Myers v. Gilman Paper Company Response of Plaintiffs-Appellees to the Unions' Petitions for Rehearing

    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