Local Union No. 84, International Brotherhood of Electrical Workers, AFL-CIO v. United States Brief in Opposition

    No. 80-2117

I n  t h e

§upnvuu> Glmart of tfy* Ittttpii &tate
October T eem, 1980

L ocal Union No. 84, I nternational Brotherhood 
oe E lectrical W orkers, AFL-CIO,

Petitioner,
v.

United States, et al.,
Respondents.

o n  p e t it io n  fo r  a  w r it  of certiorari to t h e  u n it e d  states  
COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION

Jack Greenberg 
J ames M. Nabrit, III  
0 . P eter Sherwood*
J udith R eed 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

Attorneys for Respondents

^Counsel of Record



QUESTION PRESENTED

Whether on the record evidence in 
this case the Fifth Circuit, consis­
tent with this court's decision in 
International Brotherhood of Teamsters 
v. United States, properly found a 
racially discriminatory purpose in the 
adoption, negotiation or maintenance 
of the seniority system requiring a 
determination that the seniority 
system is not bona fide within the 
meaning of § 703(h) of Title VII of 
the Civil Rights Act of 1964?

1



TABLE OF CONTENTS

QUESTION PRESENTED ..............  i
TABLE OF AUTHORITIES ............ iii
SUPPLEMENTAL STATEMENT OF THE

CASE .......   1
REASON FOR DENYING THE WRIT ...... 5
ARGUMENT ........................ 6

THE DECISION OF THE COURT 
BELOW IS CONSISTENT WITH THE 
DECISION OF THIS COURT IN 
TEAMSTERS V. UNITED
STATES ..................... 6

CONCLUSION ..................... 19

Page

- ii -



TABLE OF AUTHORITIES

Cases Page

Acha v. Beame, 570 F.2d 57 (2d Cir.
1978)..................... 12

Chrapilwy v. Uniroyal, Inc.,
15 EPD 11 7933 (N.D. Ind.
1977) .................... 12

Griffin v. Copperweld Steel Co.,
22 FEP Cases 1113 (N.D.
Ohio 1 979 ) ............... 12

International Brotherhood of
Teamsters v. United States,
426 U.S. 241 ( 1 977 ) ...... passim

James v. Stockham Valve & Fittings,
Co., 559 F.2d 310 (5th Cir.
1977) cert, denied 434 U.S.
1034 ( 1 978 ) .............. 1 1 , 13

Patterson v. American Tobacco Co.,
634 F.2d 744 (4th Cir. 1980), 
cert, granted, U.S.L.W.

(1981) ............... 12
Personnel Administration of Massa­

chusetts v. Feeney, 442 U.S.
256 ( 1 979 ) ............... 1 5

Poe v. Ullman, 367 U.S 497
(1961) ................... 22

Sears v. Santa Fe Ry Co., 25 
FEP Cases (10th Cir.
1981 )

- iii -

12



Page

Swint v. Pullman-Standard, 624
F.2d 525 (5th Cir. 1980) .. 19,20,21

Younger v. Glamorgan Pipe,
621 F.2d 96 (4th Cir.
1980) ................. 1 2

Village of Arlington Heights 
v. Metropolitan Housing 
Development Corp., 429
U.S. 252 (1 977) .......... 1 1 , 1 7

Washington v. Davis, 426 U.S
229 (1 977 ) ............... 1 0 , 1 1 , 1 5

Statute
Civil Rights Act of 1964, §703(h),

42 U.S.C. § 2000e-2(h) --- 2,4,9

xv



No. 80-2117
IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1980

LOCAL UNION NO. 84, INTERNATIONAL 
BROTHERHOOD OF ELECTRICAL WORKERS, 
AFL-CIO,

Petitioner, 
v.

UNITED STATES, et al.,
Respondents.

On Petition for a Writ of Certiorari to 
The United States Court of Appeals 

For The Fifth Circuit

BRIEF IN OPPOSITION

SUPPLEMENTAL STATEMENT OF THE CASE—  ̂
The facts of this case - filed in 1968 

and captioned since 1969 as United States

jV Petitioners' presentation of the facts 
necessitates this supplemental statement.



2

v. Georgia Power C o a r i s e  out of a 
history of entrenched racial segregation in 
all aspects of employment at the Georgia 
Power Company. App. 34a. After reviewing 
all of the facts, the Fifth Circuit con­
cluded :

Considering the totality of the 
circumstances surrounding the senior­
ity system, as found by the district 
court after trial, we hold the senior­
ity system was not bona fide within 
the meaning of section 703(h).
Petitioner has set forth its own

version of four of the factors which it
asserts represent the basis of the Fifth

1/

]_/ Technically the United States may not 
be respondent here. Since 1969 this case 
has been called United States v. Georgia 
Power Co. when two earlier filed private 
class actions, Charles King, et al. v. 
Georgia Power Co., Civil Action No. 11723, 
and Willie Moreman v. Georgia Power Co. , 
Civil Action No. 12185, were consolidated 
with a pattern and practice action brought 
by the United States, Civil Action No. 
1 2355. Only the private plaintiffs, King, 
et al., and Moreman filed notices of appeal 
leading to the Fifth Circuit decision of 
which petitioners now seek review. App. 
6a.



3

Circuit's decision. Br. 4. A more 
accurate statement of the Fifth Circuit's
findings - supported in the 1971 district
court findings - is as follows:

a. The seniority system in fact 
provided upward mobility for 
whites and precluded advancement 
for blacks, although, on its 
face, it purported to operate 
equally upon all employees. App. 
12a.

b. The differences in advancement 
opportunity for blacks and whites 
were not attributable to the 
existence of separate bargaining 
units. App. 13a.

c. The seniority system, established 
during an era of entrenced 
racial segregation, "tracked and 
reinforced the purposefully 
segregated job classification 
scheme." App. 14a.

d. Prior to 1969, the job classifi­
cations and sections were so 
organized were that black jobs 
were isolated from functionally 
related white jobs, exacting 
"seniority suicide" as the price 
of advancement out of any black 
job. App. 14a.



4

Respondents submit that these findings
fully justify the determination that the
seniority system was not bona fide within
the meaning of section 703(h) of Title VII.
But these were not the only findings
pertinent to the Fifth Circuit's decision.
The Court also reiterated the 1971 district
court findings concerning special education
and testing requirements imposed in 1963,
shortly after the company lifted its policy
of barring blacks from transfer out of the
four black job classifications. These new
requirements, applied to black jobs only,
were obviously intended to inhibit transfer

2/
to white lines of progression. App. 2a.

2/ Under these requirements, persons in 
any of the black jobs were required to pass 
a battery of tests and to possess a high 
school diploma. App. 2a. At that time, 
over 45% of the company's foremen, supervi­
sors and chief division operators lacked a 
high school diploma. App. 51a.



5

Respondents note, too, the district 
court finding that although in April 1969, 
the black laborer classification became an 
entry level job to certain white lines of 
progression, thereafter whites were hired 
directly into higher level jobs, violating 
the seniority expectations of senior black 
laborers. App. 78a.

REASON FOR DENYING THE WRIT 
Petitioner Local Union No. 84, Inter­

national Brotherhood of Electrical Workers, 
AFL-CIO, has challenged the Fifth Circuit's 
ruling on seniority. However, (1) the 
facts of this case do not warrant presenta­
tion of the questions framed by petitioner;
(2) there is no conflict among the cir-

3 /cuits ; and (3) there is no conflict

3/ Indeed, the decision below applies 
analysis that has been widely followed in 
other circuits. See note 4, infra.



6

with decisions of this Court because the
Fifthi Circuit reached a proper result on
the facts of this case , and decided no
important or new issues of law, but rather 
merely applied this Court's analysis in 
International Brotherhood of Teamsters v. 
United States, 431 U.S. 324 (1977) to a
different set of facts.

ARGUMENT

THE DECISION OF THE COURT BELOW IS 
CONSISTENT WITH THE DECISION OF THIS 
COURT IN TEAMSTERS

I.
Petitioner's complaint about the 

decision of the Fifth Circuit is less

3/ Continued
The Fifth Circuit noted a conflict 

among the circuits on the issue of whether 
a change in decisional law alone is a 
sufficient basis for upsetting final 
injunctive orders, but its decision in this 
case does not depend on its resolution 
of the issue. In any event, petitioner 
does not seek review on that question.



7

with that court's view of the applicable
law or its application, but rather with
that court's application of the facts found
by the district court in 1971.

The linchpin of the first branch of
petitioner's argument is the following
statement in the 1971 decision:

While no showing of any conscious 
intent has been made, as part and 
parcel of the scheme of job seniority 
which has resulted in racial discrimi­
nation to certain black employees as 
discussed in Part I, _s u.££ _a, and 
permitted the educational qualifica­
tions discussed in Part II, s upr a, 
each union is a proper party to suit 
and relief is granted in this respect. 
App. 115a.

As is apparent on its face, that statement 
deals with the question of whether or not 
the union was a proper party to the law­
suit. The statement, which the district 
court a properly classified as a conclusion 
of law, appears in a section of the decision 
captioned "Complaints of General Discrimi­
natory Patterns and Practices by the



8

Unions." App. 115. It is not a finding 
that the seniority system was or was not 
bona fide. The major findings that 
relate to the bona fides of the seniority 
systems appear, appropriately, in those 
sections of the district court's findings 
of fact captioned "Contract", "Current 
Contract" and "New Findings". See App. 
76-78 and 83-84. The portion of the 
decision relating to the union's participa­
tion suggests that the district court 
regarded the company as the motivating 
force behind the racial structuring of the 
seniority system. It found that the union 
knew of the discriminatory seniority 
structure and acquiesed in its maintenance. 
App. 103-04a.

We note too that at the time the 
district court wrote the quoted conclusion,



9

it was harmless surplusage since the 
question of whether a showing of intent was 
required in order to declare a seniority 
system in violation of Title VII was not 
legally relevant. App. 11. If it was, 
and if the finding of no "conscious intent" 
by the unions referred to the seniority 
system, that finding would have been 
clearly erroneous, given the positive 
findings of fact that lead unmistakably to 
the ultimate finding that this seniority 
system is not bona fide. App. 15a.

Petitioners seek to shore up its view 
of the district court's conclusion quoted 
above with what it contends are "other 
findings that indicated the seniority 
system was neutral and legitimate." Pet. 
10. Its first contention that the union 
itself was integrated and represented black 
workers is of virtually no relevance on the 
question of the bona fides of the seniority



system. The finding of fact on which it 
relies to claim it represented black 
workers "fully" refers only to the union's 
actions in processing grievances. App. 
104a. Its second assertion that the lines 
of progression were rational, Br. 10, 
actually supports a finding that the 
seniority system was not bona fide. The 
finding of rationality refers to the lines 
of progression as reformed after April 
29, 1969, when the formerly isolated black 
classification of laborers was attached to 
the white lines of progression to which 
those laborers jobs were functionally 
related. App. 76a-78a. Petitioner's third 
assertion is nothing more than a statement 
that the system is facially neutral. The 
mere fact that the system is facially 
neutral does not always lead to a conclu­
sion that the system is bona fide. See,
Washington v. Davis, 426 U.S 229 (1976);



Village of Arlington Heights v. Metropoli­

tan Housing Dev. Corp. , 429 U.S. 252 , 266
(1977). As both the district court and the 
Fifth Circuit found, this system operated 
in a grossly unequal manner. App. 105a, 
12a. That fact is strong evidence - and 
sometimes conclusive evidence - that the 
system is non-bona fide. See, Interna­
tional Brotherhood of Teamsters v. United 
States, 426 U.S at 241; Washington v .
Davis, 426 U.S. at 241-2; and Village of
Arlington Heights v. Metropolitan Housing 
Development Corp., 429 U.S at 265-66.

II.
The second branch of petitioners' 

argument represents a barely perceivable 
shift of focus from the first. Here it 
contends that the four part test employed 
by the Fifth Circuit in James v. Stockham



- 12

Valves & Fittings Co., 559 F.2d 310 (5th 
Cir. 19770, conflicts with this Court's 
Teamsters dicision in that under the Fifth 
Circuit rule disparate impact is suffi­
cient to prove discriminatory intent. Pet. 
14. Respondents submit that petitioner has 
misconstrued the Fifth Circuit's applica­
tion of Teamsters and there is no conflict
between the Fifth Circuit's ruling and this

1/Court's decision in Teamsters.
Initially, respondents note that this 

Court has held that under certain circum-

4/ Nor is there any conflict among the 
circuits. The courts in other circuits 
that have considered the issue have fol­
lowed the Fifth Circuit and used the same 
test or a similar one to determine whether 
seniority systems are bona fide. See, 
e.g., Sears v. Santa Fe Ry. Co., 25 FEP 
Cases 337, 341-343 (10th Cir. 1981);
Patterson v. American Tobacco Co., 634 F.2d 
744 (4th Cir. 1980), cert. granted ___U.S.

(1981 ) ; Younger v. Glamorgan Pipe, 621
F. 2d 96, 97 (4th Cir. 1 980 ) (per curiam) ;
Acha v. Beame, 570 F.2d 57, 64 (2d Cir.
1978); Griffin v. Copperweld Steel Co., 22 
FEP Cases 1113, 1118 (N.D. Ohio 1979);
Chrapilwy v. Uniroyal, Inc., 15 EDP K 7933 
(N.D. Ind. 1977).



13

stances, disparate effect alone may be 
sufficient to establish discriminatory 
intent. See, Teamsters, 431 U.S. at 339.
In any event, it cannot be fairly said that 
in this case the Fifth Circuit's decision 
was bottomed on evidence of disparate 
impact alone.

The Fifth Circuit considered the
totality of the circumstances surrounding
the seniority system, but paid particular
attention to the four factors this Court

5 /
deemed significant in Teamsters. It con­
cluded that the Georgia Power seniority 
system was not bona fide. The Fifth 
Circuit's treatment of the factors con-

5/ Petitioners concede that the four 
factors listed by the Fifth Citcuit in 
James v. Stockham Valves and Fittings Co., 
559 F.2d 310, 35 (5th Cir. 1977), cert. 
denied, 434 U.S 1034 (1978) and applied in 
this case were deemed significant in 
this Court's analysis of the seniority 
system in Teamsters.



14

sidered is discussed below.
As to the first factor, the Fifth 

Circuit held that, while the seniority 
system at issue appeared to operate equal­
ly, " ... its facial neutrality was but a
mask for the gross inequality beneath". 
The system in fact provided upward mobility
for whites and precluded advancement

1/opportunity for blacks. App. 12a. This

6/ Petitioners appear to concede that the 
seniority system had this effect, although 
it points to one job traditionally held by 
white workers, meter-readers, which was 
unconnected to a line of progression. Pet. 
14. Of course, there were over 100 other 
traditionally white jobs that provided 
advancement opportunity. Gov't Ex. 2, 8, 
16. None of the traditionally black jobs 
provided for advancement opportunities, 
even though the job containing the largest 
number of blacks, laborers, was function­
ally related to several white lines of 
progression. There is no indication that 
the meter-reader classification is func­
tionally related to any other job.



Court has held repeatedly that a statute 
(or rule), otherwise neutral on its face, 
must not be so invidiously applied as to 
discriminate on the basis of race. see,

_D av > 4 2 6 U.S at 241.
Objective evidence that the law (or prac­
tice) bears more heavily on one race than 
another is important evidence supportive of 
the inference of invidious discriminatory 
purpose. Ibid.

The second factor considered by the 
Fifth Circuit, whether the seniority units 
are in separate bargaining units, informs 
the question of whether the evident dis­
parate impact of the practice can be traced 
to some positive non-race related cause. 
Thus, as this Court noted in Personnel 
Administrator of Massachusetts v. Feeney, 
442 U. S 256 ( 1 9 7 9 ) :

If the (adverse) impact of this 
statute (veterans' preference) could



not be plausibly explained on a 
neutral ground, impact itself would 
signify that the real classification 
made by the law was in fact not 
neutral.

442 U.S at 275. Respondents suggest then 
that it was not, as petitioner argues, 
"irrational," Pet. 15, to attach signifi­
cance to the fact that this seniority 
system encompasses only one bargaining 
unit. Indeed, petitioner appears to 
recognize that the structure of the bar­
gaining unit may be significant here. They 
point to the finding that the seniority 
units are made up of "functionally related 
jobs," Pet. 15, but decline to confess that 
until April 29, 1969, the traditionally all 
black classification of laborer was iso­
lated from the white job classifications 
with which it was functionally related. 
App. 78a.

As to the third facor, petitioner 
concedes that the seniority system had its



genesis in a period of overt racial dis­
crimination, but suggests that the senior­
ity system was untainted by the experiences 
of that era because it was "irrelevant to 
the segregationist employment patterns." 
Pet. 15. Respondents submit that peti­
tioner is wrong on the facts and the 
law. The historical background against 
which the seniority system was estabished 
is an -important source of evidence. See, 
Village of Arlington Heights v. Metropoli­
tan Housing Dev. Corp., 429 U.S at 267. 
Certainly, the fact that until July 29, 
1963, Georgia Power pursued an "open and 
unvarying" policy that prevented blacks 
from competing for any but the most 
menial and low-paying jobs is significant. 
Ibid. More importantly, the objective 
evidence reveals that accommodations were 
made to the racial imperatives that gov­
erned at Georgia Power during that era, and



that the seniority system did not escape 
unscathed. The Fifth Circuit properly 
took note that until 1969, the formation of 
functionally related lines of progression 
yielded to the dominant social requirement 
of racial separation. App. 14a.

As to the fourth factor, that the 
seniority system was not maintained from of 
any discriminatory purpose, we note that 
the racial gerrymandering of the seniority 
system remained unaltered until 1969. App. 
14a. Moreover, shortly after the company 
abandoned the policy of racial segregation 
in 1963, it imposed testing and formal 
education requirements, applicable to 
traditionally all-black jobs only, with the 
foreseeable consequence of severely limit­
ing the number of blacks who could transfer 
to formerly white jobs. App. 2a.

Given these facts, a finding follows 
that the seniority system at issue here is

- 18 -



not entitled to the limited immunity 
accorded bona fide seniority systems 
by § 703(h) of Title VII. The Fifth
Circuit was faithful to the teachings of 
this Court in Teamsters.

The 1971 findings of the district 
court as well as the record in this case 
demonstrate that the seniority system at 
issue here is not bona fide as that term 
has been defined in Teamsters. As noted 
above, the Fifth Circuit has faithfully 
applied the principles of T e a m £ _t e r _s .

For the above described reasons, the 
union's petition should be denied.

deny the petition now, respondents respect­
fully suggest that this case and Pullman-

CONCLUSION

Should this Court

Standard v. Swint, No. 80-1190, be con-



- 20

sidered together. We make this suggestion 
for two reasons:

First, the major findings of fact here
are not in dispute, unlike Pullman-Standard
in which the factual setting is unusual.
In Pullman-Standard the district court
made critical findings based in part on court-
prepared statistical analyses which were
not reproduced for consideration on review.
As a result, the Fifth Circuit was required
to conduct its own detailed review of the
facts. Here, the parties and the Fifth
Circuit both have relied on the 1971
district court findings.

Second, the outcome of Pullman-Stan-
dard is of little practical significance to

6/
the affected employees. The Pullman-

6/ We do not suggest that Pullman-Stan­
dard is moot. The extent to which plain­
tiffs are entitled to recover backpay 
remains a live issue.



21

Standard plant in Birmingham has shut
permanently. Its bargaining unti employees

1/were terminated in January 1981. In 
contrast, the Georgia Power Company supplies 
electricity to homes and businesses in 
virtually all parts of Georgia, and the 
collective bargaining agreement at issue in 
this case affects several thousand incum­
bent empoloyees at locations throughout the 
state. Thus, here, unlike in Pullman-Stan­
dard , the seniority expectations of thou­
sands of workers will be affected.

Consideration of this case along with 
Pullman-Standard would permit this Court to 
formulate a rule of law in the crucible of 
contested issues of practical importance,

7/ See, Brief of Petitioner Steelworkers 
Tn No. 80-1193, p. 5 n.4 and Brief in 
Opposition (to petition for grant of 
Certiorari) in Nos. 80-1190, 80-1193, p. 10 
n . 22.



22

the historic process which has long been 
recognized as contributing to wise de­
cisionmaking. See Poe v. Ullman, 367 U.S. 
497, 505 (1961).

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, III 
0. PETER SHERWOOD*
JUDITH REED

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

Attorneys for Respondents
Counsel of Record



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