Myers v. Gilman Paper Company Response of Plaintiffs-Appellees to the Unions' Petitions for Rehearing
Public Court Documents
July 4, 1977

Cite this item
-
Brief Collection, LDF Court Filings. Myers v. Gilman Paper Company Response of Plaintiffs-Appellees to the Unions' Petitions for Rehearing, 1977. b5b3a3fd-be9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/26c67ce0-03f0-4b4d-a105-b52d63816275/myers-v-gilman-paper-company-response-of-plaintiffs-appellees-to-the-unions-petitions-for-rehearing. Accessed June 17, 2025.
Copied!
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 75-2201 ELMO V. MYERS, et al., Plaintiffs-Appellees, v. GILMAN PAPER COMPANY, Defendant-Appellee, and INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, et al., Defendants-Appellants. On Appeal From the United States District Court For the Southern District of Georgia RESPONSE OF PLAINTIFFS-APPELLEES TO THE UNIONS' PETITIONS FOR REHEARING FLETCHER FARRINGTON P.O. Box 9378 Savannah, Georgia 31402 Of Counsel: RICHARD SEYMOUR ELIZABETH RINDSKOPF 520 Woodward Bldg. 733 15th Street, N.W. Washington, D.C. 20005 MORRIS J. BALLER 145 Ninth Street San Francisco, Calif. 94103 JACK GREENBERG CHARLES S . RALSTON O. PETER SHERWOOD ERIC SCHNAPPER Suite 2030 10 Columbus Circle New York, New York 10019 A. BLENN TAYLOR Taylor, Bishop & Lee P. O. Box 1596 Brunswick, Georgia 31520 Attorneys for Plaintiffs-Appellees TABLE OF CONTENTS Table of Authorities..................................... ii I. INTRODUCTION....................................... 1 II. THE FACTS IN THIS CASE REVEAL A SENIORITY SYSTEM WHICH WAS DESIGNED, NEGOTIATED AND MAINTAINED WITH A DISCRIMINATORY PURPOSE............................ 5 III. THE "INTERVENING SUPREME COURT DECISIONS DO NOT AFFECT THE RESULTS REACHED BY THE COURT IN THIS CASE............................ 11 A. The Seniority System in this Case Is Unlawful Under Title VII.................. 13 1. Under the "Intervening Supreme Court Decisions" Seniority Systems That Are Tainted With a Discriminatory Purpose Are Unlawful Under Title VII.... 14 2. The Seniority System in This Case Is Tainted With Discriminatory Purpose................................... 22 3. In This Case, The Unions Are Liable.................................... 2 5 B. Plaintiffs' Claims Under 42 U.S.C. §1981 Should Not Be Dismissed................ 25 IV. THE I.B.E.W. IS LIABLE IN THIS CASE.............. 27 CONCLUS ION............................................... 2 9 -l- TABLE OF AUTHORITIES Cases; Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). . . 3, 10, 19 Brown v. Board of Education, 347 U.S. 483 (1954). . . 5 Griggs v. Duke Power Co., 401 U.S. 424 (1971). . . 18 Guerra V. Manchester Terminal Corp., 498 F.2d 641 (5th Cir. 1974)... 12 Hazelwood School District v. United States, ___U.S.___, 45 U.S.L.W. 4882 (June 27, 1977). . . 22 International Brotherhood of Teamsters v. United States, ___U.S.___, 45 U.S.L.W. 4506 (May 31, 1977). . . 1, 3, 12, 13, 14, 15, 17, 18, 19, 20, 22, 23, 24, 25, 28 Interstate Natural Gas Co. v. Federal Power Commission, 156 F.2d 949 (5th Cir. 1946), aff'd 331 U.S. 682 (1947). 20 Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (5th Cir. 1974). . . 12, 20 Johnson v. Railway Express Agency, Inc., 421 U.S. 454 (1975)... 25, 26 Local 189, United Papermakers and Paperworkers v. United States, 416 F.2d 980 (5th Cir. 1969). . . 4, 10, 13, 18 Long v. Georgia Kraft Co., 450 F.2d 557 (5th Cir. 1971). . 12 Miller v. Continental Can Co., ___F. Supp. ___, 12 EPD 5 11,191 (S.D. Ga. 1976). . . 10 Miller v. International Paper Co., 408 F.2d 283 (1969). . . 30 -li- Table of Authorities (cont'd) Cases (cont'd) Myers v. Gilman Paper Co., 392 F. Supp. 413 (S.D. Ga. 1975). . . 8 Myers v. Gilman Paper Co., 544 F.2d 837 (1977). . . 2, 6, 10 Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970). . . 32 Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974)... 12 Piedmont & N.R. Co. v. Interstate Commerce Commission, 286 U.S. 299 (1932)... 20 Plessy v. Ferguson, 163 U.S. 537 (1896). . . 10 Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (E.D. Va. 1968). . . 4, 17, 19 Rogers v. International Paper Co., 510 F.2d 1340 (8th Cir. 1975)... 10 Stevenson v. International Paper Co., 516 F.2d 103 (5th Cir. 1975)... 10, 12 Swint v. Pullman-Standard, 539 F.2d 77 (5th Cir. 1976). . . 12 Trans World Airlines, Inc. v. Hardison, ___U.S.___, 45 U.S.L.W. 4672 (June 16, 1977). . . 2, 3, 4, 12, 15, 17 United Airlines, Inc. v. Evans, ___U.S.___45 U.S.L.W. 4566 (May 31, 1977). . . 2, 3, 4, 12, 13, 17, 19, 22, 23 United States v. Bethleham Steel Corp., 446 F.2d 652 (2d Cir. 1971)... 18 United States v. Chesapeake & Ohio R. Co., 471 F.2d 582 (4th Cir. 1972)... 18 -iii- Table of Authorities (cont'd) Cases (cont'd) United States v. First City National Bank, 386 U.S. 361, 366 (1967) . . . 29 ^ United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973) United States v. Hayes International Corp., 456 F.2d 112 (5th Cir. 1972)... 12 United States v. Jacksonville Terminal Co., 451 F.2d 418 (5th Cir. 1971)... 12, 21 United States v. Sheet Metal Workers, Local 36, 416 F.2d 123 (8th Cir. 1969)... 18 United States v. United States Steel Corp., 520 F.2d 1043 (5th Cir. 1975)... 12 Village of Arlington Heights v. Metropolitan Housing Corp., ___U.S.___, 50 L. Ed. 2d 450 (1977). . . 17, 21, 22 Washington v. Davis, 426 U.S. 229 (1976). . . 22, 29 Watkins v. Scott Paper Co., 530 F.2d 1159 (5th Cir. 1976). . 10 Watkins v. United Steelworkers, Local 2369, 516 F.2d 41 (1975)... 26 Statutes: 42 U.S.C. § 1981 . . . 4, 11, 25, 26, 27 42 U.S.C. § 2000e et seq. • * * 4, 7, 11, 25, 26 42 U.S.C. § 2000e-2(h) . . . 2, 3, 14, 16, 19, 21, 25, 30 -iv- IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 75-2201 elmo v . m y e r s , et ai.. Plaintiffs-Appellees, v. GILMAN PAPER COMPANY, Defendant-Appellee, and i n t e r n a t i o n a l a s s o c i a t i o n of m a c h i n i s t s AND AEROSPACE WORKERS, et al. , Defendants-Appellants. On Appeal From the United States District Court For The Southern District of Georgia RESPONSE OF PLAINTIFFS-APPELLEES TO THE UNIONS' PETITIONS FOR REHEARING I. INTRODUCTION Following the decisions of the United States Supreme Court in International Brotherhood of Teamsters v. United States, U.S. , 45 U.S.L.W. 4506 2 (May 31, 1977), (hereinafter referred to as "Teamsters"); United Airlines v. Evans, ____ U.S. ____ , 45 U.S.L.W. 4566 (May 31, 1977) (hereinafter referred to as "Evans"); and Trans World Airlines v. Hardison, ____ U.S. ____ , 45 U.S.L.W. 4672 (June 16, 1977) (hereinafter referred to as "Hardison"), the international and local unions in this employment 1/discrimination case petitioned for rehearing of this Court's ydecision of January 3, 1977 holding them liable for the economic loss suffered by the victims of their racially discriminatory practices. Those cases hold that where conduct prohibited by Title VII has not entered into the establishment, negotiation or maintainence of a seniority system, such system is immune under §703 (h) of Title VII of the civil Rights Act of 1964, even though it perpetuates the 1/ Two petitions have been filed: one on behalf of the I.B.E.W. only and another on behalf of all other union defendants. In this response, references to the "Unions" are to all the unions unless otherwise indicated. Citations to the I.B.E.W. petition are denominated "IBEw Pet. p. ____ ". Citations to the petition on behalf of the other unions are denominated "Uhion p. ____ ". The designation "A-" refers to citations to the joint appendix. The designation "Tr.-" refers to pages of the trial transcript in the district court. The designations beginning with "Myers", "Gilman", "UPIU", "IAM", or "IBEW" followed by a hyphen and a number refer to pages in the original brief filed in this Court by one of the above mentioned parties. For example "UPiu-11" refers to page 11 of the Brief filed in this Court by the u p i u on July 28, 1975. 2/ The decision is reported at 544 F.2d at 837. 3 effects of past discrimination. But, where a discriminatory purpose did enter into the establishment, negotiation or maintenance of a seniority system, it is not shielded by the limited immunity granted by §703(h). That discriminatory purpose is present in this case. Teamsters, supra, Evans, supra and Hardison, supra do not invalidate, nor do they purport to invalidate, years of 3/universally accepted jurisprudence that has advanced, through the development of workable and sensible rules, "the central statutory purposes (of Title VII) of eradicating discrimination through out the economy and making persons whole for injuries suffered through past discrimination." Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975). 3/ Citing to footnote 2 of Mr. Justice Marshall's dissent in Teamsters, supra, the unions claim that these cases do precisely that. See Unions - 11. They do not mention, however, for obvious reasons, the next footnote in the dissent which expressly agrees with the majority that the earlier departmental seniority cases are not affected by the Court's decision. See Teamsters, supra, 45 U.S.L.W. 4520, n. 3, (Marshall, J. dissenting) . The unions do not address, again for obvious reasons, whether a seniority system that, like the one at issue in this case, is tainted with discriminatory purpose, is immune. instead, they argue for reversal and dismissal of this action because the district court did not reach the question. 4 The specific issues presented by the union'si/appeal to this Court all turn on whether the unions violated either Title VII of the civil Rights Act of 1964, 42 U.S.C. §2000e et_ seq. , or 42 U.S.C. §1981. Obviously, Teamsters, supra, Evans, supra, and Hardison, supra, are of importance to the Title vil issue. The questions they raise have not been closely analyzed in many cases that were tried after Local 189, United Papermakers and Paperworkers v. United States, 416 F.2d 980 (5th Cir. 1969). They require a reinterpretation of the Quarles v. Philip Morris, Inc.. 279 F. Supp. 505 (E.D. Va. 1968) line of cases. But, on the facts in this record, which reveal a racially based seniority system with whites in vertically structured jobs and blacks vin laterally structured jobs they mandate no retreat from this Court's January 3, 1977 ruling. Further, these decisions in no way affect the unions' separate and independent violations of 42 U.S.C. §1981. The facts in this record are sufficient to permit this court to reaffirm its January 3, 1977 4/ Those issues are: 1) Whether the district court was entitled to approve the consent decree offered by the plaintiffs and the company that, in any way, altered the 1972 Supplemental Labor Agreement; 2) Whether on remand the district court may entertain evidence of union discrimination against blacks who were hired and assigned to traditionally black jobs after July 2, 1965; and 3) Whether the unions are responsible for a share of the economic loss suffered as a result of past discrimination. 5/ See pp. 7-10, infra. 5 decision, albeit on different grounds. Neither reversal nor dismissal is warranted in this case. II. THE FACTS IN THIS CASE REVEAL A SENIORITY SYSTEM WHICH WAS DESIGNED, NEGOTIATED AND MAINTAINED WITH A DISCRIMINATORY PURPOSE In their initial brief and at oral argument, plaintiffs described in detail the history of discrimination at Gilman's St. Mary's Georgia facility and the Unions' central role in the establishment and maintenance of an employment structure which was designed to discriminate - and succeeded in discriminating - against blacks. In the context of the times, it is not surprising that the employ ment structure, including the seniority structure, mirrored the rigidly separate and inherently unequal character of society. Cf. Brown v. Board of Education, 347 U.S. 483 (1954). This Court has noted the history of discrimination at the plant, see e.g. 544 F.2d at 844, and it need not be fully reviewed here. Repetition of some of the relevant facts, however, is in order. 6 When Gilman opened its plant in 1941, someone - presumably the company - filled all the skilled, higher paying jobs with white people, and the dirty, low-paying, back-breaking service, cleanup and unloading jobs with black people. See Myers, supra, 544 F.2d at 844. At the same time (or shortly thereafter), the international unions, which had been voluntarily recognized by the company, (A. 580), chartered new locals to represent these employees and to assume jurisdiction over the various jobs at the plant. The international unions organized these new locals along precisely the same racial lines as the company had initially assigned its new employees despite the fact that no functional purpose was served thereby. The International Brotherhood of Pulp, Sulphite and Papermill Workers, Local 446 got jurisdiction over the non-supervisory production, and some craft, jobs in the pulp mill, some jobs in the shipping department, and the higher-paying jobs in the Woodyard (Tr. 48). United Paperworkers and Papermakers Local 458 acquired jurisdiction over jobs in the paper mill and some of the jobs in shipping (A. 474). The International Brotherhood Electrical Workers obtained 7 jurisdiction over jobs in the Electrical Department, the Powerhouse and the Instrument Department (A. 473), and it chartered Local 741 to represent employees in those jobs. The International Association of Machinists organized the Mechanical Department, and it chartered Local 1128 to represent those employees (A. 473). Without exception, the membership of these locals was white, and the employees in the jobs under their jurisdiction were white. Black employees, whether they worked in the Powerhouse, the Pulp Mill, the Woodyard, Machine Shop or Paper Mill, became members of Local 616, chartered by the International Brotherhood of Pulp, Sulphite and Papermill Workers, and jurisdiction of the jobs held by blacks was given to that Local (A. 474). Unlike Local 616, none of the white locals enjoyed 6/ jurisdiction over jobs in all departments. 6/ The finding of a violation of Title VII for the maintenance of segregated locals until 1970 (A.423) was not appealed. 8 At about the same time, the unions and the company negotiated a system of promotion to vacancies as they Vopened up in the normal course of business. The unions bargained for and got a seniority system that reserved all of the benefits and advancement opportunities to the more skilled, better paying and most desirable jobs for whites. All of the dirty, low paying jobs leading nowhere were assigned to the black bargaining unit. This job seniority system together with the absence of provisions for the posting of notices of vacancies "created an impenetrable barrier to black employees to transfer to traditionally all-white [jobs]", Myers v. Gilman Paper Co., 392 F. Supp. 413, 419 (S.D. Ga. 1975), long after the company abandoned its discriminatory hiring policies in 1965. The resultant system, described in the agreements as "departmental seniority," was not a departmental seniority system at all. Rather, the promotional system followed precisely the segregated structure of the local unions. It strictly prohibited blacks from moving to any 7/ The record is silent as to whether the Internationals left the negotiation of these seminal agreements to the fledgling locals, or whether, as seems probable, their International Representatives negotiated them. 9 of the better jobs within the department that were held by whites. A black employee assigned to the to the lowest paying job in the Powerhouse could not, on the basis of the seniority he had accumulated in that department, move up to the next higher paying job in that department when a vacancy occurred (the normal procedure under a bona fide departmental seniority system). That was true even in the Pulp Mill and Woodyard, which were under the jurisdiction of the same International Union as the black local. For blacks, promotions were a function of local union membership. Since the black local had jurisdiction of no jobs to which one could or would want to be "promoted", for promotional purposes the "seniority" system was, at its inception, meaningless for blacks. This racially structured seniority system, and the unions' intent to perpetuate it, was reaffirmed in 1959, when the International Brotherhood of Pulp, Sulphite and Papermill workers chartered a new union, Local 958, to represent employees at the bag plant, opened a few years earlier. The International assigned 10 jurisdiction of most of the jobs in the plant to the new local. Black jobs, however, were assigned to the jurisdiction of Local 616. And, just as it was in the mill, seniority accumulated in Local 616 at the bag plant was useless for promotion for a Local 958 job, even though the jobs may have been in the same department. See 544 F.2d at 845. Local 616 "seniority" was not bag plant seniority, it was black seniority, and it was no more neutral in its operation than were the railway carriages from which Homer Plessy was barred. See Plessy v. Ferguson, 163 U.S. 537, 538-39 (1896). The aforedescribed racial seniority system 8/ continued, with minor exceptions, until August 25, 1972. (See Myers - 7-17). 8/ This system of granting promotions based on racially accumulated seniority is typical of papermills in the south. See Local 189, United Papermakers and Paperworkers v. United States, supra; Stevenson v. International Paper Co., 516 F.2d 103 (5th Cir. 1975); Watkins v. Scott Paper Co., 530 F.2d 1159 (5th Cir. 1976); Rogers v. International Paper Co., 510 F.2d 1340 (8th Cir. 1975), vacated 423 U.S. 803 (1975); Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); and Miller v. Continental Can Co., ___F. Supp. ___, 12 EPD 11,191 (S.D. Ga. 1976). 11 III. THE "INTERVENING SUPREME COURT DECISIONS" DO NOT AFFECT THE RESULTS REACHED BY THIS COURT IN THIS CASE Plaintiffs in their complaint (A. 9) and amended complaint (A. 19) alleged purposeful discrimination in violation of Title VII, 42 U.S.C. §2000e, et seq. and 42 U.S.C. §1981 "with the intent and design to protect the advantage, seniority and advancement opportunities of white employees to the detriment of plaintiffs. . ." (A. 19-20). In reliance on the numerous decisions in this and other circuits that emphasized the concept of perpetuation of past discrimination, plaintiffs below focused on the effects of the discriminatory practices of Gilman and the unions. Indeed, until the Supreme Court's May 31, 1977 and June 16, 1977 decisions, the unions assumed that, at least until 1972, the seniority system unlawfully discriminated against 9/ blacks. (UPIU-2, 8, 11-12; IAM-48-51; L741-21; IBEW-12). 9/ For example, throughout their brief, the UPIU refers to the affected class as the "discriminatees". The district court summarized a portion of the UPIU's defense as follows: The United Paperworkers International Union and its Locals 453, 446 and 958 contend that in 1970 they did everything within their power to correct past discrimination (A. 418, emphasis added). 12 The arguments presented by the unions below and in this Court addressed , not whether blacks at Gilman had been the victims of unlawful discrimination, but what remedy, if any, blacks were entitled to from the unions, given the seniority reform effected under the 1972 Supplemental 10/ Labor Agreements. Not surprisingly, neither the district court nor this Court addressed, except in passing, the factual predicates discussed above that make this case fundamentally different from Teamsters, Evans and Hardison. Plaintiffs show below that those cases do not affect the result reached under the facts of this case, and require ii/ no retreat from the long line of departmental seniority 10/ The IBEW did not argue that the seniority system was not unlawful but merely that no officer or representative of the International had knowledge of its discriminatory effect prior to August 1972. See IBEW-12. 11/ See e.g. Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (5th Cir. 1974); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974); Stevenson v. International Paper Co., supra; United States v. United States Steel Corp.. 520 F.2d 1043 (5th Cir. 1975); Watkins v. Scott Paper Co., supra; United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973); United States v. Jacksonville Terminal Co., 451 F.2d 418 (5th Cir. 1971); Swint v. Pullman-Standard, 539 F.2d 77 (5th Cir. 1976); United States v. Hayes International, 456 F.2d 112 (5th Cir. 1972); Guerra v. Manchester Terminal Corp., 498 F.2d 641 (5th Cir. 1974); and Long v. Georgia Kraft Co.. 450 F .2d 557 (5th Cir. 1971). 13 cases beginning with this Court's seminal decision in Local 189, supra, and recently reaffirmed in this case, which involve seniority systems that have their genesis in racial discrimination. See Teamsters, supra, 45 U.S.L.W. at 4511, n.28; and Evans, supra, 45 U.S.L.W. at 4567, n.10. A. The Seniority System in This Case is Unlawful Under Title VII____________ In their petitions for rehearing the unions no 12/ longer assume, as they uniformly have heretofore, that the seniority system, at least as it existed until August, 1972, perpetuated the effects of past discrimination. No longer do they focus their defense on what the unions and the company did in August, 1972 to remedy the effects of past discrimination. Instead they argue that the district court did not, as the Supreme Court now appears to require, focus on the plain fact, as reflected in the record in this case, that the seniority system under attack here 12/ The IAM and Local 741, IBEW apparently take the view that the recent Supreme Court decisions affect them in precisely the same way that it affects the UPIU. Accordingly, plaintiffs have no occasion to address separately the issues raised by them in their earlier Briefs in this Court. (See Unions 4, n.2). But see pp. 6-10, supra regarding the role of all the unions in the establishment of a separate seniority unit for blacks. 14 has its genesis in discrimination and is not bona fide. (See Unions 3-4 and 11). While the legal analysis that underlies a finding of union liability under Title VII in this case is somewhat altered by the Supreme Court decisions, the result is unchanged. 1. Under The "Intervening Supreme Court Decisions" Seniority Systems That Are Tainted With A Discriminatory Purpose Are Unlawful Under Title VIV_________ In Teamsters, supra, the Supreme Court held that where it is alleged that a seniority system merely has the effect of discriminating, it is protected by the limited immunity provided by §703(h) of Title VII, 42 U.S.C. §2000e-2(h). See 45 U.S.L.W. at 4512. The Court rejected the Government's broad argument that no seniority system that tends to perpetuate the effects of pre-Act discrimination can be "bona fide". See 45 U.S.L.W. at 4513. Similarly the Court concluded that a seniority system cannot be shown to be "the result of an intention to discriminate" merely because it may perpetuate past discrimination. See 45 U.S.L.W. at 4513, n.39. In short, a seniority system is immune from attack if plaintiff's 15 claim is addressed to its effect only. The extent of the immunity, however, is limited. A different result obtains where 1) the prohibited conduct entered into the adoption, negotiation or maintenance of the seniority system and 2) the seniority system presently has the effect of discriminating. In Teamsters. supra, the Court holds that: . . . §703(h) does not immunize all seniority systems. It refers only to "bona fide" seniority systems and a proviso requires that any differences in treatment not be "the result of an intention to discriminate because of race . . . " 45 U.S.L.W. at 4513. The issue then is whether, on this record, this Court may 13/ 13/ That discriminatory purpose is a necessary element of proof in cases involving seniority systems that have discriminatory consequences was made plain in Hardison, supra: Thus absent a discriminatory purpose the operation of a seniority system cannot be an unlawful employment practice even if the system has some discriminatory consequences. 45 U.S.L.W. at 4677. And in a footnote, Justice White wrote: Here . . . the operation of the seniority system itself is said to violate Title VII. In such circumstances §703 (h)- unequivocally mandates that there is no statutory violation in the absence of a showing of discriminatory purpose. 45 U.S.L.W. at 4677, n.13. 16 conclude that the seniority system was designed, negotiated and maintained free of any racially discriminatory purpose. The answer is self evidently and emphatically "NO". Any seniority system, including the seniority system under attack here, is the result of many considera tions. Among the purposes of the seniority system in this case was the establishment of a method for the allocation of jobs among competing employees for purposes of promotions, demotions, layoffs, vacation preferences and overtime (A. 411). Here, jobs were allocated, pursuant to the seniority system, on a strictly racial basis. Thus, blacks were isolated from the beginning in an inferior laborer caste, while the seniority system assured that newly hired white workers would begin their industrial careers ahead of blacks, that they would not be required to work as laborers, and that they would not work under the supervision of blacks. The maintenance of a permanent underclass of blacks, although not the only purpose of the seniority system, was clearly one of its aims, and is more than enough to make it invalid under §703(h). For §703(h) does not require or even contemplate that racial discrimination be the sole purpose underlying the establishment of the seniority system. From the face of §703(h) itself, it is apparent 17 that where race was a factor that entered into the establishment of the seniority system, that seniority system is not "bona fide" and therefore is not protected. Likewise where race was a factor in the negotiation or maintenance of the seniority system, that seniority is not entitled to the limited protection afforded by §703(h). See Teamsters, supra, 45 U.S.L.W. at 4515. See also Village of Arlington Heights v. Metropolitan Housing Corp.. ___U.S.___, 50 L. Ed. 2d 450, 464 (1977). While in Teamsters, supra, Evans, supra and Hardison, supra, the Supreme Court had no occasion to decide whether a seniority system which was established, negotiated or maintained at least in part to deprive minorities or women of the opportunity to compete with white males on an equal basis, and which presently requires M /difference in treatment, is insulated by §703(h), those 15/ cases do address this distinction. 14/ None of those cases involved any claim or showing that discriminatory purpose entered into the establishment, negotiation or maintenance of the seniority system. See Teamsters, supra, 45 U.S.L.W. at 4514; Evans. supra, 45 U.S.L.W. at 4677. 15/ In a rare instance of agreement, the dissent and the majority concluded that the Quarles, supra line of cases survive the Supreme Court's May 31, 1977 decision. See Teamsters. supra. 45 U.S.L.W. 4520, n.3. 18 In Teamsters, supra, the Supreme Court distinguished cases such as Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (E.D. Va. 1968); Local 189, United Paperworkers v. United States, supra; United States v. Sheet Metal Workers, Local 36, 416 F.2d 123 (8th Cir. 1969) United States v. Bethlehem Steel Corp., 446 F.2d 652 (2nd Cir. 1971); and United States v. Chesapeake & Ohio R. Co., 471 F.2d 582 (4th Cir. 1972), from the case before-it because an intention to discriminate entered into the very adoption of the seniority systems involved in those cases. See 45 U.S.L.W. at 4511, n.28. Those cases now stand for the proposition that, where the seniority system is shown to have had a discriminatory purpose, it cannot be "bona fide" and is not entitled to the limited immunity accorded by 703(h). See 45 U.S.L.W. 4511. Such a seniority system thus falls under the Griggs v. Duke Power Co., 401 U.S. 424 (1971) rationale, see Teamsters, supra, 45 U.S.L.W. at 4512, and if it has the present effect of perpetuating pre-Act discrimination, it must 19 yield. See Teamsters, supra, 45 U.S.L.W. 4511 n.28. Mr. Justice Stevens likewise distinguished the holding in Evans, supra, from the Quarles, supra, line of cases. See Evans, supra, 45 U.S.L.W. 4567, n.10. Because Ms. Evans claimed continuing effect only, the Court had no occasion to go beyond the limitation imposed by §703 (h). The import of Evans, supra for this case is that where the seniority system is shown to be not "bona fide", the continuing effects of that seniority system become important. See Evans, supra, 45 U.S.L.W. 4567. The foregoing construction of 703(h) is required by long-established principles of statutory construction: . . . [R]emedial legislation . . . 16/ 16/ In this regard the unions read much into the statement of the Court in Teamsters that none of the identifiable victims of discrimination in that case are entitled to retroactive seniority pre-dating July 2, 1965. (See Unions - 11). That statement which appears at Part III of the Court's opinion was made in connection with its holding that the seniority system was immune under §703 (h). The Court was not addressing the issue of remedy in a case such as this where the seniority system is not entitled to the immunity accorded by §703(h). Where purpose is shown "a seniority system that perpetuates the effects of the pre-Act discrimina tion cannot be bona fide . . . " Teamsters, supra, 45 U.S.L.W. at 4511, n.28 (emphasis added). In such cases only full plant seniority can effect the remedy that "informs" the twin purposes of Title VII. See Albemarle Paper Co. v. Moody, supra. 20 should therefore be given a liberal interpretation; but for the same reason, exemptions from its sweep should be narrowed and limited to effect the remedy intended. Piedmont & N.R. Co. v. Interstate Commerce Commission, 286 U.S. 299, 311-12 (1932). See also Interstate Natural Gas Co. V. Federal Power Commission, 156 F.2d 949 (5th Cir. 1946), aff'd. 331 U.S. 682 (1947); Cf. Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1377 (5th Cir. 1974). In Teamsters, supra, Mr. Justice Steward reminds us of the "remedy intended" by the enactment of Title VII: The purpose of Title VII was 'to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens1 . . . To achieve this purpose, Congress 'proscribe[d] not only overt discrimination but also practices that are fair in form, but discriminatory in operation' . . . Thus, the Court has 21 repeatedly held that a prima facie Title VII violation may be established by policies that are neutral on their face and in intent but that nonetheless discriminate in effect against a particular group . . . (citations omitted). 45 U.S.L.W. at 4512. The Supreme Court's decision, consistent with these principles of statutory construction, gives only limited effect to §703(h). Only those seniority systems that were not established, negotiated or maintained with an intention to discriminate are immune. In this, as in any case involving racial discrimination, proof of overt discrimination is seldom direct. See United States v, Jacksonville Terminal Co., 451 F.2d 418 (5th Cir. 1971). Usually proof of purposeful discrimination must be inferred from the totality of the circumstances. See Village of Arlington Heights v. Metropolitan Housing Corp., supra, 50 L. Ed. 2d at 465 (hereinafter referred to as "Arlington Heights"). "Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the state of mind of the actor. For 22 normally the actor is presumed to have intended the natural consequences of his deeds". Washington v. Davis, 426 U.S. 229, 253 (1976) (Stevens, J. concurring). Thus, the impact of the challenged conduct where it bears more heavily on one race than another is highly relevant evidence of discriminatory intent. See Arlington Heights, supra, 50 L. Ed. 2d at 465. Further, evidence of a historical pattern of discrimination will support the inference that discrimination continued into the present, particularly if the relevant aspects of the decision-making process has undergone little change. See Hazelwood School District v. United States, ___U.S.___, 45 U.S.L.W. 4883, 4885, n.15. (June 28, 1977). 2. The Seniority System In This Case Is Tainted With Discriminatory Purpose In this case, it is readily apparent that the unions' original discriminatory design continued into the present: the challenged conduct bore more heavily on blacks than on whites, and there was no change in the decision-making process until 1970, and little change until 1972. Thus, this case is fundamentally different from Teamsters, supra and Evans, supra. It is like the 23 "so-called departmental seniority cases", see Evans, supra, 45 U.S.L.W. at 4567, n.10, that involve segregated unions, segregated departments or segregated jobs within departments that have been artificially and discriminatorily divided by means of racially defined seniority units. As noted above, neither Teamsters, supra nor Evans, supra involved a claim that the seniority system itself was intentionally discriminatory in its origins or maintenance. For example in Teamsters, supra, the Government "conceded that the seniority system did not have its genesis in discrimination and that it was negotiated and has been maintained free of any illegal purpose". 45 U.S.L.W. at 4514. Thus, while the seniority system at issue there had the "effect" of discriminating against blacks, the other necessary element of proof, to wit: "genesis in discrimination" or negotiation or maintenance of collective bargaining agreements that are infected with a racially discriminatory purpose, was not present. See 45 U.S.L.W. at 4514. Here racial discrimination entered the "very adoption" of the seniority system. See pp. 6-10. supra. 24 In Teamsters, distinct racially integrated bargaining units covered all city drivers and serviceman jobs. See 45 U.S.L.W. at 4507, n.3. Here separate racially segregated bargaining units were established to represent employees along racial rather than departmental lines. See pp. 6-10, supra. In Teamsters, supra more whites than blacks held the arguably less desirable city driver and serviceman jobs. 45 U.S.L.W. at 4514. Here no whites held the undesirable jobs. City drivers' jobs in Teamsters, supra had features which made such jobs as desirable, for some, as line driver jobs. 45 U.S.L.W. at 4517. Here no one contends that the black jobs at Gilman were more desirable than the white jobs. As a result, the lock-in12/ effect of the seniority system falls on blacks only and 17/ The unions appeared to recognize that the long standing impact of their collective bargaining agreements fell heavier on blacks when in 1972, they readily agreed to seniority reform which was designed to remedy the effects of past discrimination. 25 from this fact the Court is entitled to infer an intent to discriminate on the basis of race. 3. In This Case The Unions Are Liable The Supreme Court's ruling that the Teamsters did not violate Title VII by agreeing to and maintaining the seniority system is premised on its finding that the seniority system was protected by §703(h). See 45 U.S.L.W. at 4512. Here the unions cannot escape liability because the seniority system which they together with Gilman established, negotiated and maintained was the result of an intention to discriminate. Both intent and effect is present in this case. Since the seniority system is not "bona fide", the unions are responsible for their violation of Title VII. B. Plaintiffs' Claims Under 42 U.S.C. §1981 Should Not Be Dismissed In Johnson v. Railway Express Agency, Inc., 421 U.S. 454 (1975), the Supreme Court held: that the remedies available under Title VII and §1981, although related, and though directed to most of the same ends, are separate, distinct and independent. 421 U.S. at 461. 26 The Court observed that in some respects §1981 offers more relief than Title VII, and in other respects less. See 421 U.S. at 458-461. The Court did not, however, have occasion to decide whether §1981 prohibits certain kinds of racial discrimination that do not constitute violations of Title VII. Neither, for that matter, has this Court had occasion to decide the question. See Watkins v. United Steelworkers. Local 2369. 516 F.2d 41 (1975). In their petition for rehearing, the unions argue that this Court should hold, on the basis of the three Supreme Court decisions discussed supra, none of which involved §1981, that plaintiffs' §1981 claims should be dismissed. For at least two reasons, that argument has no merit. First, as we have shown above, the seniority- system is not a "bona fide" one and thus is subject to reform under Title VII. Accordingly, there is no need to reach the §1981 issues. Second, although plaintiffs originally brought this as a §1981 action, both the coi’- below and this Court decided only the Title VTT 27 Thus, while the §1981 claim is still viable, the serious - albeit at this point irrelevant - questions raised by the unions with respect to the §1981 issues should be decided in the first instance by the trial court. IV. THE IBEW IS LIABLE IN THIS CASE In a separately filed petition, the International Brotherhood of Electrical Workers seek "vacation of this Court's Judgment and Opinion entered on January 3, 1977, as they pertain to the IBEW, and for reversal of the district court's ruling as to the liability of the IBEW". (IBEW Pet.-l). The issues raised by this petition are not new. These issues either have been raised by the other unions 18/ in their petition for rehearing or have been raised and 19/ disposed of in the original appeal of this action. If 18/ See numbered items 2 and 7 in IBEW Petition. 19/ See numbered items 1, 3, and 4 in IBEW Petition. 28 anything, the Supreme Court's opinion in Teamsters, supra, reinforces the determination of this Court that IBEW is jointly responsible for the discrimination suffered by the plaintiffs and the class. As we have shown above, the seniority system in this case had its genesis in discrimination. See pp. 6-9, supra. It is reasonable to assume that it was the IBEW that undertook to organize employees in the Electrical Department, the Powerhouse and the Instrument Department. It is clear that none of the black jobs in those departments were included in the Local 741 bargaining unit. It is unlikely that this newly chartered local without the assistance of the IBEW determined the parameters of its jurisdiction or that Local 741 negotiated the earliest contracts establishing the promotional scheme within the bargaining unit. If, as is likely, the IBEW was responsible for the creation of the segregated local or participated in the early contract negotiations, the requisite element of intent is present and the IBEW cannot now disclaim responsibility. Since the record on this issue 20/ In their original Brief in this Court, the IBEW points out that the seniority system that was in use in 1970 had been in use since the plant opened (IBEW-11). It would be startling if the IBEW had nothing to do with it at anytime since 1941. 29 is not fully developed, remand may be appropriate. Upon remand for this limited issue, however, it should be noted that, since it is IBEW that is claiming, under an exception to the Act, that it escapes the Act's reach, it is that Union which has the burden of proving that it comes within the exception. United States v. First City National Bank. 386 U.S. 361, 366 (1967). Further, such proof should be by objective evidence of what actually happened rather than evidence describing the state of mind of the IBEW at the time it chartered Local 741 and thereafter. See Washington v. Davis, supra, 426 U.S. 253 (Mr. Justice Stevens, concurring). Until these standards are met, the decisions of the district court holding IBEW liable and of this Court affirming it should stand undisturbed. CONCLUSION In this case, the Court returns again to legal arguments addressed to the meaning of certain statutory 30 provisions: But beneath the legal facade a faint hope is discernible rising like a distant star over a swamp of uncertainty and perhaps despair. . . . Even the most tedious physical labor is endurable and in a sense enjoyable . . . when the laborer knows that his work will be appreciated and his progress rewarded . . . . The ethic that permeates the American dream is that a person may advance as far as his talents and his merit will take him. And it is unthinkable that a citizen of this great country should be relegated to unremitting toil with never a glimmer of light in the midnight of it all. Miller v. International Paper Co., 408 F .2d 283, 294 (5th Cir. 1969). Plaintiffs have shown that the Supreme Court's May 31, 1977 and June 16, 1977 decisions do not alter the result in this case. Those cases merely hold that §703 (h) provides a narrow, limited exception for neutral seniority systems which may have the effect of discriminating but which themselves are in no way tainted by a discriminatory purpose. In this case, given the fully developed record on the Title VII issue, this Court should reaffirm its January 3, 1977 decision holding the unions liable for their unlawful conduct. The only issue under Title VII that may require remand is that addressed to the liability 31 of the IBEW. There the only issue that remains to be resolved is whether or not its Local 741 is solely liable for the establishment of a racially exclusionary bargaining unit and the negotiation and maintenance of discriminatory collective bargaining units from 1941 until at least August, 1972. If the Court determines that remand is warranted as to all of the unions, plaintiffs respectfully urge that this Court provide the district court with instructions as to the proper application of the Supreme Court decisions discussed, supra so that this case can come to rest without the need for another lengthy appeal. If, as is perfectly clear on the present state of the record, the district court finds that the seniority system was tainted by a prohibited purpose, a finding of union liability under Title VII follows. That purpose can be inferred from evidence of what actually happened. Where, as is true here, that seniority system has not been reformed to fully eradicate its effects as of the time of the filing of the charge of discrimination with the Equal Employment 32 Opportunity Commission, the unions are liable. See Parham v. Southwestern Bell Telephone Co.. 433 F.2d 421 (8th Cir. 1970). Of Counsel: RICHARD SEYMOUR ELIZABETH RINDSKOPF 520 Woodward Bldg. 733 15th Street, N.W. Washington, D.C. 20005 MORRIS J. BALLER 145 Ninth Street San Francisco, Calif. 94103 Respectfully submitted, FLETCHER FARRINGTON P.O. Box 9378 Savannah, Georgia 31402 __________________- - O. PETER SHERWOOD JACK GREENBERG CHARLES STEPHEN RALSTON ERIC SCHNAPPER Suite 2030 10 Columbus Circle New York, New York 10019 A. BLENN TAYLOR Taylor, Bishop & Lee P.O. Box 1596 Brunswick, Georgia 31520 Attorneys for Plaintiffs-Appellees CERTIFICATE OF SERVICE I hereby certify that, on the Fourth day of July, 1977, copies of the foregoing Response of Plaintiffs-ftppelles to the Unions’ Petitions for Rehearing were mailed to the follow ing counsel for the parties herein: MICHAEL H. GOTTESMAN FRANK PETRAMALO, JR•Bredhoff, Cushman, Gottesman & Cohen1000 Connecticut Avenue N.W. Washington, D. C. 20036 BENJAMIN WYLE Spivak & Wylie 3 East 54th Street New York, New York 10022 j. R. GOLDTHWAITE, JR.Adair, Goldthwaite, Stanford & Daniel600 Rhodes-Haverty Building Atlanta, Georgia 30303 JEROME A. COOPER JOHN FALKENBERRYCooper, Mitch & Crawford 409 N. 21st Street Birmingham, Alabama 35203 ELIHU LEIFER1125 15th Street, N.W. Washington, D. C. 20005 GUY O. FARMER, IIMahoney, Hadlow & Adams P.0. Box 4009Jacksonville, Attorney for Plaintiffs-Appellees