United Order of American Bricklayers and Stone Masons, Local 21 v. Waters Brief of Respondents

    IN THE

Supreme Court of tjje Mniteti States!
October T erm , 1974

No. 74-1350

UNITED ORDER OF AMERICAN BRICKLAYERS AND 
STONE MASONS, LOCAL 21,

VS.

WILLIAM A. WATERS and DONALD SAMUELS, and 
WISCONSIN STEEL WORKS OF INTERNATIONAL 
HARVESTER COMPANY, Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

BRIEF OF RESPONDENTS WILLIAM A. WATERS AND 
DONALD SAMUELS IN OPPOSITION.

JuDSON H. M iner,
Charles Barnhill, Jr.,

Davis, M iner & Barnhill,
14 West Erie Street,
Chicago, Illinois 60610,

Jack G reenberg,
James M. Nabrit, III,
Barry L. Goldstein,
Morris J. Baller,
E ric Schnapper,

10 Columbus Circle,
New York, New York 10019, 

Philip B. Kurland, Counsel for Petitioners.
Rothschild, Barry & Myers,

Two First National Plaza,
Chicago, Illinois 60670,

Of Counsel.

Gunthorp-Warren Printing Company, Chicago •  Financial 6-6565



IN THE

Supreme Court of tfte ^niteb ^tates(
October Term , 1974

No. 74-1350

UNITED ORDER OF AMERICAN BRICKLAYERS AND 
STONE MASONS, LOCAL 21,

Petitioner,
vs.

WILLIAM A. WATERS and DONALD SAMUELS, and 
WISCONSIN STEEL WORKS OF INTERNATIONAL 
HARVESTER COMPANY,

Respondents.

on petition for a writ of certiorari to the united
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

BRIEF OF RESPONDENTS WILLIAM A. WATERS AND 
DONALD SAMUELS IN OPPOSITION.

Petitioner Union raises four questions for this Court’s con­
sideration.

Question 1:
Does 42 U. S. C. § 1981 forbid racial discrimination in private 

employment; if so, does it prohibit discriminatory practices other 
than the refusal to hire on the basis of race?

Answer:
Yes. In Johnson v. Railway Express Agency, In c .,........U. S.

........ , ........ , 95 S. Ct. 1716, 1920 (1975) the Court stated



that “it is now well settled among the federal courts of appeals 
—and we now join them—that § 1981 affords a federal remedy 
against discrimination in private employment on the basis of 
race.” Also, in Johnson, supra, 95 S. Ct. at 1717-18, this Court 
recognized that § 1981 is directed “to most of the same ends as 
Title VII,” including a private employer’s discriminatory 
“seniority rules and job assignments” and a union’s racially 
segregated memberships, all of which were in issue in Johnson.

Question 2;
Does 42 U. S. C. § 1981 require the recall of a black worker 

who had not been discriminated against in hire over white 
workers who have a greater period of service for the employer, 
where none of the affected employees have a contractual right 
to be recalled?

Answer;

The question simply does not arise on record in this case. 
One question raised below was whether a 1966 amendment to a 
severance pay agreement negotiated by petitioner and Wisconsin 
Steel Works in 1965 violated the rights of respondents Waters 
and Samuels. That amendment restored seniority rights to a 
group of all-white past employees, who by accepting severance 
pay had lost their recall rights with the company, and reinstated 
them ahead of a group of black bricklayers. But for this amend­
ment, the black bricklayers would have been recalled first. On 
this point the trial court found:

Defendants’ June 15, 1966 agreement to amend the 
earlier severance pay agreement and thereby restore recall 
rights to an all white group of bricklayers who otherwise 
possessed no recall rights under the prior severance pay 
agreement, thereby placing those white bricklayers ahead 
of black bricklayers, constitutes a violation of both § 1981 
and Title VII. (App. 28a) ̂  (Emphasis added)

1. For a full exposition of the facts, see the pending Petition 
for Certiorari filed by Waters and Samuels, No. 74-1064. Citations 
are to the appendix of that Petition.



The Seventh Circuit affirmed the finding as it affected Mr. 
Waters. (App. 17a). Petitioner simply overlooks these findings 
and the uncontested facts that underlie them.

Question 3:
May a union be found jointly liable with an employer for a 

violation of 42 U. S. C. § 1981 because the union was a party to 
a provision of a collective bargaining agreement which was 
racially neutral on its face, but was found illegal because the 
employer had previously engaged in racial discrimination in 
hire, where the union did not participate in the hiring?

A nswer:
After the trial of this cause, the district judge found that 

respondent Local 21 was a party to a collective bargaining agree­
ment and to a 1966 amendment to that agreement, both of 
which perpetrated the effects of past discriminatory practices. 
The trial court then awarded plaintiffs back pay and attorneys’ 
fees “from the defendants Wisconsin Steel and Local 21.” (App. 
28a). Defendant Local 21 filed a motion under Rule 59, 
F. R. Civ. P., to amend the judgment. However, the Union’s 
motion challenged only the finding that it was liable at all, and 
not the trial court’s apportionment of damages.

On cross-appeals to the Seventh Circuit, petitioner Local 21 
again failed to challenge the district court’s appointment of 
liability and damages. The Seventh Circuit found that the Union 
was liable. The Seventh Circuit affirmed^ the finding that the 
1966 amendment to the collective bargaining agreement which 
restored seniority rights to white bricklayers who had accepted 
severance pay and thereby placed them ahead of respondent

2. The Seventh Circuit found that “last hired, first fired” seniority 
provision contained in the collective bargaining was immune from 
challenge under Title VII and therefore also immune under § 1981, 
and thus reversed that portion of the district court’s judgment. The 
correctness of that decision has been challenged by respondents 
Waters and Samuels in their pending Petition for Certiorari, No. 
74-1064.



Waters for purposes of recall was discriminatory. Also, the 
Seventh Circuit affirmed the conclusion of the trial court that 
“the union was an integral party to the June 1966 amendment 
which discriminated against Waters.” The court thus adopted 
the trial judge’s conclusion that “Local 21 * * * shares jointly in 
the liability of Wisconsin Steel.” (App. 17a-18a).

The apportionment of liability was within the discretion of
the trial judge. See Barnett v. Grant,........F. 2 d .........., 9 EPD
§ 10,199 (4th Cir. 1975); Johnson v. Goodyear Tire & Rubber 
Co., 491 F. 2d 1364 (5th Cir. 1974). Having never suggested 
to the trial judge that the apportioned damages in any manner 
other than jointly, and having failed to appeal the joint appor­
tionment of damages by the district court, respondent is now 
foreclosed from asking this Court to apportion damages in a 
different manner.

Question 4:
If 42 U. S. C. § 1981 forbids racial discrimination in private 

employment, is the appropriate statute of limitations in a suit 
for back pay the residual statute of limitations of the State in 
which the alleged violation occurred?

Answer:

According to the teachings of this Court in Johnson, supra, 
95 S. Ct. at 1721, the controlling statute of limitations for actions 
brought under § 1981 is “the most appropriate one provided by 
state law.” After careful analysis of the available limitation 
provisions under Illinois law, the Seventh Circuit found the 
most appropriate statute to be 111. Rev. Stat. Ch. 83 § 16 (1967) 
governing civil actions not otherwise provided for. Waters v. 
Wisconsin Steel Wks. of International Harvester Co., A ll  F. 2d 
476, 488 (1970).

Petitioner nowhere suggests that the statute of limitations 
adopted by the Seventh Circuit is not the most appropriate one 
provided by Illinois law. Nor does petitioner suggest that the



five-year limitations period is “inconsistent with the federal 
policy underlying” § 1981. See, Johnson v. Railway Express 
Agency, supra, 95 S. Ct. at 1722. Petitioner merely observes 
that different circuits have adopted different state limitations 
statutes. That result, however, is not surprising inasmuch as the 
statutory schemes of each of the 50 states differs substantially. 
Absent a showing that the statute adopted below is not the most 
appropriate statute or that it is inconsistent with the federal 
policy underlying § 1981, there is no basis for review by this 
court.

CONCLUSION.

Each of the questions posed by petitioner either have been 
answered by the Court or do not arise on this record. For these 
reasons, the Petition for Certiorari should be denied.

Respectfully submitted,

JuDSON H. Miner,
Charles Barneqll, Jr.,

Davis, M iner & Barnhill,
14 West Erie Street,
Chicago, Illinois 60610,

Jack Greenberg,
James M. Nabrit, III,
Barry L. G oldstein,
Morris J. Baller,
E ric Schnapper,

10 Columbus Circle,
New York, New York 10019, 

Counsel for Petitioners.
Philip B. Kurland,

Rothschild, Barry & M yers,
Two First National Plaza,
Chicago, Illinois 60670,

Of Counsel.



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