Burrell v Kaiser Aluminum and Chemical Company Brief for Union Appellees

    UNITED STATES COURT OF APPEALS
FOR TH E FIFTH CIRCUIT.

IN THE

No. 26,893,

A, J. B URRELL, JESSIE FISHER, LEO MATTHEWS, NORRIS SMITH,
J. N. STANLEY, PERCY VAUGHN,

Appellants,

vs.

KAISER ALUMINUM AND CHEMICAL COMPANY, THE ALUMINUM 
WORKERS INTERNATIONAL UNION, LOCAL 205 O F TH E ALUMINUM 
WORKERS INTERNATIONAL UNION, an Unincorporated Association, 
G. A. ROUNDTREE, President of Local 205 of the Aluminum Workers 

International Union,
Appellees.

Appeal from the United States District Court for the 
Eastern District of Louisiana at Baton Rouge.

BRIEF FOR UNION APPELLEES.

HERBERT S. THATCHER,
1009 Tower Building,

Washington, D. C. 20005, 
Attorney for Union Appellees.

St, L ou is  L a w  Pr in tin g  Co ., I n c ., 411-15 N. Eighth St., 63101. CEntral 14477.



INDEX.

Page

Issues ..................................................................................... 1

Statement of Case ...............................................................  2

Argument .............................................................................  5
I. Under the circumstances of this case and in par­

ticular because appellants had entered into the 
conciliation agreement, notification by the Com­
mission that it has been unable to obtain com­
pliance is a jurisdictional prerequisite to the 
institution of a civil action under Section 706
(e) of the A c t .............................................................  5

II. Appellants are required to exhaust the adminis­
trative remedies which they themselves have 
established and made exclusive .......................... 11

Conclusion ........................................................................... 15

Attachment A—Dissenting opinion ..................................A -l

Table of Cases.

Dent v. St. Louis-San Francisco Railroad, 265 F. Supp.
56 (N. D. Ala. 1967)....................................................7,8,13

Drake Bakeries, Inc. v. Local 50 Bakery Workers, 370 
U. S. 254 ........................................................................... 13

Glover v. St. Louis-San Francisco Railroad, . . .  F.
2d ....................................................................................... 13

Johnson v. Seaboard Railroad Co., . . .  F. 2 d ............... 7, 8

Local 721, United Packing House Workers v. Need­
ham Packing, 376 U. S. 247 .........................................  13



11

Mickel v. S. Carolina State Employment Service, 377
F. 2d 239 ...........................................................................  7

Myers v. Bethlehem Shipbuilding Corporation, 303 
U. S. 41 .....................................................................  12

Republic Steel Corp. v. Maddox, 379 U. S. 650 ............ 13
Russell-Newman Manufacturing Co. v. NLRB, . . .  F.

2d .. ., 64 LRRM 4927 ...................................................  8

Stebbins v. Nationwide Mutual Insurance Co., 382 F.
2d 267 ............................................................................... 7

Statutes.
29 U. S. C. 2151 et seq........................................................  13
42 U. S. C. 2000 e, et seq.:

Sec. 705 (g) (4) ............................................................. 6
Sec. 706 (a) .....................................................................  6,7
Sec. 706 (e) .............................................................. 5,6,7,11
Sec. 713 (b) .....................................................................  10

Miscellaneous.

3 Davis Administrative L a w ...........................................  12
Jaffee Judicial Control of Administrative A ction ........  12



IN THE

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT.

No. 26,893.

A. J. BURRELL, JESSIE FISHER, LEO MATTHEWS, NORRIS SMITH, 
j. N. STANLEY, PERCY VAUGHN,

Appellants,

vs.
KAISER ALUMINUM AND CHEMICAL COMPANY, THE ALUMINUM 
WORKERS INTERNATIONAL UNION, LOCAL 205 OF TH E ALUMINUM 
WORKERS INTERNATIONAL UNION, an Unincorporated Association, 
G. A. ROUNDTREE, President of Local 205 of the Aluminum Workers 

International Union,
Appellees.

Appeal from the United States District Court for the 
Eastern District of Louisiana at Baton Rouge.

BRIEF FOR UNION APPELLEES.

ISSUES.

I. Under tie  circumstances of this case is a finding by 
the Commission that it has been unable to obtain volun­
tary compliance with the Act a jurisdictional prerequisite 
to the institution of court action?

II. Apart from the statute, are parties charging a viola­
tion of the Act required to exhaust administrative remedy 
before the Commission which they themselves have agreed 
to before institution of court action?



—  2 —

STATEMENT OF CASE.

Appellants’ Statement of the Case refers only inci­
dentally to the fact that the Equal Employment Oppor­
tunities Commission (Commission) has fully explored the 
charges which are the subject matter of appellants’ com­
plaint in the District Court and by use of its powers of 
persuasion and conciliation has induced the parties to 
enter into a conciliation agreement intended to resolve all 
the issues of discrimination between the parties. The con­
ciliation agreement (17a) was the result of strenuous ef­
forts by the charged employer, the charged union (appel­
lees here), and the Commission acting on behalf of the 
charging parties, to resolve the original charges and to 
settle all differences between the parties. The agreement 
was expressly approved by the Commission. Under the 
agreement, the parties made the Commission the sole arbi­
trator of questions arising under the agreement and com­
pliance therewith, and in addition the charging parties 
agreed not to bring civil suit but instead to rely upon the 
Commission as the arbitrator.

Section 1 of the Agreement reads as follows:

“ 1. The respondents agree that the Commission, on 
request of any charging party or on its own motion, 
may review compliance with this agreement. As a 
part of such review, the Commission may require 
written reports concerning compliance, may inspect 
the premises, examine witnesses, and examine and 
copy documents.”

Section 3 of the Agreement reads as follows:

“ 3. The Charging Party hereby waives, releases 
and covenants not to sue any respondent with respect 
to any matters which were or might have been al­
leged as charges filed with the Equal Employment



Opportunity Commission, subject to performance by 
the respondents of the promises and representations 
contained herein. The Commission shall determine 
whether the respondents have complied with the terms 
of this agreement.”  [Emphasis supplied.]

The conciliation agreement undertook to correct the 
very complaints of discrimination which are the subject 
matter of appellants’ complaint in the District Court. Thus 
the agreement required that “ all hiring, promotion prac­
tices and other conditions of employment shall be main­
tained and conducted in the manner which does not dis­
criminate . . . ”  (18a); required that all facilities on the 
premises of the employer shall be available for the use of 
any employee without discrimination (18a); and amended 
the collective bargaining agreement to establish a new 
nondiscriminatory seniority provision setting up an equi­
table pattern of promotion from within. It called for use 
of plant wide seniority for promotions into operating de­
partments from the utility man classifications. The utility 
man classification is the one through which a person moves 
into higher paid positions in the department so that this 
new arrangement greatly benefited senior Negro employ­
ees who had been unable to advance in the past.

Appellants’ complaint in the District Court below 
charged discrimination in respect to these same subject 
matters and alleged specifically a violation of “ each and 
every point in the conciliation agreement”  (10a). Thus 
the complaint alleged discrimination in promotion and 
seniority (7a), job classifications, lay-offs, apprenticeship 
training, and use of plant facilities (7a-12a). In substance, 
all of the charges and complaints brought before the 
court below revolve around the seniority system and its 
application—the very matter which the conciliation agree­
ment went to great lengths to correct (Bee 19a, 34a and 
52a).



—  4 —

When after execution of the agreement a disagreement 
arose as to whether violations continued to exist, both the 
charging parties (33a) and the company (39a) requested 
the Commission to resolve the dispute under the agree­
ment. The conciliation agreement was in full effect when 
the complaint was filed in the district court. The Com­
mission had made no determination respecting compliance 
with the conciliation agreement as the parties had required 
it to do under Section 3 thereof.

In spite of the existence of the conciliation agreement, 
and before the Commission made any determination with 
respect to the issues of non-compliance therewith, the 
appellants requested the Commission to issue a statutory 
notice pursuant to Commission rules under which civil 
suit could be brought. Such notice was issued (53a). 
The Commission, however, carefully refrained from any 
statement that it had been unable to obtain voluntary 
compliance with either the Act or the Agreement or 
whether the Commission had reasonable cause to believe 
appellants’ charges were valid. On the contrary, the 
Commission made it clear that it had made no such de­
termination. The statutory notice (50a) reads as follows:

“ . . . Although the Commission had not made a 
determination as to whether or not there is reasonable 
cause to believe your charge is valid, your counsel 
the NAACP Legal Defense and Education Fund Inc. 
has demanded, pursuant to Commission’s rules, 20 
C. F. R., Section 1601.25 (a), that this statutory 
notice issue.”

The bringing of the suit apparently ended all efforts 
to resolve the issues of compliance with either the Act 
or the Agreement. Although several meetings were con­
ducted by the Commission the Union was not invited to 
attend these meetings and did not attend.



— a —

ARGUMENT.

I.

Under the Circumstances of This Case and in Particular 
Because Appellants Had Entered Into the Conciliation 
Agreement, Notification by the Commission That It Has 
Been Unable to Obtain Compliance Is a Jurisdictional 
Prerequisite to the Institution of a Civil Action Under 
Section 706 (e) of the Act.

The judicial requirements of Section 706 (e) are plainly 
set forth. Subsection (e) reads:

“  (e) If within thirty days after a charge is filed with 
the Commission or within thirty days after expira­
tion of any period of reference under subsection (c) 
(except that in either case such period may be ex­
tended to not more than sixty days upon a deter­
mination by the Commission that further efforts to 
secure voluntary compliance are warranted), the Com­
mission has been unable to obtain voluntary compli­
ance with this title, the Commission shall so notify 
the person aggrieved and a civil action may within 
thirty days thereafter, be brought against the re­
spondent named in the charge. . . . ”

Congress has plainly made it the absolute duty to notify 
of inability to obtain voluntary compliance mandatory—the 
Commission “ shall so notify.”  Admittedly there has 
been no such notification in the present case, nor even 
of just cause. Failure to make such a finding must pre­
clude court action. Only an orderly and efficient appli­
cation of the enforcement provisions of the Act can 
achieve its purposes. The use of conciliation and volun­
tary compliance is emphasized throughout the Act as the 
principal means relied on by Congress for enforcement.



6

Section 705 (g) (4) expressly confers full conciliation 
powers upon the Commission. Section 705 (g) (5) re­
quires the Commission to furnish whatever technical as­
sistance might be necessary to insure compliance. Most 
importantly Section 706 (a) makes it mandatory upon 
the Commission to endeavor to eliminate violations by 
“ informal methods” . The fact that criminal penalties 
are imposed on agents of the Commission for improper 
disclosures under Section 706 (a) emphasizes the weight 
which Congress has attached to informal conciliation. 
Finally, 706 (e) in addition to the requirement of notifi­
cation of inability to obtain compliance, speaks in terms 
of “ further efforts” , connoting continued conciliation by 
the Commission and even authorizes the Commission to 
request a stay of court proceedings pending a “ termina­
tion”  of its efforts. It is difficult to conceive of plainer 
language of a Congressional command to exhaust attempts 
at voluntary compliance through conciliation. Because 
the Act did not bestow enforcement power upon the 
Commission, Congress made it quite evident that the 
long-term goal of the Act—the elimination of discrimina­
tion—to to be achieved by conciliation, persuasion and 
voluntary compliance. Reading the Act as a whole, as 
it must be, it is entirely clear that full, not partial or 
desultory efforts to obtain compliance is enjoined on the 
Commission. The courts can be called upon only as a last 
resort.

Here the Commission did fully exercise its functions 
of conciliation and did in fact prevail upon the employer 
and the union involved to enter into a written agreement 
which all parties and the Commission regarded as dis­
positive of the original charges. Moreover, the parties to 
the Agreement bound themselves to refrain from court 
action but, instead to look to the Commission for any 
dispute concerning violation of the Act under the agree­
ment. The matters at issue under appellants’ complaint



7

in the court below have been submitted to the Commis­
sion for its interpretation and resolution pursuant to the 
conciliation agreement.

Although fully familiar with the issue, the Commission 
has not notified of any inability to obtain voluntary com­
pliance as required under Section 706 ( e ) ; indeed, it has 
not even determined that there is reasonable cause to be­
lieve that any violation of the Act exists as required 
under Section 706 (a) thereof.

The courts that have considered the question of the 
necessity of the Commission’s finding of reasonable cause 
and inability to obtain compliance as a judicial prerequi­
site to institution of court proceedings are in disagree­
ment. The arguments and reasoning which require such 
a finding as a prerequisite to court jurisdiction are before 
this Court in the Dent case,1 as is the lengthy decision of 
Chief Judge Lynne therein. There is no need to repeat 
them here and appellees respectfully refer this Court to 
the Lynne opinion as well as the exhaustive discussion of 
the issues by Judge Boreman dissenting in the decision 
of the Fourth Circuit Court of Appeals in Johnson v. 
Seaboard Railroad Co., . . .  F. 2d . . . ,  October 20, 1968, 
particularly for the discussion of the legislative history 
contained in Judge Boreman’s dissent, (For the con­
venience of the Court a copy of this dissent is attached 
hereto as attachment “ A ” .)

Those opinions make clear the intent of Congress to 
require the Commission to exhaust completely all efforts 
at conciliation before civil litigation can commence.

1 Dent v. St. Louis-San Francisco Railroad, 265 F. Supp. 56 
(N. D. Ala. 1967), awaiting decision in this Court (No. 24,810). 
See also Stebbins v. Nationwide Mutual Insurance Co., 382 F. 
2d 267; Mickel v. S. Carolina State Employment Service, 377
F. 2d 239.



While it is true that the majority of the Fourth Circuit 
in the Johnson case has held that the requirement of 
notice of exhaustion of conciliation in the Act means only 
that the Commission he given an opportunity to persuade 
before court action can be brought, that case does not 
involve the situation here where the Commission has not 
only attempted to persuade but has succeeded in per­
suading to the extent of inducing the parties to enter 
into a conciliation agreement which purports to eliminate 
all alleged grievances and to which all the parties sub­
scribed. Under such circumstances the need for a Com­
mission finding prior to litigation either that there is 
cause to believe a violation exists or that it has been un­
able to obtain voluntary compliance becomes particularly 
necessary because the Commission has already performed 
its conciliation function and the only question at issue is 
whether the results of its efforts—the conciliation agree­
ment—had been complied with, and the parties have 
designated the Commission as only the arbitrator of any 
differences under the settlement. Thus, the reasoning and 
policy considerations set forth in Dent, supra, and by 
Judge Boreman are doubly compelling. Surely the doors 
of the courts should not be opened and the courts sub­
jected to the burden of resolving issues when the Com­
mission has already taken them fully in hand.

In the present case the Commission has not even pleaded 
an overworked case load as the reason for failing to per­
form the functions which the parties have delegated to 
it. Surely by simply saying nothing while at the same 
time pursuant to its own regulations permitting appel­
lants to bring suit the Commission can not bypass the 
clear provisions of the statute. “ Administratively con­
venience cannot override”  the requirement of statutory 
notice. See Russell-Newman Manufacturing Co. v. NLRB, 
371 F. 2d 980, 64 LRRM 4927. The remarks of Judge 
Boreman in discussing the necessity of the Commission

— 8 —



performing the duty imposed on it by Congress and point­
ing out that even a plea of heavy case load is not sufficient 
to eliminate that duty are particularly cogent in the cir­
cumstances of this case. He said:

“ In each of these cases the Commission admittedly 
made no effort whatsoever to eliminate the alleged 
unlawful employment practice by the informal meth­
ods prescribed by statute. The only reason assigned 
by the Commission for such failure was its ‘ heavy 
work load.’ By this simple expedient the Commis­
sion sought to bypass the clear provisions of the stat­
ute, to render them meaningless and thereby open the 
floodgates to the judiciary when the obvious intent 
of the lawmakers, as indicated by the language of the 
statute and the legislative history, was to place the 
primary burden on the Commission, to protect em­
ployers and the other persons subject to the provi­
sions of the statute from subjection to the burden of 
frivolous claims and demands, and to protect the 
courts from the anticipated deluge of civil actions to 
enforce the newly-created statutory civil rights.

“ If inability to undertake conciliatory procedures 
be attributable solely to a ‘ heavy case load,’ as as­
serted by the Commission, this would not be the first 
instance where statutes could not be followed or en­
forced because of lack of necessary implementation. 
If sufficient funds were not appropriated to permit the 
Commission to function as intended this situation can 
and should be corrected, but this is a problem which 
cannot be solved by the courts. Claims of resulting 
unfairness to allegedly aggrieved persons have been 
made in this and other courts if conciliation effort, 
though unsuccessful, is held to be a prerequisite to 
resort to the courts. It is clear that Congress in­
tended to protect aggrieved persons against viola­

—  9 —-



—  l o ­

tions of their civil rights but it is clear also that 
Congress did not lose sight of the unfairness which 
would result to parties against whom charges are 
filed if they could be brought into court without the 
conciliation step.”

A  final factor which demonstrates the importance which 
Congress has attached to any agreement authorized by 
the Commission is provided by the provisions of Section 
713 (b) of the Act, which expressly provides for a defense 
where the accused can plead or prove an act of omission 
in good faith reliance “ on any written interpretation or 
opinion of the Commission.”  There has been such a 
written interpretation in the concluded conciliation agree­
ment ascribed to by the Commission. The Commission has 
never withdrawn its imprimatur from the conciliation 
agreement nor has its original sanction which has been 
relied upon by the parties been found invalid either by 
the Commission or any judicial authority. In making the 
agreement the parties relied upon the expertise of the 
Commission and that expertise informed them that the 
charges of violation had been cured. Now this same gov­
ernmental agency when asked to explain a creature of its 
own making apparently avoids its obligation. This agree­
ment was not entered into without some sacrifice by the 
unions, but was a good faith effort by them to rectify any 
alleged discriminatory conduct in employment opportuni­
ties. The conciliation agreement was the Commission’s an­
swer as to how these alleged acts could be corrected. It 
was evident that everyone would not be satisfied with the 
implementation of the new system required by the concili­
ation agreement but it was hoped by all parties that the 
Commission would attempt to conciliate or arbitrate any 
problems arising thereafter. Yet when a problem arose and 
the parties looked to the Commission for guidance and 
assistance that assistance has not been forthcoming. It 
is submitted that the courts are obliged to decline to



—  11 —

assert jurisdiction in this case until all administrative 
remedies are exhausted, particularly in view of the fact 
that prior conciliation efforts have met with success as 
evidenced by the conciliation agreement.

In summary then, the existence of a conciliation agree­
ment purporting to settle the very violations which are 
the subject of attempted civil litigation differentiates this 
case from all others where the issues of the necessity of 
a finding of reasonable cause as a jurisdictional prerequi­
site has been decided or raised. Where, as here, the Com­
mission has already exercised its conciliation powers to 
produce an end result of compliance by conciliation agree­
ment and the parties have designated the Commission as 
sole arbitrator of any differences concerning the applica­
tion or interpretation of the terms of the conciliation 
agreement, the notice requirements of 706 (e) must be 
strictly observed, and the charging parties must be noti­
fied by the Commission that it cannot remedy their com­
plaints before the courts can be drawn into the contro­
versy.

II.

Appellants Are Required to Exhaust the Administra­
tive Remedies Which They Themselves Have Established 
and Made Exclusive.

Statutory considerations aside, it would appear that the 
common law principle of denying access to the courts 
until administrative remedies are exhausted is applicable 
in this case. This principle is particularly relevant here 
in view of the fact that appellants have already invoked 
the Commission’s conciliation powers to the extent of 
obtaining, through the Commission, an agreement de­
signed to settle their complaints, and in that agreement 
have expressly agreed not to litigate their complaints in 
the courts but instead give the Commission jurisdiction



—  12

and authority to resolve any dispute concerning appli­
cation of the agreement disposing of their charges and 
the Commission’s jurisdiction to this end has been in­
voked. Unless and until the Commission certifies that 
the agreement has not been complied with and that 
appellees continue to violate the Act, appellants should be 
required to pursue the remedy they themselves have 
selected.

The general rule, of course, is that the court will not 
step in until available administrative relief has been ex­
hausted. Myers v. Bethlehem Shipbuilding Corporation,
303 U. S. 41. In determining whether or not to apply the 
rule in any given case the courts balance the variables. 
See 3 Davis Administrative Law, Para. 20.03, and Jaffee 
Judicial Control of Administrative Action, 436, 432 (1965). 
Here the parties, pursuant to their agreement, have ex­
pressly designated the Commission as the forum to settle 
differences under the agreement to the exclusion of the 
courts. That body, not the courts, has the expertise—an 
expertise heightened by its participation in the settlement. 
Continuation of the proceedings before it should not be 
bypassed or abandoned to allow an excursion into the fed­
eral courts with accompanying prolonged evidentiary hear­
ings. For the courts to intervene when the conciliation ef­
forts of the Commission have reached settlement stage can 
lead only to a breakdown in the administration of the stat­
ute and a contravention of its basic purpose to remedy 
violations by conciliation through the machinery of the 
Commission. To render the Commission’s considerable ef­
forts a nullity after settlement has been reached would 
dissuade parties from resorting to the Commission in the 
future. This case is not ripe for judicial determination 
until the Commission has acted one way or the other upon 
the pending dispute over application of the conciliation 
agreement. I f  ever the rule of exhaustion of administrative 
remedies is applicable, it is applicable here.



—  13

This Circuit in the case of Glover v. St. Louis San Fran­
cisco Railroad Company, 386 F. 2d 452, has affirmed the 
rule in a case similar to the present. There an issue of 
racial discrimination was also involved and court relief 
was sought before the complainant had utilized remedies 
available to them under the Railway Labor Act and under 
their collective bargaining agreement. This Court held 
that these administrative remedies must first be exhausted 
and cannot be bypassed by court action.

A  persuasive analogy exists in Republic Steel Corp. v. 
Maddox, 379 U. S. 650. There the U. S. Supreme Court 
held that where employees covered by a collective bargain­
ing agreement charge a breach of that agreement adversely 
affecting them and the agreement contains a clause pro­
viding for settlement of their complaint through the griev­
ance and arbitration processes, this remedy must first be 
exhausted before the remedy which Congress has given 
under Section 301 of the Taft-Hartley Act in the federal 
courts can be invoked. See also Drake Bakeries, Inc. v. 
Local 50 Bakery Workers, 370 U. S. 254; Local 721, United 
Packing House Workers v. Needham Packing, 376 U. S. 
247.

Title VII of the Civil Rights Act must be read in the 
context in which it was written and should be considered 
in conjunction and in the light of other acts of Congress 
which regulate labor-management relations such as the 
Taft-Hartley Act, at least by analogy. Although the con­
ciliation agreement in the present case had been made 
part of the existing collective bargaining agreement be­
tween the union and the company and that contract con­
tains grievances and arbitration machinery which could be 
resorted to by appellants, it is not necessarily urged that 
appellants are obliged to exhaust that remedy under the 
principle of the Maddox case, supra. See Opinion of Judge 
Lynne in Dent v. St. Louis San Francisco Railroad, supra, 
in which he held that remedies under a collective bargain­



14 —

ing agreement need not be first pursued by persons al­
leging a violation of tbe Civil Eights Act. This case is dif­
ferent, and at tbe very least the remedies the parties have 
agreed to under a Commission sponsored conciliation 
agreement must be exhausted. While it may not be con­
sistent with the policies of the Civil Eights Act to require 
complaining parties to pursue remedies under applicable 
collective agreements when violations of the Act are 
charged before resorting to court, it would be entirely con­
sistent with the purposes of the Act to require complain­
ing parties to exhaust remedies before the Commission 
which they themselves have established. In so doing, the 
Act would not be bypassed but rather the concept under­
lying the entire Act—resolution of alleged violations by 
the Commission through the conciliation processes—would 
be furthered. The Congress could not have intended and 
the courts should not countenance branding conciliation 
efforts and the execution of conciliation agreements as im­
material or superfluous. If the efforts of the Commission 
are to mean anything then the terms of the conciliation 
agreement reached under the auspices of and approval by 
Commission must establish the rule between the parties 
thereto.

Here the Commission has been requested to review the 
compliance with the conciliation agreement and to apply 
the agreement according to its terms. For the courts to 
intervene at this stage absent a pronouncement by the 
Commission that it is unable to make a determination 
would nullify and disregard the accomplishment of the 
A ct’s principal purpose— settlement by voluntary means. 
If the Commission has been diliatory in completing its 
function under the settlement agreement, that is not the 
fault of the union or the company, and the Commission 
should not be permitted to abandon its extended efforts to 
this juncture without substantial showing of reason there­
for.



—  15

CONCLUSION.

For the reasons set forth above it is respectfully sub­
mitted that the judgment below should be affirmed.

Respectfully submitted,

HERBERT S. THATCHER,
1009 Tower Building,

Washington, D. C. 20005,
Attorney for Union Appellees.



APPENDIX.



A -l —

ATTACHMENT A.

Boreman, Circuit Judge, dissenting:

With due respect for the opinions of my brothers I find 
myself in disagreement with them in these cases. Accord­
ingly, I record my views in this separate statement.

The statutes here principally involved (Title VII, § 706, 
42 U. S. C., § 2000e-5, subsections (a) and (e), are set out 
in footnotes numbered 4 and 5 of the majority opinion. 
There is no need to reproduce them here. The majority 
view is that the “ statute, on its face, does not establish 
an attempt by the Commission to achieve voluntary com­
pliance as a jurisdictional prerequiste”  to the bringing 
of a civil action by a person allegedly aggrieved.

In each of these cases the Commission admittedly made 
no effort whatsoever to eliminate the alleged unlawful em­
ployment practice by the informal methods prescribed by 
statute. The only reason assigned by the Commission for 
such failure was its “ heavy work load.”  By this simple 
expedient the Commission sought to bypass the clear pro­
visions of the statute, to render them meaningless and 
thereby open the floodgates to the judiciary when the ob­
vious intent of the lawmakers, as indicated by the lan­
guage of the statute and the legislative history, was to 
place the primary burden on the Commission, to protect 
employers and other persons subject to the provisions of 
the statute from subjection to the burden of frivolous 
claims and demands, and to protect the courts from the 
anticipated deluge of civil actions to enforce the newly- 
created statutory civil rights.

It is elementary that the fundamental purpose of con­
ciliation is to avoid litigation. In these cases appellants



— A-2 —

(hereafter plaintiffs) would have the court adopt the un­
natural view that conciliation may follow litigation at the 
election of a litigant. Undeniably, if conciliation is to 
follow litigation then its whole purpose is defeated and 
the effort of Congress to require it prior to litigation is 
reduced to an idle gesture. This point is clearly mani­
fested in the wording of the statute and it was recited 
again and again in the legislative history as will be later 
noted. Plaintiffs seek to persuade the court to read and 
construe subsection (e) standing alone and not in con­
junction with subsection (a). That argument entirely 
overlooks subsection (a) as well as other pertinent lan- 
gauge in subsection (e). The language of subsection (a) of 
section 706 is clear that if the Commission finds reasonable 
cause to believe the charge is true it shall endeavor to 
eliminate the practice by “ informal methods.”  The lan­
guage of subsection (e) of section 706 further establishes, 
as the court below stated, that after this effort is made by 
the Commission it then becomes its duty to report its fail­
ure to the aggrieved party who may then institute action 
in court. Subsection (e) gives the Commission power to 
extend conciliation beyond thirty days if further efforts 
to secure voluntary compliance are warranted. The words 
“ further efforts”  clearly connote that Congress contem­
plated that initial efforts to conciliate had already gone 
before. Furthermore, after an action has been commenced 
in the district court, subsection (e) authorizes the Com­
mission to request the court to stay proceedings pending 
the termination of the efforts of the Commission ‘ ‘ to obtain 
voluntary compliance.”  This language is further proof 
that conciliation efforts must have begun before suit is 
filed.

Applying elementary rules of statutory construction, 
section 706 must be read as a whole in order to ascertain 
its true meaning. Each part or section should be con­
strued in connection with every other part or section to



A-3 —-

produce a harmonious whole.19 Reading subsections (a) 
and (e) together, I reach the conclusion that conciliation 
efforts must precede suit. This conclusion was reached by 
Professor Sovern of the Columbia Law School and Legal 
Consultant to the NAACP Legal Defense and Education 
Fund. As he stated in a treatise on this subject:

“ That the structure of §706, with its linkage of 
the individual suit to Commission conciliation, leads 
naturally to the conclusion that the complainant can­
not sue until the Commission takes the steps specified, 
could not have been lost on Congress * * V ’20

In analyzing the language of the statute the court in 
Dent v. St. Louis-San Francisco Ry. Co., 265 F. Supp. 
56, 62 (N. D. Ala. 1967), stated:

“ * * * j f  not only speaks of ‘ the termination’ of 
conciliation but was likewise explained in Congress as 
authorizing a stay pending ‘ further efforts at con­
ciliation by the Commission’ [110 Cong. Rec. 15866 
(July 2, 1964)], and it therefore is to authorize a stay 
for the termination or continuation of conciliation 
efforts, not for their initiation.”

In referring to subsection (e) and noting that the Com­
mission has up to sixty days to attempt to secure volun­
tary compliance the following statement appears in the 
Harvard Law Review:

‘ ‘ Only after this effort has failed may the aggrieved 
person bring an action for relief, and even then the 
court may, upon request, stay proceedings for up to

19 2 Sutherland, Statutory Construction, § 4703; Mastro Plas­
ties Corp. v. National Labor Relations Board, 350 U. S. 270, 285 
(1956); National Labor Relations Board v. Lion Oil Co., 352 
U. S. 282, 288 (1957).

20 Sovern, Legal Restraints on Racial Discrimination in Em­
ployment, 82 (1966).



A -4 —

60 additional days pending # * * the further efforts 
of the Commission to obtain compliance.”  (Emphasis 
added.)21

The passage of this civil rights legislation and the stat­
utory provisions pertinent here was accomplished only 
after much debate, after amendments were proposed and 
material changes made which differed from the original 
proposals. “ Seldom has similar legislation been debated 
with greater consciousness of the need for ‘ legislative his­
tory’ or with greater care in the making thereof, to guide 
the courts in interpreting and applying the law.” 22

In both the House and Senate, it was explained that a 
civil action could not be brought without efforts to achieve 
voluntary compliance by conciliation. The House Labor 
Committee Report explained that “ maximum efforts be 
concentrated on informal and voluntary methods of elim­
inating unlawful employment practices before commencing 
formal procedures.”  Representative Lindsay, then a mem­
ber of the House Judiciary Committee, explained that 
“ the procedures are carefully spelled out * * * Those pro­
cedures are designed to give due protection to everyone. 
They command that there first be voluntary procedures.” 23 
He added that “ unless this voluntary procedure is com­
plied with, nothing further can happen.” 24

On at least two occasions Congress thoroughly con­
sidered and then rejected proposals that litigants be per­
mitted to proceed with court action before conciliation

21 The Civil Eights Act of 1964, 78 Harv. L. Rev. 684, 693 
(1965).

22 Yaas, Title V II; Legislative History, 7 Boston College L. 
Rev. 431, 444 (1966).

23 110 Cong. Rec. 1638, 2565 (Feb. 1, 8, 1964).
24 110 Cong. Rec. 2565 (Feb. 8, 1964).



-— A-5 —-

was attemped. Thus, the original bill expressly provided 
that a civil action could be brought “ in advance”  of con­
ciliation efforts “ if circumstances warrant,”  hut these 
clauses were eliminated “ to make certain”  that there be 
resort “ to conciliatory efforts”  before court action.25

The bill was passed by the House as amended and the 
amendment, eliminating the “ in advance”  clause, was ex­
plained by Representative O ’Hara:

“ There were some who believed that perhaps the 
language, as it stood, would authorize bringing the 
action in court before any attempt had been made to 
conciliate. We thought that striking the language 
would make it clear that an attempt would have to 
be made to conciliate in accordance with the lan­
guage * # * before an action could be brought in the 
district court.” 26

Further evidence of intent is found in the fact that in 
1965 Congress again was urged to enact a law which 
would permit litigation “ in advance”  of conciliation.27 
Again Congress rejected this proposal. It seems to me 
perfectly clear that the plaintiffs are here seeking by 
court decree to acquire precisely that which legislative 
proponents sought and failed to get from the Congress.

The plaintiffs concede in their brief that conciliation 
efforts were a prerequisite to a civil action under the bill 
as passed by the House. But they argue that the concilia­
tion prerequisite was eliminated by the Dirksen compro­

25 110 Cong. Rec. 2566, 2576 (Feb. 8, 1964) (Rep. Celler, 
Chairman of the House Judiciary Committee).

20 110 Cong. Rec. 2566 (Feb. 8, 1964).

27 House Rep. No. 718 on H. R. 10065, 89th Cong., 1st Sess., 
1965.



—  A-6 —

mise in the Senate. To support this argument they point 
to the fact that the compromise substituted the “ person 
aggrieved”  for the Commission as the party authorized 
in the original proposal to bring the civil action. This 
argument is in “ patent disregard for the fact that the 
procedure under the compromise was explained [in the 
Senate], just as was the House Bill, as authorizing the 
institution of a civil action only after conciliatory efforts 
by the Commission.28 As to the conciliation step, it was 
explained in the Senate:

“ [W ]e have leaned over backwards in seeking to 
protect the possible defendants by means of all the 
procedures referred to—those of conciliation, arbitra­
tion, and negotiation.” 29

“ If efforts to secure voluntary compliance fail, the 
person complaining of discrimination may seek relief 
in a federal district court.” 30

Senator Saltonstall explained his support of the pro­
posed legislation as follows:

“ [A ]n  aggrieved party may initiate action under the 
provisions of the bill on a federal level. In such cases, 
provision is made for Federal conciliation in an effort 
to secure voluntary compliance with the law prior to 
court action.

“ The point of view of this section is to permit one 
who believes he has a valid complaint to have it 
studied by the Commission and settled through con­
ciliation if possible. The Court procedure can follow.

“ In Massachusetts, we have had experience with 
an arrangement of this sort for 17 years and as I re­

28 Dent v. St. Louis-San Francisco Ry. Co., 265 F. Supp. 56, 
59-60 (N. D. Ala. 1967).

29 110 Cong. Rec. 14190 (June 17, 1964) (Senator Morse).
30 110 Cong. Rec. 12617 (June 3, 1964) (Senator Muskie).



A-7 —

call, approximately 4,700 unfair practice complaints 
have been brought before our Massachusetts Commis­
sion Against Discrimination. Only two of them have 
been taken to court for adjudication. That procedure 
is the basis and theory of this part of the bill and 
that is why I support it.” 31 (Emphasis above sup­
plied.)

Senator (now Vice President) Humphrey made the fol­
lowing statements:

“ Those of us who have worked upon the substi­
tute package have sought to simplify the administra­
tion of the bill * * * in terms of seeking a solution by 
mediation of disputes, rather than forcing every case 
before the Commission or into a court of law.

“ We have placed emphasis on voluntary concilia­
tion—not coercion.

“ The amendment of our substitute leaves the in­
vestigation and conciliation functions of the Commis­
sion substantially intact.

“ Section 706 (e) provides for suit by the person 
aggrieved after conciliation has failed.” (Emphasis 
supplied.)32

The plaintiffs ignore the legislative history relating to 
the compromise between the Senate and the House and the 
adoption of the legislation in its present form. All of this 
history was relied upon by Chief Judge Lynne in the 
Dent case,33 and I cannot overlook the fact that this court 
heretofore indicated approval of Dent in Mickel v. South 
Carolina State Employment Service, 377 F. 2d 239, 242 (4

31 110 Cong. Rec. 12690, 14190 (June 4, 17, 1964).

32 110 Cong. Rec. 13088, 14443, 12722-12723 (June 4, 9, 1964).

33 Dent v. St. Louis-San Francisco Ry. Co., 265 F. Supp. 56 
(N. D. Ala. 1967).



— A-8—-

Cir. 1967), in which decision two of the judges in the 
instant cases joined. We there stated:

“ The decision in Dent, -supra, * * * painstakingly 
discusses the legislative history of this portion of the 
Civil Eights Act. The opinion presents overwhelming 
authority culled from Congressional committee reports 
and the statements of key legislators to support the 
conclusion that Congress intended that persons claim­
ing discrimination in employment should first exhaust 
their remedies within the Commission created for 
that purpose. Furthermore, the original bill contained 
a clause permitting the bringing of civil actions prior 
to seeking conciliation but this provision was elim­
inated by a House amendment in order to insure that 
conciliatory efforts would be made.”

I again express my approval of the decision in Dent 
and its analysis of the legislative history. That decision 
was relied upon heavily by the court below. Now, the 
plaintiffs incorrectly assert that most of the items of 
legislative history relied upon by the district court and 
by the court in the Dent case were from the House “ at a 
time when the bill still provided for judicial enforcement 
only at the suit of the Commission,”  a provision in the 
bill as originally drafted. It would appear that the 
statements from the Senate as hereinabove set forth dem­
onstrate that the arguments advanced by plaintiffs are 
without merit. It cannot be doubted that the Dirksen 
compromise was “ a further softening of the enforcement 
provisions of Title V II,” 34 and placed “ greater emphasis 
* * * on arbitration and voluntary compliance than there 
was in the House bill.” 35 Senator Case, a co-manager of 
the bill in the Senate, stated:

34 110 Cong. Rec. 12595 (June 3, 1965) (Senator Clark).

35 110 Cong. Ree. 15876 (July 2, 1964) (Rep. Lindsay).



“ There could he no claim of harassment in as much 
as the enforcement procedure has been whittled down 
to the minimum.” 36 37

Therefore, it would be illogical to construe the compro­
mise as placing less emphasis on voluntary compliance 
than did the House bill.

The plaintiff’s argument that the Dirksen compromise 
in the Senate was intended to permit suit prior to con­
ciliation efforts, thereby reversing the procedure admit­
tedly spelled out in the House bill, is illogical in two more 
respects. First, the compromise grew out of the need 
of the supporters of the hill in the Senate to invoke the 
cloture procedure. In order to obtain the required num­
ber of votes the House bill had to be softened. “ The 
necessity for and difficulties in obtaining the two-thirds 
vote for cloture must be borne in mind in any attempt to 
understand the amendments to the bill adopted in the 
Senate and particularly the amendments to Title VII.87 
Second, if it had been the intent of the Senate to allow 
resort to court action prior to conciliation efforts, this 
could easily have been accomplished by reinserting the 
“ in advance thereof”  clause which was deleted in the 
House. The Senate, however, made no such insertion and, 
even more to the point, there are no statements from the 
Senators to indicate that the Senate bill was to be con­
strued as if the “ in advance thereof”  clause had been in­
serted. It having been the recognized intent of the House 
to insure conciliation efforts before resort to court action

36 110 Cong. Rec. 13081 (June 9, 1964); and Senator Hum­
phrey stated that the Senate changes “ gave increased emphasis 
to methods of securing voluntary compliance.” 110 Cong. Rec. 
12707 (June 4, 1964) ; and “We have placed emphasis upon vol­
untary conciliation—not coercion.” 110 Cong. Rec. 14443 (June 
19, 1964).

37 Berg, Equal Employment Opportunity Under the Civil 
Rights Act of 1964, 31 Brooklyn L. Rev. 62, 66 (1964).



it would be contrary to logic to imagine that this intended 
procedure was eliminated in the Senate by inference and 
without one word of explanation. Thus, when the Sen­
ate bill went back to the House for approval, it was ex­
plained by members of the House Judiciary Committee 
that:

“ There is greater emphasis in the Senate amend­
ments on arbitration and voluntary compliance than 
there was in the House bill.” 38

The bill comes back to the House tempered and 
softened.” 39

Adverting to the Senate proceedings, it was pointed out 
that the compromise proposal was based upon the ac­
cumulated experience of twenty-five states which have fair 
employment practices laws. Senator Javits assured the 
Senate that fears about the procedure of the compromise 
were not warranted because “ in the 13 industrial states 
of the north, since the first law of this kind was passed 
there have been 19,439 cases”  and “ only 18 have actually 
gone to court”  (110 Cong. Rec. 13089-13090, June 9, 1964). 
As hereinbefore shown, Senator Saltonstall referred to the 
experience in Massachusetts as gratifying, indeed. The 
Senate obviously relied heavily upon such assurance's that 
employers would not be harassed with frivolous litigation 
and that the federal courts would not be flooded.

The experience of the states, showing that conciliation 
is a successful means of obtaining voluntary settlement of 
complaints of discrimination in employment, is not to be 
lightly regarded. This court has already recognized that 
conciliation provides a means for the Commission to settle 
the matter “ in an atmosphere of secrecy without resorting 
to the extreme measure of bringing a civil action in the

— A-10 —

38 110 Cong. Rec. 15876 (July 2, 1964) (Rep. Lindsay).
39 110 Cong. Rec. 15893 (July 2, 1964) (Rep. McCulloch).



A  11

congested federal courts,”  Mickel, supra, 377 F. 2d 239, 
241. The statute, §706 (a), 42 U. S. C., § 2000e-5 (a), di­
rects that nothing said or done and as a part of “ such 
endeavors”  may he made public by the Commission with­
out the written consent of the parties or used as evidence 
in a subsequent proceeding. This section also makes it a 
misdemeanor for any employee of the Commission to 
divulge such information. If voluntary compliance with 
these statutes is the first objective, and I think it is, the 
prospect of willing cooperation is greatly diminished by 
a suit instituted prior to conciliation efforts on the part 
of the Commission. Publicity with respect to complaints 
of discrimination might involve substantial dangers to 
industrial peace. The pressures, publicity and adversary 
attitudes which naturally follow the institution of a law 
suit can make willing cooperation difficult, if not im­
possible. Congress intended, in my view, that the Commis­
sion should make the effort to eliminate alleged imlawful 
employment practices by conferences with the employer, 
by persuasion and by conciliation. Such is the sensible 
approach before authorizing the aggrieved person to 
plunge into litigation. I am persuaded that it is this 
approach which Congress intended and for which it made 
provision.

It is true that the courts are not in accord in their inter­
pretation of these statutes, as pointed out in the majority 
opinion. As these disagreements began to appear the 
Commission may have been impelled to review and recon­
sider the procedures which it had undertaken to follow. 
In the instant cases the notification was sent to each plain­
tiff that he could resort to court action prior to any con­
ciliation effort by the Commission. Up to that time the 
Commission had issued no formal or official interpretation 
of the requirements of the statute with regard to whether 
an effort to conciliate must precede the issuance of such 
notice. But in November 1966 the Commission, perhaps



entertaining some doubt as to the legality of its procedure 
employed in these and other cases, issued a Regulation 
stating that it “ shall not issue a notice * * * where rea­
sonable cause has been found, prior to efforts at concilia­
tion with respondent,”  except that, after sixty days from 
the filing of the charge, the Commission will issue a notice 
upon demand of either the charging party or the respond­
ent (29 C. F. R., § 1601.25a).

If inability to undertake conciliatory procedures be at­
tributable solely to a “ heavy case load,”  as asserted by 
the Commission, this would not be the first instance where 
statutes could not be followed or enforced because of lack 
of necessary implementation. If sufficient funds were not 
appropriated to permit the Commission to function as in­
tended this situation can and should be corrected, but this 
is a problem which cannot be solved by the courts. Claims 
of resulting unfairness to allegedly aggrieved persons have 
been made in this and other courts if conciliation effort, 
though unsuccessful, is held to be a prerequisite to resort 
to the courts. It is clear that Congress intended to protect 
aggrieved persons against violations of their civil rights 
but it is clear also that Congress did not lose sight of 
the unfairness which would result to parties against whom 
charges are filed if they could be brought into court with­
out the conciliation step.40

—  A-12 —

40 See Dent v. St. Louis-San Francisco Ry. Co., 265 F. Supp. 
56, 62 (N. D. Ala. 1967).