Martin v Wilks Brief Amicus Curiae in Support of Petitioners

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 75-2201

ELMO V. MYERS, et al.,
Plaintiffs - Appellees,
- v -

GILMAN PAPER COMPANY,
Defendant,
and

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, et al.,
Defendants - Appellants.

On Appeal From the United States District Court for the 
Southern District of Georgia

A. BLENN TAYLOR
Taylor, Bishop & Lee 
P. 0. Box 1596 
Brunswick, Georgia 31520

FLETCHER FARRINGTON 
GEORGE P. SHINGLER

Hill, Jones & Farrington 
208 East 34th Street 
Savannah, Georgia 31401

JACK GREENBERG
0. PETER SHERWOOD 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs - Appellees



UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 75-2201

ELMO V. MYERS, et al. ,
Plaintiffs - Appellees,

- v -

GILMAN PAPER COMPANY,
Defendant,
and

INTERNATIONAL ASSOCIATION OF MACHINISTS 
AND AEROSPACE WORKERS, et al.,

Defendants - Appellees

CERTIFICATE REQUIRED BY LOCAL RULE 13(a)

The undersigned, counsel of record for Elmo V. Myers 
and others, plaintiffs - appellees, certifies that the following 
listed parties have an interest in the outcome of this case. 
These representations are made in order that the judges of 
this Court may evaluate possible disqualification or recusal 
pursuant to Local Rule 13(a).



Elmo V. Myers,
Martha Yvonne Hannah,
Isodore Roberts,
Gerald Roberts,
James Jacobs,
Oscar Morris,
Roosevelt Dawson,
Wilbur Jacobs,
Nathaniel Joseph,
Lawrence Brown, Sr.,
Kenneth E. Smith,
Jarone Lionel Smith,
William E. Myers,
Verdell R. Griffin,
Abraham Samuel,
Eddie Lee Smith,
Clifton Butler,
Peter J. Sibley,
Theodore R. Williams,
Carl Jenkins,
Charles E. Jenkins,
Jesse Frison,
John W. White,
Robert L. Stevens,
Leonard Forcine,
Simon Johnson,
Edward Owes, and 
Inmand Cobb,

The class of black employees and former employees of Defendant
Appellee Gilman Paper Corporation, represented by the named
plaintiffs.

Plaintiffs - Appellees.
Gilman Paper Corporation,

Defendant.
United Paperworkers International Union (AFL-CIO), 
International Brotherhood of Electrical Workers (AFL-CIO), 
International Association of Machinists and Aerospace Workers

Local Unions Number 453, 446, and 958, United Paperworkers International Union (AFL-CIO),
Local Union No. 741, International Brotherhood of Electrical Workers (AFL-CIO), and



Local 1128, International Association of Machinists and Aerospace Workers (AFL-CIO),
Defendants - Appellants.

Attorney of record for 
Plaintiffs - Appellees



TABLE OF CONTENTS

Table of Authorities................................  iii
Note on Form of Citations ............................  vii
Statement of Questions Presented .................... viii
Statement of the C a s e ...................................  1
Statement of Facts:
A. 1941:    5

1. Gilman, the Unions... .................... 5
2. ... and Segregation ......................  6

B. 1963: Segregation Chafes ........................  7
C. 1965:

1. The Door Opens. . .    8
2. ...Slightly ..............................  10

D. 1970: Union Merger and Contract Negotiations... 11
E. 1972:

1. The Unions Move... ........................  15
2. ...But Not Far E n o u g h ......................  17

F. 1974: At Last
1. Settlement ..............................  18
2. The Consent Decree ........................  21

G. 1975: Union Liability
1. Affirmative Relief ........................  242. IBEW . . ...............................  2 5
3. Back Pay ..................................  2 6

ARGUMENT ............................................  2 9

i



STATEMENT REGARDING THE APPEALABILITY
OF THE JANUARY 14, 197 5 ORDER ....................  2 9
I. THE DISTRICT COURT HAD THE POWER AND

THE DUTY TO APPROVE THE CONSENT DECREE 
WHICH IS FAIR, REASONABLE AND ADEQUATE
OVER THE OBJECTION OF DEFENDANT UNIONS..........  3 0

A. Both Decisional Law and
Title VII Policy Strongly
Favor Settlement ..........  32

B. The District Court Properly
Approved the Consent Decree ..........  33

C. The UPIU's Argument in This
Court Addressed to the Fairness 
and Adequacy of Specific 
Provisions of the Consent 
Decree Are Not Appropriate
Subjects For Review ..........  40

D* The District Court's Adoption 
of the Affirmative Remedies 
of the Consent Decree in 
the January 14, 1975 Order
Was Proper ..........  46

II. THE DISTRICT COURT APPLIED CORRECT IEGAL 
PRINCIPLES IN ALLOCATING THE LIABILITY
OF THE COMPANY AND THE UNIONS .................  48

III THE DISTRICT COURT APPLIED CORRECT LEGAL 
PRINCIPLES IN APPORTIONING THE LIABILITY
AMONG THE SEVERAL UNIONS ......................  54

IV THE STANDARDS SET FORTH IN THE DISTRICT 
COURT'S ORDER OF JANUARY 14, 1975 FOR 
DETERMINING INDIVIDUAL BACK AWARDS IS
NOT AN APPROPRIATE SUBJECT FOR REVIEW .........." 64

'V. THE DISTRICT COURT PROPERLY HELD THE 
IBEW LIABLE FOR A PORTION OF THE BACK
PAY LIABILITY .................................. 67

CONCLUSION 70



TABLE OF AUTHORITIES

CASES: Pages
Albemarle Paper Co. v. Moody, U.S. ,

45 L.Ed. 2d 280 (1975) ...777.....777.......  35,47,58,70
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) .. 32,39,52
Baxter v. Savannah Sugar Refining Corp.,

495 F. 2d 437 (5th Cir. 1974) ........................ 55
Carey v. Greyhound Bus Co., Inc.,

500 F. 2d 1372 (5th Cir. 1974) ..............  59,60,61,70
Chaney v. City of Galveston, 368

F. 2d 774 (5th Cir. 1966) ............................  54
City of Detroit v. Grinell Corp.,

495 F. 2d 448 (2d Cir. 1974) ...................... 31,33
Czosek v. 0 'Mara, 397 U.S. 25 (1970) .............. ...... 52
EEOC v. American Tel. and Tel. Co., 365 F.Supp. 1105 

(E.D.Pa. 1973), aff'd in part, appeals dismissed
in part, 506 F.2d 735 (3d Cir. 1974) ................  31

Emporium Capwell Co. v. Western Addition Com­
munity Organization, U.S. ,43 L.Ed.2d
12 (1975) .....................................  37,38,39

Florida Trailer and Equipment Co. v. Deal,
284 F . 2d 567 (5th Cir. 1960) .........................  33

Gamble v. Birmingham Southern Railroad Co.,
514 F. 2d 678 (5th Cir. 1975) ........................  45

Guerra v. Manchester Terminal Corp., 498 F.2d
641 (5th Cir. 1974) .......................  50,51,63,70

Herrera v. Yellow Freight System, Inc.,
505 F. 2d 66 (1974) ..................................  69

Jenkins v. United Gas Corporation, 400 F.2d
28 (5th Cir. 1968) ......................... ......... 39

iii



CASES: Pages
Johnson v. Goodyear Tire and Robber Co., 491

F. 2d 1364 (5th Cir. 1974) ...........  35,39,47,50,55,56,70
Jones v. Trans World Airlines, Inc., 495 F.2d

790 (8th Cir. 1974) ..................................  53
Local 53 of the International Association of Heat and 

Frost Insulators and Asbestos Workers v. Vogler,
407 F. 2d 1047 (5th Cir. 1969) .....................  55,61

Local 189, United Papermakers and Paperworkers v.
United States, 416 F.2d 980 (5th Cir. 1969) ... 6,7,14,47,55

Long v. Georgia Kraft Co., 450 F.2d
557 (5th Cir. 1971) ......................  6,7,35,36,37,47

Louisiana v. United States, 380 U.S. 145 (1965) ...........  55
Moody v. Albemarle Paper Co., 4 FEP Cases 561

(E.D.N.C. 1971), rev'd 474 F.2d 134 (1973) ...........  6,7
Myers v. Gilman Paper Co., 392 F.Supp. 413 (S.D.Ga. 1975) ... 1
New Amsterdam Cas. Co. v. B.L. James and Co.,

254 F . 2d 917 (5th Cir. 1958) .........................  65
Patterson v. Newspaper and Mail Deliverers of New

York and Vicinity, 514 F.2d 488 (2d Cir. 1975) ........ 31
Parham v. Southwestern Bell Telephone Co.,

433 F. 2d 421 (8th Cir. 1970) ......................  31,35
Peters v. Missouri-Pacific Railroad Co.,

483 F. 2d 490 (1973) ............................ 52,59,61
Pettway v. American Cast Iron Pipe Co.,

494 F . 2d 211 (5th Cir. 1974) ......................  36,47
Rice v. Gates Rubber Co., F.2d , (6th Cir.

No. 74-1630, August 25, 1975) .....................  31,35
Rodriguez v. East Texas Motor Freight, 505 F.2d

40 (5th Cir. 1974) ................................ 55,66
Rowe v. General Motors Corporation, 457

F. 2d 348 (5th Cir. 1972) .......................  37,40,47
Russell v. Barnes Foundation, 136 F.2d 654

(3d Cir. 1943) .......................................  65

iv



Savannah Printing Specialties and Paper Products 
Local 604 v. Union Camp Corp., 350 F.Supp.
632 (S.D.Ga. 1972)   59

Stevenson v. International Paper Co., 516
F.2d 103 (5th Cir. 1975) .........................  36,47

Taylor v. Armco Steel Corp., 494 F.2d
498 (5th Cir. 1970)   58,59

Terrell v. United States Pipe and Foundry Co.,
Civil Action No. 22-887 (N.D. Ala.) ..................  69

UMW v. Coronado Coal Co., 259 U.S. 344 (1922) ...........  69
United States v. International Brotherhood of

Teamsters, 517 F.2d 299 (5th Cir. 1975) ....... 29,35,37
United States v. Allegheny Ludlum Industries,

517 F. 2d 826 (5th Cir. 1975) ........... 29,31,32,33,37,41
United States v. Jacksonville Terminal Company,

451 F. 2d 418 (5th Cir. 1971) .........................  47
Weston v. Charleston, South Carolina, 27 U.S. 449 (1829) .. 64
Vaca v. Sipes, 386 U.S. 171 (1967) ...................  52,53
Zenith Radio Corp. v. Hazeltime Research, 401 U.S.

321 (1971) ............... ........................... 46

STATUTES:
28 U.S.C., F.R.C.P., Rule 23 ............................ 2,3
28 U.S.C., F.R.C.P., Rule 52(a) .........................  48
28 U.S.C., § 1291 .................................... 30,64
National Labor Relations Act, 29 U.S.C.

§ 151, et seq................................ 57,58,59,60
National Labor Relations Act, § 7, 29 U.S.C. § 157 .......  38

CASES: Pages

v



STATUTES Pages
Civil Rights Act of 1866, 42 U.S.C. § 1981 .......
Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.

vi

..... 2

.. passim



NOTE ON FORM OF CITATIONS
For unity and clarity, plaintiffs here set forth the 

abbreviations used to designate the various documents - the 
record, transcripts and briefs - referred to in this Brief.

"R. __” - Original Record on Appeal (Defendants - Appellants 
are proceeding under Rule 30(c), F.R.A.P.)

"Tr. __" - Trial transcript, which is separately paginated
"PX - __" - Plaintiffs' Exhibits introduced at trial
"DX(UPIU)- __" - Exhibits introduced by defendants United 

Paperworkers International Union and its 
Locals 446, 453 and 958 at trial

"DX(IAM)- __" - Exhibits introduced by defendants International 
Association of Machinists and its Local 1128 
at trial

"A - " - Documents attached to this Brief as appendices 
which are in the district court's file but 
which are not included in the record on appeal

"CO.A - __" - Appendix attached to the brief of Gilman 
Paper Company

"Co. __" - Brief of defendant Gilman Paper Company
" I AM - Brief of defendants-appellants International 

Association of Machinists and Aerospace 
Workers and its Local 1128

"UPIU - Brief of defendants-appellants United 
Paperworkers International Union and its 
Locals 446, 453 and 958

"IBEW __" - Brief of defendant-appellant International 
Brotherhood of Electrical Workers

"741 at __" - Brief of defendant-appellant Local 741, 
International Brotherhood of Electrical 
Workers

vii



STATEMENT OF QUESTIONS PRESENTED

1. In a Title VII action does the district court have the 
power and duty to approve a consent decree between the company 
and plaintiff which is fair, reasonable and adequate where the 
unions object?

2. Whether the district court applied correct legal 
principles in allocating the liability of the company and the 
unions?

3. Whether the district court applied correct legal 
principles in apportioning the liability among the several 
unions?

4. Whether the standards set forth in the January 14,
1975 order of the district court for determining individual 
back pay awards are an appropriate subject for review?

5. Whether the district court properly held IBEW liable 
for a portion of the back pay liability?

viii



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 75-2201

ELMO V. MYERS, et al.,
Plaintiffs - Appellees, 
- v -

GILMAN PAPER COMPANY,
Defendant,
and

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, et al.,
Defendants - Appellants.

On Appeal from the United States District Court for the 
Southern District of Georgia

BRIEF FOR PLAINTIFFS - APPELLEES

STATEMENT OF THE CASE
This appeal comes to this Court from an order of the 

United States District Court for the Southern District of 
Georgia, Honorable Anthony A. Alaimo, entered on January 14, 1975 1/

TO./ R. 1301-25. The opinion below is reported at 392 F. Supp.



It presents several issues, all of which involve discrimination
in employment in violation of Title VII of the Civil Rights
Act of 1964 , 42 U.S.C. § 2000e e_t seq. Among those issues are
the reviewability of matters not raised in the district court;
the appealability of a non-final order; the duty of a district
court to approve a settlement which is fair and reasonable;
the deference which should be accorded to the views of the
district court in fashioning relief from violations of the Act;
snd the liability of an international union for its failure
to comply with Title VII's mandate.

The suit was filed on September 1, 1972, under the Civil
2/

Rights Act of 1866, 42 U.S.C. § 1981. Shortly thereafter the
complaint was amended to allege jurisdiction under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et sea.^
The complaint, filed as a class action under Rule 23, F.R.Civ.P.,
alleged that defendants were denying to plaintiffs and the
class they represent equality in employment on grounds of

£/their race.

2/ R. 14-23. 
3/ R. 24-35. 
4/ Id.

Page Two



5/ 6/After fifteen months of motions and discovery,
plaintiffs and defendant Gilman Paper Company moved the court
to allow them to settle all issues between them, and to order
into effect affirmative remedies for the acts of discrimination7/
alleged by plaintiffs. At a hearing on the joint motion,
the district court ordered the moving parties to support their

8/ 9/
motions with briefs, which they did. Following responses
by the Unions, and counter-responses by plaintiffs and 

11/ 12/Gilman, the court, on August 30, 1974, granted provisional
approval of the proposed compromise and ordered that class
members be notified in accordance with Rule 23(e), F.R.Civ.P. *

5/ Motions: R. 97-99; 128-31; 132-37; 582-89; 613-15;620-^6; 661-62; and 671-73. 616;

6/ Discovery: R. 56-76; 77-90; 108-17; 118-27; 138-202;
203-33; 234-91; 292-475; 476-88; 489-551; 552-55; 556-65; 566-77; 578-80; 595-606; 607-10; 680-87; 688-93; and 694-722.
7/ R. 723-24.
8/ R. 727-28.
9/ See R. 5. The briefs of plaintiffs and the Company were 
not included in the record on appeal. Plaintiffs have attached 
relevant portions of their briefs hereto as appendices. Gilman did likewise. Co. 5, n. 29.
10/ R. 772-801; 821-46.
— / ^ee R. 5; note 9, supra.
12/ The delay in ruling on the joint motion was occasioned by the serious illness of the trial judge.
13/ R. 862-66.

Page Three



14/ 15/
After a final hearing on objections held November 8, 1974,
the Court entered the decree with a proviso that its affirmative
remedies not take effect until January 1, 1975, and ordered
a plenary trial on the issue of union liability to begin on17/
December 2, 1974.

Following a four-day trial, the district court, on
January 14, 1975, entered its order granting final approval
of the consent decree, finding the unions liable for one-half
the monetary loss suffered by class members, and ordering
supplemental proceedings to determine the amount of back pav 18/due.

The several Union defendants filed their appeals on
19/

February 5 and 12, 1975. Following a denial by the trial court

14/ All of the Unions, but none of the plaintiffs, and none 
of the members of the various classes objected to the approval of the decree.
15/ R. 8.
16/ R. 1036, 1| XVI-A.
17/ R. 1017.
18/ R. 1301-25.
1^/ 1326, 1330, 1334, 1351. The unions had earlier filed, then
withdrawn, four notices of appeal from various orders of the 
district court. See plaintiffs-appellants1 Brief in Support of 
Motion to Dismiss the Appeal, p. 6. In addition, IAM filed 
separate motions to amend the August 30 and January 14 orders 
to permit interlocutory appeals. R. 897, 1344. UPIU also 
filed a motion to permit an interlocutory appeal of the January 14 order. R. 1338.

Page Four



of the IAM's motion to stay back pay proceedings in that
20/

court pending appeal, all the unions filed motions to stay in 
this Court, which were granted on June 26, 1975. A motion by 
plaintiffs to dismiss these appeals as untimely was ordered 
"carried with the case."

21/STATEMENT OF FACTS
A. 1941:
1. Gilman, the Unions...

Gilman Paper Company is a New Hampshire corporation
engaged in the manufacture of paper and paper products at two
plants in St. Marys, in the extreme southeastern corner of 22/
Georgia. The paper mill began operation in 1941, and shortly 
thereafter recognized the Unions which are appellants in this

23,case as the exclusive bargaining representatives of its employees.— /

20/ R. 1347, 1361.
21/ We deem it necessary to set forth the facts in detail because 
or the numerous inaccuracies and material ommissions contained 
in the Unions' briefs. We do not believe that the able lawyers 
who wrote those briefs have deliberately misled this Court.
Rather, the misconceptions presented in the briefs may well be 
explained by the fact that, with the exception of Mr. Goldthwaite, who represents IAM, none of the counsel who wrote them 
participated in any of the proceedings below.
22/ R. 1304.

UPIU, organized to represent black employees, 
958 liPinnded ^  197°‘ discussion at pp. 11-12, infra. Localq^',qUPIU' ^aS or9anized in 1959 to represent bag plant employees See discussion at p. 7, infra. F y ’

Page Five



The bag plant, which converts paper manufactured at the mill
. . .  24/into industrial and commercial bags, began operation in 1950.
Nine hundred people work at the paper mill, 700 of them in

bargaining unit jobs. Of those, over 500 are production
workers under the jurisdiction of UPIU Locals 446 and 453,
125 are maintenance employees under the jurisdiction of IAM
Local 1128, and 70 are electrical workers - either electricians
or powerhouse employees - under the jurisdiction of IBEW Local
741. LPIU Local 958 represents all the 700 bargaining unit

25/workers at the bag plant.
2. ... and Segregation.

From the beginning, black people were allowed to work only
in the traditional jobs reserved for blacks in paper mills in 26/
the South: the arduous unloading jobs in the woodyard, and

27/laborer, janitor and yard service jobs. As was also 
customary in the South, UPIU chartered a black, segregated

24/ R. 1304.
25/ Tr. 88-89.
26/ See_, e^. Local 189, U.P.P. v. United States, 416 F.2d 
980 (5th Cir. 1969); Long v. Georgia Kraft Co., 328 F. Supp.
681 (N.D. Ga. 1970); Moody v. Albemarle Paper Co., 4 F.E.P. 
Cases 561 (E.D.N.C. 1971), rev'd, 474 F.2d 134 (4th Cir. 1973).
27/ Tr. 89-92.

Page Six



. 28/ 29/ 
local union (No. 616) to represent employees in those jobs.
After the bag plant opened, UPIU assigned jurisdiction of the

30/ 31/few black jobs in that plant to Local 616, even though
other bargaining unit jobs at the bag plant were assigned

32/to the subsequently organized UPIU Local 958, and even
though no other mill local represented bag plant employees.
B. 1963: Segregation Chafes.

In 1963, Local 616 formed a committee to seek mercer with 33/
the white locals. Officers of the black local inquired
of their International Representative as to whether he had any
information regarding the merger. He replied that he was not

34/
informed as to that issue. The President of Local 616 then wrote 
to the Union's International President requesting his permission 
for the Local to negotiate non-discriminatory clauses in the 
upcoming contract, and informing him that the local was seeking

28/ See cases cited note 26, supra.
29/ Tr. 92.

n'65?nl¥rf°92?,"berS °* °laSS A W°rked ln th6 ba9 plant Prior to
31/ Tr. 75, 92, 534.
32/ R. 138; Tr. 75.
11/ PX-19, p. 75; Tr. 235.
11/ PX-19, p. 81; Tr. 236.

Page Seven



merger between the black and white unions. There was no
36/

response from the International. In the intervening seven
years officers of Local 616 attempted to arrange meetings with

37/officers of the white locals to discuss merger. None of
those meetings were consummated; the white union officials

38/invariably failed to show up.
C. 1965:
1. The Door Opens...

With the effective date of Title VII, Gilman announced
.. . . 39/that it intended to comply with the statute. Pursuant to
that policy, the Company began hiring blacks in numbers at the bag * *

35/

35/ PX-16; Tr. 241-42.
36/ Tr. 244.
37/ Tr. 234-44.
38/ Tr. 299. UPIU's assertion that "[wjhen Title VII became 
effective, UPIU International immediately directed that 
Local 616 and the other locals be merged," UPIU 7, n. 21 has 
absoluteiy no record support. The Union is apparently r^lyinq
who qJ1-5eS^im°ny °f ltS International Representative, Don Walker, who said, m  response to leading questions, that he urgedthe members to merge the Local Unions in 1965. Tr 510
bvCMr P? / 9; DX(UPIU)-2, reflect no such'urgings* ™alker; UPIU offered no documentary evidence to support 
S L ? ?  tl0\ theY n°W take' and for very good reason: President
T? 512'l4n ^ h S €?ri1 15' 1970 letter to the locals, PX-18;

2 14 (tke llrst time the International took any action toward merger), admitted that "formal actions to correct 
[segregated locals] have been delayed for a considerable period after enactment of the law....-See also R. 1150, II 27.
39/ Tr. 93.

Page Eight



40/plant, placing 80 per cent of them in traditionally white jobs. —  

It also announced that incumbent black employees could transfer 
to the lucrative production and maintenance jobs under the 
jurisdiction of the then all-white locals which are parties 
to this appeal. Some of them did transfer. — 7 * * * * * 13 * * * * * * * 21 The Company also

40/—  Tr. 94. There were relatively few - approximately 20,
Tr. 92 - "black jobs" at the bag plant. Since 118 blacks 
were hired after July 2, 1965, Tr. 94, the fact that most
of them were placed in white jobs is probably attributable to 
a change in the Company's hiring policy, rather than to its 
assignment policy. Until a~E least 1970, no whites were assigned 
to the traditionally black jobs in the bag plant. Compare 
R. 170, 172 and Tr. 91-92, with R. 929, 934-37.
— / Tr. 93.
42/ . .—  Dissatisfied with their inability to convince the trial 
court of the existence of a "no-transfer" policy, see R. 1312-
13, the Unions attack the trial court's findings on this point
as being clearly erroneous, UPIU 39-44; 741 at 33-36, see
Rule 52(a), F.R.Civ.P., and seek to re-try the facts in this
Court by quoting out of context testimony of the Company's
personnel manager, John Love, who thought that one reason few
employees during that period sought transfer might have been 
because they thought it was futile. Tr. 199. Whatever Mi. 
Love's recollection'of the Company's policy, the facts are that 
Gilman did not have a "no-transfer" policy. Five blacks
transferred to white jobs in the bag plant. Tr. 97-98. In the 
mill, 30 blacks transferred to formerly all white jobs, Tr.
95, 98, including at least two to IAM maintenance jobs, Tr. 119-
21, and one to an IBEW job in the Powerhouse. Tr. 630-33. In 
view of the Company's announced policy of allowing such 
transfers, Tr. 93, the Union's strident insistence that Gilman 
had a "no-transfer" policy which prevented blacks from acceding 
to formerly white jobs, UPIU 8-9, 19-20; 741 at 11-12, falls 
of its own weight. Local 741's statement that "the Company... 
placed no black employee into a job" within its jurisdiction,741 at 34, falls particularly hard.

Page Nine



made changes in its educational and testing requirements.
2. ... Slightly

Gilman continued, however, to assign only blacks to
44/

traditionally black jobs. And in the mill the large majority
of newly-hired blacks were assigned to traditionally black jobs.
Those newly-hired employees - as well as incumbent blacks -
faced an insuperable barrier in attempting to take advantage of
Gilman's new policy of allowing them to transfer.

Transfers to, and promotion within, the various departments
and lines of progression at Gilman were governed by contracts
between it and the Unions. Although Gilman maintained control

46/
over who could transfer, once it made the decision to allow 
a transfer, the collectively bargained contracts came into 
play. Once transferred from a black job or line of progression 
to a white one, the transferring employee was required by those 
contracts to give up the only seniority that mattered - job

43/

43/ R. 116.
44/ Only one white was eligible, by virtue of his job assignment, 
for membership in the black Local 616. Tr. 234. See also note 40 
supra. The Union's arguments that all discrimination ceased on 
July 2, 1965, IAM 8; UPIU 18, therefore has no merit. The trial court certainly made no such finding.
,£5/ Only 22 of 77 new black hires in the mill were assiqned to white jobs from 1965 to 1972. Tr. 94.
4j6/ The Unions argue that Gilman gave up that right with the 
execution of the supplemental labor agreements, discussed at 
PP-.15:17' infra. IAM 10; 741 at 12-13. That argument has no 
T??1lll-112nd 1S direCtly contradicted by, this record. See

Page Ten



seniority. 4_7/ So, if a black woodyard employee who had worked
for the Company twenty years decided to try his hand in the
paper mill, he could transfer but, for seniority purposes,
only as a new employee. Once in his new line he could
progress no faster than the newest, rawest white recruit
ahead of him. .£§/ Further, had there been a layoff, he would

4 9/have been first out the gate. —  As a consequence, relatively 
few blacks sought transfer from 1965 until 1972. — / UPIU, in
the meantime, continued to maintain its segregated local union.
D. 1970: Union Merger and Contract Negotiations.

In April, 1970, UPIU, acknowledging for the first time the 
passage of Title VII six years earlier, ordered its segregated 
Locals to merge. 52/ Elmo Myers and several of his co-workers

iZ/ PX-2, pp. 6-7; PX-5, pp. 6-7; PX-8, pp. 8-9; PX-11, pp. 5-6;Tr. 295, 532; R. 1314-15.
— / Tr. 531-32.
— / See, ,e.g., PX-2, p. 7; R. 1315.
50/ Tr. 295; R. 1315.
51/ Tr.234.
52/ PX-18; Tr. 512-14. The Union merger had broader implications 
for its black members than a simple recognition by the Union 
that segregation was unlawful. Job opportunities for some 
blacks were improved as a result of the merger. For example, until 
1970 black painters and carpenters were assigned to yard labor, 
a department whose jobs were exclusively under the jurisdiction 
of Local 616. Tr. 10, 12; PX-1, p. 13. Their pay rates, as 
expected, were substantially lower than those of comparable 
whites. PX-1, p.13. White painters and carpenters, on the 
other hand, were assigned to their own departments under the 
jurisdiction of the white Local 446. PX-1, pp. 12-13; Tr. 97.
With the merger of the Unions and the assumption of jurisdiction 
of the yard labor department by Local 446, the black carpenters

(continued)
Page Eleven



attempted to influence the terms of the merger but were
54/rebuffed by the Union's International Representative.

Shortly after that unsuccessful attempt, Mr. Myers and eight 
other blacks filed, on May 4, 1970, formal charges of 
discrimination with the Equal Employment Opportunity Commission 
charging Gilman and each of the local and international Unions 
with a full panoply of discriminatory practices. They also
presented ^ U P I U  a petition cataloging a variety of changes 
they sought.

During the contract negotiations which took place that 
year, UPIU made several proposals to the Company, the primary 
thrust of which would have been to alter the method of entry 
for all employees - black and white alike - into the lines of

^/(continued) and painters were immediately transferred to the 
white departments, thereby increasing their hourl? raS from
lowest rateK hiTr?S96fate> ?3'°4 ^  White ~ r p a ? t s '
53/ Tr. 276-81.
54/ Tr. 515.
55/ PX-35; Tr. 249-52.
56/ PX-20.

Page Twelve



progression. Those proposals, however, would have retained
. . . . . .  . . 58/the 30b seniority provisions of the previous contracts;
the district court found that those proposals failed to meet

59/the primary deficiency of the prior labor agreements.
Not only were those proposals of small benefit to black

57/

employees but other proposals made by UPIU were positively
detrimental to them. For example, UPIU proposed
that certian lines of progression be merged. That proposal, * ll

~ { . UPJU Pf°P°sed that Gilman abolish its extra board and place 
®^t^ , board employees in a labor pool, allowing those employees to bid on entry level jobs in lines of progression based on 
lose employees plant seniority. See generally, PX-37; Tr 502 

h" ? Board employee is one who fills in, on a temporary’
temnorarnve^ h ^ Yr ?  Wh° arf SiCk' °n vacation' or otherwise tempoianiy absent from work. When those emoloyees return, and
ll n era ^  other employee absent, the extra board employee is iaid off". Tr. 490, 492, 567, 568. The effect of t bor 
pool arrangement would have been that, instead of being laid 

Jtra board employees would perform laboring work^until 
ou£theega2e?ryid!CanCieS aVailable rather than going

.. Company seniority, under the UPIU proposal, was necessarilv 
°nilkind of seniority which could haSe be4n Sled bv labo/ 

pool (extra board) employees, since they accumulated noi b 
Tr ^ 6 7 seniority while working on the extra boJFd? ' 
whSn it'chSr^teSi^fSS°re heibg quite generous with itself
e q u a l i S y Cf S r w ^ 2S S p ^ e e S ? P ° S a l S  aS “  e “ ° r t  t0 9 a in

58/ Tr. 527-32.
59/ R. 1315.

Page Thirteen



[for all employees] to move up the line of progression"
and in this Court as a part of its "consistent[ ] [quest] to

61/broaden the discriminatees' job opportunities," in fact
would have downgraded certain black employees in the woodyard,
causing them to receive comparatively lower rates than they
had been receiving, and placing them farther behind whites

62/ --------------
than they already were. Thus, despite its assertions to the 
contrary, UPIU continued to foster the competitive seniority 
advantage for whites which it had negotiated for and received 
for years. Not surprisingly, black Union members did not 
view the issues which resulted in a strike during the 1970 
negotiations as issues involving black rights, and voted to accept

characterized by the Union below as "equal opportunity
60/

60/ Tr. 502.
61/ UPIU 9, 11.
62/ Lines of progression are ordinarily merged according to pay rates. See Local 189, UPP v. United States, 416 F.2d 980,
984 (5th Cir. 1969). Although the top two jobs in the black 
woodyard line paid more than the lowest job in the white woodyard

/ ..P?v,2 ' -i * 20 ' 53;.Tr* 90* UPIU proposed nonetheless totack the lines; that is to place all black jobs below all white
n? ■ AiicomParison of merger according to pay rates with UPIU's tacking proposal reveals the following:
Merger According to 
Pay Rates (from PX-2, 
P. 20)
(w) Crane Operator $4.49 
(w) Stacker Operator 3.73 (b) Tower Man 3.51 
(h) Belt Controller 3.38 
(w) Stacker-Sawyer- 3.36

UPIU "Tacking" Proposal 
(PX-37, p. 11)

(w) Crane Operator $4.29 
(w) Stacker Operator 4.00 
(w) Stacker-Sawyer 3.35 (b) Tower Man 3.34 
(b) Belt Controller 3.20

Page Fourteen



the Company's last offer and return to work despite UPIU's
63/exhortations to stay on strike.

E. 1972:
1. The Unions Move...

In late summer 1972, the Unions, apparently acting in

63/ UPIU sought below and seeks here to saddle plaintiff Elmo 
Myers with the decision to return to work, thereby, according 
to the Union, undercutting its efforts to achieve equality for 
its black members. Tr. 286-88; UPIU 11, n. 40. The argument 
is ingenious, but completely without factual support. In the 
first place, the primary strike issue involved pensions and not 
seniority. Tr. 248-49, 287-88, 567. More importantly, as 
we have demonstrated, the Company's acceptance of UPIU's 
proposals would have in some cases worsened the position of 
biacks. Note 62, supra. Finally, as plaintiff Myers explained rather eloquently:

...[M]y voting to return to work, as well as recommending 
to the members to return to work, had nothing to do 
with the issues of why we were out on strike....
[0]ur International representative was met at the 
door by policemen to refuse him from entering this 
place designated for our [negotiating] meeting....
It was something that I'd never been into before like 
that and I felt like maybe they were having some 
political problems around there. There was a[ ] 
[municipal] election coming up, and I just felt like... 
with my little inexperience and being out on strike, 
i was better for the safety of the members for me to 
recommend to them and vote for the substance of that 
contract, because so far we had gone through without 
any violence, and you know, violence is not my

Juwould rather take a chance on loosing [sic] something than trying to gain something with somebody else getting hurt. Tr. 288-89.

Page Fifteen



concert, and the Company negotiated supplemental labor 65/
agreements which, as Local 741 concedes, were the first

66/substantial breakthroughs for Gilman's black employees.
For the first time, locked-in blacks would be notified of
job opportunities in the lucrative white lines. More important -
and again for the first time - the Unions proposed and successfully
negotiated provisions allowing blacks, upon transfer to those
lines, to take with them, for purposes of promotion, demotion

67/and layoff, their accumulated seniority. There resulted an

64/

64/That all four agreements were signed the same day, R. 297; 
PX-33, p. 2; PX-34, p. 2, and that the texts of the agreements 
are, as the Unions concede, "substantially the same", UPIU 12, 
n. 41, permit no other conclusion than that all the Unions were acting together.
6_5/ The record is unclear as to who initiated the negotiations. 
Both the Company, Co. 4, and the Unions take the credit.See, e.g,, 741 at 12:

The first, breakthrough in the Company's unrelenting 
insistence that it have the prerogative to approve 
or deny all transfers came with negotiation of the 
supplemental labor agreements in August of 1972.

See also 741 at 13:
Only after negotiation by the Union of the supplemental labor agreement--- (emphasis added)

And UPIU 32:
[The consent decree gave] the Company relief from the 
terms [of the supplemental labor agreements] which 
the Unions had won in collective bargaining.

For this appeal, plaintiffs take the Unions' assertion at face

66/ 741 at 12.
67/ See, e.g. , PX-31, pp. 3-4, \\ B.

Page Sixteen



avalanche of requests from blacks to transfer, many of which 68/
were granted. The district judge, by comparing the pre­
agreement transfer statistics with those occurring after the 
agreements, found that the primary impediments to black transfers
were the seniority and notice provisions of the collective69/bargaining agreements.
2. But Not Far Enough.

Notably absent from the supplemental agreements was any
70/method - by now standard relief in Title VII cases - for

the expeditious advancement, by way of advanced-level entry,71/
job-skipping or freezing, for black employees once they

— / Although there are no complete statistics in the record regarding pre-agreement and post-agreement requests to
lt: ®hould b(r noted that, prior to the agreements, only Tr 7 Years had requested transfers to maintenance,

l* 01' bofc in the tWO years after the agreements, fifty 
indth^‘C!̂ r‘ 128 * 0vera11' 35 blacks transferred to white jobs in the seven pre-agreement years, Tr. 95, 97-98, while 39 did so m  the two years following the agreements (Tr. 103).
69/ R. 1312-13.
70/ See discussion at p. 34-37, infra.
71/ Freezing is discussed at p. 22, note 93, infra.

Page Seventeen



transferred to new lines of progression. Most conspicuously
absent from the agreements was restitution in any form for the
economic injury visited upon the class by defendants' practices.
Consequently, a few days after the agreements were signed,

74/plaintiff Myers contacted an attorney and three days after
75/

that, filed this suit.
F. 1974: At Last
1. Settlement

Early on, consonant with the Congressional mandate that
these cases be resolved, if at all possible, through 

76/
negotiation, all parties discussed resolution of this
case through settlement. Meetings were held in July and August,

72/

72/ UPIU's assertion that "some lines of progression were 
restructured to offer discriminatees quicker access to 
preferred jobs," UPIU 13, is absurd. All the agreements did 
was to tack a few black jobs in the bag plant onto the 
bottom of white lines of progression. Compare R. 162-63 
with PX-5, pp. 64-65. See also note 62, supra.
73/ In view of these deficiencies, we find it difficult to 
accept seriously the Unions' arguments that the supplemental 
labor agreements met "all the requirements," R. 791, of Title VII. See also UPIU 13, 741 at 13, 21.
74/ Tr. 262-63; see UPIU 13.
75/ R. 14-23. That the complaint, seeking among other things 
seniority reform, was filed after the supplemental labor 
agreements became effective, refutes the Unions' claims that 
plaintiffs did not attack the adequacy of the supplemental labor agreements in the court below. UPIU 14-18; I AM 8~. 17*741 at 13, 16. '

76/ See Argument at p. 32-33, infra.

Page Eighteen



1973. Following those meetings, Gilman submitted a proposal
for the consideration of all parties. Plaintiffs rejected that
proposal, and so notified counsel for the Unions on September 78/
21, 1973. Following plaintiffs' letter to the Unions,
the Company submitted, on December 4, 1973, a new proposal for

79/
settlement of the case to all parties. In that proposal
Gilman suggested, as had plaintiffs in the earlier discussions,
that the Unions bear some portion of the back pay liability.
The Unions' position then - as it had been throughout the
discussions - was that they would not participate in the

80/compensatory relief aspects of any consent decree. With
the Unions thus intransigent, plaintiffs and the Company

, . 81/ explored possible means to resolve the impasse.

77/

77/ Co. A-2.
78/ A-l. See also R. 773.
79/ Co. A-12-13.
80/ Co. A-2; A-2; See R. 773. It should be noted that all this 
activity occurred prior to January 1974, when Local 741 
asserts that "counsel for the various union defendants first 
became aware that the plaintiffs and the Company were near a 
resolution of the case." 741 at 14. That assertion borders on the irresponsible.
81/ Co. A-2-3.

Page Nineteen



In early January 1974, plaintiffs informed the Unions
that the Company's most recent proposals formed a basis upon
which the case could be settled. Counsel for IBEW and Local 82/
741 then arranged a meeting, held in Savannah on January 17,

83/1974, and attended by counsel for all parties. The result
of that meeting was the same: the Company and plaintiffs
expressed near agreement on all issues; the Unions stood
firm on money but were willing to discuss the injunctive84/features of the case.

By that time, it had become apparent that Gilman was willing
to settle the entire case on terms acceptable to plaintiffs,
and that the Unions were not. Thereupon the Company and plaintiffs
agreed upon a compromise, incorporated their agreement into a
consent decree, and presented it, in a joint motion, to the 
,. . . 85/
strict court for consideration. At a lengthly hearing held 

on January 31, 1974, the court ordered the parties to fully
explore by way of^briefs the issue of partial compromise,— 7 
which they did.

82/ At that time, both the Local and the 
represented by a single attorney. See, International were e.g., R. 781-800.
.83/ Co. A-3 .
84/ Co. A-14-15.
85/ R. 723-24.
86/ R. 727-28.
87/ R. 772-800, 821-45; Co. A - 1-10; A - 3-25.

Page Twenty



After briefing, the trial court granted provisional approval
8 8/of the consent decree on August 30, 1974. The court held

another hearing on October 5, at which time it agreed to delay
the implementation of the decree until after the trial on the 89/
merits. The court also ordered all parties to meet again to

90/attempt full resolution of the case, and again, the parties met.
As a result of this meeting of the final hearing on November 8, 
changes suggested by IAM and IBEW were incorporated into the 
consent decree, and those Unions then agreed to the affirmative

91/remedies contained in it.
2. The Consent Decree

The consent decree was signed by the trial judge on 92/
November 11, 1974. Five classes of persons were affected 
by its provisions. Class A, the employee class to which the 
affirmative remedies are applicable, is identical to the 
affected class of black employees described in the supplemental

88/ R. 862-94.
89/ R. 7.
90/ R. 961.
91/ R. 8, 919, 922-24. IAM 26, n. 1. The facts recited in 
this section of our Brief belie the Unions' assertion that 
negotiations leading to the adoption of the decree were

secret' and without opportunity for Union participation, 1AM ZZ; 741 at 5, 14-15, an assertion the Unions well know to be without foundation.
92/ R. 1037.

Page Twenty-one



labor agreements between Gilman and the Unions. The consent 
decree remedied the two glaring deficiencies in the supplemental 
labor agreements: it provided an expedited method of

94/advancement - "freezing" - for victims of discrimination, and
it provided restitution for class members in the form of back 95/
pay. The decree also incorporated the seniority, testing, rate

93/

93/ R. 266 , 1[ III; R. 1019-20, 1[ II-A. Other classes receiving 
benefits under the decree were: B-Retirees; C-Rejected
Applicants; D-Voluntary Terminations; and E-Involuntary Terminations. R. 1020.
93/ Freezing" works this way: after an affected class member
transfers to a new line of progression and has completed his 
thirty-day probationary period/ he may thereafter bid on any 
job, regardless of its position in the line of progression.
If, based upon his plant seniority, he is the successful bidder, 
the job is held open for him until he is able to qualify for it., 
In the meantime, the job is filled on a temporary basis by 
other employees. R. 1022-23 , 1f II-E. If he is unable to 
qualify for any job below within the thirtv day period 
provided in the decree, he is returned to his former job and the 30b he bid on becomes unfrozen. R. 1025-26. UPIU's 
argument that the freezing provision gives "an unqualified 
employee a lifetime preference to a job he may never prove able to fill," UPIU 33, is sheer fantasy.
95/ R. 1032-33, 1f XII.

Page Twenty-two



retention and other features of the supplemental labor 97/
agreements. it left untouched provisions of the applicable
labor agreements, including the supplemental labor agreements,
. . . . 98,where its provisions were not in conflict with those agreements.

99/The decree expires on December 31, 1978. * 14

96/

9_6/ UPIU devotes a substantial portion of its brief attempting to 
convince this Court that the rate retention (red-circling) 
provision of the consent decree is "less faithful to Title 
VII's objectives than the provisions of the supplemental labor 
agreements. UPIU 14-15, 29, 31-32. It could have spared the 
efrort. Although there is a distinction in the language of the 
two provisions, it is a distinction without a difference, and 
hardly the significant variation" that UPIU suggests. UPIU
14. Since the highest paying black lines of progression pay 
less than the lowest of the white lines, black employees may 
transfer to any white line of progression and maintain their 
former rate under the consent decree. The only situation 
where a black could receive rate retention under the supplements] 
labor agreements and not under the consent decree is where 
he transfers to a lower-paying, black line of progression.
We can think of no situation - and UPIU suggests none - where 
rST̂ Th7  ̂transfer would be "beneficial" to a discriminatee.
Ui IU 3f* As VP-fU obseryes, the purpose of rate retention is to prevent discrimmatees from taking a pay cut when "transferring
-~Thm^ e ?-f-slrable lines of progression." UPIU 31. ” [emphasis added] The consent decree does~”that.
9_7/ Compare R. 266-73 with R. 1020-30; See UPIU 29.
98/ R. 1036. UPIU fantasizes that the decree abrogates
the supplemental labor agreements, particularlv with reference
fantasy?' ^  3°"31‘ The V6ry termS °f the decree belie Sat

H ^ t Rthe0d^r^2°?!inU;Lng thf fantas '̂ both UPIU and Local 741 argue tnat the decree is permanent. UPIU 18; 741 at 25 Acrain fh,=>very terms of the decree refute their argument. 9 '

Page Twenty-three



G: 1975: Union Liability.
In the trial judge's order setting the case against the

Unions down for trial, he ordered that liability would first
be determined, and then, if liability were found, affirmative

100/relief would be considered.
1. Affirmative Relief

One of the issues for trial, as set forth in plaintiffs' 
pre-trial statement, was:

Whether any system of granting promotions... other 
than the system set forth in the Consent Decree 
is justified as a matter of business necessity

At trial, plaintiffs showed that there was no compelling reason,
from an operational standpoint, why the provisions of the

102/
consent decree would not work. None of the Unions offered

10 3/any evidence whatsoever with respect to affirmative relief. 
Consequently, the trial court found that "none of the defendant

100/ R. 1017.
101/ R. 1066.
102/ Tr. 104.
1_03/ In view of that failure, UPIU's assertion in this Court that 
the unions were prepared to prove the sufficiency of the 
supplemental labor agreements," UPIU 15, is at least 
surprising. Ihe only reference made to the decree by any 
Union at trial was a few questions on cross-examination of the Company's personnel director by counsel for UPIU. The 
questioning, which had nothing to do with whether the decree’s 
affirmative remedies were necessary to end discrimination, 
resulted in Mr. Love's stating that the "freezing" provision of 
the decree was not inconsistent with the safe and efficient operation of his company. Tr. 170-71.

Page Twenty-four



Unions has even attempted to show that the offensive provisions
104/

and practices were a product of 'business necessity.'" The
court ruled that "[t]he Unions advanced no business justification
at the trial for delaying implementation of the affirmative
remedies contained in the consent decree...," and ordered

105/them implemented as scheduled.
2. IBEW

IBEW sought, throughout the entire course of the proceedings
below, to divorce itself from its own local and from the other
international and local unions by claiming that it had
absolutely no responsibility for the offensive portions of the

106/electrical workers collective bargaining agreements. ~ It
sought to make this showing primarily by filing affidavits of 107/
its officers to the effect that IBEW did not follow its own 
constitution and by-laws, which require that contracts by IBEW 
locals with employers be submitted to the International President 
for approval and provide that they are null and void without such 
approval, and that the International President has the power to

104/ R. 1313.
105/ R. 1324.
106/ R. 128-30, 590-93, 613-14, 620-56, 660-61, 665-66, 760-62,1087-97, 1164-1200.
107/ R. 624-33, 1096-97.

Page Twenty-five



108/
modify contracts which are contrary to International policy.
The only evidence of any description offered by IBEW at trial was

109/
Local 741's current contract. The International chose

110/
instead to rely on the affidavits.

Plaintiffs' evidence, on the other hand, showed that
IBEW's International President had read and approved the
collective bargaining agreements, that its International
Representative had been present at, and participated in,
negotiations which led to their adoption, that the agreements
contained job seniority provisions which prevented the transfer
of blacks to electrical jobs and that the International had

111/actual notice of thpse effects on black workers. Upon
that evidence, the trial court found that IBEW had an obligation,
arising both from its own constitution as well as from Title
VII, to take reasonable affirmative steps to eradicate job

112/
discrimination, and that it had failed to do so.
3. Back Pay

The Unions sought to convince the court below that the 
failure of blacks to seek and receive pre-agreement transfers 
was attributable to a non-existent "no-transfer" policy, the

108/ R. 628, pp. -62-63 . 
109/ See Tr. 611.
110/ Tr. 12.
111/ R. 1313.
112/ R. 1316-17.

Page Twenty-six



113/sole responsibility for which lay with the Company. The
trial court found that the evidence did not support such a 
contention, but rather, the failure of blacks to transfer 
was attributable to the existence of the job seniority, 
no-posting system of transfer and promotions contained in the 
collective barqaining agreements between Gilman and then j7 1
Unions. Accordingly, the court held that if black employees
who had initially been assigned to black jobs had suffered 
earnings loss the Unions - who were equally responsible with 
the Company for the collective bargaining agreements - should 
bear one-half that loss.

As to which of the Unions should bear what portion of the
loss, the district court found that, since Local 958 and UPIU
were the exclusive bargaining representatives at the bag plant,
those unions should bear fully the Unions' share of liability

115/
for bag plant employees. The mill presented a different
problem. There, four local unions and three internationals 
represent bargaining unit employees. Since the supplemental 
labor agreements had been in effect for only two years at the

113/ See note 42, supra.
114/ R. 1313.
115/ R. 1322.

Page Twenty-seven



time of trial, and since the company continued to receive 
requests for transfer up to the date of trial, Hdl/ it would 
have been impossible for the Court to determine where every 
single class members would have worked had no discrimination 
existed. Accordingly, the district court apportioned liability 
among these unions upon the basis of the number of job slots 
represented by each Union. icLZ/ Thus, UPIU and its Locals 
446 and 453 were held to be responsible for 72 per cent of the 
Unions' liability (since those unions have jurisdiction over 
72 per cent of the bargaining unit jobs at the mill); IAM and 
its Local 1128 were held to be responsible for 18 per cent of 
the Unions' liability (since those unions have jurisdiction over 
18 per cent of the bargaining unit jobs in the mill); and IBEW 
and its Local 741 were held to be responsible for 10 per cent 
of the liability (since those unions have jurisdiction over 
10 per cent of the bargaining unit jobs at the mill).

116/ See, e.g., Tr. 129.
117/ R. 1323. UPIU's position at trial, and one with which 
the Company agreed and with which no other union disagreed, 
was that a union's jurisdiction is not really over people, 
but over a system of jobs. Tr. 157.
118/ R< 1323-24.

Page Twenty-eight



ARGUMENT

STATEMENT REGARDING THE APPEALABILITY OF THE 
JANUARY 14, 1975 ORDER

On June 2, 1975 plaintiffs filed a motion to dismiss this
appeal on the ground that the district court's January 14, 1975
order was not final. Plaintiffs argued that appeal with respect
to the injunctive relief afforded plaintiffs was untimely and
that appeal from those portions of the January 14, 1975 order

119/related to back pay was premature. Two months later, on
August 8, 1975, this Court rendered its decision in United 
States v. International Brotherhood of Teamsters, 517 F.2d 299 
(5th Cir. 1975), suggesting at footnote 11 that injunctive 
provisions of a consent decree which are later adopted by the 
district court after trial become adjudicative. It appears 
therefore that the order of January 14, 1975 might have been 
final with respect to the injunctive relief granted by the 
district court at the time the partial consent decree was 
approved. That does not mean, however, that the issues raised 
by the Unions on this appeal with respect to injunctive relief 
are properly before this Court for review. Most of those points 
were not raised below and therefore are not reviewable by this 
Court. United States v. Allegheny - Ludlum Industries. 517 
F.2d 826, 840, n. 13 (5th Cir. 1975). In addition, the 11

11V  See Statement of the Case, p. 5, supra.

Page Twenty-nine



January 14 order as it relates to back pay is not a final
order within the meaning of 28 U.S.C. § 1291, and this appeal

120/
is therefore premature. We do not, however, treat these
issues separately in this Brief, but address them as the 
occasion demands in our Argument on the substantive issues.

I
THE DISTRICT COURT HAD THE POWER AND DUTY TO APPROVE THE 

PARTIAL CONSENT DECREE WHICH IS FAIR, REASONABLE 
AND ADEQUATE OVER THE OBJECTION OF 

THE DEFENDANT UNIONS.
121/

Two of the appealing Unions complain here that the
district court lacked the authority to enter a consent decree
approving changes in their collective bargaining agreements

122/with Gilman without a finding that those agreements were 
unlawful or were insufficient to cure the effects of past 
discrimination. The Unions' argument, by focusing on the 
supplemental labor agreements, loses sight of three essential

120/ See plaintiffs-appellants' Motion to Dismiss the Appeal, filed in this Court on June 2, 1975. ^
TL~a+-TTiat ^hese.two Unions should complain so enthusiastically 
court curious. In its post-trial submission in the trial
in the collect?^Sh that.lt: be ordered to "negotiate revisions
and the uiin inl -?ar?aintng a^eements... between the Companythe UilU and its Locals modifying said collective barqainina
greemen s so that they... substantially conform to the modifications of~said agreements contained^TthlTd¥SI~h ot th.c ,

■ k~ a d ^ d ^ c S  74?See p? 21? sSpra^ ln3u"=tive provisions of the consent decree.

122/As amended by the 1972 supplemental See pp. 15-17, supra. labor agreements,

Page Thirty



principles which determined the appropriateness of the district
court's approval of the consent decree. First, the violation of
Title VII existing at the time of plaintiffs' complaints to
the EEOC in May of 1970 established their claim, thus triggering
the district court's remedial power under Section 706(g) of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(g).
See Rice v. Gates Rubber Co., __F.2d__, (6th Cir. No. 74-1630,
August 25, 1975); Parham v. Southwestern Bell Telephone Co., 433
F.2d 421, 425 (8th Cir. 1970). Second, both Congress and the
courts have expressed a strong policy favoring conciliation and
settlement of Title VII cases. E.g., see United States v.
Allegheny-Ludlum, supra. Third, the test for approval of a
consent decree is whether the proposed decree is fair, adequate 

. 123/and reasonable. See United States v. Allegheny-Ludlum, supra;
Patterson v. Newspaper & Mail Deliverers Union of New York & 
Vicinity, 514 F.2d 767 (2d Cir. 1975); City of Detroit v.
Grinnell Corp., 495 F.2d 448 (2d Cir. 1974); EEOC v. American 
Tel. & Tel., 365 F. Supp. 1105 (E.D. Pa. 1973), aff'd in part, 
appeals dismissed in part, 506 F.2d 735 (3d Cir. 1974). The 
decision of the district court is not only consonant with those 
principles; its approval of the decree was required by them.

123/ Local 741, IBEW agrees that this is the proper standard to 
be applied in approving a consent decree but asserts that the 
district court abused its discretion in applying it. 741 at 23.

Page Thirty-one



A. Both Decisional Law and Title VII Policy Strongly Favor Settlement.
This Court has recently had occasion to exhaustively discuss

the law and policy as it relates to the settlement of Title VII
actions. See United States v. Allegheny-Ludlum, supra. Judge
Thornberry's discussion makes plain that in enacting Title VII
Congress placed great emphasis on achieving compliance by
conciliation and settlement. At page 846 he stated:

Initially it cannot be gainsaid that conciliation 
and voluntary settlement are the preferred means 
of resolving employment discrimination disputes.

But he reminded that:
...the final responsibility for enforcement of 
Title VII is vested with federal courts, [citing 
Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974)] Id. at p. 848.

Several attempts were made to resolve this litigation by
124/

settlement among all parties. The final such attempt was
made at the direction of the district court and partial
agreement was reached with some of the unions. Only after
every effort was made to reach a settlement with all parties
did the district court hold a hearing on objections to approval

125/
of the proposed consent decree. Had the district court,
after exhausting all possibility of full settlement, disapproved 
the consent decree, it would have done violence to the 
Congressionally mandated and judicially recognized policy of 
achieving resolution of employment discrimination conflicts

124/ See pp. 18-21, supra. 
1_25/ See p. 21, supra.

Page Thirty-two



through compromise. 
Industries, supra.

See United States v. Allegheny-Ludlum,

B. The District Court Properly Approved the Consent Decree.
In approving a settlement the district court must be satisfied 

that, all things considered, the proposed settlement is fair, 
adequate, and reasonable. See United States v. Allegheny- 
Ludlum, Industries, supra; Florida Trailer and Equipment Co., 
v. Deal, 284 F.2d 567 (5th Cir. 1960); and City of Detroit v. 
Grinnell, supra. In Grinnell, supra, the Second Circuit reiter­
ated the factors which should guide district courts in approving 
settlements:

It is not necessary in order to determine 
whether an agreement of settlement and 
compromise shall be approved that the court 
try the case which is before it for 
settlement....Such procedure would 
emascualte the very purpose for which 
settlements are made. The court is only 
called upon to consider and weigh the 
nature of the claim, the possible defenses, 
the situation of the parties, and the 
exercise of business judgment in determining 
whether the proposed settlement is reasonable 
[citing Neuwirth v. Allen, 338 F.2d 2 
(2d Cir. 1964).] 495 F.2d at 462.

The district court had before it all the discovery between
plaintiffs and the Unions, ---' as well as voluminous pleadings
presented by the parties addressed to the appropriateness of the 
proposed consent decree, including the specific objections of the 
Unions.--- More .importantly, it held three lengthy hearings -*-28/

126/ See p. 3, note 6, supra.
127/ See R. 772-780, 781-801, 821-846; Co. A - 1-11; A - 3-25.
128/ At none of these hearings did any of the Unions present any 
testimony addressed to the fairness or adequacy of the decree. 
Indeed the ynions made no offer to present any evidence.

Page Thirty-three



regarding its fairness and adequacy. Thus armed, the district
court was in a unique position to weigh the claims, the possible
defenses, the situation of the parties, and to evaluate them
in light of the well-defined legal standards for establishing
a claim of discrimination and the type of relief generally
granted in paper industry cases. The district court found the
consent decree to be fair, reasonable and adequate and approved 129/
it. The district court also took the additional precaution
of permitting the objecting Unions to assert cross-claims130/
against the Company and deferring implementation of the
. . 131/injunctive provisions of the consent decree until after trial.

The UPIU's attack on the district court's authority to
approve a consent decree affecting its collective bargaining
agreement and supplemental labor agreement over its objections
without a finding that the present labor agreements violate
Title VII or are insufficient to cure the effects of past
discrimination, can only be considered^ to be a claim that the
consent decree was not fair or reasonable so as to require
a determination by this Court that the district court abused its
discretion. A cursory review of the facts of this case and the
applicable law confirms the authority and indeed the duty of
the district court to approve the proposed consent decree.

129/ R. 864.
130/ R. 765-71, 802-20, 847-51, 857, 865.
131/ R. 1036.

Page Thirty-four



In determining whether or not a plaintiff establishes a 
violation of Title VII, a district court should look to the 
employment practices as they existed at the time of the plaintiffs' 
employment and the filing of their complaints with EEOC. See 
Parham v. Southwestern Bell Telephone Co., supra; Rice v.
Gates Rubber Co., supra; United States v. International Brotherhood 
of Teamsters, supra; and Johnson v. Goodyear Tire and Rubber Co., 
491 F.2d, 1364, 1376 (5th Cir. 1974). That the unlawful 
practices have changed in the interim between the filing of 
the charge and the trial of the case does not alter the court's 
duty to find the violation of the Act and exercise its equitable 
powers pursuant to Section 706(g) of Title VII "to fashion the 
most complete relief possible." See Albemarle Paper Co. v.
Moody' __U.S.__, 45 L.Ed.2d 280, 298 (1975). In devising a remedy
the district court may consider the corrective steps taken by 
the defendants in the interim. See Rice v. Gates Rubber Co., 
supra, Slip Opinion at p. 5; United States v. International 
Brotherhood of Teamsters, supra, at p. 1376, but the district 
court's duty remains to eliminate so far as possible the present 
effects of past discrimination. See Long v. Georgia Kraft Co.,
450 F.2d 557, 561 (5th Cir. 1971).

In this case none of the defendant unions argue that the 
collective bargaining agreements in effect on May 4, 1970, when 
the first charges were filed with EEOC, complied with Title VII. 
Prior to that time, members of the black UPIU Local 616 had demanded 
that its white counterpart and its International negotiate sweeping

Page Thirty-five



have cured the existing systemic discrimination. The UPIU sought
\

none of these changes. — For more than two years after the 
filing of charges with EEOC, neither Gilman nor the Unions effect­
ed any changes to remedy the existing systemic discrimination.
Even then the defendants failed to take the additional affirmative 
steps of providing for job skipping or freezing that would permit 
the victims of past discrimination to speedily reach their "right­
ful place." See Stevenson- v. International Paper Co., 516 F.2d 
103, 114 (5th Cir. 1975); Pettway v. American Cast Iron Pipe Co., 
494 F.2d 211, 248 (5th Cir. 1974); and Long v. Georgia Kraft Co., 
supra.

The Unions now place emphasis upon what they did in 1972, 133/ 
long after the effective date of Title VII and more than two years 
after charges were filed with EEOC, to effect compliance with the 
Act. But the question before the district court was not what has 
been done but whether what has been done is enough to rapidly 
eradicate, consistent with business necessity, the effects of

seniority changes which, if fully implemented at that time, would

132/ The black workers called on its International and the other 
UPIU locals at Gilman to negotiate agreements that would include 
provisions for recall rights, seniority, line of progression 
changes, job skipping, transfers, affirmative hiring, training, 
and the elimination of non-job related tests and other 
requirements. See PX - 20, 37.
133/ They also argue that plaintiffs somehow have conceded that 
what transpired in 1972 was sufficient to cure the challenged 
violations of the Act. Plaintiffs have conceded no such thing. See pp. 17-18, supra.

Page Thirty-six



discrimination. See Stevenson v. International Paper Co., supra 
at 114; Long v. Georgia Kraft Co., supra, at p. 562; Rowe v.
General Motors Corp., 457 F.2d 345, 355 (5th Cir. 1972); United 
States v. International Brotherhood of Teamsters, supra. Thus 
to the extent that the transfer and promotion provisions of the 
1972 supplemental labor agreements failed to provide for the 
most expeditious advancement for victims of discrimination they 
failed to effect full compliance with the Act. That being so, 
the district court was under a duty to order such additional 
changes as were not precluded by business necessity. See Long 
v. Georgia Kraft Co., supra, at p. 562. In approving the consent 
decree the district court was satisfied that the affirmative 
relief it provided effects compliance with those precepts. See 
United States v. Allegheny-Ludlum Industries, supra.

All the Unions place great but unwarranted reliance upon 
the Supreme Court's decision in Emporium Capwell Co. v.
Western Addition Community Organization, U.S. , 43 L.Ed.2d
12 (197") in support of their position that the district court
was without authority to approve the settlement. That case in
no way alters the district court's authority to approve a
consent decree negotiated by plaintiffs and an employer in a
Title VII case. Emporium was not a Title VII case, and that
fact, as well as others, was stressed by the Supreme Court as critical
to the decision. IcL at 22. It is therefore appropriate to review
the facts of that, case here. A group of black employees protested
against alleged ‘racial discrimination by the company. They
presented a list of grievances to their union representative

Page Thirty-seven



who took prompt action to investigate, present and expeditiously
134/process their complaints through the grievance machinery.

At a meeting convened to hear the entire case, the protesting 
employees appeared but refused.to participate, insisting instead 
on taking their grievance directly to the president of the 
company. Seeking to enforce their demands, the protesters 
picketed the company's store and urged a consumer boycott. After 
failing to heed the warnings of both company officials and union 
representatives to cease picketing, the protesters were fired.
The protesters attempted to invoke section 7 of the National 
Labor Relations Act, asserting that their actions constituted 
a protected activity. Thus the issue before the Supreme Court 
was whether or not such attempts to engage in separate bargaining 
was protected activity under Section 7 of the National Labor 
Relations Act. Id. at pp. 22-23. The central concern of the 
Supreme Court was the protection of the orderly processes of 
collective bargaining which the NLRA was designed to regulate.
The court refused to read into the NLRA a right of a group of 
minority workers to subvert that process by permitting them to 
interject themselves into the process to assert separate and 
distinct Title VII rights in a manner not authorized by Congress. 
See Id. at p. 29.

134/ Compare the Union's actions in Emporium, supra, to the re­
sponse of the UPIU, see pp. 7-8, supra, to efforts by the black 
Local 616 to merge with the white UPIU local at Gilman in 1963, 
as well as the UPIU's response to black workers request for 
seniority changes in 1970, at pp. 11-12, supra.

Page Thirty-eight



This case arises in a radically different context. Here
the plaintiffs have not sought to displace their collective
bargaining agent at a time when it was attempting in good faith
to obtain compliance with the law. The plaintiffs were not
seeking to assert a collective right which the Supreme Court
found properly belonging to the union under the NLRA. Plaintiffs
in this case have invoked the Congressionally authorized
procedure for enforcement of the personal right guaranteed
by Title VII by seeking federal court assistance. See
Alexander v. Gardner-Denver Co,, SUpra. Having
resorted to the.court - rather than resorting to self-help 13 5/
in the streets - to vindicate those rights, it is entirely 
appropriate for plaintiffs to negotiate a settlement directly 
with all or some of the defendants in the action and for the court 
to exercise the broad remedial powers granted it by Congress to 
grant the relief necessary to vindicate those rights. See 
Alexander v. Gardner-Denver Co., suprâ  at p. 47. Nothing in 
Emporium requires a different result.

This Court has on several occasions looked with skepticism 
on belated changes made in employment practices purportedly 
designed to remedy the effects of past discrimination. See 
— hnSQn- v* GoodY^r Tire and Rubber Co., supra at p. 1376* and 
^ ^-ins v ’ United Gas Corp,, 400 F.2d 28, 33 (5th Cir. 1968).

135/ Compare, note 63, at p. 15, supra.

Page Thirty-nine



It has not been reluctant to order further changes designed
to fulfill the responsibility of the court to grant the most
relief possible. See e.g. Rowe v. General Motors Corp., supra.

The consent decree did no more than what was necessary to
afford the plaintiffs and the class the relief to which they
were entitled. The additional changes ordered by the district
court affects precisely the same class of black employees which
the Company and Unions agreed should be the beneficiaries of the
changes effected by the terms of the supplemental labor agreements
to provide for equal employment opportunity for all employees 

136/
of the Company It does not, as UPIU and Local 741 argue,
impose a permanent change in any of the collective bargaining 137/
agreements. The changes ordered will be in effect until
December 31, 1978 only, unless modified or extended by further

138/
order of the Court.
C. The UPIU1s Arguments in This Court Addressed to the 
Fairness and Adequacy of Specific Provisions of the Consent 
Decree Are Not Appropriate Subjects FOr Review.

For the first time UPIU argues in this Court that
certain provisions of the consent decree are less faithful to
the objectives of Title VII than those contained in the
supplemental labor agreements in three respects : that the

136/ See pp. 21-22, supra.
137/ See p. 23, note 99, supra.
138/ R. 1036-37.

Page Forty



decree takes negotiated rights away from women; that rate
retention is less beneficial under the decree than under
the labor agreements; and that the freezing provision reserves
for senior affected class members an unrestricted preference to

139/permanent vacancies which they cannot qualify to fill.
None of these arguments were raised below. Consequently, they 
are not appropriate subjects for review in this Court. See 
United States v. Allegheny-Ludlum Industries, supra at p. 840.

In any event these assertions of the UPIU are factually 
inaccurate. If they were accurate, surely UPIU - which by its 
own admission is far more qualified than plaintiffs to negotiate
such provisions - would not have requested the district court, 
m  effect, to order those very provisions included in its 
collective bargaining agreement with the Company. ~ / m  the first 
place, the consent decree supercedes and replaces only 
conflictinq^terms and provisions of the supplemental labor 
agreements. The consent decree does not address the rights 
of Gilman’s female employees and therefore does not supercede

139/ UPIU 30-34.
140/ UPIU 32, 36.
141/ See note 121 at p. 30. 
142/ R. 1036.

Page Forty-one



or replace any terms of the 1972 supplemental labor agreements 
which relate to them. Thus women's rights under the supplemental 
labor agreements are unaffected by the terms of the consent 
decree.

Since it was not raised below, the facts as to the operation
and effect of the rate retention provisions of the consent decree
as compared to the related provisions of the 1972 supplemental
labor agreements are not readily apparent in the record. The
record does show that there were only two historically black

14 3/lines of progression at the mill. The other historically
black jobs at the mill were not in lines of progression and

144/none paid more than $3.73 per hour. in the bag plant blacks
held jobs in one of the two Shipping Department lines of

M I /  Tr._90. Those lines were (1) a Wood Yard line of 
progression in which the top job (Tower Man) paid $3.96 per 
hour m  1972, PX-2, pp. 53, 20, and (2) a Yard Labor line of 
progression in which the top job, (Equipment Operator) paid $3.81 per hour that year. PX-2, pp. 26, 60.

Lis^ d b<rJ-°w a^e all the historically black non-progression 
PX-2 S20-26 mi11 an° the h°Urly rate each Paid in 1972. Tr. 90;
JOB RATE
Power house cleanup Tube lancer
Cleanup man (digester room)Lime handler
Cleanup man (recovery room) 
Cleanup man (causticizing room) Cleanup man (wash room)
Cleanup man (screening room) 
Cleanup man (paper machine)
S & A man (paper machine) 
Towmotor Opr. (shipping)
Loaders (shipping)
Make-up man (technical svs.)

$3.69
3.69
3.66
3.67
3.66
3.66
3.66
3.66 
3.64 
3.59 
3.85
3.66 
3.73

Page Forty-two



progression where the top job, Palletizer, paid $3.62 per hour 145/
in 1972. In 1972 the lowest paying top job in any historically

146/
white line of progression at the mill paid $4.39, or $0.43 per
hour more than the highest paying job in a historically black
line of progression at the mill. Similarly the lowest
paying top job in any historically white line of progression147/
at the bag plant paid $4.47, or $0.79 per hour more in 1972 
than the highest paying job in any historically black line of 
progression at the bag plant. In short, while the rate
retention argument of the UPIU might raise an interesting
theoretical problem, it is of no moment under the facts of this 
case.

The vacancy freezing system does not operate to freeze 
a permanent vacancy for a senior affected class member who 
can never qualify for the job. This provision ^simply permits

1±S/ PX-5, pp. 27, 65.
14_6/ Assistant in the Storeroom Progression. PX-2, pp. 24,59
p— J  Shipping Clerk. PX-5, pp. 25, 65. Until August, 1972, 
Reinspector, a traditionally female job, PX-5, p. 64, paying 
$3.64 per hour, PX-5, p. 26, was part of a separate line of 
progression. Pursuant to the supplemental labor agreement it
top iob9?fidnS5 ^ other llne of progression, R. 162, where the
197 2 ,h°Ur' PX_5' P‘ 25‘ Thus after Augustof aAv^f ^ lpping CPerk 3ob became the lowest paying top job of any of the formerly white lines of progression.
148/ R. 1022-23.

Page Forty-three



a senior affected class member to have a permanent vacancy
held open while he learns and progresses through the lower
jobs in that line of progression toward his rightful place. It
applies only where the affected class member is not qualified to
hold the job because he has not performed in successively lower1497jobs in that line of progression. This provision must be

150/ 151/read in conjunction with paragraphs II (I) and VI (B) 
of the consent decree. Under these provisions any affected 
class member who fails to qualify under paragraph VI (B) 
for a new job or is found unable under paragraph II (I) to 
advance through the line of progression to the frozen vacancy 
simply loses the right to have that job held open. It may then 
be permanently filled by the next senior bidder.

The benefits of this system are immediately apparent. It 
permits the affected class member who has been excluded from the 
better, high paying jobs because of Gilman and the UPIU's old 
lock-in seniority system to progress more rapidly to his 
rightful place. It assures that every vacancy will be filled 
by the bidder having the greatest plant seniority who reasonably 
can be expected to become qualified to fill the job.

149/ Id.
150/ R. 1023-24. 
151/ R. 1025-26.

Page Forty-four



152/
It does not, as the UPIU asserts, hold the job open 
indefinitely awaiting an event which may never come.

This record clearly reflects that the freezing provision 
meets the business necessity test. Further it does not "bump" 
any incumbent employee from a job he holds permanently. The 
discretion to order this remedy is well within the authority 
of the district court. See Gamble v. Birmingham Southern 

^ oa-d Co. , 514 F. 2d 678, 684 — 85 (5th Cir. 1975) .
The IAM advances the curious argument that settlement of 

back pay claims of plaintiffs and the class with the Company, 
while reserving back pay claims against the Unions, is somehow 
unfair to the non-settling Unions so as to justify either 
disapproval of the consent decree of withholding of the 
distribution of back pay and attorneys' fees. None of the 
Unions have been in any way prejudiced by the distribution of 
back pay to the plaintiffs and the class since no claimant can 
receive more than 50% of his total claim from the Unions. Thus, 
for example, if a particular claimant shows an entitlement to 
$4,000 but has received only $1,000 as a result of the settlement 
he would be entitled to receive no more than $2,000 from the 
Unions. It is difficult therefore to perceive how the Unions

152/ UPIU 33-34.

Page Forty-five



153/
are in any way prejudiced. In any event it is clear that
partial settlements are familiar to federal jurisprudence.
Cf. Zenith Radio Corp. v. Hazeltine Research, 401
U. S. 321, 345-56 (1971). Further, in a statutory cause of
action under federal law a party releases only those other
parties he intends to release. Id. at p. 347. This common
sense approach is well in line with the policy of encouraging

154/compromise and settlement.
D• The District Court's Adoption of the Affirmative Remedies 

the Consent Decree in the January 14, 1975 Order was Proper.
Viewing the affirmative remedies granted in the consent

, . 155/decree m  light of the evidence presented at trial confirms
the correctness of the district court's approval of the consent
decree. Plaintiffs demonstrated that Gilman's black workers

1_53/̂  Similarly it is difficult to perceive how the burden of 
justifying the maintenance of a lock-in seniority system is any 
more heavy on a union than it is on a company. Plaintiffs' 
research has revealed no appellate decision sustaining a 
seniority system which has been shown to have discriminatory 
6 iefuS ’ 3 back PaY proceeding the unions are entitled to

f  f^deral discovery rules to bring to the attention 
of anv indfvidnyifSCtS WhlCh W°Uld ^stify the denial or reduction
p 246 n ai ™  Kpay Ciaim' See e’g* PettwaY' supra atJ* 24°' n* 93 * Thus ^sent fraud or collusion, for which'there are strong and ample remedies, the Unions will be able to
hJveap?esSnted?Sent ^  ^  evidence which tbe Company could

S > u C?£trarY to the IAM'S assertion, I AM 41, the speed with
?>,CaSe WaS tried aftGr Partial settlement Sas effected confirms the coirectness of this approach. R. 1304.

155/ Cf. Statement at p. 29, supra.

Page Forty-six



suffered from the lingering effects of the discriminatory
156/

practices of Gilman and the Unions. The Unions'only response
was to attempt to demonstrate that responsibility lay with

157/Gilman or the plaintiffs themselves. The district court's
finding of discrimination was correct and the affirmative relief
ordered was a proper exercise of the district court's discretion
to remedy the effects of past discrimination. See e.g.
— -?5°n- V' Goodyear Tire and Rubber Co,, supra. The injunctive
relief ordered by the district court comports with the principles158/
announced by the Supreme Court and a long line of cases 
decided by this Court, including Stevenson v. International
^ er C° ’ ' 516 F‘2d 103 <5th Cir. 1975), on which the Unions 
place heavy reliance. See also Pettway v. American Cast Iron
—lpe C— ’ ; .Mins-cJI v - Goodyear Tire & Rubber Co., supra;
Long v. Georgia Kraft Co., supra; Rowe v. General Motors Corn., 
pupra, United States v. Jacksonville Terminal Co.. 451 F .2d 
418, (5th Cir. 1971); LocalJ;8 9 ^ ^ ^  United States, supra. 
The Unions have failed to demonstrate that the district court

HI/ Gee generally Plaintiffs' 
H U  s_ note 68, p. 1 7 , supra;
157/ See note 42, p. 9; note 63
H I /  See Albemarle Paper Co. v.

Statement of Facts. UPIU 36.
, p. 15, supra.
Moody, supra.

Page Forty-seven



abused its discretion when it granted seniority changes which 
went beyond those contained in the 1972 supplemental labor 
agreements. The district court should therefore be affirmed.

II
THE DISTRICT COURT APPLIED CORRECT LEGAL PRINCIPLES IN 
ALLOCATING THE LIABILITY OF THE COMPANY AND THE UNIONS

The Unions challenge the district court's finding that the 
Unions are equally responsible with the Company for the perpetu­
ation of past discrimination and are liable for 50% of the back

159/pay liability as "clearly erroneous". They point to the160/
"uncontradicted" fact of the Company's sole responsibility 
for initial assignment of employees and assert the existence of 
a Company imposed "no-transfer" policy as the sole proximate caus

M V  Rule 52(a), F.R.Civ.P. requires that "Findings of fact shall 
not be set aside unless clearly erroneous, and due regard shall 
be given to the opportunity of the trial court to judge the 
credibility of the witnesses." Explaining the limits of a 
reviewing courts power to overturn the district court's findinqs of fact, this Court stated:

A finding is clearly erroneous when, 
although there is evidence to support 
it, the reviewing court on the entire 
evidence is left with a definite con­
viction that a mistake has been committed.
Chancey v. City of Galveston, 368 F.2d 774, 776 (5th Cir. 1966).

160/ See e.g. UPIU 38 and 741 at 33-36.

Page Forty-eight



of the economic injury to the plaintiffs and the class. As
appears in plaintiffs' Statement of Facts, this record amply
supports the district court's finding. The record clearly shows
the non-existence of a no-transfer policy. It supports the

162/
district court's finding of a causal relationship between
the maintenance of the job seniority system and the absence of
notice of vacancies on the one hand and the small number of

163/transfers prior to September 1972 on the other. Although
the Company reserved the right to deny transfers based on ability
and would normally deny transfers to persons who were skilled
in certain lines of progression, the record shows that few
of the jobs in the traditionally black lines of progression

164/
were considered "skilled". Therefore the district court was
entitled to conclude that the Company's unwillingness to 
transfer employees in whom it had made a substantial investment

161/

161/ See I AM 56, UPIU 42, 741 at 33-36“. supra.
162/ R. 1313.

Compare, p. 9, note 42,

163/ See pp. 9, 15-17.
164/ At the mill only 12 and 13 blacks held "skilled" jobs in the 
traditionally black lines of progression in the Woodyard and Yard 
Labor lines of progression respectively as of April 1973. DX(IAM) 2. Similarly at the Bag Plant only 10 and 12 blacks held 
skilled" jobs in the traditionally black Grocery and Shipping lines of porgression respectively. DX(IAM)-2.

Page Forty-nine



was a far less important cause of the limited number of transfers 
prior to September 1972 than the job seniority provisions of 
the various collective bargaining agreements and the failure 
to post vacancies. The large number of black workers applying 
for transfers shortly after the Unions negotiated for job 
posting and carryover seniority eloquently demonstrates the 
cause and effect relationship between those contract provisions 
and black job mobility. Thus, the failure of the unions to 
negotiate for changes of these employment practices makes 
them as "responsible" for the losses incurred by the plaintiffs 
and the members of the class as the Company, see Johnson v. 
Goodyear Tire & Rubber Co., supra, and the district court so 
found.

Apportionment of back pay liability is a matter left to the 
sound discretion of the district court and its finding should 
not be disturbed absent a showing of abuse. See Guerra v. 
Manchester Terminal Corp., 498 F.2d 6*1 (5th Cir. 1974). Guerra 
is particularly instructive as to the great deference this Court 
gives to the apportionment which the district court makes.
Guerra was a Mexican national who had worked for Manchester 
since 1960. In 1965 Local 1581, ILA successfully negotiated 
an agreement whereby Manchester agreed to hire through the 
union hiring hall and to give preference to United States 
citizens. As a result of this agreement plaintiff Guerra 
was transferred from his job in the Dock Department to a job 
in the Compress Department because he was not a United States

Page Fifty



citizen. He subsequently quit. He sued under Title VII and 
42 U.S.C. § 1981. The district court found a violation of 
42 U.S.C. § 1981 and held Local 1581 and the International Long­
shoremens' Association liable for 100% of plaintiff's lost 
earnings. Both unions argued before this Court that Manchester 
should be required to pay a portion of the back pay liability. 
While recognizing that back pay liability can flow from being 
party to a collective bargaining agreement, this Court pointed 
out that the unions provided the primary stimulus that provoked
Guerra s illegal transfer and refused to disturb the district 

, 165/court s 100% award of back pay against the unions. Concluding,
this Court noted:

We do not mean to intimate that all of the 
dirt in this case is to be found on union 
hands. The district court certainly did not 
think so, and we agree that the employer, 
too, violated the statute. Nor do we mean 
to suggest that employers can avoid paying 
for their civil rights violations by stand­
ing passively by as unions take the active 
role. We say only that because the undisputed facts of this case identify the unions, 
particularly the Local, as those principally 
responsible for plaintiff's loss of the Dock 
job, the district judge did not abuse his 
discretion in placing final responsibility 
for the monetary recovery at the feet of 
appellant (footnote omitted). Ic3. at p. 656.

J|^/T^ e,Court refused to let stand the award back pay against the^ILA for reasons not germane here. See esp. 498 F.2d at n n. a 9 . --- — — w w ,

Page Fifty-one



Citing Vaca v. Sipes, 386 United States 171 (1967) and 
Czosek v. O'Mara, 397 U. S. 25 (1970) the UPIU argues 
that the unions should be held financially responsible for 
the economic loss suffered to the extent only that their actions 
added to the difficulty and expense experienced by the 
discriminatees. Plaintiffs assume, arguendo, that the 
principles discussed in those cases as they relate to the 
allocation of back pay liability have some relevance here. Under 
the facts here, neither of those cases support the result which 
the UPIU urges.

Plaintiffs would emphasize here that no union is shielded 
from Title VII liability by the fact that a racially discrimi­
natory contract is the product of collective bargaining which 
meets the standard of fair representation. See Peters v. 
Missouri-Pacific Railroad Co., 483 F.2d 490, 497 (5th Cir. 1973); 
Cf. Alexander v. Gardner-Denver Co., supra. The application of 
the Vaca-Czosek principles regarding allocation is best analysed 
by consideration of two types of union fair representation cases.

The first, which is illustrated by the facts of Vaca, supra, 
involves the breach of two separate and unrelated duties:
(1) breach of contract by the employer (e.g. discharge without 
probably cause) and (2) breach of the duty of fair representation 
by the union for bad faith failure to process the employee's 
contract grievance. To prove the latter the employee must first 
prove the former. Obviously liability is several, not joint.
The former breach may cause economic injury for which the employer

Page Fifty-two



is liable, and the employer cannot hide behind the union's 
wrongful failure to act. See Vaca, supra, at p. 197. The 
failure to act is separate and distinct. While the union 
might have breached its duty to the employee, it is the breach 
by the employer that is the proximate cause of the earnings 
loss. The union's failure to act might add to that loss but 
it by no means alters the character or consequence of the 
employer's breach. Under these circumstances it is proper to 
apportion liability according to the damage caused by the 
separate and distinct fault of each tort-feasor.

The second type of fair representation case arises where the 
union and employer act together to unfairly discriminate against 
some persons affected by the bargain made. See e.g. Jones v. 
Trans World Airlines, Inc., 495 F.2d 790 (8th Cir. 1974), 
where the claim arose out of the negotiation of a contract 
by the employer and a union which gave union members seniority 
preference over non-union, members. In this situation the claim 
of liability arises out of a joint act by the employer and 
union and the resultant earnings loss is one of the effects of 
that joint act. Here liability is joint and several and neither 
tort-feasor can hide behind the action or inaction of the other. 
See Id. at p. 798.

The theory of liability in this case is clearly akin to the 
latter type case. Although Gilman was responsible for the 
initial discriminatory assignment of blacks, if a black worker 
had received notice of vacancies, and if he could have taken

Page Fifty-three



his accrued seniority with him when competing with whites for 
a better job, the discriminatory initial assignment practices 
would have had little or no effect. The first time a later 
hired white employee was assigned to a job in a traditionally 
white department, the failure to post notices and the job 
seniority system intervened to place the senior black employee 
behind the junior white if the black worker sought transfer.
It was these practices which operated to cause economic loss to 
the plaintiffs and the class. Since Gilman and the Unions parti­
cipated in the negotiation of these contract provisions, they 
are jointly and severally liable and the district court properly 
exercised its discretion in apportioning liability.

The district court's finding holding the Unions responsible 
for 50-6 of the back pay liability finds ample support in the 
record. It is not clearly erroneous and may not be set aside. 
Rule 52(a) F.R.Civ.P. See also Chaney v. City of Galveston,
368 F.2d 774, 776 (5th Cir. 1966).

Ill
THE DISTRICT COURT APPLIED CORRECT LEGAL PRINCIPLES IN
APPORTIONING THE LIABILITY AMONG THE SEVERAL UNIONS
In deciding how the liability should be apportioned among 

the several union defendants, the trial court appropriately began 
its analysis of the problem by noting that, in equity cases such 
as this one, "district courts are afforded wide latitude to

Page Fifty-four



fashion a remedy to fit the violations," citing Louisiana
v. United States, 380 U. S. 145 (1965); Local 53, Heat & Frost 
Insulators v. Vogler, 407 F.2d 1407 (5th Cir. 1969); Rodriguez 
v. East Texas Motor Freight, 505 F.2d 40 (5th Cir. 1974);
Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437 (5th Cir. 
1974); and Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 
1364 (5th Cir. 1974). The remedy thus fashioned by the trial 
judge was to apportion liability among the various unions 
representing employees at the mill based upon the number of job 
slots represented by each union. All of the Unions attack the
apportionment formula by pointing their fingers at each other 
saying, in effect, "that Union is more to blame than we are."
Their arguments serve only to underscore the eminent correctness 
of the judge's decision.

The primary goal of Title VII is to insure that victims of 
discriminatory practices reach their "rightful place"; i.e., 
the positions they would have occupied"but for the unlawful 
practices. Local 189, U.P.P. v. United States, 416 F.2d 980,
988 (5th Cir. 1969). The Act assumes that, in the absence of

R. 1323.

Although the language of the court's order states that the 
apportionment was being made on the basis of the number of 
employees represented by each union, employees and job slots 
are fungible terms in this context. See note 117, supra, at p. 28. Cf. IAM 30-31.

Page Fifty-five



specific facts to the contrary, black employees would be at
the same place as their white contemporaries had they not been
victims of discrimination. Cf. Johnson v. Goodyear Tire &
Rubber Co., supra at 1375-76.

Thus, had Gilman and the Unions in 1965 modified their
seniority systems and adopted methods such as freezing to insure
rapid advancement of blacks, and had Gilman completely abandoned

168/
its racial assignment policies, it is inevitable that today
- 10 years later - those employees in the affected class would be

169/
iri their rightful place. if those had been the facts before
the district judge, his problem of apportioning liability would 
have been fairly simple: he would have had only to look at
where each class member was working and conclude that, absent 
pre-Act discrimination, the employee would have always been 
working there. Apportionment of liability would* then naturally 
follow from the job the class member now holds.

Unfortunately, defendants here were not so prompt. Affected 
class employees have had only two years, and at that, without

168/ See p. 10, supra.
16£/ Some black employees, of course, may never have transferred, 
The Unions, however, have ample protection and opportunity under the court s order to identify such employees. Absent such 
identification, Title VII's presumption that they would be in 
jobs with whites with comparable seniority dates controls.

Page Fifty-six



benefit of freezing, job-skipping or advanced-level entry, to
attempt to reach their rightful place. Few of them could have 170/
done so. That being true, the district court's apportionment

liability among the several mill unions is as equitable a 
remedy, in that it more nearly approaches the presumptive 
distribution of employees in the work force, as could have been
devised.

The Unions barely address those equities in their attack
upon the trial court's apportionment formula. Instead, they argu
that the formula has the effect of holding each of them partially
liable for the conduct of other unions over which they have no
control. That is true, the arguments run, because under the
National Labor Relations Act, 29 U.S.C. § 151 et seg., unions
have no obligation to bargain for employees working under the
jurisdiction of other unions, and may be guilty of an unfair

171/
labor practice if they do so. The Union's exposition of
Labor Act law is, in the abstract, faultless. The arguments 
pointedly avoid however, the difficult issues which the 
district court faced in determining the respective liabilities 
of the union defendants.

170/ Some class members have not even begun the 
evidenced by the fact that the Company still was 
transfer requests up to the time of trial. See supra. ---

journey, as 
receiving 

pp. 27-28,

171/ UPIU 50-53, IAM 46, 741 at 37-38.

Page Fifty-seven



This Court long ago recognized that there are fundamental
differences in the duties imposed upon unions under the NLRA
and those imposed under Title VII. Taylor v. Armco Steel
Corporation, 429 F.2d 498 (5th Cir. 1970). In that case, this
Court noted tersely that union conduct which did not violate a
union s duty of fair representation was not a fortiori necessarily

172/ --------consistent with the demands of Title VII. 429 F.2d at 499.
Thus the apportionment of liability must be reviewed by this
Court under Title VII rather than NLRA standards. None of
the Unions recognize that distinction.

UPIU argues for example that it has no NLRA obligation to
negotiate with the Company regarding the terms and conditions

173/
of employees of the crafts, and that it should thereby escape
all responsibility for the injury caused by blacks being unable
to enter those jobs. That argument ignores the -factual
undergirding of the district court's ruling that it was the
Unions' control over the entry requirements (i.e. loss of

174/
seniority) for a system of jobs - rather than a breach of an

172/ UPIU likens its conduct which led to the tiral court's 
imposition of liability here to a breach of the duty of fair 
representation, UPIU 47, and argues that the legal standards 
for determining liability for a breach of that duty should also 
be applied m  this Title VII case. Although plaintiffs agree 
that the remedies provided in the two Acts are similar, Albermarle 
Paper Co. v. Moody, supra at 2^7, this Court's decisions in

:Peters, supra and Carey, supra make it clear that
,̂ ta2d^rdL for determing liability are quite different. UPIU's argument is therefore inapposite.

173/ UPIU 52.
171/ See p. 28, note 117, supra.

Page Fifty-eight



obligation to fairly represent any group of employees - which
triggered their liability. Those facts under Title VII required
UPIU, at some point, to take "the affirmative step to initiate
negotiations with [Gilman] in an effort to salvage for its 175/
own ex-members the seniority they would inevitably and fore- 
seeably lose," Carey v. Greyhound Bus Co., Inc., 500 F.2d 1372, 
1379 (5th Cir. 1974) upon transfer to craft jobs. The Unions 
may not escape their duty by arguing, as all of them do, that 
if they had taken that affirmative step, they would have been 
charged with an unfair labor practice. That suggestion has no 
merit.

In the first place, Title VII would have protected such 
efforts had they been made by the Unions. Cf. Savannah 
Printing Specialties and Paper Products Local 604 v. Union Camp 
22£Er., 350 F. Supp. 632 (S.D. Ga. 1972) . In the,, second place, 
a union may not avoid its Title VII responsibility by hiding 
behind the NLRA. Peters v. Missouri-Pacific Railroad Company, 
483 F.2d 490, 497 (5th Cir. 1975); Carey v. Greyhound Bus Co., 
Inc^, supra; see Taylor v. Armco Steel Company, supra. Third, 
nothing in the NLRA prohibits a union representing certain of an 
employer's workers from contacting other unions representing 
other workers, and together negotiating with the company to rid 
themselves of unlawful seniority provisions. The Unions

175/ Virtually all affected class members were, of course, at one time members of or eligible for membership in UPIU.

Page Fifty-nine



recognize that: they presented a united front in the 1972
negotiations which led to the adoption of the supplemental labor 17 6/
agreements, and they nowhere suggest that they violated the 
NLRA by doing so.

IBEW and IAM, who had jurisdiction of the traditionally
lily-white craft jobs, likewise argue that they cannot be held
liable for any portion of back pay due employees who were excluded
from jobs under the jurisdiction of UPIU. That argument is on
its face unsupportable, since its major (albeit unstated) premise
is that most black employees, members as they were of UPIU,
would have transferred to UPIU jobs. Thus the argument is that,
since there were no blacks in their unit, they were under no
Obligation to bargain on behalf of blacks. That argument suffers
the same deficiencies as does UPIU's argument. see Carey v.

1777Greyhound Bus Co., l'nc., supra, 500 F.2d at 1379.
More importantly, the craft unions' arguments, made as they 

are in a vacuum, studiously ignore the facts of this case.
Insofar as those unions' collective bargaining agreements set 
the price for entry into jobs under their jurisdiction, the 
unions are no different from an employer: they are responsible

W^29=TS' PP* 15~16' notes 64' 65' supra; compare R. 1283-84

177/ The violations of the IAM and IBEW Unions' legal duties herP 
whirh°t-hlfferen!: thS violations committed by Local 1174,
F ^ d  at 1379?Urt t0 be "Patent" in Care^  SHE£a, 500

Page Sixty



for establishing "terms and conditions of employment". See 
42 U.S.C. § 2000e-2; Local 53, Heat & Frost Insulators v.
Vogler, supra, 407 F.2d at 1049. Accordingly, those unions 
must bear some portion of the loss for all those who inevitably 
and foreseeably could not meet the high price of admission.
Carey v. Greyhound Bus Co., Inc., supra; Peters v. Missouri- 
Pacific Railroad Company, supra; Cf. Local 53, Heat & Frost 
Insulators v. Vogler, supra.

None of the Unions address squarely the difficult problem
178/with which the district court was faced in setting guidelines 

for determining which employees would have transferred to which 
job and bargaining unit but for the Unions' unlawful conduct.
That problem becomes readily apparent upon a cursorv analysis 
of the facts the district court is bound to be faced with when 
it holds hearings on the individual claims: Consider the case
of an employee who did not apply for a transfer until after the 
supplemental labor agreements seeking after those agreements, 
entry into the electrical unit or the machinist unit. Because 
of the pendency, at that time, of transfer requests to those 
units by other blacks with greater mill seniority, he cannot 
gain immediate assignment to either unit. If he waits for a 
vacancy, he will -be accused by the Unions of exacerbating his 
damages. If he applies for an receives a transfer to a UPIU

17_8/ That is all the district court did; there has been no 
assessment of back pay against any Union yet. See pp. 63-64, infra.

Page Sixty-one



line of progression, thereby mitigating his damages, his claim 
will be completely disavowed by IAM and IBEW, notwithstanding 
his pending requests for transfer to those units. Even if 
his claim is not completely disavowed, there still remains the 
problem of apportioning his liability among the three Unions.
The trial court obviously considered those questions; the Unions 
just as clearly have not.

The foregoing analysis plainly demonstrates the reason for 
the rule that district courts must be afforded wide latitude in 
fashioning equitable relief. The district court is better 
equipped to deal with those questions initially than is this 
Court on review. The court below exercised its sound discretion 
in determining where the burden of the defendants' unlawful 
conduct should fall. It did so in an equitable manner, taking
into account the specific facts of this case. The Unions.have

 ̂ u  ̂ 179/not shown where or how the court abused its discretion.

17_9/ The only element of unfairness suggested by the Unions - 
and they all make that suggestion - is that their own formulae 
would reduce their own liability. Obviously, at least one of 
the^Unions^must fail in that argument, since the burden must 
fall somewhere. Further, none of the methods suggested by the 
Unions for apportionment of liability are sustainable under the 
facts of this case. For example, UPIU says that its liability 
may well be smaller "if it pays for 100% of the 'unions' share'" 

an under the district court's formula. It conveniently fails, 
however, to suggest to this Court how "its share" is to be determined.

The IAM plaintively suggests that its liability should be 
restricted to those "who desired to transfer, who were qualified 
to transfer, and who were deterred or delayed in seeking to 
transfer...by...job seniority...." IAM 47. While that suggestion

(continued)
Page Sixty-two



Most clearly it did not abuse it. Guerra v. Manchester Terminal, 
Inc., supra. Accordingly, it must be affirmed.

Finally, the above analysis demonstrates far better than 
argument could that, whatever its form, the court's January 14 
order is not in substance a final order. Although this Court 
may sustain, as a proper exercise of the trial court's 
discretion, its setting of guidelines for going forward with

179/ (continued) has a prima facie tenability, if applied to the 
Î -Cts here, IAM's share would be much larger than under the 
district court's formula. There were at least 38 unsuccessful 
post-agreement applicants for transfer to the machinist unit, 
most of whom were likely unsuccessful because of pending 
applications for transfer by other blacks with greater mill 
seniority. Had the seniority impediments been removed in 1965, 
no backlog of applications would have existed (there were, for 
example, 53 vacancies in the machinist unit from 1968 through 
1974, R. 1280) and each of those employees, unless unqualified, 
would have transferred to the machinist unit. IAM's argument 
thus reflects poor - if not altogether a lack of - analysis.

Local 741 suggests that, since only 13 vacancies in 
eiectncai craft jobs occurred from 1965 to 1972, it can only 

.able to employees. It does not show this Court, nor did it show the court below, how those employees are to be 
identified. Further, in addition to the 13 vacancies in the 
electrical department, there were at least 16 vacancies in 
the powerhouse and instrument departments, also under the juris­
diction of IBEW. PX-30-E (Not included in the record on appeal) 
Thus, like IAM, the IBEW_Unions are either willing to accept 
a far greater share of liability than the district court 
imposed upon them, or they simply have not - as the trial court did - analyzed the facts.

Page Sixty-three



the evidence, it may not, as the Unions urge, review the 
apportionment ruling as a final order within the meaning of 
28 U.S.C. § 1291. There are too many questions of fact which 
must be resolved at the hearings on individual claims for this 
Court to fully assess the propriety of the apportionment formula. 
Although plaintiffs are confident that the district court's 
apportionment would still be sustained, after all the facts 
are in, the district court's back pay rulings are, in the current 
posture of the case, non-final and therefore not properly before 
this Court. Weston v. Charleston, South Carolina, 27 U.S. 449 
(1829). Accordingly, this Court should remand for further 
proceedings on back pay under the apportionment formula 
ordered by the district court.

IV
THE STANDARDS SET FORTH IN THE DISTRICT COURT'S ORDER OF 

JANUARY 14, 1975 FOR DETERMINING INDIVIDUAL BACK 
PAY AWARDS IS NOT AN APPROPRIATE SUBJECT 

FOR REVIEW.
The UPIU argues that the district court erred in declaring 

black employees hired after July 2, 1965 who were initially 
assigned to traditionally black jobs presumptively entitled 
to back pay. This portion of the district court's January 14, 
1975 order relates to the next stage in the litigation as to 
which the district court has not commenced hearings and has 
entered no final order. it merely establishes guidelines for 
going forward with the evidence to determine individual back

Page Sixty-four



pay entitlements and is subject to further modification and
refinement as may be dictated by facts yet to be adduced. Thus
review of this portion of the order is premature. See Russell v.
Barnes Foundation, 136 F.2d 654 (3rd Cir. 1943); New Amsterdam
^as- Co- v - B. L. James and Co., 254 F.2d 917 (5th Cir. 1958).

Under the order, plaintiffs are required to prepare
evidence of the amount of economic loss of each member of classes
A and B who was initially assigned to a black job and to present

180/
it to the court and the unions. At the hearing plaintiffs
must establish the economic loss of each such class member.
Then the burden shifts to defendants to show that other factors 
would have prevented transfer regardless of the discriminatory 
practices.

The facts disclosed in this record show - and the district 
court found - that 55 of the 77 blacks hired at the mill 
subsequent to July 2, 1965 were initially assigned to traditionally 
black jobs. Only 2 or 3 blacks were initially assigned to jobs 
within the^jurisdiction of IAM between July 2, 1965 and September 
1> 1972. By September 1, 1972 only 4 or 5 blacks
had been either hired or^transferred into the 125 jobs covered 
by the IAM contract.. As late as November 1972,
only 2 blacks were employed in the approximately 70 jobs

180/ R. 1324-25. 
180a/Tr. 119. 
180b/Tr. 89, 119.

Page Sixty-five



181/within the jurisdiction of Local 741, IBEW. That these
statistics establich a prima facie case of racial discrimin­
ation as to blacks hired after July 2, 1965 cannot be disputed. 
See Rodriguez v. East Texas Motor Freight, 505 F.2d 40, 53 
(5th Cir. 1974). The defendant unions made no effort to 
dispute these statistics or otherwose demonstrate that causes 
other than race account for them. Instead the Unions merely 
tried to show, as they have tried to show here, that the
discrimination was attributable to the actions of Gilman alone.

182/
As plaintiffs have demonstrated that contention by the Unions 
is baseless.

Under the guidelines contained in the court's order those 
blacks who were initially assigned to traditionally black jobs 
are presumptively entitled to back pay if they can demonstrate 
economic loss. Thus for example those 22 blacks hired at the 
mill after July 2, 1965 who were initially assigned to 
traditionally white production jobs would not be presumptively 
entitled to back pay even though they may have been excluded 
from high paying craft jobs. Since proceedings have not been 
completed, the district court has not had an opportunity to 
review the impact of the guidelines upon individual claims.

181/ Tr. 23, 89. The UPIU's assertion that the district court 
made no finding of discrimination affecting blacks hired after 
July 2, 1965, and that the record shows that they did not suffer 
rom discrimination is therefore inaccurate. See UPIU 54.
-̂82/ See note 42, p. 9, supra.

Page Sixty-six



The guidelines themselves are entirely appropriate. This 
Court should therefore affirm.

V . ' . " -y
THE DISTRICT COURT PROPERLY HELD THE IBEW LIABLE FOR 

A PORTION OF THE BACK PAY LIABILITY.
The IBEW argues strongly that since it was not a party to 

any of the collective bargaining agreements which the district 
court found unlawful under Title VII, since Local 741, IBEW is 
not the agent of the International, and since it had no knowledge 
of the unlawfulness of the seniority provisions of Local 741 
it therefore cannot be held responsible for any portion of the 
back pay liability arising out of contracts with Gilman. The 
facts in this record show that IBEW was not as far removed as 
it asserts; it clearly was not so far removed as to require 
reversal of the court's trial findings as being clearly 
erroneous.

Plaintiffs do not argue that the IBEW is liable merely 
because of some agency relationship between it and Local 741.
The IBEW is liable because of its direct participation in the 
negotiation of the Local 741 contracts with Gilman and because

approval of the Local 741 contract containing discriminatory 
clauses after receiving actual notice of the unlawfulness of 
that contract.

By its own admission, IBEW representatives render advice

Page Sixty-seven



from time to time and when requested to Local 741. 183/

At the request of the Local, it participates in contract
184/negotiations. Its international representative, Mr.

Robertson, participated in the 1970, 1972 and 1973 negotiations 185/
with Gilman. It had the option to become a signatory to the

186/Local 741 agreements but chose to merely "approve" them.
At least after May 4, 1970, when the original charges of 
discrimination were filed with EEOC, the International was 
on actual notice of the discriminatory effects of Local 741's 
collective bargaining agreement with Gilman (Tr. 250, 252,
PX-35, R. 665). Despite notice, the Local, with the participation 
of an international representative, negotiated the 1970-1973
contract containing unlawful seniority provisions. Precisely
two years and one day after the charges were filed, IBEW
routinely gave its formal approval to the 1970 contract containing
the unlawful provisions without having ever conducted any

187/investigation as to its compliance with Title VII.

183/ Tr. 23, 27-28.
184/ The IBEW concedes that the international representative is its agent. IBEW 8.
185/ Tr. 189 91._ The IBEW's statement that there is no evidence 
that an_international representative even attended a collective bargaining session prior to 1972 (IBEW 12) is therefore inaccurate (Tr. 189).
186/ Tr. 191. Compare 610-11. 
187/ PX-11, p. 22.

Page Sixty-eight



The IBEW acknowledges its responsibility, arising under
its own constitution, to disapprove any local contract which

188/
is unlawful on its face. It can have no lesser responsibility
under Title VII to disapprove provisions of its local's contract 
which have the effect of perpetuating discrimination.

Since this case involves the actions of the IBEW for its 
direct participation in the negotiation and its subsequent 
formal ratification of the Local 741 contract which the district 
court found unlawful, its reliance on UMW v. Coronado Coal Co., 
259 U.S. 344 (1922) is misplaced. Likewise, its reliance on 
Herrera v. Yellow Freight System, Inc., 505 F.2d 66, 68 (5th 
Cir. 1974) is unavailing. There was no suggestion in Herrera, 
supra that the Teamsters International participated in the 
negotiation of or approved the collective bargaining agreements 
containing the unlawful seniority provisions. That nexus is 
present in this case.

Whatever may have been the particular facts in Terrell v. 
States Pipe and Foundry Co., Civil Action No. 22-887 

(N.D. Ala.) and the vigor (or lack thereof) with which the 
original motion was opposed, Judge Pointer's unreported decision

188/ IBEW 10, 40.-

Page Sixty-nine



of June 27, 1973 dismissing the IBEW provides little support
189/

here.
Title VII's prohibitions against unlawful discrimination 

applies to local and international unions alike. 42 U.S.C.
§§ 2000e-(d) and 2000e-2. The Act imposes on both employers 
and the unions an affirmative duty to take corrective steps 
to prevent present discrimination and to remove impediment that 
perpetuate past discrimination. See Carey v. Greyhound Bus 
Co., supra; Johnson v. Goodyear Tire and Rubber Co,, supra; 
bong v. Georgia Kraft Co., supra. Where the court finds a 
violation it is empowered to exercise its discretion to award 
back pay against the party responsible for the unlawful 
practice. See 42 U.S.C. § 2000e-5(g). Albermarle Paper Co. v.
Moody, __U.S.__, 44 L.Ed.2d (1975). Here the district court
found that the seniority provisions of the various collective 
bargaining agreements between Gilman and the unions were 
"...at least a concurrent, if not prevailing, cause of the 
perpetuation of past discrimination...". That finding 
is not clearly erroneous and should not be disturbed. The

One of plaintiffs* counsel in this action also represented 
plaintiffs in Andry v. Alabama Power Co., Civil Action No. 
7947-73-H (S.D. Ala.) and in Fair v. Southern Electric Generating 
Co., Civil Action No. 74-P-26 (N.D. Ala.). In Andry, supra, the 
IBEW made the same motion to dismiss based on affidavits similar 
to those submitted in this case. In that motion the IBEW cited 
Judge Pointer's decision in Terrell, supra. Judge Hand denied 
that motion without opinion on March 22, 1974. On April 26, 1974 
the IBEW again sought dismissal on substantially the same grounds 
in Fair, supra, but, for reasons unknown to plaintiffs, withdrew their motion before Judge Pointer ruled.
190/ R. 1313.



district court's decision holding the IBEW responsible of 10% of 
the back pay liability because of its failure to take reasonable 
steps to assure compliance with the mandates of Title VII does 
not constitute an abuse of discretion and should be affirmed.
See Carey v. Greyhound Bus Co.; supra; Johnson v. Goodyear Tire 
& Rubber Co., supra; and Guerra v. Manchester Terminal Corp., 
supra.

For the reasons set forth above, this Court should affirm 
the trial court in all respects and remand this case for 
continuation of back pay proceedings.

CONCLUSION

Respectfully submitted

A . BLENN TAYLOR
Taylor, Bishop & Lee P. 0. Box 1596 
Brunswick, Georgia 31520

GEORGE P. SHINGLER
Hill, Jones & Farrington 
208 East 34th Street 
Savannah, Georgia 31401

JACK GREENBERG
0. PETER SHERWOOD 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs - Appellees



September 21, 1273

J Jl,iv3 M c n l c e r ,  La1] .
t j  .  A  • G O  JL LI t e l V V w t r t O ,  L X  • f J,i i )  M *

Cnarles Sparkman, Esq.

Eo> iiyci~3 v. Gilman dap or bonyany

Gentlemen:
On September 4, 13 73, I informed Mr. Farmer, attorney for 

Oilnan Eager Company, that plaintiffs do not consider Gilman*a 
counter-proposal to no a basis for further meaningful discussion.We feel that the cour.tor—proposal is simply not responsive to the 
issues we discussed at our meeting in Brunswick. I did tall Mr. 
Farmer, however, that if Gilr.ian wished to submit a further pro­
posal within two weeks, plaintiffs would be willing to consider 
such a further proposal. I’ore than two weeks have passed and the 
Company has submit tec; no other proposals. Under these circumstances, we are preparing to take the case to trial.

In view of Judge nlaimo's request to us that we keop him 
advised of the status of this case, I propose to notify him about October 1st that the case will not be settled and that the parties 
are engaging in efforts to bring the case to trail as quickly as 
possible consistent with our other obligations.

Very truly yours,

Fletcher Farrington

I'F/ud
cc: Guy 0. Farmer, II, Esq.Bob Va Icier, Lsq.

A. Dlenn Taylor, Eaqr
Elmo V. MyersWilliam L. Robinson, Esq.

A 1



LAW OFFICES
D o w n i n g . M c A l e e r  &  G a s k i n

2 4  E a s t  O g l e t h o r p e  A v e n u e  

S a v a n n a h , G e o r g i a  3 1 4 0 1
F R A N K  O .  D O W N I N G  

J A M E S  E D W A R D  M c A L E E R  

R A Y  G A S K I N

September 25, 1973
Telephone
2 3 6-4 4 2 B

Mr. Fletcher Farrington 
HILL, JONES & FARRINGTON 
Attorneys at Law 
208 East Thirty-Fourth Street 
Savannah, Georgia JlUOl

Re: Myers Vs. Gilman Paper Company
Dear Fletcher:

Your letter of September 21, 1973 pertaining 
to the above indicates that you do not feel that settle­
ment is possible. My client is willing and ready to 
discuss possible settlement of the injunctive aspects 
of this case, but our position is that we would not be 
liable for any back-pay. I personally feel that other 
than the back-pay, we should be able to work out an 
equitable settlement. We would not accept, however, any 
of those that have been proposed. This letter is simply 
to let all counsel know that we are ready to sit down 
and discuss this case if there is any hope of settling it without trial.

If there is no hope, then I agree that we 
should bring the case to trial as quickly as possible.
As I had previously discussed with you in Brunswick, if 
we are going to trial, I would like to take the deposition of two of your people.

Yours very truly,
WNING, MCALEER & GASKIN

C Q

cc: Mr. Charles L. Sparkman
Mr. Guy 0. Farmer, II 
Mr. J. R. Goldthwaite, Jr.

JAMES EDWARD MCALEER
-> office

i f  srP?, .;; Y

'h, o r.
5 Fa '?RIHGT0N



■t  r

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA

BRUNSWICK DIVISION fi'.

ELMO V. MYERS, et al., 
Plaintiffs, 

v.
GILMAN PAPER COMPANY, et al., 

Defendants.

n s  i :

CIVIL ACTION NO. 1120

PLAINTIFFS' MEMORANDUM IN SUPPORT OF 
THEIR JOINT MOTION TO SETTLE WITH 

DEFENDANT GILMAN PAPER COMPANY

Plaintiffs, Elmo V. Myers and others, and defendant 
Gilman Paper Company filed a joint motion requesting that 
this Court approve a settlement, between plaintiffs and the 
Company, of the claims arising from this lawsuit against the 
defendant Company. The motion als asked that the claims 
against the defendant Unions be reserved for trial, since those 
defendants have reached no agreement with plaintiffs. At a 
hearing m  the nature of a pre-trial conference held in Brunswick 
on January 31, 1974, the defendant Unions voiced strong objections 
to approval of the agreement between plaintiffs and the Company. 
The Court then directed the parties to file memoranda in 
support of their various positions. This submission is in 
response to that directive.

INTRODUCTION
This memorandum is, on its face, a brief in support 

of a motion, for which the moving parties have the initial 
burden of persuasion. Prior to the filing of the motion, 
however, defendant Local 1128 and its parent Union, the 
International Association of Machinists and Aerospace Workers

PAGE ONE



(the IAM), in anticipation of the motion, set forth some of 
their objections in a letter to the Court from J. R. Goldthwaite

u
Jr., counsel for those defendants. Mr. Goldthwaite also 
indicated that the sentiments contained in his letter are 
shared by counsel for the other Union defendants. Although 
these objections (hereinafter referred to as "the Unions' 
objection^') are somewhat unclear, plaintiffs use them here as 
a starting point for this memorandum. Although we do not 
intend to thereby limit the scope of our argument, we are hard 
put to surmise what additional objections might be raised.

I
THIS COURT HAS NOT ONLY THE POWER, BUT THE 

DUTY TO APPROVE THE AFFIRMATIVE RELIEF 
PROVISIONS OF THE CONSENT DECREE AS 

PROPOSED BY PLAINTIFFS AND THE COMPANY
Courts, when dealing with Title VII cases, are under 

a special obligation: it is their duty to make sure the Act
u

works. One of the means courts may use to make sure the
Act works —  for alleged discriminators as well as their 
putative victims -- is the expeditious resolution of claims 
arising under Title VII. See 1972 Amendments to Title VII,
P.L. 92-261, 42 U.S.C. 2000e - 5(f)(2); see also, English v. 
Seaboard Coast Line Railroad Company, 465 F.2d 43, 48 (5th Cir. 
1972). This Court's duty then, in a proper case, is to put 
an end to discriminatory employment practices as quickly as 
possible, and just as quickly, to foreclose claims of discrimi­
nation which have no basis in fact. There is, of course, no

1 / January 18, 1974. This letter is hereinafter cited,
"J.R.G. p._"

2 / Culpepper v. Reynolds Metal Company, 421 F.2d 888, 891
(5th Cir. 1970Ti

A - 4

PAGE TWO



more expeditious method of accomplishing these goals than by 

settlement. The agreement reached by plaintiffs and the 
j Company, because it provides extensive relief for many of 
I plaintiffs' claims of discrimination, and forecloses further
jlitigation of others raised in the complaint, accomplishes 
^precisely what Congress intended. Therefore, this Court
!should grant the joint motion of plaintiffs and the Company|
junless there are compelling reasons not to do so. Cf. Head
v. Timken Roller-Bearing Co., 486 f . 2 d 870, 876 (6th Cir. 1973);I!
1|Moody v. Albemarle Paper Co., 474 F.2d 134, 142 (4th Cir. 1973).
iilNone of the reasons suggested by Mr. Goldthwaite on behalf of
|! the I AM and counsel for the other unions remotely approach 
compulsion.

Mr. Goldthwaite says that "...the unions must be 
parties to any alteration of collective bargaining agreements 
which affect the seniority and other rights of employees, 
either by their consent or by an adj plication of Court upon the 
merits (J.R.F. p.2, emphasis in the riginal). We are unsure 
of the source of the Unions' assertion; it certainly has noi|
(foundation in Title VII law. The rule in this and other 

judicia . districts as it should and must be is that employers 
i|may unilaterally abrogate seniority rules when such a course 
is necessary to meet the requirements of Title VII.

Illustrative is the case of Savannah Printing Specialties 
'& Paper Products Local Union 604 v. Union Camp Corporation, 350 
F.Supp. 6 ?2 (S.D.Ga. 1972). At issue there, as here, was the 
sanctity of a collective bargaining agreement cosed against 
a Company's efforts to rectify the racially discriminatory
■covenants contained in it. Union Camp, recognizing thisj'
iconflict, unilaterally changed the method of granting promotions
|i(embodied in the agreement between it and the Union. When white
jl

Ij
9

A - 5

PAGE THREE



employees were laid off pursuant to the change —  they would 
not have been laid off under the original agreement —  the 
Union sought to compel arbitration of the matter, alleging 
a violation of the collective bargaining agreement. Admitting 
the strong policy in favor of arbitration, and recognizing that 
unilateral changes in such agreements are distasteful, Judge 
Lawrence nevertheless held that:

i
seniority and other practices violative of
Title VII or Executive Order 11246 through
perpetuation of racial discrimination in
employment are unlawful irrespective of any
conflicting provisions of a collective j
bargaining contract [350 F.Supp. at 636.]

Thus, the imprimatur of this Court has been placed upon the very
course of conduct which the Unions say is "illegal" (J.R.G. p.l).

The reasons for allowing employers to make unilateral
changes in a discriminatory collective bargaining agreement are
sound ones. As put by Judge Lawrence, "Union Camp cannot obey
both the government and an adverse arbitration award", 350 F.Supp,
at 636. Likewise, Gilman is damned by potential continuing
liability if it fails to heed the mandate of Title VII, which
it attempts to do here, and thrice damned by the Unions if it
fails to pay obeisance to the condemnable contract between it
and the Union defendants. Wherever this confrontation of
collective bargaining rights and federal statutory duties has
occurred, the agreements have yielded -- whether by consent,
by decree or by unilateral action —  to the demands of Title VII.
See, e.g., Moody v. Albemarle Paper Co., supra.

The Unions have suggested no reason why Savannah Printing
Specialties, supra, is different from the case at bar. There
is, of course, a slight factual difference - Union Camp made
its seniority changes in response to the threatened withdrawal
of government lucre, whereas Gilman does so in an attempt to
obey the mandate of Title VII in response to a class-action
lawsuit. That factual distinction is at least irrelevant. As

A - 6

PAGE FOUR



Judge Lawrence noted in Savannah Printing Specialties, supra:
...[T]he changes in the seniority system 
in effect at Union Camp were required not 
only by [Executive] Order [11246] but 
independently thereof were necessary under 
Title VII. [350 F. Supp. at 637]

Thus, the "pressure" Union Camp received (threatened loss of
government contracts pursuant to the Executive Order), which
Judge Lawrence found to be an acceptable reason for unilateral
alteration of the collective bargaining agreement, is no
different, as a matter of law, than the "pressure" that Gilman
is receiving (accumulating back pay liability under Title VII).

Secondly, the fact that Elmo Myers and the other
plaintiffs in this lawsuit are private, ordinary citizens and
not members of the gendarmerie of the national government in
no way illegitimizes their standing to exert Title VII pressure.
Numerous cases hold that when a citizen such as Mr. Myers
undertakes judicial enforcement of federal civil rights statutes

3_/
he "takes on the mant 1 of the sovereign" and becomes, as 
a matter of law, a private attorney general. Newman v. Piggie 
Park Enterprises, 390 U.S. 400, 402 (1968); Clark v. American 
Marine Corp., 320 F. Supp. 709, 710 (E. D. La. 1970), aff'd.
437 F.2d 959 (5th Cir. 1971); Lee v. Southern Homesites Corp., 
444 F.2d 143, 147 (5th Cir. 1971). Surely an attorney general 
of the sovereign -- whether "private" or "public" -- is entitled 
to the same dignity as the functionaries of a governmental 
regulatory agency. There is simply no relevant distinction 
which the Union may draw between this case and Savannah Printing 
Specialties. If Union Camp can do it, -- and that is the law —  
so may Gilman.

3 / Jenkins v. United Gas Corporation, 400 F.2d 28, 32 (5th Cir 
1968).



Another case involving facts closely similar to the fact? 
of this case is E.E.O.C. v. American Telephone and Telegraph 
Company, 365 F.Supp. 1105 (E.D. Pa. 1973). There the Company 
(AT&T) entered into a settlement agreement with the Equal 
Employment Opportunity Commission and the United States Depart- 'i 
ment of Labor. The agreement worked substantial changes in the •?j

j i

collective bargaining agreements between AT&T and the 
Communications Workers of America (CWA) .

Although CWA had been invited to join at every stage 
of the settlement negotiations, the Union "remained persistently 
aloof until two or three days before the Decree was signed",
365 F.Supp. at 1109. Shortly after the settlement was 
consummated, CWA filed a motion to intervene, seeking

...to deny enforcement of the Consent Decree until 
it can reach an independent agreement with the 
Company on issues affecting wages, hours and con­
ditions of employment. CWA would, furthermore, want 
to enjoin AT&T from enforcing the provisions of 
the Consent Decree should such implementation 
deviate in any way from the practices and pro­
cedures in operation under existing collective 
bargaining agreements negotiated with CWA.
Thus, in not too subtle language, CWA seeks to 
delay the disbursement of $38,000,000.00 in funds 
and the implementation of thousands of new oppor­
tunities. CWA desires to stop these parties 
from correcting the deprivations which were 
sanctioned c - tolerated during much of CWA’s 
past association with AT&T. [365 F.Supp. 
at 1109.)

The district court denied CWA’s motion to intervene. In so 
ruling, the court held that, "...while there may have been some 
unilateral revisions of CWA’s contracts, the changes were 
essential in order to rectify violations by AT&T of...Title VII 
of the Civil Rights Act of 1964, 42 U.S.C. S 2000e, et seq..
365 F.Supp at 1111.

There is thus no difference in the AT&T case and the 
one now before this Court for consideration. Just as the

A - 8



consent decree in AT&T made unilateral changes in its contracts
with CWA, so the proposed consent decree here makes some
unilateral changes in the Company's contracts with the
defendant Unions. And, as in AT&T, those changes are necessary
to effectuate the purposes of Title VII. That being so, as
Savannah Printing Specialties, supra; and B.E.O.C. v. AT&T, supra
make quite clear, those changes should be approved by this Court.

It is appropriate, at this juncture to note our surprise
that the International Association of Machinists and its Local
1128 have objected at all. That is surprising since, some
eleven (11) months ago, the IAM attempted to accomplish the
same ends —  a settlement with plaintiffs without a settlement
with the other parties —  by way of a motion for realignment.
A review of the Machinists' moving papers indicates rather

j clearly that it sought exactly the same result as plaintiffs
and the Company now seek:

...Local 1128 wishes to represent... black 
employees... and desires to make common cause 
with the plaintiffs in seeking to afford 
better employment opportunity to the black em­
ployees of Gilman....In a Title VII case, if 
a Union has interests which are not adverse to 
the plaintiffs, 4 / the Union is entitled 
to realign itselT-as a party plaintiff.
[def. Local 1128's Brief in Support of 
Motions, March 2, 1973,p.7.)Ij

In the motion itself, the Machinists ask this Court to enjoin the 
Company "to preserve the production unit seniority of employees 
who transfer to maintenance jobs.." and to provide "for such 
other relief as prayed in the Complaint" (Def. IAM Motions,

'i March 2, 1973, 1117 ff.)
It is anomalous indeed that the IAM would argue on the 

one hand that it is entitled to become a plaintiff -- thus 
effecting a settlement with plaintiffs —  and on the other hand 
that the Company may not do the same thing. Further, the consent

4 / The consent decree proposed by plaintiffs and the Company 
here would, of course, remove any interests of those 
parties which are adverse to each other.

A - 9

PAGE SEVEN



decree proposed by plaintiffs and the Company does exactly 
what the IAM requested this Court to do in its motion: It
provides seniority protection for the incumbent black 
employees and provides other relief which insures that every 
black employee may "advance as far as his talents and his

umerit [will] carry him". We simply cannot perceive logic
or equity in the IAM's insistence that this Court may not 
approve a procedure identical in effect to one it has moved 
the Court to adopt. Irrespective of logic or equity, 
however, the force of the IAM's arguments —  as now before the 
Court or as they may become -- are seriously undercut by its 
own prior actions.

Because this Court has the duty to see that the Act 
works, and because it has the power to do so, it should grant 
the joint motion permitting the Company to immediately 
implement the affirmative relief provisions of the proposed 
consent decree.

II
THIS COURT SHOULD ALSO APPROVE THE COMPEN­
SATORY RELIEF PROVISIONS OF THE PROPOSED 

CONSENT DECREE
The Unions’ objections to a settlement of the monetary 

claims between plaintiffs and the Company suffer a good deal 
more from a lack of clarity than do their objections with 
reference to the affirmative relief provisions. They suggest, 
for a number of "reasons" that the settlement —  particularly 
with reference to compensatory relief —  cannot be effected.

) They cite no authority, however, for the propositions they 
advance. The Unions' argument simply says that, because the

| Unions do not consent to it, it therefore cannot be done.
.

Absent more cogent reasoning from defendant Unions, we are aware 
of no bar to a partial settlement of back pay claims.

1. The Unions first suggest that Rule 23, Federal Rules o!

5_/ Miller v. International Paper Corp., 408 F.2d 283. 294 (5th Cir. 1969). - 'I ;

•i

PAGE EIGHT •*; :
i .. ■ r-xrr.rzr̂tt ’

A - 10



V;_

Civil Procedure, somehow precludes a partial settlement 
(J.R.G. pp.2-4). There is absolutely nothing in the 

language of the Rule which prohibits the action proposed here. 
As a matter of fact, the Rule is quite flexible in its 
provisions for dealing with the varied claim which may arise 
in a case of this nature. For example, the Rule provides 
that, ”[w]hen appropriate ... a class may be divided 
into subclasses and each subclass treated as a class .... Rule 
23 (c) (4) (B), F.R.Civ.P. Another provision allows "...the
Court [to] make appropriate orders ... prescribing measures 
to prevent undue repetition and duplication in the presentation 
of evidence or argument...." Rule 23 (d)(1), F.R.Civ.P. If 

! plaintiffs and the Company prevail on the motion now beforeI
I the Court, one of its effects will be to simplify and narrow
: the issues for trial. That is just what the Rule says may be
[ done.

2. The Unions say that no formula can be devised which
would provide for an equitable distribution of the compensatory
relief provided for in the decree (J.R.G. pp. 2-3). It is
somewhat difficult for plaintiffs, at this stage of the
proceedings, to gainsay such a thunderous negative. We do
believe that, if the Union's position is correct, no class
action lawsuit might be compromised, a positron the Unions

6_/
well know to be ludicrous.

3. The Unions suggest that the case of United States v. 
i Georgia Power Company, 474 F.2d 906 (5th Cir. 1973) does not

permit a partial compromise of back pay claims (J.R.G. p. 2).
We have read that case carefully, and have concluded that

6 / These same international Unions were parties to a settlemenl 
decree before this Court in Muchison v. ITT - Rayonier, Inc.
In that case, the Unions paid no portion of the Lack pay 
award. If what the Unions now say is true, then this Court 
should vacate its approval of the Muchison decree and place 
the matter on the calendar for a determination of whether 
Union defendants there are liable for back pay.

A - 11

PAGE NINE
~-r~ - - - r   ̂■ -x:



partial compromise of class-action claims was not before 
the court for determination. Nothing in that opinion suggests 
even remotely that plaintiffs' and the Company's motion should 
not be granted here.

4. The Union suggests that no notice may be devised 
which meets the criteria of Rule 23 (J.R.G. p. 3). We 
respectfully invite the Court's attention to the proposed 
notice attached as Exhibit C to the proposed consent decree. 
That notice adequately informs the class of the nature
of the proceedings and of the effect of a partial settlement. 
Perhaps if the Unions can suggest some areas in which the 
notice is deficient, plaintiffs and the Company can take 
thos-e suggestions, incorporate them into the notice, and 
proceed to dispose of the bulk of this litigation.

5. The only objection raised by the Unions which 
has any practical significance - none of them have any legal 
significance - is that a settlement by plaintiffs with
the Company will require the Unions to prepare tneir case 
differently from the way they mig.t prepare it otherwise, 
necessitating additional time. That objection has been met 
by this Court's order of January 31, 1974, vacating the trial 
date previously set, and affording all parties ample time to 
conduct discovery in preparation for trial.

6. Finally, we note that in American Telephone and 
Telegrapn Co. v. E.E■0.C■, supra, the Company settled
the monetary claims in its litigation with the government with­
out the consent of the Communications Workers of America.
Every word of that opinion suggests that the Company and 
the plaintiffs acted properly in so doing. No intimation was 
raised in that opinion, as the Unions attempted to do at the 
January 31, 1974 hearing in this case, that a release of the

A - 12

PAGE TEN



’t

Company also releases the Unions. Perhaps it was not in 
issue in AT&T —  we do not know —  but in any event, that 
notion is premised upon a flat misapprehension of the law 
governing releases in cases under federal statutes. See Aro 
Mfg. Co. v. Convertible Top Co., 377 U.S. 476; Twentieth 
Century-Fox F, Corp. v. Winchester Drive-In Th., 351 F2d 
925 (5th Cir. 1965). Under these cases, a release by 
plaintiffs of their claims against Gilman in no way affects 
their ability to pursue their remedies against the Unions.

For the reasons set forth above, this Court should 
grant the joint motions of plaintiffs and the Company, and 
should enter the Proposed Decree attached to that Motion.

CONCLUSION

Respectfully submitted

HII.L, JONES i. FARRINGTON
lOS East 7hirty-Fourth Street 
avannah, Georgia 31401

TAYLOR, P. I SHOP & LEE 
P. 0. Box 1396 
Brunswick, Georgia 31520

Jack Greenberg 
Morris Bailer

Attorneys for Plaintiffs

A - 13



CERTIFICATE OF SERVICE

This is to certify that I have this date mailed a 
copy of the foregoing Plaintiffs' Memorandum In Support Of 
Their Joint Motion To Settle With Defendant Gilman Paper 
Company to Guy 0. Farmer, II, Esq., P.0. Box 4099, Jacksonville, 
Florida, 32201, J. R. Goldthwaite, Jr. Esq., 600 Rhodes-Haverty 
|jBuilding, Atlanta, Georgia, 30303, James E. McAleer, Esq.,
|24 East Oglethorpe Avenue, Savannah, Georgia, 31401, and
JlCharles L. Sparkman, Esq., 32 East Bay Street, Savannah,jj
i'1 Georgia, 31401 by depositing same in the United States mail,

\ ’■ \

A - 14

i 5

.—:



IN the united states district court for the
SOUTHERN DISTRICT OF GEORGIA ^  ^ p,-r;ICT ^  ^  

BRUNSWICK DIVISION •„ :i-‘

ELMO V. MYERS, et al., 
Plaintiffs,

) CIVIL ACTION NO. 1120

GILMAN PAPER COMPANY, et
Defendants^

a l .  , )

PLAINTIFFS ■ ^SPONSE TO^MORANDA^OF^ DEFqw
un io ns  IN ° ^ ° | p pR0VE settlem en t

, • vv. Court almost 100
D e fe n d a n t  U n i o n s  h a v e  f i l e  «  o n c e r t e d

.  m o t i o n s  an d  am ended p le a d in g s  i n  a  c o  

p a g e s  o f  m eraoran a ,  ^  j o i n t  m o t io n  o f

attempt to obfuscate the issues Uttie
,  • t i f f s  a n d  d e f e n d a n t  G i l m a n  P a p e r  C o m p a n y ,

p l a i n t i f f s  a n a  u  h e r e

-address only what appear to

OF THIS MOTION

■ « .  -  —  * .  « . y  *  —  M U ' ;  “  b; ; e d

u p o n  t h e i r  a s s e r t i o n s  t h a t  t h e i r  r i g h t . > a n d  g r a n t s  t h e

m h e r s  w i l l  s o m e h o w  b e  d i m i n i s h e dtheir m e m b e r s  wil a D D r o v i n g  t h e  p r o p o s e d

• o f  o l a i n t i f f s  a n d  t h e  C o m p a n y  a p p r o v  
j o i n t  m o t i o n  o f  P 1  - r e a s o n  w h y  t h a t

t  d e c r e e  Y e t  n o n e  o f  t h e m  s u g g e s t  a n y  

c o n s e n t  a l l  t h e  U n i o n s '  a r g u m e n t s

should be so. The entire thru

A - 15



r

ignores a crucial point that none of those defendants have 
addressed: whether or not this motion now before the Court is
granted, and whether or not the Company is required to litigate, 
the issues that affect the Unions at trial will be identical: 
whether the Unions discriminated against members of the class by 
entering into unlawful collective bargaining agreements with the 
Company, and if so, what relief, including back pay, is necessary 
to make the class whole? Nothing will change that - certainly 
not the granting of the joint motion. The granting of the joint 
motion will in no way diminish the rights of the Unions.

A
The Right To Contribution

Each of the Unions make somewhat confusing arguments
that they have a right to contribution from the Company, and if
this Court approves the consent decree, that right will somehow
be diminished or lost. Particularly confusing is the following
quotation from the UPIU Brief, p. 8:

To attempt to settle part of the monetary 
aspects of a Chapter [sic] VII case and to 
litigate the remaining part, considering 
the numerous equities involved. [sic] 
pertaining [sic] not only to the individual 
defendants but to each member of the class 
would appear to be an insurmountable task.

The Union does not say to whom this task appears insurmountable.
Confusion aside, however, the Unions' positions as asserted 

in their briefs and motions ignore the theory of contribution.
The right to contribution is a contingent right only, and is not 
enforceable until the party seeking contribution (here, the 
Unions] has paid more than its fair share of a common obligation.
18 Am Jur 2d, Contribution §§ 1,3,7. The Unions appear to be 
.saying that this Court, when it hears plaintiffs' claims against 

the Unions, will be unable to fashion relief in such a manner that

A - 16

PACE TOO r



More importantly, there is no reason that these procedures 
will not apply if the litigation proceeds against the Unions 
only. If the Company settles, the procedure for determining 
Union liability will be almost identical to that procedure if the 
Company litigates. The only difference is that if the motion is 
granted, no evidence would be adduced on those issues for which 
the Unions bear no responsibility. Certainly plaintiffs would not 
attempt - nor would this Court allow - a procedure whereby the Unions 
were sought to be charged with damages for which they bear no 
responsibility. To argue otherwise, as the Unions have done, is 
to suggest a situation which does not and will not exist.

B
The Unions' Right to Participate 

In the Fashioning of Af­
firmative Relief

The Unions suggest that if this Court approves the settle­
ment as proposed, they will be denied the opportunity to participate 
in the fashioning of affirmative relief, and for that reason the 
joint motion should be denied. For example, the UPIU argues that 
"...all parties must be represented," (UPIU Brief, p. 2), and 
that granting the joint motion will deprive them of "...an equal 
opportunity to participate in the making of this Decree..."
(Id. p.5). They further say that they are deprived of "an oppor­
tunity to litigate any issue [involving UPIU]" (Id.). The IAM 
says that it would like to participate in the negotiations and 
agree on affirmative relief (IAM Brief p. 6), but intimates that 
it will be deprived of that opportunity if the motion is granted. 
These arguments have absolutely no merit.

In the first place, the Unions have had since 1965 to 
remedy their unlawful practices, and only under the imminent threat 
of this lawsuit did they take any action (in 1972) to begin to 
comply with federal law. In the second place, the Unions have been

A - 18

PAGE FOUR



invited to join in the negotiations which led to the drafting of
the consent decree now before the Court, but have "remained

1/
persistently aloof" because of plaintiffs' refusal to give up 
their rights to recover the economic damage inflicted upon them 
by the Unions. To argue now, as the Unions do, that they have 
had no opportunity to participate in the formulation of the 
decree is ludicrous in view of their nine years of conscious 
declination of such opportunities.

Notwithstanding their past ample -- and missed -- oppor­
tunities to participate in the correction of their legal deficiencies, 
the Unions argue nonetheless that the Court should, by denying 
the motion, give them yet another opportunity. They imply that 
if the Court does not so rule, they are forever forclosed from 
participation in the formulation and implementation of relief 
herein. That implication has no merit. If the joint motion is 
granted, the Unions will have plenary opportunity to show this 
Court just what, it is about the proposed decree that "tramples 
upon their rights" (UPIU Brief p.6) (although the Unions have not 
yet seen fit to provide the Court with any such guidance). If, 
after trial against the Unions, the Court finds the decree to be 
overreaching, it has full power to modify it, since the Court 
retains jurisdiction of the Company for a period of five years 
following the entry of the decree. Indeed, if at any time during 
the five year period, any party finds that the decree is not 
working —  either because it does not go far enough, or because 
it is overbroad -- that party may apply to this Court for a 
modification of the decree. That is true whether the entire 
case is litigated, whether the entire case is settled, or whether

/ See E.E.O.C. v. A.T.&T., 365 F.Supp. 1105, 1109 (E.D.Pa. 1973).

A - 19

PAGE FIVE



the case is litigated in part and settled in part. The Unions 
have had, and will have, ample opportunity to participate in the 
making of the affirmative remedies contained in the consent decree, 
and this Court should not deny the motion on grounds that the Unions' 
rights will be "diminished."

II
THERE IS AMPLE PRECEDENT FOR 

GRANTING THE MOTION

The Unions vehemently insist that there is no legal authority 
for granting the joint motion. Each of the Unions' briefs is 
laced with stentorian interdictions that this Court may not approve 
the proposed consent decree unless all parties agree. Some examples:

(a) "...the dismissal of the Company with prejudice 
would be inequitable and legally not sustainable..." (IBEN Brief 

p. 5) ;
( b )  " . . . t h e  p r o p o s e d  m o n e t a r y  s e t t l e m e n t  b e t w e e n  p l a i n t i f f s  

a n d  t h e  C o m p a n y  i n  a  c l a s s  a c t i o n  a g a i n s t  m u l t i p l e  d e f e n d a n t s  i s

n o t  e q u i t a b l y  s u s t a i n a b l e . . . n o r  c a n  i t  b e  l e g a l l y  s u s t a i n e d  o v e r  

t h e  o b j e c t i o n s  o f  t h e  n o n - s e t t l i n g  d e f e n d a n t s . . . "  ( I d . ) ;

(c) "...affirmative relief which would materially affect 
the Collective Bargaining Agreement over the objections of the 
defendant Unions could not be entered without a full adjudication 
upon the merits (Id. p. 12);

(d) "The determination of the proper class...can only
be determined upon a hearing on the merits or where all of the parties 
to the action have agreed..." (Id. p. 18);

(e) "[Limitation of] any back pay award...to damages 
which were actually suffered... could not be accomplished in a 
Title VII case through a compromise with less than all the defen­
dants or without a hearing on the merits" (Id.);

A - 20
NOTE: Pages 7 - 11 of the original brief are omitted

from the Appendix.

PAGE SIX



1

THE RIGHTS OF MEMBERS OF THE CLASS ARE 
FULLY PROTECTED BY THE PRO­

POSED CONSENT DECREE

Another Union argument for denying the motion is that the 
proposed consent decree somehow inadequately protects the interests 
of the black individuals on whose behalf this suit is brought.
The Unions' concerns for Gilman's black employees appear to be 
two-fold; That there is no insurance that all persons who should 
be included in the class are in fact included; and that the 
proposed monetary settlement cannot be equitably divided. Neither 
of those concerns has merit, and they provide no basis for denial 
of the motion.

First, IBEW says that plaintiffs and the Company may not 
"unilaterally agree upon who shall constitute the effected [sic] 
class" (IBEW Brief pp. 2, 17). Yet all the Unions take great care 
to tell the Court that they, with the Company, instituted reforms 
in 1972 for the benefit of black employees at Gilman Paper Company. 
The persons who were to be affected by these reforms were determined 
"unilaterally" by the Company and the Unions; that is, without 
consultation with the very members of the "effected class” whose 
rights the Unions now so arduously seek to protect. We fail to 
see, then, if the Unions and the Company may make such a deter­
mination, why the Company and the black employees may not make 
such a determination?

The beneficiaries of the 1972 reforms included only current 
employees. The Company and the Unions took no account of those 
other individuals who have been included in the proposed consent 
decree. For example, plaintiffs and the Company have included 
(1) all current black employees, (2) black employees who have 
retired, (3) certain black applicants for employment, (4) certain 
blacks who resigned from the Company and (5) certain black employees

III

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PAGE TWELVE



who were terminated. Thus the decree includes all those employees 
who were covered by the 1972 reforms, and, in addition extends 
benefits to four additional classes. The Unions are saying, on 
the one hand, that they are immune from liability because they made 
changes for the benefit of certain people, and on the other hand, 
that because the Company would now provide additional benefits 
to those persons and to others, the decree is insufficient because 
it may not cover enough people. For this reason, say the Unions, 
the motion should be denied. Such anamolous posturing provides 
this Court with no reason to deny the joint motion.

With reference to the compensatory relief provisions of 
the decree, the IBEW says that this Court may not approve those 
provisions because of a 'complete lack of discovery in the case" 
(IBEW Brief pp. 16-17). In the case cited for support of this 
proposition, Percodani v. Riker-Maxson Corporation, 50 F.R.D.
473, the district judge thought liability so clear that the pro­
posed settlement argued that no matter what the ultimate liability 
might be, the amount offered in settlement was the maximum 
defendant could afford without facing bankruptcy. It was the 
absence of discovery on the financial condition of defendant - 
its inability to pay a larger judgment - which prompted the Court 
to deny the settlement. Thus Percodani is applicable here only 
if the proposed monetary settlement is patently inadequate in 
view of the wholesale discrimination which has taken place. Since 
none of the Unions have suggested that such is the case, Percodani 
is irrelevant.

We note in this connection that this Court has presided 
over settlement of two other cases almost identical to this one: 
Muchisoh v. I.T.T.-Rayonier, Inc., Brunswick Division No. 1011, 
and Bell v. Hercules, Inc., Savannah Division No. 2802. The total

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PAGE THIRTEEN



compensatory relief provided here is greater than in either of those
two cases, and the amount per employee is comparable. Thus the
award here is adequate on its face, unless this Court committed
error in approving settlements in Muchison and Bell - a fact that

2/
none of the Unions suggest.

Reference to Muchison and Bell also puts to rest the 
remaining objections raised by the Unions regarding the monetary 
aspects of this case. For example, the IAM says that no arbitrary 
formula for the distribution is permissible (IAM Brief p. 8).
Yet in each of the other two cases, an "arbitrary" formula was 
devised which proved satisfactory to the Court, all counsel, and 
all affected class members.

The IBEW objects that no calculations have been included 
in the decree (IBEW Brief p. 17). The Court (and counsel) will 
recall that the procedure for distribution of the back pay award 
in Muchison and Bell were identical to the procedure proposed 
here. Following approval of the decree, all parties and class 
members will have an opportunity to object. Thus the rights of 
members of the class are here, as they were in Muchison and Bell, 
fully protected.

The only distinction suggested bv any party between this 
case and Muchison and Bell is the IAM's rather curious objection 
that the "rights of Gilman and the Union are inseparable" (IAM 
Brief pp. 8-9). The objection is curious because of IAM's (and 
the other Unions') motions to amend the pleadings, where they 
argue in great detail that the rights (and obligations) of the 
Unions and the Company are entirely distinct. The Unions would

2/ Counsel for the IBEW here was involved in both the Bell and 
the Muchison settlements; counsel for the UPIU and the IAM 
here were involved in Muchison.

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PAGE FOURTEEN



• 
4

thus have it both ways: Union liability to plaintiffs is joint
with and indistinguishable from the Company's if joint liability 
would prevent settlement; if it would not, then the Unions' 
obligations have nothing to do with those of the Company. Such 
waffling does nothing to aid this Court in determining the 
propriety of the motion before it.

IV
THE INCLUSION OF AN AWARD OF 

ATTORNEY'S FEES IN THE 
PROPOSED DECREE IS PROPER

The IAM objects to the inclusion in the decree of an 
award of attorney's fees to plaintiffs for services rendered 
by their counsel in the prosecution of this action against the 
Company. The Union's objections are ill-conceived.

First the Machinists say the award violates the principle_3/
of contribution because, in counsel's opinion, "plaintiffs 
[sic] counsel has [sic] not, to this date, rendered total services 
for the entire case of a value equal to even one half of the 
stated amount" (IAM Brief p. 14). The Union's argument, premised 
as it is upon the asserted overvaluation of the time of plaintiffs' 
counsel, is frankly puzzling since if the Company pays more for 
counsel fees than the evidence eventually indicates it should 
have, it is the Company -- not the Unions —  which has a right to 
seek contribution from the other defendants (see discussion of 
contribution, Part I, supra).

Next, the iam says that the payment of attorney's fees 
"at this juncture carries with it connotations of barratry, 
champerty and maintenance" (IAM Brief p. 14). We respectfully

3/ The IAM presents no evidence that its assertion has merit.

A - 24
NOTE: Pages 16 -- 18 of the original brief are omitted

from the Appendix.

PAGE FIFTEEN

F



CONCLUSION

For the reasons set forth above, and for the reasons 
set forth in the principal briefs of plaintiffs and the Company, 
this Court should grant the joint motion to approve settlement.

7

Respectfully submitted,

HILL, JONES & FARRINGTON
208 East Thirty-Fourth Street 
Savannah, Georgia 31401

TAYLOR, BISHOP & LEE
P. O. Box 1596 
Brunswick, Georgia 31520

JACK GREENBERG 
MORRIS J. BALLER
Suite 2030

CERTIFICATE OF SERVICE

A - 25



CERTIFICATE OF SERVICE

The undersigned attorney for Plaintiff-Appellee 
hereby certifies that he served two copies of Appellee's 
Brief on Appeal on counsel for Defendants-Appellants, J. R. 
Goldthwaite, Jr., Elihu I. Leifer, Michael H. Gottesman, 
Frank Petramalo, Jr., Guy 0. Farmer and Jerome A. Cooper 
at their office addresses by placing copies in the United 
States mail, postage prepaid, this 19th day of September,
1975.

\Attorney for Plaintiff-Appellee



4