United Steelworkers of America (AFL-CIO-CLC) v. Weber Brief Amicus Curiae

    Nos. 78-432, 78-435 and 78-436

(3lrt tlje Supreme Court of tlje Putted States
October Term, 1978

United Steelworkers of A merica, 
AFL-CIO-CLC, PETITIONER

v.
Brian F. Weber, et al.

Kaiser A luminum & Chemical Corporation, 
petitioner

v.

Brian F. Weber, et al.

United States of A merica and 
Equal Employment Opportunity Commission,

PETITIONERS

V.

Brian F. Weber, et al.

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR 

THE FIFTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES AND 
THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Wade H. McCree, Jr. 
Solicitor General 
Department o f Justice 
Washington, D.C. 20530



(3jn tlje Supreme (Etmri of ttje Putted States
October Term, 1978

No. 78-432
United Steelworkers of A merica, 

AFL-CIO-CLC, PETITIONER

V.

Brian F. Weber, et al.

No. 78-435
Kaiser A luminum & Chemical Corporation, 

petitioner

v.

Brian F. Weber, et al.

No. 78-436
United States of A merica and Equal Employment 

Opportunity Commission, petitioners

v.

Brian F. Weber, et al.

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR 

THE FIFTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES AND THE 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

The central question in this case is whether Kaiser 
could lawfully take reasonable race-conscious steps to

0 )



2

remedy the effects of apparent Title VII violations 
without admitting and proving that it had in fact been 
guilty of past discrimination.

Respondent, does not address this question directly. 
Instead, he argues (Br. 13-16, 54-58) that this issue is not 
before the Court because Kaiser’s reasons for instituting 
the affirmative action training programs had nothing to 
do with remedying arguable past discrimination by the 
company. Respondent also asserts (Br. 57-58) that Kaiser 
never analyzed minority employment conditions at the 15 
plants included in the programs to determine whether 
remedial action was necessary.

As he concedes in passing (Br. 13 n.60), respondent’s 
theory of Kaiser’s motivations for establishing the 
affirmative action programs are contrary to the district 
court’s findings. The district court found that Kaiser’s 
“prime motivations” were to avoid litigation by minority 
employees and to comply with OFCC requirements 
implementing Executive Order 11246 (Pet. App. 65a). The 
district court did not dispute that Kaiser had reason to 
believe that it would be vulnerable to successful Title VII 
actions or to coercive sanctions under the Executive 
Order. Even on the sketchy record in this case, the district 
court concluded that the extreme under representation of 
blacks in the craft positions at Gramercy “might suggest 
that Kaiser had discriminated against blacks when filling 
craft positions” (ibid.). But, because Kaiser did not 
admit and prove its past discrimination, the court held the 
company’s affirmative action measure unlawful (id. at 
64a-65a, 77a). The court of appeals agreed (id. at 17a- 
23a). Our submission is that these courts applied an 
erroneous legal standard in holding these programs 
unlawful.

Respondent contends that the record reflects that 
Kaiser was totally unconcerned about its vulnerability to 
coercive Title VII relief and instituted the new training



3

programs solely to rectify the effects of “societal 
discrimination.” The record, however, shows without 
ambiguity that Kaiser implemented these programs 
because, following an analysis of employment conditions 
at the 15 selected plants, it determined that such remedial 
measures were required by law.

The 1974 Labor Agreement between Kaiser and the 
Steelworkers states with clarity the parties’ reasons for 
engaging in affirmative action (A. 135-136):

As an integral part of 1974 Negotiations, the parties 
have noted that litigation is pending which may have 
some bearing on employment conditions for female 
and minority employees in the bargaining unit. 
Finally, the parties have considered the impact on 
seniority systems and job security that technological 
developments, environmental and economic controls, 
and widely fluctuating business conditions have had 
and may continue to have on each employee in the 
bargaining unit.
By reason of these considerations, the parties have 
agreed to incorporate into the 1974 settlement this 
supplemental agreement which will enable the parties 
quickly and effectively to make adjustments or 
revisions in their seniority and selection practices 
when judicial decisions dictate such action is 
necessary. This supplemental agreement will make it 
possible for the parties to relate such adjustments or 
revisions to the circumstances prevailing at the time 
such action is taken and to the conditions then 
existing at each location.

A variety of remedial measures may be required by 
these federal court decisions. In order that both 
members of the bargaining unit and local 
management may be made aware of what the courts 
have required, we cite below some remedial measures



4

which may be implemented through mutual agree­
ment if necessary to assure continued compliance 
with the Acts.

The Labor Agreement then states (A. 137) that a joint 
company-union, committee “will specifically review the 
minority representation in the existing Trade, Craft and 
Assigned Maintenance classifications in the [15] plants set 
forth below [including Gramercy], and, where necessary, 
establish certain goals and time tables in order to achieve 
a desired minority ratio.”

Kaiser and the Steelworkers next issued a joint 
“memorandum of understanding” which established the 
affirmative action training programs (A. 139-155). The 
memorandum states that, in compliance with the Labor 
Agreement, “the Joint Implementation Committee has 
met to resolve possible inconsistencies with Government 
and judicial decisions” (A. 139). While not admitting to 
any past violations of Title VII or Executive Order 11246, 
the parties stated that affirmative action was necessary “to 
fully comply with both the letter and the spirit of Title VII 
of the Civil Rights Act and Executive Order 11246” 
(ibid.). The joint committee “reviewed and/or visited all 
of the plant sites” covered by the Labor Agreement to 
determine “the impact, if any, that past or present job 
placement and/or seniority practices might have on the 
minority and female employees in the respective 
bargaining units” (ibid.). With respect to craft positions, 
the memorandum states (A. 144-145):

As agreed to in the 1974 Master Aluminum and Can 
and Container Labor Agreements negotiations, the 
Joint Company-Union Implementation Committee 
has reviewed all of the existing Trade, Craft, and 
Assigned Maintenance classifications with respect to 
their representation of minority and female 
employees. Said review has determined that, 
notwithstanding the efforts made by the Company



5

and the Union and/or the gains made via the 
Company’s various Affirmative Action Plans per 
E.O. 11246, such representation must be increased in 
order to assure full compliance with the standards 
presently being enunciated by the Government and 
recent court decisions. Consequently, based upon the 
aforementioned conclusion the parties have agreed 
to the implementation of the following steps to 
achieve their desired objective.

The memorandum then sets forth the details of the 
affirmative action training programs (A. 145-146) and 
concludes that these programs “should insure the 
continued compliance by the Company and the Union 
with the ever-changing status of the law in this area” (A. 
146).

Thus, the record is clear that Kaiser and the 
Steelworkers conducted a self-analysis of minority 
employment in skilled craft positions at 15 of the 
company’s plants and determined that race-conscious 
affirmative action was necessary to ensure compliance 
with the law. The selective references to the trial 
testimony in respondent’s brief (at 56-57) are not to the 
contrary.1

'Respondent quotes statements from the two Kaiser officials who 
testified that they did not believe that there had been past 
discrimination at the Gramercy plant. They also stated, however, that 
Kaiser was aware that a court might not agree and therefore 
instituted the programs. See our main brief at 10-12. When asked 
whether the affirmative action programs were prompted by “the 
experience that the parties to the contracts had had and were having 
in the field of equal employment opportunity,” Kaiser’s national 
director for equal employment opportunity matters responded (A. 
97):

Certainly, it had impact on it. The litigation that the various 
companies have been involved in, the historical relation­
ships with the Federal agencies that we are all concerned 
with, certainly, the steel agreement, 1 think it was our position 
that we should * * * do those things that are necessary, without 
having to have it forced down our throat or require us to go 
into court to comply with the laws of the land.



6

We recognize that respondent’s views as to Kaiser’s and 
the Steelworkers’ motivations are now shared by the 
union (see USWA Br. 77). But the union did not call any 
witnesses at trial; its present position is not supported by 
the record; and in the lower courts it argued that the 
reasons for the affirmative action programs were those we 
urge now.2 We think that the question presented in this 
case was phrased correctly by the Steelworkers in the 
court of appeals:

May an employer and union, in collective bargaining, 
install remedies for arguable Title VII violations 
comparable to those which a court would install if it 
adjudicated and determined that there were indeed 
such Title VII violations?

Brief for Defendant-Appellant United Steelworkers of 
America, AFL-CIO, at 2 (emphasis in original). And, for 
the reasons elaborated fully in our principal brief, we 
submit that the Steelworkers correctly answered this 
question below:

The solution * * * must lie in allowing employers 
and unions to confer remedial priorities when there is 
before them substantial evidence indicating a 
reasonable possibility that their practices will be 
found unlawful, and that a court would require 
priority access for “affected class” members as a 
remedy. Puting it another way, if the evidence 
suggests that a plaintiff could establish a prima facie 
case and that the defendants do not have an 
obviously convincing rebuttal, then they should be

: In its brief in the court of appeals, the Steelworkers Union stated 
that the affirmative action programs “were prompted, at least in part, 
by the parties' perceptions of Title VII requirements as enunciated by 
the courts and emphasized by the EEOC and OFCC. As one 
Company witness testified, ‘we realized that if we did not do 
something on our own, then the Government was going to do it for 
us.’ ” Brief for Defendant-Appellant United Steelworkers of America, 
AFL-CIO at 8 (record citations omitted).



7

permitted to confer remedial priorities as a court 
would were it to adjudicate the case and find 
unlawful behavior

* * * [T]he employer and union in the instant case 
had before them such evidence, and thus were 
entitled to act as they did.

Id. at 19-20 (emphasis in original).
Respectfully submitted.

March 1979

Wade H. McCree, Jr. 
Solicitor General