Burrell v Kaiser Aluminum and Chemical Company Original Brief on Behalf of Appellee

    UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

IN THE

No. 26,893

A. J. BURRELL, JESSIE FISHER, LEO MATTHEWS, 
NORRIS SMITH, J. N. STANLEY, PERCY VAUGHN,

versus
Appellants,

KAISER ALUMINUM & CHEMICAL CORPORATION,
THE ALUMINUM WORKERS IN TE RN ATIO N AL UNION, 

LOCAL 205 OF THE ALUMINUM WORKERS 
IN TE R N A TIO N AL UNION, A N  UNINCORPORATED 

ASSOCIATION, G. A. ROUNDTREE, PRESIDENT OF 
LOCAL 205 OF THE ALUMINUM WORKERS 

IN TE R N ATIO N AL UNION,
Appellees.

Appeal from the United States District Court for the 
Eastern District of Louisiana, Baton Rouge Division

O RIG INAL BRIEF ON BEHALF OF APPELLEE, 
KAISER ALUMINUM & CHEMICAL CORPORATION

FR AN K  W. MIDDLETON, JR. of 
Taylor, Porter, Brooks, Fuller & Phillips 
Louisiana National Bank Building 
451 Florida Boulevard 
Baton Rouge, Louisiana 70821

Attorneys for Defendant-Appellee,
Kaiser Aluminum & Chemical Corporation

Of Counsel
ROBERT P. T IERNAN  
300 Lakeshore Drive 
Oakland, California 90464

Franklin Press, Inc. Baton Rouge, La.

' i M I : U .



I N D E X

Page

STATEMENT OF THE CASE ............................................  1

ARGUMENT

I. The Lower Court Properly Held That It Had 

No Jurisdiction, Since Plaintiff Here Has Failed 

to Comply with the Procedural Requirements of 
Title V II— the EEOC Not Having Found That 

There Was a Violation of the Act, Nor Had an 
Opportunity to Attempt Conciliation, Nor Was 

There Here a Failure to Secure Voluntary Com­

pliance with the A c t .............................................. 5

II. This Case Was Properly Dismissed in the Lower 

Court for Lack of Jurisdiction in View of the 
Existence of a Written Conciliation Agreement 
Covering the Issues in Dispute and Which Estab­

lished the Equal Employment Opportunity Com­
mission as the Sole Party for Judging Com­

pliance with the Provisions of Such Agreement.... 7

A. A  Reasonable and Meaningful Construction 

to Title V II of the Civil Rights Act of 1964,
42 U.S.C. Para. 2000e, et. seq., Requires the 
Finding by This Court That Successful Con­

ciliation of an Alleged Unlawful Employ­

ment Practice by the Equal Employment 
Opportunity Commission, Resulting in an 

Agreement by Those Involved, Preempts the

i



ii

Page

Jurisdiction of the Courts Over the Subject 

Matter of the Conciliation Agreement..........  8

B. The Appellants Made a Binding Election of

Remedies When They Chose to Accept the 
Benefits of a Conciliation Agreement in Set­

tlement of the Discriminatory Employment 

Practices Charges ...........................................  10

C. The Acceptance of the Benefits of the Con­
ciliation Agreement and the Repudiation of 

Their Promises Exchanged for Such Bene­

fits Estop the Appellants from Herein Seek­

ing Enlarged Remedies from the Same Set

of F acts ............................................................  13

CONCLUSION ................................................................   16

CERTIFICATE OF SERVICE .............................................  17



IN THE

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 26,893

A. J. BURKELL, JESSIE FISHER, LEO MATTHEWS, 
NORRIS SMITH, J. N. STANLEY, PERCY VAUGHN,

Appellants,
versus

KAISER ALUMINUM & CHEMICAL CORPORATION, 
THE ALUMINUM WORKERS INTERNATIONAL UNION, 

LOCAL 205 OF THE ALUMINUM WORKERS 
INTERNATIONAL UNION, AN  UNINCORPORATED 

ASSOCIATION, G. A. ROUNDTREE, PRESIDENT OF 
LOCAL 205 OF THE ALUMINUM WORKERS 

INTERNATIONAL UNION,
Appellees.

Appeal from the United States District Court for the 
Eastern District of Louisiana, Baton Rouge Division

ORIGINAL BRIEF ON BEHALF OF APPELLEE, 
KAISER ALUMINUM & CHEMICAL CORPORATION

STATEMENT OF THE CASE

As an appellee, Kaiser does not take issue with the bulk 
of the statement of the case presented by appellants, consist­
ing principally of a summary of the allegations of plaintiffs’ 
complaint and the record history of the case.

1



2

Since largely overlooked (except by footnote) in appel­

lants’ statement of the case, the factual basis of one of the two 
principal points raised by Kaiser must at this time be more 

adequately presented to the Court.

The present proceeding is but the last of a long chain of 
proceedings instituted by the plaintiff, A. J. Burrell, and vari­
ous others associated with him by name from time to time, 
all purporting to represent, as a class, the Negro employees 
of Kaiser. The first action instituted was a complaint filed 
September 27, 1965, lodged with the Equal Employment Op­
portunity Commission, complaining of substantially the iden­

tical items complained of in the complaint in this case. Follow­
ing reference to the Commission, reasonable cause to believe 
that a violation of the Act had occurred was found but, under 
the letter as well as the spirit of Title V II, representatives of 
Kaiser, of the Union and the charging parties, including the 
plaintiff here, met and worked out their differences resulting 
in a Conciliation Agreement, dated January 30, 1966, spe­
cifically dealing with the issues involved in the pre-existing 
controversy [which are the same issues involved in the pres­

ent controversy].

This history is set forth in the complaint Article V II, D 
and E (RlOa). A  copy of the Conciliation Agreement was 

attached to and made a part of plaintiffs’ complaint as Ex­

hibit A  (R17a).

It should be noted that this Conciliation Agreement was 
signed by the then complaining parties, by Kaiser, by the 
Union and by its Local, as well as by the representative of 
the Commission, under whose auspices the agreement was 
reached (R17a, R22a). Among other things, this written,



3

signed Conciliation Agreement provided “ ***the parties here­

by agreed to and do settle the above matter in the following 
extent and manner:

“ 1. The respondents agree that the Commission, on re­
quest of any charging party or on its own motion, 
may review compliance with this agreement. As a 
part of such review, the Commission may require 
written reports concerning compliance, may inspect 
the premises, examine witnesses, and examine and 
copy documents.

# # #

“3. The Charging Party hereby waives, releases and 
covenants not to sue any respondent with respect to 
any matters which were or might have been alleged 
as charges with the Equal Employment Opportunity 
Commission, subject to performance by the respon­
dents of the promises and representations contained 
herein. The Commission shall determine whether 
the respondents have complied with the terms of 
this agreement.” (R17a - R18a)

Without reference to the fact that the Conciliation Agree­
ment of January 30, 1966, required by its terms that the 
Commission determine compliance with such agreement, the 
present complainants, on or about January 20, 1967, filed a 
complaint with the Equal Employment Opportunity Commis­
sion alleging violation of their rights, the specifics of which 
were substantially the same as those dealt with in the com­
plaint filed with the Commission in 1965 and disposed of by 
the Conciliation Agreement of January 30, 1966 (see plain­

tiffs’ complaint, paragraph V III  [R13a]).



4

Immediately upon the lapse of sixty (60) days following 
the filing of the complaints with the Commission, counsel 
for the present plaintiffs demanded and received the statutory 
letter authorizing the filing within thirty (30) days there­

after of civil action in the appropriate Federal District Court 
(R50a).

Within thirty (30) days after the issuance of such statu­
tory letter, the present civil action was instituted asking for 

judicial determination of the alleged issues between the 
parties and covering the same matters dealt with in the 
Conciliation Agreement dated January 30, 1966, all without 

ever having asked for or having received determination by 
the Commission as to “ ###whether the respondents have com­
plied with the terms of this agreement.” (Conciliation Agree­
ment, Paragraph 3 - R18a).

The lower court in the present matter concluded that this 
suit must be dismissed for lack of jurisdiction. Although the 
specific reason and authority cited in the opinion of the lower 
court refers only to the lack of conciliation as a jurisdictional 
prerequisite (R54a), the lower court’s recitation of the his­
tory of the matter in the previous two pages of its opinion 

and particularly the court’s specific reference to and quota­
tion from the Conciliation Agreement of January 30, 1966, 
indicates that the existence of and legal significance of the 
Conciliation Agreement played some undisclosed part in the 
lower court’s finding of no jurisdiction (R52a, R53a). Cer­
tainly, this phase of the matter was one most stringently 
urged by Kaiser in its motion to dismiss (R30a, R31a), and 
was repeatedly and extensively dealt with in both brief and 
oral argument by both sides in appearing before the lower 
court.



5

Appellee Kaiser submits that there are, therefore, two 
principal points or alleged errors of the lower court to be 

considered here:

(1) Lack of jurisdiction in the lower court, for failure 
to comply with the procedural requirements of Title 
V II of the Civil Rights Act of 1964, since the EEOC 
had not found reasonable cause, nor had an oppor­
tunity to attempt conciliation, nor was there a fail­
ure to secure voluntary compliance with the Act.

(2) The lack of jurisdiction herein by the lower court 
in view of the existence of a written Conciliation 
Agreement covering the issues in dispute here, which 
agreement establishes the Equal Employment Oppor­
tunity Commission as the sole party for judging 
compliance with the provisions of such agreement.

ARGUMENT

I
The lower court properly held that it had no jurisdiction, 

since plaintiff here has failed to comply with the procedural 
requirements of Title V II— the EEOC not having found that 
there was reasonable cause to believe that there was a viola­
tion of the Act, nor had the EEOC had an opportunity to 
attempt conciliation, nor was there here a failure to secure 

voluntary compliance with the Act.

Appellants have at considerable length and on some six 
different fronts attacked the holding of the lower court with 

regard to this point. Kaiser in the lower court filed an origi­
nal and two supplemental briefs in support of its position 
here, and particularly citing Dent v. St. Louis-San Francisco 
Railway Company, et al, 265 F. Supp. 56 (1967), and the



6

decisions of the Fourth Circuit in Mickel v. South Carolina 
State Employment Services, 377 F.2d 239 (C.A. 4th, 1967), 

and Stebbins v. Nationwide Mutual Ins. Co., 382 F.2d 267 

(C.A. 4th, 1967).

We must here concede that Johnson v. Seaboard Coast
Line Railroad C o.,_____F .2d ------- , 59 L.C. 9177 (C.A. 4 th -
October 29, 1968), in a decision by a divided court takes a 
contrary position. It is submitted that the dissenting opinion 
by Judge Boreman more accurately and correctly sets forth 
the proper interpretation of the statute and its application 

than does the majority opinion of two of the three judges on 

the panel. It  should, of course, be noted that this decision 
was handed down well after judgment was rendered herein 

by the trial court in the instant case.

In view of the fact that this issue will have been decided 
by this Court’s decision in Dent v. St. Loms-San Francisco 
Railway Company, et al, now pending decision, before con­
sideration of the instant case, it is believed unnecessary to 

belabor the point herein except to point out the following.

In the instant case, this suit was filed before there had 

been any investigation by the EEOC and before there was 
any finding of reasonable cause to believe a violation had 
been committed and, certainly, therefore, before there was 
any opportunity whatsoever for conciliation to take place or 

for there to be any voluntary compliance if, in fact, there 

were any violation. In fact, as soon as the minimum time 
had run, the statutory suit letter was here issued on demand 
of counsel for appellant. Thus the present case is substantially 
distinguished from Johnson v. Seaboard Coast Line Railway 
Co. Supra; and Choate v. Caterpillar Tractor C o .,---- F.2d



7

___ , 58 L.C. 9162 (C.A. 7th, October 17, 1968). In Johnson
it should be noted that the complaint filed with the EEOC 
was received on January 14, 1966. A fter investigation, the 
EEOC, on July 18, 1966, determined that there was reason­
able cause. Subsequently, the statutory letter was issued on 
August 8, 1966, advising that due to workload requirements, 

it would be impossible to undertake conciliation. Suit was 
thereafter filed. Similarly, in Choate, the EEOC conducted 
an investigation, issued a finding of reasonable cause some 
seven months thereafter in issuing the statutory letter. In 
both of these cases— the only appellate decisions dealing with 
the point since Michel and Stebbins— there had been an in­
vestigation resulting in a finding of probable cause and after 
a lapse of six or seven months subsequent to the filing of the 
complaint, the EEOC had had an opportunity to attempt con­
ciliation but was unable to do so. Therefore, both the Fourth 

and Seventh Circuits were unwilling to hold that there had 
been a lack of procedural exhaustion of remedies before the 
EEOC. Such is not sufficiently similar to the actual facts 
involved in the instant case to be determinative of the point 
of this case and before this Court. Similarly, we should point 
out that a number of the list of cases cited by appellant in 
brief as allegedly supporting his position involve statutory 
letters actually issued after the failure to achieve conciliation 
despite the efforts of the EEOC to do, so. However, we are 
sure that this Court will have adequately explored this field 
in its consideration of and (presumably) prior decision in 

Dent.

II

This case was properly dismissed in the lower court for 

lack of jurisdiction in view of the existence of a written



8

Conciliation Agreement covering the issues in dispute and 
which established the Equal Employment Opportunity Com­

mission as the sole party for judging compliance with the 
provisions of such agreement.

A.

A  Reasonable and Meaningful Construction to Title VII 
of the Civil Rights Act of 1964, 42 U.S.C. para. 2000e, 
et seq., Requires the Finding by This Court That Suc­
cessful Conciliation of an Alleged Unlawful Employment 
Practice by the Equal Employment Opportunity Com­
mission, Resulting in an Agreement by Those Involved, 
Preempts the Jurisdiction of the Courts Over the Sub­
ject Matter of the Conciliation Agreement.

The Court below found that the subject matter of the 

instant suit by the Appellants was “ the subject of a con­
ciliation agreement which was later approved by the Equal 

Opportunity Commission and signed by all parties to the 
present suit on January 30, 1966. This agreement . . . was 
entered into for the purpose of settling the disputes between 
these parties . . .”  (R52a). In concert with this finding of 
the Court below it is observed in Title V II of the Civil Rights 
Act, Section 706, Prevention of Unlawful Employment Prac­
tices, that the sole and exclusive power of the EEOC is “ to 
eliminate any such alleged unlawful employment practice by 
conference, conciliation and persuasion.” (Emphasis added.)

The Court below found that based upon this argument 

(among others) and the brief of the Appellees, the suit “must 
be dismissed for lack of jurisdiction.” This finding is not 

only a valid one under the law but necessary to preserve the



9

integrity of Title V II of the Civil Rights Act. To hold other­
wise would be to deny the very purpose for the creation of 
the EEOC and to strip it of its single power to eliminate un­

lawful employment practices in the United States.

This Appellate Court is not only passing upon the juris­

diction to entertain the subject matter of a final and binding 
conciliation agreement fostered, nurtured, and executed under 
the aegis of the EEOC, but is also passing upon the effec­
tiveness of all conciliation agreements, present and future, 
that the EEOC has fathered or shall father in its endeavors 
to eliminate unlawful employment practices. For if this Court 
finds error in the no-jurisdiction decision of the Court be­

low it is unequivocally recognizing that the EEOC is power­
less to effectively conciliate any alleged unlawful employment 

practice.

The skill of conciliation is found in the ability of the 
conciliator to cause two or more disputing parties to agree. 

(In the instant case the agreement took the form of an ex­
change of promises among the Appellants and the Appellees 

and a mutual understanding of how changed employment 
practices would operate.) (R17a-R22a) The reduction of re­
ciprocal promises to writing constitutes the documented Con­
ciliation Agreement which, in this instance, is the product 
of the EEOC’s efforts. I f  the Conciliation Agreement reached 
by the disputing parties does not conclusively bind the parties 
to its terms, does not resolve the dispute that it purports to 
settle, or is unenforceable in its specified exclusiveness, then 
in fact there is no real agreement. And, moving backwards, 
if there is no agreement there is no real conciliation; and if 

there is no real conciliation the conciliator has no actual 

conciliation powers. Thus, in the instant case, unless this



10

Court finds the Conciliation Agreement in issue preemptive 

as to all it purports to resolve and hold, the EEOC must 
necessarily be recognized as without actual power to function 

in any useful manner under Title V II of the Civil Rights Act.

The conciliation power of the EEOC is its sole and ex­

clusive opportunity to eliminate unlawful employment prac­

tices in the United States; and it therefore relies upon the 
vitality, effectiveness, and binding nature of those concilia­
tion agreements it fosters and endorses to be final and bind­

ing. I f  the Appellants are permitted by this Court to pursue 
in any other forum those matters that were “made the sub­
ject of a conciliation agreement which was later approved 
by the Equal Employment Opportunity Commission and 

signed by all parties to the present suit . . .”  (R52a) then 
it is eliminating the exclusive, final and binding nature of a 
conciliation agreement, which is the critical foundation for 
the EEOC’s conciliation power. In sum, the Congressional 

intent that the EEOC should have but one effective power, 
the power of conciliation, will be frustrated if this Court 
recognizes any continuing concurrent jurisdiction over the 
subject matter of the Conciliation Agreement contrary to 

the terms of the Agreement.

B.

The Appellants Made a Binding Election of Remedies 
When They Chose to Accept the Benefits of a Concdia- 
tion Agreement in Settlement of the Discriminatory Em­

ployment Practices Charges.

The Court below observed and found the following: The

allegations of that complaint were made the subject of a con-



11

ciliation agreement which was later approved by the Equal 

Employment Opportunity Commission and signed by all par­
ties to the present suit on January 30, 1966. This agreement, 
which was entered into for the purpose of settling the disputes 

between these parties provided, inter alia, ‘that the Commis­
sion, on request of any charging party or on its own motion, 

may review compliance with this agreement’ and it further 
provided that ‘The Charging Party hereby waives, releases 
and covenants not to sue any respondent with respect to any 

matters which were or might have been alleged as charges 
filed with the Equal Employment Opportunity Commission, 
subject to performance by the respondents of the promises 
and representations contained herein. The Commission shall 
determine whether the respondents have complied with the 
terms of this agreement.” (R52a)

The content of the discrimination charges and the settle­
ment thereof, the Conciliation Agreement, embraces the very 
same subject matter as does this suit (see Exhibit A  to Com­

plaint— R17a-R22a). Prior to the entrance into the Concilia­
tion Agreement, the Appellants could have elected to pursue 
their charges in Federal Court; they were in no way restricted 
in their choice of forums. They could have elected to use the 
conciliation “forum” to try to gain all they wished, and then 

abandoned the forum if it proved unsuccessful. There was 
no obligation upon the Appellants to accept anything that was 
placed before them in conciliation effort; and, again, they could 

have proceeded to court at any time up to the signing the 
Conciliation Agreement to pursue whatever entitlements they 

believed due them. However, Appellants not only elected the 
forum of conciliation but elected to agree to the terms of the 
conciliation as dispositive of the discrimination dispute and 
specifically waived their right to sue on the matter. Such



12

agreement was reduced to writing in the Conciliation Agree­

ment in issue in this matter. The Appellants executed the Con­
ciliation Agreement, accepted the promises of the Agreement 
as well as the benefits that flowed therefrom. By so electing 
and accepting the benefits of the Conciliation Agreement, 

Appellants made a final and binding election of remedies.

The election of remedies bar is not novel to the courts 

under the Civil Rights Act. The matter recently arose in 

Washington v. Aerojet General Corp., 282 F. Supp. 517 (C.D., 
Cal., 1968). In this case the grievant, as in the Appellants’ 

case, elected a forum different from the Federal Courts the 
grievance procedure of a collective bargaining agreement. The 
Judge therein found that the concurrent jurisdiction of the 
grievance procedure and that established by statute in no way 

restricted the plaintiff to a choice of forums. So far as the 
Court was concerned, an individual could concurrently pursue 

his remedies in both forums— but must eventually elect one 
forum, to the exclusion of all others, from which to accept his 
remedy. Such eventually in the Washington case was found 
to be at that point where the plaintiff accepted the company- 
union settlement in the third step of the grievance procedure 
and returned to work. The common sense, reasonableness, and 

equity of the election rule was reflected upon by the Court in 
Washington: “ Such a rule is not only consonant with that 
applied in an analogous area, but also will contribute to the 
expeditious resolution of disputes in the equal employment 
area and promote the sound and equitable administration of 

justice by precluding an aggrieved party from subjecting a 

defendant to multiple actions based upon the same claim.” 
(282 F. Supp. 517, 523) The “ sound and equitable admin­
istration of justice” to which the Court referred in Washing­
ton has equal application in the matter before this Court. The



13

technique of absorbing the benefits of the accepted settlement 
of the first forum, only to repudiate the settlement (but not 
the benefits flowing therefrom) in an attempt to enlarge upon 

the settlement of the second forum cries for denial of juris­
diction in the second forum. The gross inequity and bad faith 

involved in the repudiation of accepted agreements by the 

plaintiff in the Washington case and by the Appellants in this 
case are implicit.

C.

The Acceptance of the Benefits of the Conciliation Agree­
ment and the Repudiation of Their Promises Exchanged 
for Such Benefits Estop the Appellants from Herein 

Seeking Enlarged Remedies from the Same Set of Facts.

The concept of equitable estoppel is the most penetrating, 
dispositive principle of either law or equity that is applicable 
in this matter. It can be logically and persuasively argued 
that the Appellants should be precluded, both at law and at 
equity, from asserting any right which they may at one time 

have had against the Appellees— if the Appellees have in fact 
relied upon the Appellants’ conduct in good faith and have 
been thereby led to change their position “for the worse.” 
Applying the principle to the instant case, the Appellants orig­
inally made a charge of discrimination in employment against 
the Appellees and the truth of the matter reached no further 
than a “ reasonable cause to believe” stage with the EEOC. 
But, pursuant to this undetermined right under the Civil 
Rights Act— little more than a bare allegation— the Appellees 
participated with the Appellants and the EEOC in a concili­
ation effort to resolve the discrimination charge. Pursuant



14

to such efforts an agreement was reached and reduced into 
the Conciliation Agreement in issue in this case. Such Con­
ciliation Agreement required the changing of position by the 

Appellees to their detriment and to the benefit of the Appel­
lants in exchange for the Appellants’ commitment that “The 
charging party hereby waives, releases and covenants not to 
sue any respondent with respect to any matters which were or 

might have been alleged in charges filed with the EEOC . . . 
The Appellants thereafter accepted the benefits that flowed 
from the Conciliation Agreement and will hereafter continue 
to benefit therefrom for so long as they are employed by the 

Appellee company at its Baton Rouge plant.

It can’t be emphasized too much that the Appellee com­
pany was never determined to be in violation of the Civil 
Rights Act— it was only found upon the barest of investiga­
tive efforts that “ reasonable cause” existed to believe that em­
ployment discrimination existed at the Baton Rouge plant. 
(As a matter of law the Appellee company did not and does 
not believe that a violation of the Civil Rights Act ever existed 
at the Baton Rouge plant— either in 1965 or thereafter.) But 
even though the charges raised by the Appellants did not, in 

the opinion of the Appellee company, have legal substance, 
they did have sufficient moral justification to warrant con­
sideration and changes in the working conditions at the Baton 
Rouge plant. The Appellees therefore entered into Conciliation 
with the Appellants under the guidance and direction of the 

EEOC. A fter difficult and extensive efforts on the part of all 
involved, a Conciliation Agreement was reached to which all 
parties were in concert: certain working conditions, seniority, 
and employment approaches were changed by the Appellees 
in exchange for a final and binding resolution of the sub­

stance of the charges raised by the Appellants. The signifi­



15

cance of the word “exchange” in reaching the final Concili­
ation Agreement is the key to equitable estoppel. It must be 

accepted as unthinkable in either equity or law that one party 
to an agreement should benefit therefrom while repudiating 
the agreement and his duty to fulfill his exchange promise. 

The exchange of substantial and meaningful change in em­
ployment conditions for a final and binding settlement that 
is neither final nor binding is no exchange at all. Considera­
tion must flow between the parties to any agreement if, in the 
eyes of the law, any real agreement is ever to occur. There­

fore, unless the Conciliation Agreement is found by this Court 
to be final and binding as to all it purports to embrace, and 
as its terms provide and as the Appellants agreed, then (1) 

the Conciliation Agreement is a sham, (2) the Appellants have 
fraudulently benefited at the expense of the Appellees, and 
(3) repudiation of voluntary settlements in the area of civil 
rights is encouraged.

The Court herein, is of course passing not only upon the 

power of the EEOC to render conciliation agreements final 
and binding but also upon the opportunities of those who bene­
fit from conciliation agreements or voluntary settlement to 
unjustly repudiate their exchanged commitment in an effort 
to “get more.” Those who believe and hold that the very 

nature and fibre of agreements before the law is mutuality 
of obligation cannot help but be offended by the “dirty hands” 

with which the Appellants have approached the Court below 
as well as this Court. In the interest of justice, equity, and 
the continued vitality and effectiveness of the EEOC, this 
Court is urged to recognize that it has been preempted by the 

Appellants’ own acceptance of the Conciliation Agreement as 
its remedy in the substantive matter the Appellees bring be­
fore the Federal Courts.



16

CONCLUSION

For the above discussed reasons, it is submitted that this 
matter was properly dismissed for lack of jurisdiction by the 

court below, which ruling must be affirmed as correct.

Respectfully submitted,

Taylor, Porter, Brooks, Fuller & Phillips 
Attorneys for Kaiser Aluminum & Chemical 

Corporation, Defendant-Appellee

F. W. Middleton, Jr.
Louisiana National Bank Building 
451 Florida Boulevard 
Baton Rouge, Louisiana 70821

Of Counsel
Robert P. Tiernan 
300 Lakeside Drive 
Oakland, California 94604



17

CERTIFICATE

I  certify that a copy of the foregoing brief has been this 
day mailed, postage prepaid, to the following:

Jack Greenberg 
James M. Nabrit, I I I  
Robert Belton 
Gabrielle A. Kirk

10 Columbus Circle 
New York, New York 10019

Murphy Bell
214 East Boulevard 
Baton Rouge, Louisiana

Albert J. Rosenthal
435 West 116th Street 
New York, New York 10027

Baton Rouge, Louisiana, th is_____day of December, 1968.

F. W. Middleton, Jr.



Ta y l o r , Po r t e r , Br o o k s , Fu ll e r  & Phillips  
A t t o r n e y s  a t  L a wLa u r a n c e  W. Br o o k s  

Ch a r le s  W. P h il l ip s  
W ill iam  C. Ra n d o l p h  
Ben  B .Ta y l o r ,J p .
Fr a n k  W. M id d le to n , J r . 
Ro b e r t  J. Va n d a w o r l e r  
T om  F. P hili ip s  
David  M-El l is o n , J r . 
Fr a n k  M.Co a t e s , J r . 
J o h n  I, Mo o r e  
W illiam  H. Mc Cl e n d o n , III 
W illiam  A -N o r f o l k

W ill iam  S h e lb y  McKenzie  
J o h n  S. Ca m p b e l l , J r . 
Ro b e r t  H. Ho d g e s

L o u is ia n a  Na t io n a l  Ba n k  B u il d in g  

P o s t  O m c r .  Draw er  2471

B a t o n  R o u g e , L o u i s i a n a  7oe2i

A rea  Code  5G4  

Te l e ph o n e  348-3221

B e n j a m i n  8 - T a y l o r  (i b o s - i q s ©) 
C h a r l e s  V e r n o n  Po r t e r  { laes -r aez }

J a m e s  R. F u l l e r  
Cou nsel

December 30, 1968

The Honorable. Edward W. Wadsworth 
Clerk, U. S. Court of Appeals 
Fifth Circuit
Room 408, 400 Royal Street 
New Orleans, Louisiana 70130

Re: No. 26893 - A. J. Burrell, et al vs.
Kaiser Aluminum & Chemical Corporation, et al

Dear Sir:

Enclosed are twenty copies of a printed brief in the above captioned matter, 
which we request that you file on behalf of Kaiser Aluminum & Chemical 
Corporation.

I am executing certificate of service on opposing counsel in the form printed 
with the brief.

Yours very truly,

FWM/ec

Enel.

cc: Mr. Jack Greenberg
Mr. James M. Nabrit, III
Mr. Robert Belton
Mr. Gabrielle A. Kirk
Mr. Murphy Bell
Mr. Albert J. Rosenthal
Mr. C. Paul. Barker
Mr. Herbert S. Thatcher
Mr. Robert P. Tiernan
Mr. J. J. Durney