work in the jobs immediately below the one for 
which they were bidding. Thus, the defendants have 
completely cut away the ground on which Whitfield had 
sustained the 1956 agreement, namely that business 
necessity required step-by-step progress from each pre­
ceding job to the one immediately above it.

Moreover, even if at the time Whitfield was decided, 
the separate lines of progression might have been properly 
characterized, respectively, as a “ distinct operation”  in 
the plant each “ composed of a series of interrelated jobs” 
for which knowledge on one job is a necessary prerequisite 
to effective handling of the next job in the progression, 
many of the jobs included in each line are now inter­



10

dependent and inter-related to a point that Line 2 em­
ployees would become and, in fact, became fully compe­
tent to handle Line 1 jobs given the opportunity (R. p. 
8-9). For instance, the “tilt table operator” (Class 14 
in Line 1) cannot put the steel through the mill until the 
“wrencher” (Class 4 in Line 2) turns the bar in a posi­
tion to enter the roll pass. The “ finishing shear operator” 
(Class 12 in Line 1) is dependent on the “ shear helper” 
(Class 4 in Line 2) to position the bar on the shear 
blade and trip the shear before the bar is cut. The “crane­
man” (Class 8 in Line 1) is dependent upon the “hooker” 
(Class 3 in Line 2) (R. p. 8-9). These allegations of 
plaintiffs’ complaint must be taken as true for purposes 
of this appeal; plaintiffs are entitled to their day in court 
to prove their accuracy.

The effect of the 1966 Supplemental Agreement was 
to wipe out whatever advantage Negro workers with less 
Line 1 seniority had as the result of the failure to move 
up on the part of white incumbents who were benefiting 
from the incentive pay scheme, but who had more line 
seniority. For instance, Plaintiff Luther Reden had the 
highest Line 1 job classification held by any Negro in 
the Structural Mill Department. The effect of the 1966 
Agreement was to discriminatorily deprive him of his job 
by allowing white men with greater fine seniority to have 
preference to it. The agreement was structured to appear 
objective by affecting all of the jobs from finishing shear 
operator down, but it was obviously aimed at Reden’s 
job since the Agreement did not apply to any other Class 
12 jobs or any other higher job classes (R. p. 11-12).

Mr. Reden had eighteen years of plant seniority, fifteen 
years of departmental seniority and nine years of Line 1



11

seniority. He is discriminated against because he is denied 
the job opportunity he would have had, but for the segre­
gated lines of progression and the 1966 Agreement.

Although the changes adopted in 1965 and in 1966 
thus raise serious problems when considered separately, 
the full consequence can be measured only by consider­
ing them together. The advent of incentive pay for all 
positions has made intraline mobility a necessity for eco­
nomic advancement, for all employees. At the same time, 
Negro employees are now arbitrarily and capriciously shut 
off from intraline mobility because of the open bid sys­
tem based on wholly irrelevant line seniority.

The combined discriminatory effect of the 1965 and 
1966 agreements, together with the passage of national 
legislation providing the means for attacking such dis­
crimination, have prompted these plaintiffs and intervenors 
to seek vindication of their right to equal opportunity in 
our economic system.

Intervenors James, Matthew and Glass, are switchmen 
in the open hearth department railyard, not employees in 
the Structural Mill (R. pgs. 42, 100, 102). But they 
suffer from a progression scheme which forces them, with 
no credit for Line 2 seniority which they may have ac­
crued, to bid upon lower Line 1 jobs in their department 
before having access to bid upon and be awarded the 
Line 1 engineer’s job. Their duties as switchmen in the 
railyard have made them much more familiar with and 
adaptable to the job of the engineer, who operates the 
yard switch engine, than to the Line 1 open hearth jobs 
which they are required to stair-step up through as ob­
stacles to the sought after engineer’s position (R. pgs. 42, 
100, 102) .



12

STATUTES INVOLVED

The following portions of Title VII. of the Civil Rights 
Act of 1964 are involved in the disposition of this case:

Section 70 3 (a ), 42 U.S.C. 2000e-2(a)
It shall be an unlawful employment practice for an 
employer—

(1 ) to fail or refuse to hire or to discharge any indi­
vidual, or otherwise to discriminate against any 
individual with respect to his compensation, 
terms, conditions, or privileges of employ­
ment, because of such individual’s race, color, 
religion, sex, or national origin; or

(2 )  to limit, segregate, or classify his employees 
in any way which would deprive or tend to 
deprive any individual of employment oppor­
tunities or otherwise adversely affect his status 
as an employee, because of such individual’s 
race, color, religion, sex, or national origin.

Section 7 0 3 (c ), 42 U.S.C. 2000e-2(c)
It shall be an unlawful employment practice for a 
labor organization—

(1 ) to exclude or to expel from its membership 
or otherwise to discriminate against any indi­
vidual because of his race, color, religion, sex, 
or national origin;

(2 ) to limit, segregate, or classify its membership, 
or to fail or refuse to refer for employment 
any individual, in any way, which would de­
prive or tend to deprive any individual of em­
ployment opportunities, or would limit such 
employment opportunities or otherwise ad­
versely affect his status as an employee or as 
an applicant for employment, because of such 
individual’s race, color, religion, sex, or na­
tional origin; or



13

(3 )  to cause or attempt to cause an employer to 
discriminate against an individual in violation 
of this section.

Section 703 (d ), 42 U.S.C. 2000e-2(d)
It shall be an unlawful employment practice 
for any employer, labor organization, or joint 
labor-management committee controlling ap­
prenticeship or other training or retraining, 
including on-the-job training programs to dis­
criminate against any individual because of 
his race, color, religion, sex, or national 
origin in admission to, or employment in, 
any program established to provide apprentice­
ship or other training.

Section 703 (h ), 42 U.S.C. 2000e-2(h)
Notwithstanding any other provision of this 
Title, it shall not be an unlawful employment 
practice for an employer to apply different 
standards of compensation, or different terms, 
conditions, or privileges of employment pur­
suant to a bona fide seniority or merit system, 
or a system which measures earnings by quan­
tity or quality or production or to employees 
who work in different locations, provided that 
such differences are not the result of an in­
tention to discriminate because of race, color, 
religion, sex, or national orgin; * * *

Section 70 6 (g ), 42 U.S.C. 2000e-5(g)
If the court finds that the respondent has in­
tentionally engaged in or is intentionally 
engaging in an unlawful employment practice 
charged in the complaint, the court may en­
join the respondent from engaging in such 
unlawful employment practice, and order such 
affirmative action as may be appropriate, 
which may include reinstatement or hiring of



14

employees, with or without back pay (pay­
able by the employer, employment agency, 
or labor organization, as the case may be, 
responsible for the unlawful employment prac­
tice) * * *

V.

AR G U M E N T A N D  AU TH O R ITIE S

1. TH E  D IC T R IC T  C O U R T ERRED IN  FAIL­
IN G  T O  H O LD  T H A T  TITLE VII. OF TH E CIVIL 
RIG H TS A C T  OF 1964 A N D  TH E N A T IO N A L  
LABOR RELATION S A C T  IMPOSE DIFFERENT 
S T A T U T O R Y  OBLIGATION S. C O N D U C T HELD 
V A LID  U N D E R  TH E  FAIR REPRESEN TATIO N  
D O C TR IN E  IS N O T  NECESSARILY LAW FU L 
A N D  PERMISSIBLE U N D ER TITLE VII.

The plaintiffs have brought this action under Title VII. 
Its merits must be tested under that statute. Without 
reaching the merits, the court below held that the decision 
of this Court ten years ago in Whitfield, upholding certain 
conduct of the defendants against charges of failure to 
comply with the fair representation doctrine, was res 
judicata against the plaintiffs and precluded them from 
suing the defendants under Title VII.1 In effect, the court be­

1. The most obvious argument for reversal that can be made is 
that plaintiffs’ present claim could not have been litigated in the 
Whitfield case because the statute upon which it is based was not 
yet in existence. Indeed, it is a well established proposition that res 
judicata cannot apply to claims premised upon statutes enacted 
subsequent to the first decision. See IB Moore’s Federal Practice 
Sec. 0.41S, nn. 8, 21-25 (1965). Nonetheless, plaintiffs realize that 
one of the ultimate issues in this case is only begged by that propo­
sition, and plaintiffs therefore do not place prime reliance on the 
mere phenomenon of subsequent enactment of a statute. Plaintiffs do, 
however, assert that enactment of a statute subsequent to and dealing



15

low had held that Title VII. was little more than an echo 
of prior law, that the employment discrimination which 
it forbade was no more than what had already been 
forbidden, and that all of the soul-searching, the intense 
debate, the agony of decision, the hopes for a chance at 
a better job that were engendered by its enactment, were 
all wasted because no changes of significance were really 
being adopted after all.

The error in this holding can be demonstrated in dif­
ferent ways. First of all, this court, as well as other courts 
which have considered this question, have universally held 
that the obligation to refrain from discrimination in em­
ployment is dramatically different from, and greater than, 
the duty of fair representation under the National Labor 
Relations Act and the Railway Labor Act. Secondly, de­
cisions by this court as well as other courts, have con­
sistently held conduct of the type involved in the instant 
case to violate Title VII., thus implicitly holding that 
Whitfield is not determinative of the rights of the plain­
tiffs under Title VII.2 * *

In Whitfield v. United Steelworkers, 263 F.2d 546 (5th 
Cir., 1959), cert, den’d, 360 U.S. 962 (1959 ), this Court 
held that an agreement between the defendants which 
required Negro workers to relinquish Line 2 seniority while

with the same subject matter as an earlier court decision places a 
heavy burden of persuasion upon the party relying on the res judi­
cata to show that the statute has no effect on the scope of the 
preclusion of claims and issues. This Circuit has adopted that rule. 
See, e.g. Argo v. C.I.R., ISO F.2d 67 (S Cir., 1945). We further 
submit that, at the very least, the courts are under a duty to 
scrutinize closely the relationship between the new statute and the 
former adjudication.

2. In another portion of our brief we will show that even if the
same statute were involved in the instant case as in Whitfield, res
judicata would not apply.



16

proceeding into all white Line 1, and which imposed new 
qualifications tests upon Negroes, was consistent with the 
duty of fair representation imposed upon a union as the 
exclusive bargaining representative under the National 
Labor Relations Act.3 Stating that “ [i]f there is racial 
discrimination under the new contract, it is discrimina­
tion in favor of Negroes,”4 this Court held that neither 
of the above-noted factors violated the N LRA because 
their existence was consistent with the lines of progression 
structure which was “ conceived out of business necessity, 
not out of racial discrimination.” 5 Said the Court: “This 
is a product of the past. We cannot turn back the clock.”6

Plaintiffs believe that both a fuller appreciation of the 
evils of racial discrimination in our society,7 the facts of 
that case as reflected in the district court’s opinion,8 as 
well as the direction taken by recent Title VII. decisions9 
impel a re-examination of Whitfield under the National

3. 29 U.S.C. Sec. 159.

4. Whitfield, supra, at 549.

5. Id. at 550.

6. Id. at 551.

7. See Report of the National Advisory Commission on Civil 
Disorders, 251-264 (New York Times edit. 1968).

8. 156 F. Supp. 430 (S.D. Tex. 1957).

9. Local 53, International Association of Heat and Frost Insu­
lators v. Vogler, 407 F.2d 1047 (5th Cir. 1969); Local 189, United
Papermakers and Paperworkers v. United States, _ F . 2 d _____ , 71
LRRM 3070, 60 L.C. Paragraph 9289 (5th Cir., July 28, 1969);
United States v. Sheet Metal Workers International Association,_____
F.2d-------- , 2 FEP Cases 127, 61 L.C. Paragraph 9319 (8th Cir.,
September 16, 1969); See generally Gould, The Emerging Law 
Against Racial Discrimination in Employment, 64 Northwestern 
University L. Rev. 359 (1969). (We feel obliged to call attention 
to the fact that the author of this, as well as of several other articles 
cited in this brief, is of counsel in the instant case.)



17

Labor Relations Act. But since the instant case involves 
an interpretation of Title VII. of the Civil Rights Act 
of 1964 rather than the NLRA, that task is an unneces­
sary one here.

The irrelevance in a Title VII. case of Whitfield, and 
its interpretation of the fair representation obligation is 
made dramatically clear by this Court’s recent opinion
in United States v. Hayes International C orp .,___ F.2d___ ,
2 FEP Cases 67, 60 L.C. Paragraph 9303 (5th Cir., 
August 19, 1969). In Hayes International Corp.— another 
industrial union seniority discrimination case— Judge Tuttle, 
speaking for this Court, stated the following about 
Whitfield:

“Whitfield was not a Title VII. case and therefore 
is not controlling. Furthermore, to the extent that it 
can be read limiting the power of the court to order 
‘such affirmative action as may be necessary’ [citation] 
to simply barring any further application of discrim­
ination practices Whitfield is inconsistent with the 
words of the statute, its purposes and the thrust of 
recent cases in this Circuit * * *” 2 FEP Cases at 
69, n. 6.

Even prior to this court’s conclusions in Hayes Inter­
national Corp. regarding the relevance of Whitfield to a 
case arising under Title VII., the rationale had been fully 
articulated. For, in Local 12, United Rubber Workers 
v. NLRB, 368 F.2d 12, 24 (5th Cir., Nov. 9, 1966), cert, 
den’d, 389 U.S. 837 (1967), this Court stated by way of 
dictum that the obligations incurred as a result of the fair 
representation doctrine articulated under the National 
Labor Relations Act, and those imposed as the result of 
Title VII., were not synonymous.



18

Especially significant is the recent decision of the Eighth 
Circuit in Norman v. Missouri Pacific Railroad, 414 F.2d 
73 (8th Cir., 1969), where an attempt was made to 
equate the fair representation doctrine under the Railway 
Labor Act with the right to be free from discrimination 
under Title VII.10 In articulating the distinction, the court 
stated the following:

“ The Railway Labor Act is not basically a fair em­
ployment practice act, nor has it been utilized as 
such. Its basic purpose is to foster and promote col­
lective bargaining between employees and employers 
with a provision for continuity of service to the 
public while setting up a detailed and elaborate 
procedure for the resolution of major and minor 
disputes that occur in the operation of the railroad. 
On the other hand, Title VII, of the Civil Rights 
Act specifically prohibits racial and other discrimina­
tion in employment and employment opportunities.
. . . The enactment of Title VII provides a more 
extensive and broader ground for relief, specifically 
oriented toward the elimination of discriminatory 
employment practices based upon race, color, reli­
gion, sex, or national origin. Title VII. is cast in 
broad, all-inclusive terms setting up statutory rights 
against discrimination based inter alia upon their 
race. . . .
Surely Congress in the enactment of Title VII had 
in mind the granting to a new and enlarged basis 
for elimination of racial and other discriminations 
in employment. Title VII clearly is not a codification 
of existing law, but is an enactment of broad prin­

10. It should be noted that the duty of fair representation is the 
same under both the Railway Labor Act and the National Labor 
Relations Act; in fact, it originated in cases involving the former 
and was later carried over to the latter.



19

ciple prohibiting discrimination against any indi­
vidual ‘with respect to his compensation, terms, 
conditions or privileges of employment because of 
. . . race, color, religion, sex, or national origin’ 
414 F.2d at pgs. 82-83.

Even more significant is that the identical res judicata 
argument, on which the lower court based its decision in 
the instant case, was also made in the Norman case, but 
rejected by the Eighth Circuit. Just as in this case, it was 
argued that decisions, holding that conduct adverse to 
Negro employees did not violate the fair representation 
doctrine, were binding in a Title VII. action. They were 
sharply rejected by the court:

“The Railroad contends the issue of whether the 
classification of train porter is an unlawful racial 
classification has been decided and the matter is now 
res judicata, or, at least the plaintiffs are collaterally 
estopped from raising it. Nunn v. Missouri Pacific 
Railroad Co., 248 F. Supp. 304 (E.D. Mo. 1966), 
was a class action brought by the train porters 
alleging discrimination against them in the abolition 
of train porter positions on ten passenger trains. 
The District Court there held that the abolition of 
these positions was not discriminatory against Ne­
groes and that the question of whether the Railroad 
had the right to abolish the jobs was a minor dispute 
to be decided by the National Railroad Adjustment 
Board. No appeal was taken from this decision. In 
Howard v. St. Louis-San Francisco Railway Co., 
361 F.2d 905 (8 Cir., 1966), the train porters in 
a class action contended that they were relegated to 
the class of train porter solely because of race. We 
stated at 906 of 361 F.2d that the District Court 
‘failed to find hostile racial discrimination.’ We 
viewed the issue on appeal as whether ‘the District 
Court had jurisdiction and power, to require by



20

appropriate order, that all Negro employees of 
Frisco, now in the craft or class of train porter, be 
placed in the craft or class of brakeman.’ Id. Both 
of these cases were viewed within the context of 
jurisdictional disputes or craft classifications con­
stituting grievances solely cognizable under the Rail­
way Labor Act. The applicability of Title VII of 
the Civil Rights Act to the plaintiffs’ complaint has 
not been decided by the courts. We hold, that Nunn 
and Howard are not a bar to the present action.” 
(414 F.2d at 84).

The “new and enlarged basis for the elimination of 
racial . . . discrimination” which the Eighth Circuit 
found in Title VII. ( Norman v. Missouri Pacific Railroad, 
414 F.2d at 83) undoubtedly explains the long strides 
made by the courts in Title VII. cases when contrasted 
with the faltering advances which had occurred under 
fair representation. For instance, this Court in Local 53, 
International Association of Heat and Frost Insulators v. 
Vogler, 407 F.2d 1047 (5th Cir., 1959), has not only 
altered a discriminatory union referral system, but has 
also examined and found questionable the labor market 
judgments of the parties concerning the supply of labor 
in a particular trade. Nothing strikes more directly at 
the heart of the collective bargaining process in the craft 
union context than this. But, this Court stated that:

“ . . . [I]n formulating relief from such practices 
(discriminatory referrals systems) the courts are not 
limited to simply parroting the Act’s prohibitions but 
are permitted, if not required to ‘order such affirma­
tive action as may be appropriate’ . . . . Where 
necessary to ensure compliance with the Act, the 
District Court was fully enpowered to eliminate the 
present effects of past discrimination.” 407 F.2d at 
p. 1052-1053. (Parenthesis added).



21

Of great significance to the instant case is the holding 
in Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (E.D. 
Va. 1968), where the court held that a . seniority 
system that has its genesis in racial discrimination is not 
a bona fide seniority system” within the meaning of the 
Civil Rights Act of 1964 and that Negro workers dis­
criminated against under such a system must be allowed 
to carry over seniority credits previously accumulated in 
the formerly all black sector of the plant, on the theory 
that discrimination barring them from entering the all 
white sector had prohibited them from accumulating 
the seniority in the latter area. Applying the same 
reasoning to the instant case, but for the discriminatory 
promotion practices of the past, Negroes would have 
enjoyed the protection afforded whites already in Line 1 
through the accumulation of seniority credits in the 
formerly white sector of the plant.31 Since the com­
petitive disadvantage results from the segregation of 
jobs in the past, a discriminatory effect is carried over 
into the present system every time the Negro worker at­
tempts to bid for a job opening and is limited by the 
collective bargaining agreement’s failure to recognize 
service in the segregated area. The white employee hired 
off the street into the formerly all white area may have 
worked only two years and yet have a superior competi­
tive position in the case of promotion, lay-off and trans­

it. See generally Gould, Employment Security, Seniority and 
Race: The Role of Title VII. of the Civil Rights Act of 1964, 13 
Howard L. J. 1 (1967); Gould, Seniority and the Black Worker: 
Reflections on Quarles and its Implications, 47 Texas L. Rev. 1039 
(1969); Cooper & Sobel, Seniority and Testing Under Employment 
Laws: A general Approach to Objective Criteria of Hiring and Pro­
motion, 82 Harvard L. Rev. 1598 (1969); Note, Title VII., Seniority 
Discrimination and the Incumbent Negro, 80 Harvard L. Rev. 1260 
(1967).



22

fers over a Negro worker who has been employed for 
twenty years in the all black department, but is without 
adequate seniority protection because of the past policies. 
Here this situation is aggravated by additional post-Act 
discrimination in the Supplemental Agreement of 1966. 
Said the Court in Quarles: “Congress did not intend to 
freeze an entire generation of Negro employees into dis­
criminatory patterns that existed before the Act.” Quarles 
v. Philip Morris, supra, at 516.

Finally, the Quarles approach has been recently ac­
cepted by this Court in Local 189, United Papermakers
and Paperworkers v. United States, ____ F .2d______, 71
LRRM  3070, 60 L.C. Paragraph 9289 (5th Cir., July 
28, 1969). In that case, Quarles was relied upon to sup­
port a holding that a “ job” seniority system was unlawful 
where it “ carried . . . forward the effects of former 
discriminatory practices [and] the system [resulted] . . . 
in present and future discrimination.”  Id. at 3071. 
One can reasonably expect defendants to attempt to dis­
tinguish the instant case from the facts of those contained 
in both Local 189 as well as Quarles since both of those 
opinions distinguish Whitfield. It is clear, however, that 
the Papermakers case is completely inconsistent with any 
notion that a Whitfield-type, arrangement would be upheld 
if it were attacked under Title VII. instead of under the 
fair representation doctrine.

Judge Wisdom, who was the writing judge in both 
Whitfield and Papermakers, has clearly pointed out the 
differences between the legal standards under the different 
statutes invoked in the two cases. In Whitfield:

“ The question before the Court [was] whether the
May 31 contract [the 1956 agreement] is fair . . .



23

What is fair is a moral decision resting on the 
conscience of the Court.” 263 F.2d at 547.

In referring to the problem of discrimination against 
the Negroes’ interline mobility, the Court said:

“ This is a product of the past. We cannot turn back 
the clock. . . . We have to decide this case on the 
contract before us and its fairness to all.” 263 F.2d 
at 551.

But ten years after holding that a federal court was un­
able, under the fair representation doctrine, to remedy 
current effects of prior discrimination, Judge Wisdom 
wrote in Papermakers:

“We hold that Crown Zellerbach’s job seniority 
system in effect at its Bogalusa Paper Mill prior to 
February 1, 1968, was unlawful because by carrying 
forward the effects of former discrimination prac­
tices the system results in present and future dis­
crimination.” Slip opinion at p. 3.

The obvious shift in the legal standards governing 
seniority systems stems not from this Court’s having a 
change of visceral reaction, but, quite properly, from the 
enactment of Title VII. which, in effectuating the broad 
purpose of Congress to redress those wrongs unreachable 
by the duty of fair representation, makes it unlawful for 
an employer

“ . . . to limit, segregate or classify his employees 
in any way which would deprive or tend to deprive 
any individual of employment opportunities or other­
wise adversely affect his status as an employee be­
cause of such individual’s race, color, religion, sex,



24

or national origin.”  Section 7 0 3 (a )(2 )  of the Civil 
Rights Act of 1964, 42 U.S.C., Sec. 2000e-2(a) (2 ) .

Plaintiffs do not now need to prove to this Court that 
the seniority system at the Armco facility in Houston is 
in fact violative of Title VII. Although under the Paper- 
makers decision, the seniority system in effect at the 
Armco facility in Houston clearly seems to violate the 
equal employment rights of at least some of the Negro 
employees. All that plaintiffs ask is that they be given 
the chance to prove to the district court that their Title
VII. rights have been infringed. The district court, perhaps 
laboring under the misconception that plaintiffs were 
owed no additional duties by virtue of Title VII., said, in 
effect, that plaintiffs could not relitigate their Whitfield- 
type claims. Just fourteen days after the district court’s 
decision, this Court decided Papermakers, which, for the 
first time, clearly defined Title VII. law with respect to 
seniority systems in this Circuit. We suggest, therefore, 
that the Papermakers decision is an adequate ground for 
invoking the summary procedures of this Court in order 
to reverse and remand the case to the district court so 
that plaintiffs can have their “ day in court” on their 
Title VII. claims.12

Respect for the stare decisis effect of this Court’s pro­
nouncement of Title VII. law in Papermakers should

12. Our suggestion that this case is ripe for summary reversal 
pursuant to Local Rules 17-20 is in no way a waiver of our right 
to oral argument, should the Court disagree with our reading of 
Papermakers. Indeed, but for this one ground for summary reversal, 
plaintiffs submit that this case is of major importance in defining the 
differences between Title VII. and fair representation claims. We 
therefore respectfully ask that, if the screening panel does not sum­
marily reverse, this case should not otherwise be removed to the 
summary calendar.



25

suffice for a holding in the present case that the district 
court erred because it failed to give effect to Title VII.’s 
imposition of affirmative duties upon employers and 
unions. Nevertheless, it may be useful to highlight briefly 
some analogous situations in which the Supreme Court 
has held that Congress may impose affirmative duties upon 
majorities to redress the present effects of past discrimina­
tion against minorities. In the area of voting rights this 
doctrine had its genesis in the case of Louisiana v. United 
States, 380 U.S. 145, (1965). In that case the Supreme 
Court, through Mr. Justice Black, said that close restraints 
imposed by the district court were justified by “ [t]he need 
to eradicate past evil effects and to prevent the continua­
tion or repetition in the future of the discriminatory prac­
tices shown to be so deeply engrained in the laws . . . 
of Louisiana.” 380 U.S. at 156. In the course of a general 
discussion of the district court’s power to protect the 
franchise, Justice Black said:

“We bear in mind that the court has not merely the 
power but the duty to render a decree which will 
so far as possible eliminate the discriminatory effects 
of the past as well as bar like discrimination in the 
future.” 380 U.S. at 154.

Protection of the franchise was once again at issue 
when the Supreme Court decided the case of Gaston 
County v. United States, 395 U.S. 285, (1969). In that 
case the Supreme Court held that a challenge to literacy 
tests based upon the unequal educational opportunity af­
forded Negroes in North Carolina was permissible under 
the Voting Rights Act of 1965. One of the county’s argu­
ments was that its impartial administration of the tests 
would not deny anyone his Constitutional rights. The



26

Supreme Court, by Mr. Justice Harlan, made short shrift 
of the allegations that today’s educational opportunities 
and today’s impartiality obviate any Constitutional prob­
lem:

“  ‘Impartial’ administration of the literacy test today 
would serve only to perpetuate these inequities in a 
different form.”

By the same token, “ impartial” administration of the 
seniority system imposed by the defendants in the instant 
case would serve only to perpetuate the more blatant 
inequities of the past in a more sophisticated form. And 
this Court has, in effect, so held, in Papermakers, supra.

To summarize, the legal standards in effect at the time 
of Whitfield mandated only that the plaintiffs there be 
fairly represented in the contract negotiations. The courts, 
under the Steele Doctrine, could not remedy past wrongs 
which were locked into present contracts, so long as the 
contracts were “ fair” to all employees. Whitfield, supra. 
Title VII. changed the obligations owed to individual 
employees and the remedies available for breach of those 
obligations.

“Every time a Negro worker hired under the old 
segregated system bids against a white worker in his 
job slot, the old racial classification reasserts itself, 
and the Negro suffers anew for his employer’s pre­
vious bias. It is not decisive therefore that a seniority 
system may appear to be neutral on its face if the 
inevitable effect of tying the system to the past is 
to cut into the employees present right not to be 
discriminated against on the ground of race. The 
crux of the problem is how far the employer must 
go to undo the effects of past discrimination.” Paper- 
makers, Slip Opinion, p. 15.



27

Under fair representation, Whitfield taught that the 
clock could not be turned back. Under Title VII., Paper- 
makers teaches that it finally can:

“When an employer adopts a system that necessarily 
carries forward the incidents of discrimination into 
the present, his practice constitutes on-going dis­
crimination, unless the incidents are limited to those 
that safety and efficiency require.” Papermakers, Slip 
opinion, p. 30.

Moreover, in this case the Court, in order to reverse, 
would not even be required to accept the broad pro­
nouncements about past discrimination already handed 
down here in Papermakers; one finds independent dis­
criminatory conduct engaged in by the defendants sub­
sequent to the effective date of Title VII. in the form 
of the Supplemental Agreement of 1966. As is noted 
above, the effect of this Agreement was to thwart the 
very limited advance of Negro workers at the Structural 
Mill Department. A  similar post Title VII. arrangement 
impedes progress of intervenors in the open hearth depart­
ment. This kind of independent post-Act discrimination 
was not present in Papermakers or Quarles and such 
evidence was not relied upon to establish the conclusions 
of law in those cases. Their holdings should apply a 
fortiori to the instant case.

We, therefore, ask this Court to recognize its own new 
standards and to remand this case so that plaintiffs may 
have a chance to show the district court that their rights 
under Title VII. have been violated.

It should be pointed out, that while a hearing on re­
mand may produce evidence of purposeful discrimination 
in the sense that the defendants are shown to be of a 
discriminatory state of mind, such a finding is hardly a



28

prerequisite to a Title VII. violation. This issue, as well, 
was squarely raised in Papermakers and squarely disposed 
of:

“Section 706(g ) limits injunctive (as opposed to 
declaratory) relief to cases in which the employer 
or union has ‘intentionally engaged in’ an unlawful 
practice. Again, the statute, read literally requires 
only that the defendant meant to do what he did, 
that is, his employment practice was not accidental.”

See also Quarles v. Philip Morris, Inc., 279 F.Supp. 505, 
at 517-518. Thus, even if the court below had been cor­
rect in excluding from the case “ any reference to the effect 
of Armco’s system of dual lines of job progression whether 
the effect is past or present [nor] any other questions 
resolved in the Whitfield decision” (R. p. 81-82), it would 
still have erred in limiting the plaintiffs to a showing that 
the Supplemental Agreement of 1966 “was negotiated in 
an effort to discriminate” and that it “was born out of 
racial discrimination.” (R. p. 117).

2. TH E D ISTR IC T C O U R T ERRED IN  FA IL­
IN G  T O  FIN D  T H A T  APPELLANTS RAISE FA CT 
ISSUES A N D  PLEAD CIRCUM STANCES W H IC H  
AROSE AFTER TH E DECISION OF WHITFIELD  
A N D , THEREFORE, EVEN IF TITLE VII. IM ­
POSED N O  N EW  OBLIGATION S U PO N  TH E 
EM PLOYER A N D  U N IO N  W H IC H  DIFFER FROM 
TH E  O BLIGATION S IMPOSED U N D ER TH E  N A ­
T IO N A L  LABOR RELATION S A C T , CHANGES 
IN  TH E  EM PLOYM ENT RELATIONSH IPS OF 
TH E PARTIES SINCE TH E WHITFIELD  D ECI­
SION PREVEN T WHITFIELD  FROM C O N T R O L ­
LIN G  TH E PLAINTIFFS’ A N D  IN TER VE N O R S2 * * 5
PROCEEDINGS.



29

Not only are plaintiffs suing under a different statute 
from that invoked by their predecessors in Whitfield; they 
are also basing their claim in large part upon different 
facts.

At the time of the Whitfield decision, each employee 
in Line 1 had to pass through every job class on his way 
up the ladder. Business necessity dictated that this prac­
tice be followed, lest efficiency be impaired through de­
ployment of less competent people in more demanding 
positions. The district court in that case specifically so 
found. Findings of Fact Numbers 21-32, 156 F.Supp. 430, 
434-37. For example, “ the reason for promotion by sen­
iority within a Line of Progression has been to ensure the 
full development of each employee in each successive job 
in the Line of Progression, thereby assuring to the com­
pany that the employee will develop maximum experience 
and know-how within the particular phase of operation 
before moving upward to the next job.” Finding of Fact 
31, 156 F.Supp. 436. This Court, in affirming, reached 
the same conclusions as to the facts: “The knowledge 
acquired in a preceding job is necessary for the efficient 
handling of the next job in the progression.” 263 F.2d 
546, at 548.

Business necessity dictated such step-by-step advances 
when they served to explain why Negroes had to start at 
the bottom of the ladder of Line 1, and why they could 
not bring with them the seniority they had accumulated 
in Line 2. But now, when the requirement of step-by-step 
advances through each successive job would serve to keep 
some white employees with greater line seniority (but in 
lower job classes) from leapfrogging over and displacing 
Negro employees with less Line 1 seniority (but in higher



30

job classes), a new fact has suddenly entered the picture 
— it is apparently no longer deemed necessary (by Armco 
and the union) for the efficiency of the business that there 
be “the full development of each employee in each suc­
cessive job in the Line of Progression.” Moreover, Negroes 
were permitted to fill Line 1 jobs above the baseline job 
class in Line 1 on temporary arrangements (some quite 
extended) without first having to work up the line to such 
jobs and without any training other than that normally 
acquired on the job.

It is not necessary that the plaintiffs claim that this 
switch in position on the part of the defendants is the 
result of bad faith. The defendants have now evidently 
concluded that advancement through each job class is no 
longer necessary for safety, economy or efficiency of 
operations. Hence the facts have changed. And those 
which obtained, and were decisive, at the time of Whit­
field are no longer true.

A  survey of the discriminations suffered by two of the 
named plaintiffs will further demonstrate that the sub­
stance of the present claim differs from Whitfield and that 
the causes of action are therefore not identical for res 
judicata purposes.

As to allegations concerning plaintiff Reden: After ac­
cruing eighteen years of plant seniority and fifteen years 
of departmental seniority in the Structural Mill Depart­
ment, Luther Reden lost his Class 12 job solely because 
the job was opened to bid by the 1966 Agreement (R. 
p. 11). Reden’s claim has absolutely nothing to with the 
Whitfield-type situation of an employee’s being inhibited 
in moving from Line 2 to Line 1. It should be noted that



31

Reden has nine years of Line 1 seniority. Moreover, he 
was an incumbent in the Class 12 position, and we should 
be permitted to argue in the district court that incumbency 
should be tantamount— or indeed far superior— to the 
temporary filling of jobs, for the purposes of establishing 
one’s qualifications for it. It will be our position in the 
trial court that defendants have shown and cannot now 
show a compelling “business” reason for the open bid 
system and that therefore its discriminatory effects is its 
only raison d’etre. What is important for our purpose 
on this appeal is for this Court to notice that Reden is not 
concerned with interline mobility, but merely with keeping 
his job vis-a-vis lower ranking white contestants in his 
own line.13

As to allegations concerning plaintiff Taylor: This 
plaintiff has twenty-three years of plant seniority and 
twenty-three years of departmental seniority, all in the 
Structural Mill Department. He has worked in Line 2 
from Class 2 through 9 and in Line 1 from Class 5 through 
10 (R. p. 12). He does not assert any inability to move 
from Line 2 to Line 1 as the plaintiffs in Whitfield did. 
Rather, he asserts that the 1965 agreements made his 
Class 10 job desirable to whites with less plant and 
department seniority than he. He further asserts that the 
1966 agreement allowed such whites to bid successfully on 
his job solely because of their having more Line 1 
seniority which, but for the fact of past discrimination,

13. It should be noted that Reden’s job, which was the top Negro 
position in the department, was the top job to be opened to bid. 
Perhaps a more charitable person would urge that this was mere 
coincidence. Plaintiffs, however, who are struggling for the oppor­
tunity to work, assert that this is some evidence of defendants’ dis­
criminatory intentions.



32

he would have over them. Taylor thus challenges the open 
bid system as an overt attempt to subvert the orderly lines 
of the progression system whereby only those employees 
in the slots immediately below the open job could bid 
for it. Under the 1966 agreement a white in Class 5 
with three years of line seniority can deprive a Negro in 
Class 10 of his job if the Negro has only two years of 
Line 1 seniority— all in disregard of (a ) Negroes’ long 
time department and/or plant experience and (b ) the 
Negroes’ incumbency in the very job at issue (as con­
trasted with the white’s lack of experience in any job even 
close to it on the ladder).

It is apparent from this discussion that the same wrongs 
are not being committed and the same rights are not being 
infringed. Plaintiffs seek a chance to prove this in court.14

14. The term “ res judicata” is generally used to define a binding 
effect of prior adjudications upon present litigation. Res judicata in 
its pure form (sometimes characterized as “ merger” or “bar” ) is 
properly invoked where the same parties contest the same causes of 
action in successive suits. “ Collateral Estoppel” covers the operation 
of the principal of repose in a subsequent suit, between the same 
parties, involving a different cause of action, but with issues in 
common. See generally Developments in the Law: Res A judicata, 
65 Harv. L. Rev. 818 (1952). This Circuit has repeatedly recognized 
these the fundamental differences between res judicata and collateral 
estoppel, see Compania Mexicana v. Jernigan, 410 F.2d 718, 726 
(5th Cir.,. 1969) (collateral estoppel); Astron Industrial Associates, 
Inc. v. Chrysler Motors Corp., 405 F.2d 958, 960 (5th Cir., 1968) 
(res ajudicata). Plaintiffs respectfully submit that an analysis of the 
principles recognized in the cases in this Circuit will clearly show 
that the district court erred in foreclosing plaintiffs from their day 
in court on their Title VII. claims—whether res judicata or collateral 
estoppel is asserted as a bar to relief from racial discrimination.
It is the general rule that collateral estoppel applies only to foreclose 
litigation of identical issues. Moore, supra at Sec. 0.441 [2], Jernigan, 
supra. The courts generally look behind the face of the judgment to 
determine the scope of the estoppel. United Shoe Machinery Corp. v. 
U. S., 258 U.S. 451, 459 (1922); Teas v. Twentieth Century Fox



33

3. T H E  D ISTR IC T C O U R T ERRED IN  FAIL­
IN G  T O  EXERCISE ITS D ISCRETIO N  T O  LIM IT 
TH E  APPLICABILITY OF RES JU D IC A T A  A N D  
CO LLATERA L ESTOPPEL W H ERE TH ERE ARE 
ALLEG ATIO N S T H A T  TH ERE H AS BEEN A  SIG­
N IF IC A N T  C H AN G E IN  CIRCUM STANCES OR 
W H ERE TH E  PRECLU SION ARY PRINCIPLE 
W O U LD  SERVE N O  USEFUL END.

Appellants’ final argument is directed to the inherent 
equitable discretion of the court. Although sympathetic 
to the plight of these long-term employees who, but for 
their color, would be entitled to the positions which they 
had worked so hard to attain, the district judge apparently 
did not consider himself possessed of discretion to temper 
the harsh and sometimes unfair effects of the doctrines 
of repose. In addition to the legal arguments heretofore 
made, Appellants contend that equitable and practical 
considerations dictate that Appellants be allowed to liti­
gate their Title VII. claims for the first time.

That the district judges of the United States possess 
such discretion to mitigate the rigors of res judicata

Films, Inc., 413 F.2d 1263, 1267 (5th Cir., 1969). This Court need 
not go so far, for the judgment on its face is conclusive on the point 
of lack of identity between the issues in Whitfield and here. Title 
VII., the 1965 agreement, and the 1966 agreement had not yet come 
into existence at the time of Whitfield. Moreover, Judge Wisdom 
indicated in the Whitfield opinion that the complaint was based on 
the duty of the union to represent the employees fairly. What is 
dispositive of the collateral estoppel point is the observation of Judge 
Wisdom in Papermakers, that, “ \t\here was no issue in Whitfield 
as to the measure of promotion from one job to another.”  No other 
statement could more clearly convey the idea that collateral estoppel 
there cannot foreclose plaintiffs’ intraline mobility claims. Plaintiffs 
rest upon this observation and the support found in Judge Wisdom’s 
opinions and in Point 1 of the argument in this brief.



34

principle is an eminently fair and well-settled doctrine. 
See, generally, IB M oore’s Federal Practice at pp. 621, 
631. The principles of preclusion have been qualified by 
public policy, considerations of federalism and supremacy, 
and pure equitable discretion to avoid unfair results. Id. 
Sec. 0.405. At least two of these doctrinal exceptions are 
applicable to this case.

We suggest that an overriding public policy of national 
equal employment opportunity mandates a tempering of 
res judicata in this case. The National Labor Relations 
Act was the basis for refusing to apply res judicata to 
a prior court action. See Denver Building & Construction 
Trades Council v. N.L.R.B., 186 F.2d 326, 332, (D.C. 
Cir., 1950), reversed on other grounds, 341 U.S. 675 
(1951). The Supreme Court has indicated that the plenary 
power over bankruptcy possessed by Congress should 
override considerations of judicial finality whenever the 
two principles collide. Kalb v. Feuerstein, 308 U.S. 433, 
444, (1940). Surely the Congressional power to regu­
late commerce as manifested in so important an area as 
race relations cannot be stunted by a genuflective response 
to the doctrine of judicial finality.

Appellants’ further suggest that considerations of equity 
mandate a tempering of this overly harsh application of 
foreclosure principles. First, res judicata should not be, 
and has rarely been, applied when new economic or 
social conditions have intervened. The Supreme Court 
last year examined the merits of an attack upon full-crew 
laws which the railroad companies had litigated to finality 
several times in the past. Mr. Justice Black disagreed 
with the district court’s holding “that the railroads have 
shown a change in circumstances sufficient to justify de­
parture from our three previous decisions.”  Brotherhood



35

of Locomotive Firemen & Enginemen v. Chicago R.I. 
& P. R. Co., 393 U.S. 129, 131, (1968). However, the 
fact that the Supreme Court considered the issues afresh 
and decided the case on the merits, rather than summarily 
reversing on grounds of res judicata, clearly indicates 
that it adheres to the principle that a material change in 
circumstances can be the basis for invoking an equitable 
limitation upon the doctrine of res judicata. See M oore’s 
Federal Practice, Sec. 0.415. When litigation is not need­
less and repetitive but reflects such a material change in 
circumstances, then a court should not be quick to cut 
off the important right to be heard in a public forum.

CONCLUSION

For the reasons stated above, the judgment of the 
district court should be reversed and the case remanded 
to the district court for such further proceedings as 
justice shall require. Appellants ask for such other and 
further relief as this Court might deem necessary and 
proper to do justice, including, as the Court may see fit, 
a ruling upon whether the Whitfield facts are, per se, 
proscribed by Title VII., or such instructions as the Court



36

may deem useful or necessary for the ordering of proceed­
ings upon remand.

Respectfully submitted,

M a n d e l l  & W r ig h t

By--------------------------------------------
1901 First National Life Building 
Houston, Texas 77002

M cD o n a l d  & M c D o n a l d

By—---------- ----------— --------- _
1834 Southmore Boulevard 
Houston, Texas 77004

Ja c k  G r e e n b e r g  
W il l ia m  L. R o b in s o n  
10 Columbus Circle 
New York, New York 10019 
Attorneys for Appellants

Of Counsel:

W il l ia m  B. G o u l d  
Wayne State University 

Law School 
Detroit, Michigan
J o n a t h a n  K . H a r k a v y
2 Wall Street
New York, New York
A l b e r t  J. R o s e n t h a l  
435 West 116th Street 
New, York, New York



37

CERTIFICATE OF SERVICE

This is to certify that on the . day of November, 
1969, a true and correct copy of the foregoing was 
served upon: Mr. Chris Dixie, 505 Scanlan Building, 
Houston, Texas, Attorney for Armco Steel Corporation, 
and Mr. George Rice, Messrs. Butler, Binion, Rice, Cook 
& Knapp, Esperson Building, Houston, Texas, 77002, 
Attorneys for United Steel Workers of America, AFL-CIO, 
and Local 2708, United Steel Workers of America, AFL- 
CIO, by placing the same in properly addressed envelopes, 
postage prepaid, and depositing the same in the United 
States mail.

N o r m a n  So r r e l l