Rule v. International Association of Bridge, Structural, and Ornamental Ironworkers Plaintiffs Appellants Petition for Rehearing and Clarification

    IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

NO. 76-1945

RONALD RULE, et al.,

Appellants,

v.

INTERNATIONAL ASSOCIATION OF BRIDGE, 
STRUCTURAL, AND ORNAMENTAL IRONWORKERS, 
LOCAL UNION NO. 396, et al.,

Appellees.

On Appeal from the United States District Court 
for the Eastern District of Missouri 

Eastern Division

PLAINTIFFS-APPELLANTS PETITION FOR 
REHEARING AND CLARIFICATION

LOUIS GILDEN
Gilden & Dodson
722 Chestnut Street
St. Louis, Missouri 63101

JACK GREENBERG 
O. PETER SHERWOOD 

10 Columbus Circle 
Suite 2030
New York, New York 10019

Attorneys for Appellants



TABLE OF CONTENTS
Pages

Table of Authorities ...............................  ii

Preliminary Statement .................................. 2

ARGUMENT ............................................  3
I. If Any Of The JAC Eligibility 

Requirements Are Shown To Have 
A Disparate Impact, It Is 
Unlawful Unless Shown To Be Job
Related ...................................  3

II. The Court Need Not Reach Issues 
Concerning The Disparate Effect 
Of The Final Selection Process
Viewed As A Whole ............................  5

CONCLUSION............................    6
Certificate of Service .............................  9

i



Pages
Franks v. Bowman Transportation Company, 424 U.S.

747, n. 32 (1976) ...............................  6, 7
Green v. Missouri Pacific R. Rompany, 523 F.2d

1290 (8th Cir. 1975) ............................  2, 4, 5

Griggs v. Duke Power Company, 401 U.S. 424
(1971) ...........................................  4, 5

Johnson v. Goodyear Tire and Rubber Company, 491
F .2d 1364, (5th Cir. 1974) ...................... 5, 7

League of United Latin American Citizens v. City 
of Santa Ana, 410 F. Supp. 873 (D.C. Cal.
1976) ............................................  6, 7

Rogers v. International Paper Co., 510 F.2d 1340
(8th Cir. 1975) .................................  2, 5

Smith v. City of East Cleveland, 363 F. Supp.
1131, n. 10 (N.D. Ohio, 1973) ....................  4

Smith v. Troyan, 520 F.2d 492 (6th Cir. 1975) .... 4

Washington v. Davis, 426 U.S. 229 (1976) ......... 4

TABLE OF AUTHORITIES



IN THE UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

NO. 76-1945

RONALD RULE, et al.,

Appellants,

v.

INTERNATIONAL ASSOCIATION OF BRIDGE, 
STRUCTURAL, AND ORNAMENTAL IRONWORKERS, 
LOCAL UNION NO. 396, et al.,

Appellees.

On Appeal from the United States District Court 
for the Eastern District of Missouri 

Eastern Division

PLAINTIFFS-APPELLANTS PETITION FOR 
REHEARING AND CLARIFICATION



PRELIMINARY STATEMENT
Plaiirtiffs-appellants, Ronald Rule, et al., hereby 

petition the Court for rehearing and clarification of a limited 

portion of its decision in this cause entered November 22, 1977. 

This petition is addressed to that portion of the Court's deci­

sion at footnote 10 which holds that a determination of the 

disparate exclusionary impact of the apprentice selection process 

must be measured by an examination of the selection process as a 
whole rather than an examination of the various elements of that 
process. See Slip Opinion p. 14, n. 10. In those few sentences 

the Court decides a series of important issues of substantive 
Title VII law, creates a conflict among the Circuits, e.g., see 

Johnson v. Goodyear Tire and Rubber Co., 491 F.2d 1364, 1372-73 

(5th Cir. 1974), and creates a conflict within the Eighth Circuit, 
see Green v. Missouri Pacific R. Co., 523 F.2d 1290 (8th Cir. 

1975); Rogers v. International Paper Co., 510 F.2d 1340, 1348-49 

(8th Cir. 1975) even though resolution of this issue is not 

essential to a determination of this case since the record here 

reveals the requisite disparate impact of both the important

elements of the selection process and of the selection process
1/

overall. See Slip Opinion, p. 14, Br. 13, 20-27 and A. 96-98.

1/ Throughout this brief reference to plaintiffs main brief is 
cited as "Br.". References to plaintiffs reply brief is cited 
as "Reply Br.". References to Defendant, Ironworkers et al., 
brief is cited as "R. Br.". References to the joint Appendix 
of the parties is cited as "A.".

2



For the reasons set forth below plaintiffs urge that the 
first paragraph of footnote 10 be eliminated or that it be 

altered substantially to bring that portion of the Court's 

decision into conformity with prevailing Title VII law.

ARGUMENT
The Ironworker apprenticeship selection process is complex 

and the substantive Title VII principles with which that process 

interfaces is more complex. The apprenticeship selection process 

can be grouped into two phases (1) initial screening, and (2) 

ranking and selection. In this case plaintiffs have challenged 

both aspects of the apprenticeship selection process. Footnote 

10 of the Court's opinion appears to encompass both aspects of 

the selection process. Accordingly it is essential that both 

aspects of the selection process be examined.

I.
If Any Of The JAC Eligibility Requirements 
Are Shown To Have A Disparate Impact. It Is 

Unlawful Unless Shown To Be Job Related

Any applicant for the apprenticeship program who does not 
possess a high school diploma (or its equivalent) (Br. 20) is 
deemed ineligible for further consideration (Br. 23, A. 77). An 

applicant, like plaintiff Ronald Rule, who fails to meet this 

requirement is absolutely barred from any consideration even 

though he may be able to perform adequately on the job.

3



Prior to the Court's decision in this case, no appellate 

court has permitted an eligibility requirement to stand without 

proof of job relatedness once plaintiffs have shown that the 

particular eligibility requirement has an adverse impact. See 
Johnson v. Goodyear Tire and Rubber Co.. 491 F.2d 1364, 1372-73 
(5th Cir. 1975); Griggs v. Duke Power Co., 401 U.S. 424 (1971); 

Rogers v. International Paper Co., 510 F.2d 1340 (8th Cir. 1975). 

This is so even where the employer or labor organization has 
presented evidence tending to show that there was no adverse 

racial disparity when its employment selection practices are 

viewed as a whole. See Johnson v. Goodyear Tire and Rubber Co.. 

supra, 491 F.2d at 1372-73 and Green v. Missouri Pacific R. Co.. 

523 F.2d 1290 (8th Cir. 1975). Smith v. Troyan, 520 F.2d 492

(6th Cir. 1975) is not to the contrary since the court there
2/

was not examining eligibility requirements. See Smith v. City 
of East Cleveland, 363 F. Supp. 1131, 1145, n. 10 (N.D. Ohio, 
1973).

In this case plaintiffs proved that the high school 

diploma requirement has a disparate impact on black applicants 

for the apprenticeship program. (Slip Opinion at p. 15, A. 97).

2/ It is also important to note that Smith, supra, involved a 
constitutional challenge to the City of East Cleveland, police 
selection process as opposed to the Title VII challenge involv­
ed here. Different standards apply in a constitutional case 
than in one brought under Title VII. See Washington v. Davis,
426 U.S. 229 (1976).

4



Upon this proof plaintiffs are entitled to prevail as to these 
eligibility requirements absent a showing of job relatedness 
by the defendants. See Griggs v. Duke Power Co., supra.

The rule which this Court announced at footnote 10 is 

contrary to Griggs, supra, and is squarely in conflict with 

this Circuit's decision in Green, supra, and the Fifth 

Circuit's decision in Johnson, supra. It also appears to be 

contrary to Rogers v. International Paper Co., 510 F.2d 1340, 

1348-49 (8th Cir. 1975). Further the first paragraph of foot­

note 10 is not essential to the court's decision because 

plaintiffs have shown the JAC selection process as a whole to 

have an adverse disparate impact. See Slip Opinion at p. 14. 

Accordingly this portion of the Court's opinion should be 

eliminated.

II.
The Court Need Not Reach Issues 
Concerning The Disparate Effect 
Of The Final Selection Process 

Viewed As A Whole
It may be argued that the procedure for ranking and 

selecting persons for actual admission to the apprenticeship 

program may be viewed as a whole for the purpose of determin­

ing adverse impact but that issue need not and should not be 

resolved here because an important element of that procedure, 

the high school diploma requirements, have already been

found unlawful. The fact that some

5



blacks who were able to overcome the first unlawfully 
discriminatory device and were not discriminated against 
in the final stages of the selection process should not 

deprive those who were victims of discrimination from
4/

obtaining relief. See League of United Latin American 

Citizens v. City of Santa Ana, 410 F. Supp. 873, 893-94 

(D.C. Cal. 1976). Further the evidence in the present 

record shows that the JAC selection process viewed as a 

whole does have a disparate impact which is sufficient to 
shift the burden to the defendants to prove job relatedness 

See Slip Opinion at p. 14, A. 96-98. Of course the 

defendants will be afforded an opportunity to prove at a 

subsequent stage of the case that individual class members 

are not entitled to relief under the standards set forth 

in Franks v. Bowman Transportation Co., 424 U.S. 747, 773, 
n. 32 (1976).

CONCLUSION

Footnote 10 creates a new rule of law in Title VII

3/ This comment can be made as to the Flanigan test as well 
since any applicant such as plaintiffs Vanderson and Coe who 
obtain no points for the test is effectively precluded from 
being selected.

6



cases that is in conflict with other appellate decisions.

That footnote should be eliminated from the Court's

opinion. In the event that the Court concludes that it

will comment on the appropriate role of evidence of the

adverse impact of the apprenticeship selection process as
a whole, plaintiffs urge that language along the following

lines be substituted:

Plaintiffs Vanderson and Coe center their 
challenge on the disparate impact of the 
Flanigan test which accounts for 15 of 
100 possible points. While it may be 
argued that the JAC selection process must 
be viewed as a whole to discover whether 
there is a disparate impact, it must be 
remembered that Title VII was designed to 
protect individuals. See League of 
United Latin American Citizens v. City of 
Santa Ana., 410 F. Supp. 873, 893-94 
(C.D. Cal. 1976). That other minority 
persons were over selected on other non- 
discriminatory factors is of no 
assistance to those minority persons who 
were the victims of a discriminatory test. 
Similarly, any class member who was deemed 
ineligible for consideration in the 
apprenticeship program because they did not 
possess a high school diploma are entitled 
to be considered for relief regardless of 
any absence of a disparate impact of the 
selection process overall. See Johnson v . 
Goodyear Tire and Rubber Co., 491 F.2d 
1364, 1372-73 (5th Cir. 1974). Of course 
the defendants remain free to prove at a 
subsequent stage of the case that the 
individuals who were adversely affected by 
the test would not have been selected for 
admission absent any discrimination. See 
Franks v. Bowman Transportation, 424 U.S. 
747, 773 (1976).

7



Coe and Vanderson also challenge the 
use of the Flannigan test because it 
has not been validated as required by 
the consent decree in the Government1s 
case. The consent decree grants the 
United States a right of enforcement. 
We perceive no error in the District 
Court's holding that plaintiffs lack 
standing to sue to enforce the consent 
decree.

Respectfully submitted,

LOUIS GILDEN
722 Chestnut Street
St. Louis, Missouri 63101

JACK GREENBERG 
0. PETER SHERWOOD

10 Columbus Circle 
Suite 2030
New York, New York 10019

8



CERTIFICATE OF SERVICE

This is to certify that on the 5th day of December, 

1977, I served a copy of the foregoing PLAINTIFFS- 

APPELLANTS PETITION FOR REHEARING AND CLARIFICATION upon 
the following counsel of record by depositing same in the 

United States mail, postage prepaid.

BARRY J. LEVINE, ESQ. 
Gruenberg, Souders & Levine 
905 Chemical Building 
721 Olive Street 
St. Louis, Missouri 63101

/

ATTORNEY FOR APPELLANTS

9 -