Terrell Jr. v. United States Pipe and Foundry Company Reply Brief for Appellants

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 
Nos. 80-7107, 80-7256

JOSEPH TERRELL, JR., et al.,
Appellants,

vs.
UNITED STATES PIPE AND FOUNDRY 
COMPANY, et al.,

Appellees.

On Appeal from the United States District Court 
for the Northern District of Alabama

REPLY BRIEF FOR APPELLANTS

JOSEPH P. HUDSON 
1909 30th Avenue 
Gulfport, Mississippi 39501

DANIEL B. EDELMAN 
Yablonski, Both & Edelman 
Suite 800
1140 Connecticut Avenue 
Washington, D. C. 20036

BARRY L. GOLDSTEIN 
Suite 940
806 15th Street, N.W. 
Washington, D.C. 20005
JACK GREENBERG
Suite 2030
10 Columbus Circle
New York, New York 10019
DEMETRIUS C. NEWTON 
2121 8th Avenue North 
Birmingham, Alabama 35203



TABLE OF CONTENTS

Page
Table of Authorities iii
I. IN LIGHT OF THE SERIOUS FACTUAL ERRORS,

OMISSIONS, AND MISSTATEMENTS MADE BY 
THE UNIONS IN THEIR BRIEFS, SEVERAL
ISSUES REQUIRED CLARIFICATION ......................  1
1. The Unions Were Responsible for

the Bargaining Unit Structure ...................  2
2. The Seniority System was not

Racially-Neutral ..............................  3
3. The Black Employees Were Prevented 

from Transferring into the Higher- 
Paying Positions Which Were Located 
in the Bargaining Units Represented 
by the AFL Unions by the Seniority 
System and not by the Practice of
the C o m p a n y ................................ 8

4. The History of Racial Discrimination
in the AFL U n i o n s .........................  10

5. The AFL Unions Rejected Modifications 
of the Discriminatory Unit Seniority
System......................................  17

II. IN LIGHT OF THE MISAPPLICATION AND MISREADING OF THE 
LAW MADE BY THE UNIONS IN THEIR BRIEFS, SEVERAL 
ISSUES REQUIRE CLARIFICATION ...................  18
1. The Defendants Have the Burden of Proving 

that the System Is "Bona Fide" if the 
Plaintiffs Establish that a Seniority
System Has an Adverse Racial Impact . . .  18

2. The International Unions Are Liable forActs Occurring Prior to October 4, 1971 . . .  18
3. The Racially-Motivated 1950 Job Transfers 

Developed a Seniority System Which Was
not "Bona Fide".............................  2 2



4. The 1949 Petition by the Molders Page
for a White-Only Bargaining Unit
Was Irrational and Inconsistent
With NLRB P r a c t i c e .....................  24

5. The Steelworkers Are Liable for
the Discriminatory Practices ..........  26

Attachment Ij
APPELLANTS' MOTION TO STRIKE PORTIONS
OF THE "JOINT BRIEF FOR THE APPELLEES
INTERNATIONAL MOLDERS AND ALLIED
WORKERS AND THE PATTERN MAKERS
LEAGUE OF NORTH AMERICA" .................

Attachment II:
APPELLANTS' AMENDMENT TO THEIR "MOTION 
TO STRIKE PORTIONS OF THE 'JOINT BRIEF 
FOR APPELLEES, INTERNATIONAL MOLDERS 
AND ALLIED WORKERS AND THE PATTERN 
MAKERS LEAGUE OF NORTH AMERICA'" ........

Attachment III:
APPELLANTS' RESPONSE TO THE BRIEFS FILED 
BY THE APPELLEES MOLDERS, PATTERN MAKERS, 
BOILERMAKERS AND MACHINISTS IN OPPOSITION 
TO THE APPELLANTS' MOTION TO STRIKE PORTIONS 
OF THE BRIEF FILED BY THE MOLDERS AND THE 
PATTERN MAKERS ...........................

Attachment IV.
APPELLANTS' MOTION TO STRIKE PORTIONS OF 
THE JOINT BRIEF FILED ON BEHALF OF THE 
MACHINISTS AND BOILERMAKERS BECAUSE THE 
BRIEF UNLAWFULLY RAISES AN ISSUE ON APPEAL 
FOR WHICH THIS COURT HAS NO JURISDICTION 
AND UNLAWFULLY REFERS TO MATTERS WHICH 
ARE NOT IN THE RECORD AND/OR WERE NOT 
OFFERED INTO EVIDENCE ...................

Attachment V.
APPELLANTS' REPLY TO THE OPPOSITION FILED 
BY THE BOILERMAKERS AND THE MACHINISTS TO 
THEIR MOTION TO STRIKE PORTIONS OF THE 
JOINT BRIEF FILED ON BEHALF OF THE BOILER­
MAKERS AND THE MACHINISTS .................

ii



Table of Authorities
Cases: Page

Albemarle Paper Co. v. Moody, 422 U.S. 405
(1974) 32-34

Carbon Fuel Co. v. United Mine Workers of
America, 100 S. Ct. 410 (1979) 21

Carey v. Greyhound Bus Co., Inc., 500
F. 2d 1372 (5th Cir. 1974) 30-31, 34

Coronado Coal Co. v. United Mine Workers of
America, 268 U.S. 295 (1925) 21

Fisher v. proctor & Gamble Mfg. Co., 613
F. 2d 527 (5th Cir. 1980) 15

Fulton Lodge No. 2, IAM v. Nix, 415 F.
2d 212 (5th Cir. 1969) 21

Glus v. C. G. Murphy, Co., 562 F. 2d
880 (3rd Cir. 1977) 21

Glus v. C. G. Murphy, Co., 23 FEP Cases
86 (3rd Cir. 1980) 21

Glus v. C. G. Murphy, Co., 23 FEP Cases
83 (W.D. Pa. 1979) 21

IUE v. westinghouse Electric Corp., 23 FEP
Cases 588 (3rd Cir. 1980) 35

International Woodworkers of America v. Georgia-
Pacific Corp., 568 F. 2d 64 (8th Cir. 1977). 35

James V. Stockham Valves & Fittings, Inc., 559 
F. 2d 310 (5th Cir. 1977), cert, denied,
434 U.S. 1034 (1978). 9

Johnson v. Goodyear Tire & Rubber Co., 491 F.
2d 1364 (5th Cir. 1977) 33

Kaplan v. IATSE, 525 F. 2d 1354 (9th Cir. 1975) 19
Kirby v. Colony Furniture Co., Inc., 613 F. 2d

696 (8th Cir. 1980) 32
Mergenthaler Linotyoe Co., 80 NLRB 132, 23 LRRM 

1055 (1948)

-iii-

25



Paqe
Myers v. Gilman Paper Go., 544 F. 2d 758, mod on 

rehearincr, 556 F. 2d 758, cert, dismissed, 
434 U.S. 301 (1977) 30-31, 33-34

Patterson v. American Tobacco Company, 535 F. 
2d 257 (4th Cir.), cert, denied, 429 U. 
S. 920 (1976) 30

Rowe v. General Motors Corporation, 457 F. 2d 
348 (5th Cir. 1972) 15

Sabala v. Western Gillette, Inc., 516 F. 2d 1251 
(5th Cir. 1975) 20

Sanchez v. Standard Brands, Inc., 431 F. 2d 
455 (5th Cir. 1970) 19

Social Services U., Local 535 v. City of 
Santa Clara, 609 F. 2d 944 (9th Cir. 
1979) 35

Swint v. Pullman-Standard, No. 78-2449 (5th 
Cir. Aug. 18, 1980) 1

Swint v. Pullman Standard, 17 EPD para. 8604, 
17 FEP Cases 730 (N.D. Ala. 1978) 18

Tillman v. City of Boaz, 548 F. 2d 592 (5th 
Cir. 1977) 19

United Mine Workers of America v. Coronado 
Coal Co., 259 U.S. 354 (1922) 21

United States v. Jacksonville Terminal Co., 
451 F. 2d 418 (5th Cir. 1971), cert, 
denied, 406 U.S. 906 (1972) 8

United States v. N.L. Industries, 479 F. 2d 
354 (8th Cir. 1973) 30, 34

United States v. United States Steel Corporation, 
520 F. 2d 1043 (5th Cir. 1975), cert, denied, 
429 U.S. 817 (1976) 32-33

United States v. White, 322, U.S. 694 (1944) 21
United Steelworkers of America v. Weber, 443 

U.S. 193 (1979)
United Transportation Union Local No. 974 v. 

Norfolk and Western Railway Company,
532 F. 2d 336 (4th Cir. 1975), cert, 
denied, 425 U.S. 934 (1976)

11

3434



Weber v. Kaiser Aluminum & Chemical Corp., 563 F. 2d
216 (5th Cir. 1977) 11

Weeks v. Southern Bell Telephone & Telegraph,
Co., 408 F. 2d 228 (5th Cir. 1969) 22

Statutes, Executive Order and Other Authorities;
Taft-Hartley Act of 1947, 29 U.S.C. §159(b)(2) 24
Title VII of the Civil Rights Act. of 1964 (as

amended 1972), 42 U.S.C. §§2000e et seq. Passim
War Labor Disputes Act (Smith-Connally Act),

June 25, 1943, ch. 144, 57 Stat. 163 26
Executive Order No. 9017 (January 12, 1942) 26
G. Myrdal, An American Dilemma (Harper & Row

ed., 19%2) ......  10-11
S. Spero and A. Harris, The Black Worker

(Atheneum ed., 1968) 10
P. Taft, Organized Labor In American History

(Harper & Row ed., 1964) 12
P. Taft, The A.F. of L. from the Death of Gompers

to the Merger (Harper & Brothers ed., 1959) 12
The Termination Report of the National War Labor

Board, Volume i (GPO) 26

Page

v



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 
Nos. 80-7107, 80-7256

JOSEPH TERRELL, JR., at al.,
Appellants,

v s .

UNITED STATES PIPE AND FOUNDRY 
COMPANY, et al.,

Appellees.

On Appeal from the United States District Court 
for the Northern District of Alabama

REPLY BRIEF FOR APPELLANTS

I. IN LIGHT OF THE SERIOUS FACTUAL ERRORS,
OMISSIONS, AND MISSTATEMENTS MADE BY 
THE UNIONS IN THEIR BRIEFS, SEVERAL 
ISSUES REQUIRE CLARIFICATION

Introduction
On the day that this brief was due to be filed, counsel for 

the appellants received a copy of the cpinion in Swint v. Pullman- 
Standard, No. 78-2449 (5th Cir. August 18, 1980). Manifestly, this 
Opinion requires the reversal of the lower court's decision and a 
remand for the institution of an appropriate remedy.

The briefs filed by the Unions, appellees, contain numerous 
erroneous statements of fact and law. We principally rely upon our 
opening brief to respond to and to correct these erroneous statements. 
However, several issues require additional clarification.



2

1. The Unions Were Responsible for the Bargaining 
Unit Structure

The Bessemer plant of U.S. Pipe was divided into production 
and maintenance departments which, generally, operated in a func­
tionally-integrated manner. "However, superimposed upon these
departments was a crazy-quilt pattern of union representation."

1/
Brief, p. 6. in large measure, the seniority system was based 
upon the bargaining units and not upon the operational depart­
ments. This seniority system has had a severe adverse impact 
upon the training, promotion, and earning opportunities of 
black employees. Id., pp. 6-9.

As they could not, the Unions do not dispute that the 
bargaining units cut across operational departments or that the 
seniority system had a substantial adverse racial impact. But 
the Unions state that as "Judge Pointer correctly recognized... 
the collective bargaining units grew out of the departmental 
structure established by the Company and out of the desire of 
the several unions to establish job security for employees...[on] 
the only basis to which the Company would agree". Boilermakers - 
Machinists Brief, p.4.

These assertions are contrary to the Record and to Judge 
Pointer's findings (in fact, the Unions totally ignore findings 
by the Court). The lower court did not find that the collective 
bargaining agreements "grew out of the departmental structure".

1/ "Brief" refers to the appellants' main brief.



3

Rather the lower court found that "the basic components of the
representational structure were defined as a result of elections2/
directed by the NLRB in early 1940", R. 1175, R.E. 33a, and that 
"[t]he description... of the seniority units as 'departments' is 
somewhat misleading...." R. 1170, R.E. 28a. Moreover, the district 
court did not find that the unit structure was "the only basis to 
which the Company would agree"; rather the lower court indicated that 
the unit structure which was defined by the 1940 NLRB election resulted 
from an "inter-union struggle for representation", (emphasis added).
R. 1175, R.E. 33a. As the decision of the NLRB makes clear, the 
Company did not take any position regarding the proper scope of the 
units or the proper unit representative, pis. exhibit 50, p. 1019. 
Furthermore, the Unions caused the subsequent modifications in the 
unit structure, the 1949 certification of the Molders and the 1950 
job transfers, Brief, pp. 18-20.

2. The Seniority System Was not Racially-Neutral
The Unions argue that "[t]he seniority systems were com­

pletely neutral racially and applied equally....", Boilermakers- 
Machinists Brief, p. 5. The Unions simply ignore the district 
court's finding "that the seniority system has been shown to have 
a discriminatory impact upon black employees", R. 1172, R.E. 30a, 
and the overwhelming evidence of the severe adverse economic impact 
of the system upon black employees, Brief, pp. 65-66. Moreover, 
the Unions ignore that in establishing and operating the system,

2/ "R." refers to the Record in these appeals; "R.E." refers to
the Record Excerpts which have been filed in this Court.



4

job positions containing white helpers and production workers 
were treated differently than job positions containing black 
helpers and production workers, Brief, pp. 63-65.

Furthermore, the Unions misrepresent the application
of the system. The Unions state that,

[o]ver the years many white employees 
continued to work as helpers. More 
recently both the Boilermakers and 
the I.A.M. had white helpers. ( Tr.
244, 305, 366). Molders-Pattern 
Makers Brief, p. 23.

Incredibly, the Unions cite directly to portions of the transcript 
which prove that the system was applied in a racially-unequal 
manner. Mr. Holston, a black employee who had worked as a Boiler­
maker Helper in the 1930's, testified that, at that time, there 
were white "helpers" Tr. 224. The actual job classification and 
unit representation of these white "helpers" were clarified during 
the testimony of Mr. Hembree, a white boilermaker and a former 
union steward, Tr. 302. Mr. Hembree testified that the workers 
in the Boilermaker Helper classification were black and that 
there were white workers who "did the same type of helping work 
that the black boilermakers helpers did". Tr. 304-05. However, the 
white workers who did "helping" work were classified as "C class 
Boilermakers", Tr. 307. See also pis. exhibit 91 (employee card: 
Vines); pis. exhibit 92 (employee card; Scott); Brief, pp. 21-22. 
These white employees, whose job position differed in name only 
from that of the black workers who were classified as Boilermaker



5

Helpers, were included in the bargaining unit represented by 
the Boilermakers, Tr. 306. Thus, by contractual right the 
white workers could promote to the Boilermaker position on 
the basis of their seniority. Of course, the seniority 
system precluded the black Boilermaker Helpers, who were 
located in the bargaining unit represented by the Steel­
workers, from so transferring despite their qualifications

3/and experience. Brief, pp. 21, 34, 54-55.
The final transcript reference in the Unions' Brief,

Tr. 366, concerns the job structure in the Mechanical Maintenance 
department. Mr. Harper, a white employee who is currently 
president of Lodge 359, Machinists, testified that he worked with 
white employees whom he "wouldn't exactly call... helpers. I 
would call them more trainees than I would helpers.... They wasn't 
(sic) classed (sic) as helpers; they were classed (sic) as D, C, B 
[Millwrights]". Tr. 366. These white workers were included within 
the bargaining unit represented by the Machinists, id.; thus, the 
white workers by contractual right could promote to the Millwright 
A position on the basis of their seniority. Black workers who were 
employed in this department as "Helpers" were precluded from so 
promoting. Brief, pp. 23, 56-58.

The Unions also attempt to avoid.the obvious evidence of the 
unequal and unjust application of the system. The Unions attempt by

3_/ In the Boilermakers-Machinists Brief, pp. 10 n.10, 11, 20, there 
are misleading references to Hembree's testimony which are similar 
to the misleading references in the Molders-Pattern Makers Brief.



mischaracterization to obscure the detailed evidence of racial 
discrimination. The Unions state that the Machinists' unit in­
cluded only "true machinists - lathe and other machine tool 
operators ... skilled machine tool operators... skilled machine 
operator[s] .... " Boilermakers-Machinists Brief, p. 6; and that 
the "De Lavaud and other production machinists were members of 
the Machinists Union who obtained their machine tool expertise 
through the apprentice route". Id., p. 14, n.14.

The Machinists did not just represent skilled or "true"
machinists. The Machinists represented workers in entry-level,
unskilled positions, other than apprentice positions, in each

1/of their seniority units except for the Blacksmith Shop. In 
order to work as a Machinist C or D, Crane Operator, Pipe Fitter 
C or D, or Millwright D, it was not necessary for a worker to 
have either experience or skill. Tr. 69-70 (Boswell). Thus, 
the inexperienced white workers were able to progress as a matter 
of contractual right without the loss of seniority as their on- 
the-job training improved their skills. However, the black Helpers, 
Hookers and Laborers who worked in the same operational depart­
ments were denied this opportunity for advancement. See Brief, 
pp. 54-62.

Moreover, contrary to the assertion of the Machinists, 
the on-the-job progression, and not any Company-controlled apprentice

4/ Chemical-Physical Testing Lab—  Machinist C; deLavaud Pipe 
cutters and Drillers — Machinists C; Machine Shop— Crane Operator, 
Machinist C; Mechanical Maintenance—  Machinist C or D, Pipe 
Fitter C or D, Millwright D. See pis. exhibits 21a and b (Plain­
tiffs' First and Second Request to Admit and Responses); Unions 
exhibit 1 (U.S. Pipe's Tenth Request to Admit).

- 6 -



7

program, was practically the exclusive method for the training 
of workers in the unit represented by the Machinists. During 
the period from 1968 through 1977 (this is basically the period 
of liability) there were approximately 300 vacancies filled in the 
seniority units represented by the Machinists: only 3 of those
positions were apprentice positions, while over 100 of those 
positions were in the unskilled job categories set forth above, 
Unions exhibit 1 (U.S. Pipe's Tenth Request to Admit). Further­
more, black workers in the Steelworkers' bargaining unit who were 
denied the opportunity to transfer to the jobs in the Machinists'
unit could have qualified for vacancies in other than entry-level

6/positions. See Brief, pp. 33-36.

5/ it is noteworthy that the current president of Lodge 359, 
Machinists, Eugene Harper, was hired as an unskilled worker 
into a Millwright C position and progressed to Millwright A 
through the on-the-job training program. Tr. 362-64; pis. 
exhibit 93 (employee card: Harper).
6/ One minor mischaracterization by the Unions requires direct 
rebuttal since it is so terribly unfair. Although class member 
Holston was trained by the Army as a skilled machinist, who 
often trained inexperienced white workers and as a result of 
his training, could operate any machine in the Shop, the senior­
ity system locked him into Helper and Laborer positions during 
his over thirty years at the plant. Brief, pp. 33-34. The 
Unions attempt to denigrate Mr. Holton's training and service 
in the military during World War II by stating that "he had 
served as a mechanic (called 'machinist' by the Army)...." 
Boilermakers-Machinists Brief, p. 18.

The Army Separation Qualification Record is absolutely clear 
that Holston was a machinist, that he, inter alia, "[m]ade metal
parts and tools.... [w]orked from blueprints.... [ojperated a 
14 inch lathe.... an electric powered milling machine.... [did] 
first echelon maintenance on machines.... [and that he performed] 
these duties overseas in Philippine Islands, Australia and New 
Guinea." Pis. exhibit 57; see also Tr. 214-16 (Holston).



- 8 -

3. The Black Employees Were prevented from Transferring 
into the Higher-Paying Positions which Were Located 
in the Bargaining Units Represented by the AFL Unions 
by the Seniority System and not by the Practices of 
the Company

The Unions contend that "U.S. Pipe maintained absolute 
control of the selection of employees for ... transfer... between
departments...." Boilermakers-Machinists Brief, p. 8. Once again

2 /the Unions misrepresent the evidence. As the district court plainly 
found, it was the seniority system "in effect at U.S. Pipe's Bessemer 
plant since 1968— allowing for only limited use of plant service in 
the event of transfers between seniority units... [which had] a 
discriminatory effect...." R. 1171, R.E. 29a. If the Company trans­
ferred a worker then the worker would be required to commence work

jKin the unit as a "new man". R.1170, R.E. 28a. Of course, this 
"loss of seniority [was] a critical inhibition to transfer" United 
States v. Jacksonville Terminal Co., 451 F. 2d 418,453 (5th Cir. 1971),

2 7 In support of their assertion,the Unions cite to the "October,
1973, transcript [this transcript is pis. exhibit 42], pp. 43, 44;
R. 864, 1082." The transcript pages refer only to initial job 
assignment. There is no dispute that the Company assigned employees 
to their initial job. See R. 1172, R.E. 30a (Op.). The Record 
references are to Answers to Interrogatories. (The Answers referred 
to at R. 864 were never introduced into evidence.) These Answers, 
as was true for the October, 1973, transcript, only refer to initial 
job assignment and not to inter-unit or inter-departmental transfer.
_§/ Of course, the Unions' statement that the "company could promote 
helpers [to job training progressions, e.g., Millwright D or C to A] 
if it saw fit to do so" (emphasis in original), Boilermakers-Machinists 
Brief, p. 9, is completely misleading. The Company could not trans­
fer employees with seniority; moreover, employees within the unit had 
a contractual right to move into the job prior to employees from 
another unit.



9

cert, denied, 406 U.S. 906 (1972). seniority systems such as this 
one "have been condemned by the courts because black employees 
must choose to commit 'seniority suicide' to enter departments 
from which they were previously excluded...." James v. stockham 
Valves & Fittings, Inc., 559 F. 2d 310, 348 (5th Cir. 1977), 
cert, denied, 434 U.S. 1034 (1978). See Brief, pp. 7-9 (effect of 
seniority system upon class), and pp. 33-37 (effect of seniority 
system upon five individuals).



10

4. The History of Racial Discrimination in the AFL Unions 
The AFL Unions take an almost Orwellian, "Big Brother" 

approach to the history of their practices of racial discrimina­
tion: If the history inconveniences their argument, they rewrite
the history. For example, the Molders and Pattern Makers state.
Brief, p. 9:

The accusation that the A.F.L. is responsible 
for the exclusion of blacks from craft unions 
at U.S. Pipe is preposterous. The exclusion of 
blacks from the skilled trades came at a time 
when organized labor was a negligible influence 
and long before 1940.

A succinct but accurate synopsis of the history of racial discrimin­
ation in the crafts and the role of AFL Unions is given in An American

9/Dilemma:
There is no doubt that the decline 10/ 
in the relative position of the skilled 
Negro building worker is due largely to the 
attitude of white workers.... Trade 
unions, however, had little to do with 
the big displacement of Negro skilled 
workers which occurred between the end 
of the Civil war and the 'nineties, 
for until that time they remained rather 
powerless in the South. They are 
largely responsible, on the other hand, 
for the fact that the Negro has been kept 
from sharing in the expansion of the 
building trades which occurred in the 
South during this century. The discrimi­
natory attitude of the organized building crafts is the more significant at the 
present time [An American Dilemma was 
copyrighted in 1944], since they dominate 
the American Federation of Labor - a cir­
cumstance which is behind the reluctance 
of this organization to take any definite

W  CL Myrdal, An American Dilemma (Harper & Row ed., 1962), p. 1102.
10/ At the end of the Civil war, blacks constituted the great majority, 
approximately 80%, of all skilled tradesmen in the South. Myrdal, p. 1101;
S. Spero and A. Harris, The Black Worker (Atheneum ed., 1968), p. 16.



11

action against exclusionist and segregationist 
practices. (Footnote added).

WThe racial discrimination practiced by the AFL Unions 
is a sorry chapter in the history of labor unions. This history 
has been repeatedly detailed by scholars and by the courts. These 
sources are set forth by the Supreme Court in support of its state­
ment that "[jjudicial findings of exclusion from crafts on racial
grounds are so numerous as to make such exclusions a proper subject

12/for judicial notice”. United Steelworkers of America v. Weber,
443 U.S. 193, 198, n. 1 (1979); see also Weber v. Kaiser Aluminum 
& Chemical Corp., 563 F. 2d 216, 235 n. 18 (5th Cir. 1977) (wisdom,
J., dissenting).

The Machinists and the Boilermakers maintained rigid 
practices of racial discrimination. The Machinists were con­
ceived as a racist organization and adhered to their "white-only" 
policy until 1948, despite repeated attempts to integrate by local 
lodges. Brief, pp. 11-12. In fact, the practices of the Union 
were so notorious that the NLRB observed in its decision regarding 
union representation at the Bessemer plant of U.S. Pipe, that "the

11/ This is not to say that all of the AFL or craft unions were 
"equally bad". Myrdal, p. 1102. For example, Myrdal pointed out 
that the leaders of the Bricklayers, Masons and Plasterers' Inter­
national Union "... have fought discriminatory practices in a 
rather consistent way," id. Moreover, on the floor of the 1944 
Convention, A. Philip Randolf pointed out the contradiction 
between AFL Unions where "[t]here are Negroes and white workers 
together" and the Boilermakers where blacks were separated into 
inferior, "auxiliary" locals. Brief, p. 14.
12./ The Unions argue that the factor determining the bargaining 
unit structure was the "craft vs. industrial union struggle". 
(FOOTNOTE CONTINUED ON FOLLOWING PAGE)



- 12

I.A.M. does not admit colored employees to membership...." pis. 
exhibit 50, In the Matter of United States Pipe and Foundry
Company and Steel workers Organizing Committee, 19 N.L.R.B., No. 102,
p. 1019 (1940).

The Machinists can not dispute the detailed history of their
13/

overt racial discrimination. However, they attempt to cloud the Record 
by improper references to extra-Record sources and by a mischaracter-
ization of the testimony of a class member, Henry Holston. Boiler­
makers -Machinists Brief, pp. 12-13, 19. The inaccurate and improper 
references to matters which are not in the Record have been discussed

(FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
Molders-Pattern Makers Brief,pp. 5-9. The Unions totally ignore 
the history of severe racial discrimination practiced by the AFL 
Unions. In support of their position the Unions refer to the 
"authoritative" work of Mr. Taft. Id., p. 6. However, they failed 
to mention that Mr. Taft stated that "[a]lthough the A .F. of L. 
was officially opposed to discrimination for reasons of race, 
creed, or color, discrimination against Negroes and other minority 
groups was tolerated in practice throughout the years". (Emphasis 
added). P. Taft, The A.F. of L. from the Death of Gompers to the 
Merger (Harper & Brothers ed., 1959), p. 439. Furthermore, Taft 
observed that (unlike the A.F. of L.) the "formation of the CIO 
as a permanent federation in 1938 created a labor center where 
formal discrimination by the international unions was absent".
P. Taft, Organized Labor In American History (Harper & Row ed., 
1964), p.—5T5"I The history of labor organization and the clash 
between the A.F. of L. and the C.I.O. involved issues of race 
discrimination as well as issues regarding craft versus industrial 
organization. (It should be noted that the authorities cited by 
the Supreme Court, Weber. supra. 443 U.S. at 198, n. 1, present 
a much more thorough discussion of racial discrimination practiced 
by unions).

The Unions state that "[ffailure to place events... in their 
historical perspective can only lead to ... a gross injustice". 
Molders-Pattern Makers Brief, pp. 5-6. If the distorted and 
erroneous "history" presented by the Unions is accepted, then a 
"gross injustice" will result— the failure to fully remedy the 
effects of years of intentional discrimination practiced against 
the black workers at the Bessemer plant.

13_/ It would be especially difficult for the Machinists to do so, 
since their history is set forth in a request to admit facts to 
which the Machinists admitted. Pis. exhibits 30a, 30b (Pis. First 
Request to the Machinists and Response)



13

in the Motion to Strike these references. The Machinists attempt
to characterize Holston's testimony as indicating that he was a
full member of the Machinists, that he was fairly represented by
them, and that without any coercion he joined the Steelworkers.
Boilermakers-Machinists Brief, pp. 12, 19. As a result of the
Machinists requesting a bargaining unit that included Helpers
(Holston was a Helper), and the NLRB certifying in 1940 the
unit as the Machinists requested, Holston was placed in the
Machinists' unit. Brief, pp. 15-18. However, in accordance with
their white-only policy, the Machinists soon refused to represent
the blacks who worked as Helpers:

Q. (By Mr. Longshore, lawyer for Machinists)
But in between the time the unions came in 
[1940] and you went off to the service [1942], 
did you understand that the Machinists were 
negotiating for the black helpers in the 
Machine Shop?

A. (Holston) They told us they couldn't represent 
us, that it was a craft union and didn't have 
helpers. Tr. 230.

When Holston returned in 1946, after four years of army service, no 
official of the Machinists provided representation or ever requested 
that he pay dues. Brief, pp. 19-20. Subsequently, in 1950 the 
irrational and racially-discriminatory transfer of jobs occurred,
R. 1177-78, 1183, R.E. 35a, 41a (Op.), which formally confirmed 
the refusal of the Machinists to represent black workers.

The Boilermakers do not directly dispute the detailed 
evidence of their longstanding, humiliating and unlawful

14/ Attachments I-V to this Brief. See specifically Attachments IV 
and V regarding the Machinists improper reference regarding their 
practice of segregation.
15/ The history of Holston's employment at U.S. Pipe is described 
£rT the Appellants' Brief, pp. 19, 33-34.

14/



14

racial discrimination (as held by the California Supreme Court) Brief, pp. 
12-14. Rather the Boilermakers merely state that the testimony of 
Mr. Hembree, a former union officer, "contradicts" the evidence. 
Boilermakers-Machinists Brief, pp. 10-11, 20. On the contrary,
Mr. Hembree's testimony confirmed the practices of discrimination 
at u.S. Pipe. Prior to coming to work at U.S. Pipe, Mr. Hembree 
had worked as a Boilermaker for a railroad. Tr. 303. He testified 
that there were Boilermaker Helpers in the Boilermakers' Union at 
the railroad, and that, as far as he knew, it was standard practice 
for Helpers to be included in the Boilermakers Union, id. Of course, 
this testimony emphasizes that it was irrational and inconsistent 
with industrial practice for the Helpers at U.S. Pipe not to be 
included in the Boilermakers Union. See Brief, pp. 55-59.
Mr. Hembree also testified that the white workers who did "the same 
type of helping work [as did] the black boilermaker helpers" were 
included in the Boilermakers Union. Tr. 304-06. Clearly, this 
testimony illustrated the racial inequality in the system, see 
pp.4-5 , supra.

The Molders state that "[s]urprisingly the Molders are 
condemned as racists although they sought to represent the black 
employees in 1940...." Molders-Pattern-Makers Brief, p. 20. The 
facts are clear, the Molders maintained segregated locals until 
1967, Brief, p. 14. Moreover, in 1949 the Molders petitioned 
for an all-white bargaining unit at the Bessemer plant which 
irrationally and discriminatorily excluded the black Molder Helpers,
Brief, pp. 18-19, 60-62. Furthermore, the officers of the Molders 
engaged in overt, discriminatory behavior. The Local's president,
Billy Parker, told black workers that "[w]e didn't want you all



15

in here to start with Tr. 191-92 (Green).
The Pattern Makers assert that "the plaintiffs could 

find nothing more against the Pattern Makers than the accusation 
that a local union officer made a reference to iNigras1 to an 
E.E.O.C. representative". Molders-Pattern Makers, Brief p. 26. 
The statements made by Basemore, the union officer, were harsher 
and showed more racial bias than is indicated by the Unions. 
Brief, p. 72. Moreover, while the Pattern Makers did not 
have a white-only provisions in their Constitution, they do
have an initiation procedure which, to say the least, is "a

17/
ready mechanism for discrimination...." In order to join the 
Pattern Makers an individual has to apply and be accepted by a

I V

16/ The Molders attempt to explain away this statement by asserting 
that the reference was directed to all Group II Molders and was not 
directed to blacks, Molders-Pattern Makers Brief, p. 25. Firstly, 
it is apparent from Mr. Green's testimony, Tr. 191-95, that the 
reference was racial. Secondly, Mr. Parker's racial views were 
illustrated in an affidavit which he signed during the investigation 
undertaken by the EEOC, pis. exhibit 70:

So far having the Negroes in the Union has 
worked out peacefully. I haven't had any 
trouble out of any of them. As long as he 
stays in his place, he's alright with me.

Thirdly, the Molders' assertion that the statement refers to all 
Group II Molders contradicts a prior assertion made by the Molders 
that the "Union and the Company created a Group II molder category... 
'for the purpose of training...." (Emphasis added). Molders- 
Pattern Makers Brief, p. 24.

17/ "...[W]e ... recognize that... procedures which depend almost
entirely upon subjective evaluation and favorable recommendation... 
are a ready mechanism for discrimination against Blacks much of 
which can be covertly concealed...." Rowe v. General Motors 
Corporation, 457 F. 2d 348, 359 (5th Cir. 1972); see also Fisher v. 
Proctor Sc Gamble Mfg. Co. , 613 F. 2d 527, 545-46 (5th Cir. 1980) .



16

local association. Three members of the local association must 
sign the application and in order to be accepted, two-thirds of 
the members present must approve the application. Tr. 432-35 
(Jaffke). The Pattern Makers Association of Birmingham did not 
admit a black worker until 1972. Pis. exhibit 36b, ans. 3 (Pattern 
Makers' Answers to Interrogatories). Finally, the Pattern Makers 
rejected the 1971 proposed modification of the discriminatory unit 
seniority system in a manner which violated the bylaws of the Union. 
Brief, 72-73. Especially in light of the racial attitudes expressed 
by the business manager of the Local, Mr. Basemore, and the all- 
white composition of the Local, the illegal rejection of the pro­
posed modification creates a strong inference of racial discrimina- 1§/ 
tion.

18/ Incredibly, the Pattern Makers state only that the international 
representative, Jaffke, agreed to the 1971 modification. Molders- 
Pattern Makers Brief, p. 26. The Pattern Makers do not mention that 
the Local rejected the modification, that when Jaffke was shown that 
the modification was not approved in 1971 he was "greatly disturbed", 
Tr. 429, and that Jaffke stated such a rejection "would have been a 
violation of our bylaws". Tr. 462; see also Brief, p. 73.



17

5. The AFL Unions Rejected Modifications of the 
Discriminatory Unit Seniority System

The Unions completely distort the history of the 1971 and
19/

1974 collective bargaining negotiations. Boilermakers-Machinists 
Brief, pp. 6-8. In general, in 1971 both the Steelworkers and the 
Company proposed a modification in the unit seniority system, termed 
the Inter-Union Seniority Agreement. The Agreement was not put into 
effect because the AFL Unions refused to agree to any modification. 
Brief, p. 30. In 1974, the AFL Unions rejected proposals from 
both the Company and the Steelworkers that a plant-wide seniority
system be implemented. Id. 31-32. Accordingly, at the insistence

20/
of the AFL Unions, a "unit preference" system was implemented.
The "unit preference" system maintained the effects of prior 
discrimination to a substantial degree, id. In short, the 
collective bargaining negotiations are characterized by the 
instransigent resistance of the AFL Unions to modifications of 
a seniority system which continued the adverse effects of overt 
racial discrimination. Brief, pp. 27-32, 70-71; See also Steel­
workers Brief, pp. 16-20.

19/ The Unions do not discuss the negotiations prior to 1968. These 
negotiations are described in the Appellants Brief, pp. 27-29; see 
also Steelworkers Brief, pp. 16-18.
20/ The "unit preference" system was accurately described by the 
district court, R. 1171, R.E. 29a; see Brief, p. 32. Without even 
referring to the lower court's Opinion, the Unions give a grossly 
inaccurate description of the system. Boilermakers-Machinists 
Brief, p. 8.



18

II. IN LIGHT OF THE MISAPPLICATION AND MISREADING 
OF THE LAW MADE BY THE UNIONS IN THEIR BRIEFS, 
SEVERAL ISSUES REQUIRE CLARIFICATION

1. The Defendants Have the Burden of Proving that the 
System Is "Bona Fide" if the Plaintiffs Establish 
that a Seniority System Has an Adverse Racial Impact

The Unions argue "that the burden of proof rests upon the 
plaintiffs to prove that a seniority system is not protected by 
§703 (h)". Steelworkers Brief, pp. 26-30; Boilermakers-Machinists
Brief, pp. 27-29. The authorities which the Unions cite in support 
of their position are inapposite; the question concerning which party 
had the burden of proof to establish whether a system was bona fide 
or was not bona fide was not specifically raised before the courts 
whose opinions the Unions rely upon. However, the issue has been 
raised in several cases, including this one decided by Judge Pointer. 
Judge Pointer has determined that "the burden of pursuasion on a 
claim of immunity under 2000e-2(h) is upon the defendants. Swint v. 
Pullman Standard, 17 EPD para. 8604, 17 FEP 730 (N.D. Ala. 1978)", 
rev. on other grounds, No. 78-2449 (5th Cir. Aug. 18, 1980); R. 1173, 
R.E. 31a. For the reasons stated in Swint and in the appellants' 
Brief, pp. 41-42, the burden of proof for establishing the "bona 
fides" of a seniority system should be placed upon the defendants.

2. The International Unions Are Liable for Acts Occurring 
Prior to October 4, 1971

In our opening Brief, Argument II, we demonstrated that the 
district court erred in holding that the international unions could



19

not be held liable for acts prior to October 4, 1971. Appellees' 
briefs fail almost completely to respond to our contentions.

We argued first that the 1969 charges, properly 
construed, must be read as naming the internationals as well as 
the local unions as parties respondent. The charges, though 
ambiguous, do refer to the internationals as well as to the locals, 
Brief p. 80, n. 57. Whatever ambiguity exists should be resolved 
in favor of a liberal construction of the charges, both because 
the charging parties are laymen unfamiliar with the technicalities 
of formal pleadings, Tillman v. City of. Boaz, 548 F. 2d 592, 594 
(5th Cir. 1970), and because any such ambiguity appears to be 
attributable to the EEOC Field Representative in whose hand all 
of the charges are written. As we said, the case of Kaplan v.
IATSE, 525 F. 2d 1354 (9th Cir. 1975)— where similarly ambiguous 
charges were construed as naming the international as well as the
local union in reliance uoon Sanchez v. Standard Brands, Inc.,

21/
431 F. 2d 455 (5th Cir. 1970)— is directly on point. Incredibly,
neither the joint brief of the Pattern Makers and Molders nor that 
of the Machinists and Boilermakers takes up these considerations 
or even purports to differentiate Kaplan.

Second, we argued that even if the changes are not read 
as naming the internationals, the close association between these

21/ Indeed, the case is even stronger for a liberal construction 
because of the apparent sloppiness of the EEOC intake officer in 
failing more plainly to refer to the internationals. Brief, pp. 81- 
82.



20

local and international entities allows the internationals to
be joined as Title VII defendants. Neither the joint brief
of the Molders and Patternmakers nor that of the Machinists
and Boilermakers purports to distinguish the cases cited by
us for this proposition, Brief, pp. 82-83. Their reliance
on such decisions as Sabala v. Western Gillette, Inc., 516

22/
F. 2d 1251 (5th Cir. 1975) is misplaced in that the EEOC 
charge in Sabala named only the employer and not the union entity 
which the plaintiff sought to include as a defendant. Assuming 
arguendo we are incorrect in asserting that the 1969 charges should 
be read as naming the internationals as well as the locals, the 
question is whether an unnamed union entity may be included as 
a defendant where the charge names a closely-associated entity 
of the same union. The appellees' argument that this question 
should be answered in the negative is based totally on cases in­
volving issues of vicarious liability which hinge, in any given 
instance, upon whether one union is shown to have acted as an

2_2/ See Molders-Patternmakers Brief, pp. 9-10 and Machinists- 
Boilermakers Brief, p. 45.



21

agent for another. While appellees place total reliance on cases
applying agency principles in determining vicarious liability, they
cite no decision applying such cases to the question here: the
inclusion —  not liability —  of a union entity not named in
an EEOC charge where a closely-associated entity of the same
union is named. The factors for resolving the question posed
here were spelled out most completely by the Third Circuit in
Glus v. C.G. Murphy, Co., 562 F.2d 880, 888 (3rd Cir. 1977), see
Brief pp. 84-85. The appellees have wholly ignored Glus and the
factors stated therein. Accordingly, they have failed in any way
to address our demonstration, Brief, pp. 85-88, that the Glus
factors support inclusion of the internationals as defendants 

24/
in this case.

Third, we demonstrated that the filing of amended EEOC 
charges in 1973 should, under applicable EEOC regulations and

23/ See United States v. White, 322 U.S. 694 (1944); United Mine 
Workers of America v. Coronado Coal Co., 259 U.S. 354 (1922);
Coronado Coal Co. v. United Mine Workers of America, 268 U.S.
295 (1925); Carbon Fuel Co. v. United Mine Workers of America,
100 S.Ct. 410 (1979); Fulton Lodge No. 2, IAM v. Nix, 415 F.2d 
212 (5th Cir. 1969).
24/ it is notable that on remand from the Third Circuit's 1977 
decision cited in our opening Brief, the district court upheld the 
inclusion of the unnamed international as a defendant.Glus v.
C. G. Murphy, Co., 23 FEP Cases 83 (W.D.Pa. 1979). That 
decision was only recently affirmed by the Third Circuit, Glus v.
C.G. Murphy, Co., 23 FEP Cases 86, 87-88 (3rd Cir. 1980). The factors 
which persuaded the district court and the court of appeals in 
Glus to uphold inclusion of the unnamed international are on a 
par with those set forth at pp. 85, et_ seq. of our Brief.



22
this Court's decision in Weeks v. Southern Bell Telephone & Telegraph, 
Co., 408 F.2d 228, 230-31 (5th Cir. 1969), be treated as relating 
back to the date of the original charges. Brief, pp. 88-90. We 
note that the Appellees simply ignore our reliance upon the EEOC 
regulation and upon Weeks and other decisions of this Court.

3. The Racially-Motivated 1950 Job Transfers Developed 
a Seniority System Which Was Not "Bona Fide"

The Unions address the 1950 transfer of employees between 
bargaining units which the district court held to be illegal. Boiler­
makers -Machinists Brief, pp. 30-43. Inasmuch as the Unions did 
not appeal the districts court's finding that the locals of the 
Boilermakers and Machinists were liable for damages suffered 
by black workers as a result of this illegal transfer, their 
attack on this aspect of the decision is not properly before

2 5 /
this court. We contend that the district court was correct in 
disapproving the 1950 transfer but erred in viewing that transfer 
in isolation from the maintenance of the seniority system as a 
whole. While the Machinists attack the district court's dis­
approval of the 1950 transfer, they fail to respond to our 
contentions that the transfer infects the seniority system 
as a whole. At any rate, the Unions defense of the 1950 
transfer is without merit. That is so because it simply 
ignores Judge Pointer's finding that the transfer took:

Inconsistent approaches... with
respect to helper positions —

25/ The appellants have moved to strike this argument, see Attachments 
IV-V.



23

separating some (those with black 
incumbents) from their related 
skilled positions, while joining 
others (those with white incum­
bents) to their related skilled 
positions. R. 1178, R.E. 36a.

While the Machinists assert that the transfers "were rational", except 
for the transfer of the Machine Shop Crane Operators which the Machi­
nists themselves concede was irrational, they wholly fail to address 
the discrepancy on racial lines with respect to the treatment of Helpers. 
Their contention that the transfer was legal and common practice in 
American Industry, Boilermakers-Machinists Brief, pp. 31, et seg., 
is transparently defective. It is obviously true —  as they say —  
that the "scope of collective bargaining units (inclusion and exclusion 
of employees and groups of employees) is based upon the criteria of 
community of interest of employees...." Boilermakers-Machinists Brief, 
p. 31. The problem is that they ignore Judge Pointer's determination 
that the transfers recognized a "community of interest" only between 
white Helpers and their related, skilled groups. As shown in our 
opening brief, the NLRB has taken a consistent view of inclusion 
where the helpers are regularly assigned to such units, Brief p. 61 
n. 47. Surely there is no precedent in Board Law for recognition 
of helper-skilled employee "community of interest" on a racially- 
discriminatory basis. The Machinists' recitation that bargaining 
units have commonly been modified by agreement of the parties, 
Boilermakers-Machinists Brief, pp. 32-33, is similarly beside 
the point. The fact that such changes are common and may often 
be proper in no way supports a transfer, such as that made here, 
linking only helpers who happened to be white to their related, 
skilled groups.



24

4. The 1949 Petition by the Molders for a White-Only 
Bargaining Unit Was Irrational and Inconsistent 
With NLRB Practice

In our opening brief, we demonstrated that the district 
court erred in approving as rational and consistent with NLRB pre­
cedent and practice the severance in 1949 of a craft unit including 
Molders, Coremakers, and Apprentices —  an all-white group —  but 
excluding the Molder Helpers and other production workers who were 
black and who were also employed in the General Foundry, Brief, pp. 
60-63. Accusing us of "ignorance of labor history", the Molders 
assert that in 1949 they were merely exercising their right to 
seek a craft severance pursuant to Section 9 (b)(2) —  which
they miscite as 9(f)(2) —  of the Taft-Hartley Act of 1947
which overruled the Board's prior policy with respect to craft

26/
severance. Molders-Pattern Makers Brief, pp. 20-23.

In fact, our awareness of the changes in conditions 
under which craft severance is appropriate is indicated at 
p. 61 n. 46 of our opening brief. Our objection, of course, 
is to the Molders' severance of an exclusively-white craft unit 
excluding black Helpers and other General Foundry employees. As 
we said, such action is contrary to the Board's consistent practice 
of including Helpers in craft units where the Helpers were regularly 
assigned to work with such units. The Molders simply do not 
deny that the black Helpers involved in this case were in fact 
regularly assigned to work in the General Foundry along with 
the white Molders, Goremakers, and Apprentices. While the 
Molders assert we "show no understanding" of Board rules

26/ The Steelworkers also suggest the same erroneous argument. Steel­workers Brief, p. 12.



25

regarding craft severance, Molders-Pattern Makers Brief, p. 23, 
their ensuing discussion hardly discredits our demonstration 
that "the Board has consistently held that helpers should be 
included in craft units where as here with respect to the Molders 
as well as the Boilermakers. Machinists and Patternmakers they 
are regularly assigned to such units...." Brief, p. 51 n.47 
(emphasis added). The fact we cited a decision by the 
National War Labor Board —  along with numerous decisions of the 
NLRB —  is hardly fatal to our proposition inasmuch as the War

28/
Labor Board's mandate and practice were to follow NLRB precedent.
Nor do the Molders successfully distinguish Mergenthaler Linotype 
Co., 80 NLRB 132, 23 LRRM 1055 (1948), where the Board included 
regularly-assigned helpers in a craft unit of skilled electrical 
maintenance employees. It is beside the point to insist, as do 
the Molders, that Mergenthaler Linotype was a "departmental case" 
subject to the Boards requirement that a "departmental unit must 
include all the employees in the department....", Molders- 
Pattern Makers Brief, p. 23, quoting Twenty-Third Annual Report of 
NLRB at p. 33. If the situation is viewed as a "craft" case, 
then the Helpers should have been included in the bargaining unit 
pursuant to the Board's practice of including Helpers in the "craft" 
unit where those Helpers are regularly assigned to that unit. If 
this situation is viewed as a departmental case, then the Helpers 
along with other General Foundry employees should have been in­
cluded in the bargaining unit pursuant to the practice described 
in Mergenthaler Linotype Co.
27/ Notably, the quotation appearing at p. 23 of the Molders-Pattern 
Makers Brief strikes the underscored portion of our statement, thus 
attributing to us an assertion which we did not make.
28/ Since the Unions ascribe "no understanding" of the labor law to the appellants, it is instructive to examine their claim that the appellants 
inaporopriately referred to a War Labor Board case when referring lo 
(FOOTNOTE CONTINUED ON NEXT PAGE)



26

5. The Steelworkers Are Liable for the Discriminatory 
Practices

The Steelworkers argue that the plaintiffs should clarify 
their position regarding the liability of the Steelworkers, that the 
Steelworkers are not liable because their collective bargaining agree­
ments have not been the obstacle to equal employment opportunity, and 
that, moreover, the Steelworkers are not liable because they have 
"attempted, throughout the relevant time period, to secure the 
removal of the offending provisions". Steelworkers Brief, p. 39. As 
stated in the opening Brief, "the factual circumstances involving the 
Steelworkers differ from those involving the AFL Unions," p. 78 n.56. 
However, the Steelworkers have failed to properly apply the per­
tinent legal principles to these factual circumstances.

28/ (FOOTNOTE FROM PREVIOUS PAGE CONTINUED)
the rules established by the NLRB. Molders-Pattern Brief, p. 23.
The citation is applicable, and the assertions of the Unions, to 
the contrary, show their lack of "understanding" of the relationship 
between the NLRB and the NWLB.

The National War Labor Board was established by Executive Order 
No. 9017 (January 12, 1942). Subsequently, Congress strengthened 
the Board and expanded its duties by enacting the War Labor Disputes 
Act (Smith-Connally Act), June 25, 1943, ch. 144, 57 Stat. 163. The 
Act, inter alia, directed the Board to conduct public hearings and 
to resolve disputes. In resolving disputes the Board was directed 
to "conform to the provisions of ... the National Labor Relations 
Act...." Section 7(a) (2). Moreover, as set forth in The Termina-
tion Report of the National War Labor Board, Volume I (GPO), pp. 
38-39, the war Labor Board adhered to the decisions of the NLRB 
regarding the proper scope of bargaining units.



-27-

Initially, it is necessary to distinguish between the
position taken by the steelworkers in the district court, as set

29/
forth in their post-trial brief, and the position taken by the 
Steelworkers in this Court. The position of the plaintiffs, of 
course, must reflect, at least in part, the position taken by the 
Steelworkers. Moreover, the point of this comparison is not 
merely to describe the difficulties which arise as a result of 
the disagreements between the Steelworkers' positions in the 
district court and in this Court. Rather, it is to make clear 
the appellants' position that if the acts taken by the Steel­
workers are accepted as described in their district court brief, then
the Steelworkers, like the AFL Unions, would be liable for the

30/
maintenance of an illegal system. In general, in the district 
court the Steelworkers argued that they basically took the same 
position regarding any modification of the seniority system as 
did the AFL Unions. In this Court, the Steelworkers emphasize 
the difference between their position which they assert was primarily 
to advocate modifications in the system, and the position of the 
AFL unions which they assert was primarily to resist any modification 
in the system.

Firstly, in the district court the Steelworkers stated
that "beginning in 1971, the Steelworkers sought modification of
the seniority forfeiture provisions". (Emphasis added). Post-trial
Brief, p. 2. In this Court, the Steelworkers argue that their
29/ A copy of the Steelworkers' Brief has been lodged with this Court.
30/ If the acts taken by the Steelworkers are accepted as described 
in their appellate brief, then certain legal questions must be 
analyzed, see pp. 29-36, infra.



28

"quest for plantwide seniority...began long before 1968, indeed 
before the passage of Title VII...." Steelworkers' Brief, p. 16.
The Steelworkers emphasize that "in each round of negotiations 
[during the period covered by this lawsuit including 1968]..."

31/
they pushed for plant-wide seniority, id., p. 18, see pp. 33, 39.

Secondly, the Steelworkers told the district court that 
they, like the AFL Unions, "also showed some hesitancy...." in 
agreeing to modifications in the seniority system. Post-trial 
Brief, pp. 2-3. In this Court, the Steelworkers assert that, as
"the uncontradicted record evidence" shows, they were primarily

32/
responsible for pushing for change in the seniority system. 
Steelworkers' Brief, p. 17.

31/ The Steelworkers cite to where the EEOC in its Brief "declares 
that Judge Pointer is 'mistaken', and that it was the Steelworkers, 
not the Company, who initiated the quest in 1968 for plant seniority". 
Steelworkers' Brief, p. 17. Ironically, the Steelworkers helped lead 
the lower court down this apparent path of error by arguing in their 
post-trial brief that they only sought modifications in the seniority 
system "beginning" in 1971. The appellants have set forth the facts 
regarding the 1968 negotiations, Brief, pp. 28-29.
32/ The Steelworkers state that Judge Pointer was clearly wrong in 
finding that the "push for change... was primarily by the Company 
and to a lesser degree by the Steelworkers". Steelworkers' Brief, 
p. 17. Again the Steelworkers criticize the lower court for 
following a path of error which they pointed out.



29

Thirdly, in the district court, the Steelworkers stated
that they agreed to a coordinated position of accepting "unit pre-

33/ference" in order "to better their bargaining stance...[E]ach 
[union was] willing to give somewhat on certain issues... to get 
more from the Company". Post-trial Brief, p. 4. On appeal, the 
Steelworkers inform this Court that they "asked the other unions 
to join in 'a proposal on plant-wide seniority1... which would have 
included 1 the eradiction of any element that would prohibit a person 
from actually exercising his plantwide seniority...1, but that the 
Steelworkers ran into a 'brick wall1: the craft unions would not
agree". (Citations and footnotes omitted). Steelworkers Brief,

H/pp. 18-19.
In conclusion, in the district court the Steelworkers 

argued that their position was practically the same as that of 
the AFL Unions, while in this Court the Steelworkers argue that 
they "'repeatedly proposed modifications of the collective bargaining 
agreements] to allow for plant-wide seniority,1 and that the Steel­
workers 1 efforts failed only because the other unions would not 
make the necessary changes in their agreements".. Steelworkers 
Brief, p. 20.

As previously stated, the Steelworkers are plainly liable for 
the unlawful system if their actions as described in their post-trial 
brief are accepted as true. The more interesting question as to the 
Steelworkers' liability arises if it is assumed that the Steelworkers 
acted in the manner described in their appellate brief. On the basis of

33/ For a description of "unit preference" and the 1974 negotiations, 
see Brief, pp. 30-32.
34/ Once again the Steelworkers critize Judge Pointer for following a 
position which they advocated in the district court. "Judge Pointer's 
opinion states that in 1974 the Steelworkers did not press for full plant 
seniority, acquiescing in the 'unit preference' approach 'in order to 
present a common union front'.... Here again, the statement is not an 
accurate reflection of the record...." S teelworkers Brief, p. 18.



30

the factual analysis set forth in their appellate brief, the Steel­
workers argue that they should not be held liable for two reasons:
(1) the collective bargaining agreements signed by the AFL Unions 
(and not the agreements signed by the Steelworkers) restricted or 
excluded the transfer of black employees into the better paying 
jobs and (2) the Steelworkers attempted to remove the "offending" 
provisions.

This Court has made clear that "[labor] organizations, as
well as employers, have an affirmative duty to take corrective

35/
steps to prevent the perpetuation of past discrimination".
Myers v. Gilman Paper Co., 544 F. 2d 837, 850, mod. on rehearing,
556 F. 2d 758, cert, dismissed, 434 U.S. 801 (1977); see also
Patterson v. American Tobacco Co., 535 F. 2d 257, 270 (4th Cir.),
cert, denied, 429 U.S. 920 (1976); United States v. N.L. Industries,
479 F. 2d 354, 379 (8th Cir. 1973). As an employer may not use
a union contract to claim immunity nor "use [a] union or unions
for a shield [against liability]," Carey v. Greyhound Bus Co., Inc.,
500 F. 2d 1372, 1377 (5th Cir. 1974), neither may a union use other
unions "for a shield". Accordingly, this Court has decided the
issue presented by the Steelworkers in factual circumstances closely
parallel to those presented in this appeal:

We find that the conduct of Local 275, though 
disguised by a thin veneer of racial neutrality, 
is...untenable. Local 275 could not, of course, 
negotiate directly with Greyhound concerning the 
job secruity of ... employees represented by

35/ As we have demonstrated in our briefs, the past discrimination 
at the Bessemer plant is not protected by §703(h) since the seniority 
system is not "bona fide".



31
Division 1174. Nevertheless, at some point 
Local 275 could have taken the affirmative 
step to initiate negotiations with [the 
Company] in an effort to salvage for its 
own ex-members the seniority they would 
inevitably and foreseeably lose upon 
being "bumped" from Division 1174 after 
ninety days in a class A job.

Carey v. Greyhound Bus Co., Inc., supra, 500 F. 2d at 1379? Mvers 
v. Gilman Paper Corp., supra, 544 F. 2d at 352. (This Court held 
that the industrial union, "...bears partial responsibility for the 
obstacles to black entry to craft jobs," even though those jobs were 
not in its bargaining unit.) Thus, the Steelworkers argument that 
they may under no circumstances be held liable for the discriminatory 
seniority system is untenable.

The response to the second part of the Steelworkers' argument—  
that their efforts in negotiations to remove the "offending provisions"
should shield them from liability— is more complex and, perhaps,

36/
premature at this stage of the litigation. Firstly, the Steelworkers 
did not raise this argument in the district court; rather, to the 
contrary, they argued that they are as guilty (or as innocent) as 
the AFL Unions, see pp. 27-29, supra. If the Steelworkers' factual 
statements as to their negotiating position set forth in their post­
trial brief are accepted as correct, then the Steelworkers' argument 
as made in their appellate brief fails because the necessary factual 
premise of that argument is incorrect.

Secondly, the Steelworkers argument must meet the standard 
established by the Supreme Court:

... [G]iven a finding of unlawful discrimination,
backpay should be denied only for reasons which,

36/ The trial was limited to the "liability issue— the amount of back pay, 
if any, was to be determined at a later trial as necessary...." R. 1166-67, 
R.E. 24a-25a. The allocation of liability between the Unions also 
may be appropriate for the second stage of the trial.



32

if applied generally, would not frustrate 
the central statutory purposes of eradi­
cating discrimination throughout the 
economy and making persons whole for in­
juries suffered through past discrimi­
nation. (Footnote omitted).

Albemarle Paper Go. v. Moody, 422 U.S. 405, 421 (1975). The "special 
factors [pursuant to this standard] which justify not giving an 
award of classwide back pay have been narrowly construed...." Kirby 
v. Colony Furniture Co., Inc., 613 F. 2d 696, 699 (8th Cir. 1980); 
see United States v. United States Steel Corporation. 520 F. 2d 
1043, 1060 n.l (5th Cir. 1975), cert, denied. 429 U.S. 817 (1976).
This Court has previously rejected the Steelworkers fragile theory 
of the law" that its general "good faith" efforts to comply with 
the law should provide immunity. United States v. United States 
Steel Corporation, supra, 520 F. 2d at 1058-59.

37/
Thirdly, the fact that the Steelworkers' made efforts to 

modify the discriminatory seniority system does not grant the Steel­
workers' immunity from liability. However, when viewed in the general 
context of the litigation, those efforts may affect the proper allocation 
of liability (the responsibility to pay the monetary award) among the

37/ The plaintiffs have previously set forth the facts regarding the 
negotiation positions of the Unions, Brief, pp. 27-32, 70-75. We note 
that the Steelworkers' view of these negotiations as stated in their 
appellate brief (as opposed to their post-trial brief) is generally 
consistent with the view set forth by the plaintiffs; also we note 
that the AFL Unions disagree with the plaintiffs' (and the Steelworkers') 
description of the negotiations. Boilermakers-Machinists Brief, 
pp. 5-8. As in other respects, the AFL Unions erroneously describe 
the evidence.



33

defendants. A contrary principle of law would contravene the 
Albermarle Paper Company standard. See Myers v. Gilman Paper 
Company, supra, 544 F. 2d at 851-52.

A defendant’s "good faith" attempts to comply with Title 
VII, whether manifested by proposing modifications in a seniority 
system or by other means, does not afford immunity to liability for 
back pay. A ruling to the contrary "would read the 'make whole' 
purpose right out of Title VII, for a worker's injury is no less 
real simply because his employer did not inflict it in 'bad faith' n. 
Albemarle paper Company v. Moody, supra 422 U.S. at 422; see also 
Johnson v. Goodyear Tire & Rubber Co., 491 F. 2d 1364, 1377 (5th Cir. 
1977); United States v. United States Steel Corp.. supra. 520 F. 2d 
1058-59. While the Steelworkers did make efforts to change the dis­
criminatory seniority system, they also agreed to adopt a joint, 
negotiating position with the AFL Unions which compromised the civil 
rights of the black workers. Having chosen a joint union bargaining 
position, whether for reasons of union solidarity or otherwise, the 
Steelworkers may not avoid the legal consequences of that decision.

However, the steelworkers have acted differently than the 
AFL Unions. The attempts by the Steelworkers to change the seniority 
system "opens the door to equity...but does not depress the scales 
[of equity]" in their favor. Albermarle Paper Company, supra, 422 
U.S. at 422. In Carey this Court held that a union's "ineffectual 
passivism" in seeking a change in the seniority system rendered it 
"equally guilty with the employer. Id., 500 F. 2d at 1379. In 
this case, the Steelworkers were not "passive", but they were 
largely "ineffectual". In assessing an equitable apportionment of 
the back pay the courts may be required to balance the actions taken



34

by the Steelworkers to remove the discriminatory aspects of the seniority 
system against the actions taken by the AFL Unions to maintain the 
discriminatory aspects of the system.

This Court "has never outlined in full the principles 
that should guide district courts in apportioning liability among 
the defendants...." Myers v. Gilman Paper Company, supra, 544 F.
2d at 850-51. However, certain general principles clearly apply, see 
Myers, id. Initially, any determination regarding the payment of 
back pay by defendants must comply with the standard in Albemarle 
Paper Company. The payment plan "consistent with the purpose of 
[Title VII should] insure that...an employee entitled to back pay 
shall be made whole by obtaining a judgment against a financially 
responsible party". United Transportation Union Local No. 974 v.
Norfolk and western Railway Company, 532 F. 2d 336, 342 (4th Cir.
1975), cert, denied. 425 U.S. 934 (1976). Moreover, the plan should 
be developed in light of the other dual purpose of back pay— to 
provide "the spur or calalyst which causes employers and unions to 
self-examine and to self-evaluate their employment practices and to 
endeavor to eliminate, so far as possible, the last vestiges of 
[employment discrimination]" (emphasis added). Albemarle Paper 
Company, supra, 422 U.S. at 417-18, quoting United States v. N.L. 
Industries, supra, 479 F. 2d at 379. Accordingly, the pertinent 
question is not whether the Steelworkers made some efforts to 
remove the discriminatory provisions, but whether the Steelworkers 
went "so far as possible" to remove the provisions. A defendant 
should not escape Title VII liability because it made some efforts 
to negotiate a non-discriminatory collective bargaining agreement;



35
the standard does not rely upon 11 subjective" good faith, but upon 
an "objective” evaluation of whether the discriminatory consequences 
of the system have been removed or that everything "possible” has

38/
been attempted in order to remove the discriminatory consequences.

In conclusion, the plaintiffs have responded in general to 
the issue of the allocation of liability in order to further place 
in a legal context the position of the various union defendants and 
to respond to the Steelworkers' argument. Steelworkers' Brief, pp. 
31-40. However, apart from insuring that they are fully compensated 
for the losses which they suffered as a result of the discrimination.

38/ We note that Courts have strongly supported the filing of legal 
actions by unions "to end discriminatory employment practices. The 
financial backing and legal expertise that unions can provide would 
materially advance the type of private enforcement essential to 
the effectiveness of Title VII”. International Woodworkers of 
America v. Georgia— Pacific Corp., 568 F. 2d 64, 67 (8th Cir. 1977); 
Social Services of U., Local 535 v. City of Santa Clara, 609 F. 2d 
944 (9th Cir. 1979); cf. IUE v. Westinghouse Electric Corp., 23 FEP 
Cases 588 (3rd Cir. 1980) (In IUE, the union filed a Title VII law­
suit after it unsuccessfully attempted to negotiate changes in a 
discriminatory collective bargaining agreement.)

In this case the Steelworkers, not only failed to bring a legal 
action on behalf of their members who were discriminated against, 
but took a strong position opposing a full remedy for their members. 
See pp. 27-29, supra.



36

Brief, pp. 1 1 - I Q ,  the issues of how much each defendant pays does 
not primarily concern the plaintiffs; rather the issue is one that 
is basically between the defendants.

JOSEPH P. HUDSON 
1909 30th Avenue 
Gulfport, Mississippi 39501

DANIEL B. EDELMAN 
Yablonski, Both & Edelman 
Suite 800
1140 Connecticut Avenue 
Washington, D. C. 20036

Respectfully submitted,
1Qu  *,■ u

BARRY L. GOLDSTEIN Suite 940
806 15th Street, N.W. 
Washington, D.C. 20005
JACK GREENBERG
Suite 2030
10 Columbus Circle
New York, New York 10019
DEMETRIUS C. NEWTON 
2121 8th Avenue North 
Birmingham, Alabama 35203
Attorneys for plaintiffs



CERTIFICATE OF SERVICE

I hereby certify that on the 29th of August 1980 copies 
of Appellants' Reply Brief have been served upon all parties by 
depositing copies of the above in the United States Mail, postage 
pre-paid, upon the following counsel:

James P. Alexander, Esq. 
Bradley, Arant, Rose & White 
1500 Brown-Marx Building 
Birmingham, Alabama 35203

Louis P. Poulton, Esq. 
Joseph P. Manners, Esq. 
Machinists Building 
1300 Connecticut Ave., N.W. 
Washington, D.C. 20036

N. Daniel Rogers, Esq. 
Corretti, Newson & Rogers 
529 Frank Nelson Building 
Birmingham, Alabama 35203

John Blake, Esq.
Blake and Uhlig
374 New Brotherhood Building
Kansas City,- Kansas 66101

George C. Longshore, Esq. 
Cooper, Mitch & Crawford 
409 North 21st Street 
Birmingham, Alabama 35203

J. R. Goldthwaite, Jr., Esq. 
Adair, Goldthwaite & Daniel 
600 Rhodes-Haverty Building 
Atlanta, Georgia 30303

Thomas F. Phalen, Jr., Esq. 
2312 Kroger Building 
1014 Vine Street 
Cincinnati, Ohio 45202
William B. Peer, Esq.
Suite 701
1899 L Street, N.W. 
Washington, D.C. 20036
War.ren Bo Duplinsky, Esq. 
Equal Employment Opportunity 

Commission 
2401 E Street, N.W. 
Washington, D.C. 20506

Michael Gottesman, Esq.
Bredhoff, Gottesman, Cohen, Chanin, 

Weinberg & Petramalo 
Suite 1300
1000 Connecticut Avenue, N.W. 
Washington, D.C- 20036

Barry L..! Goldstein
Attorneys for Plaintiffs-Appellants