International Molders and Allied Workers Union v. Howard Respondents' Brief in Opposition

    No. 85-1629

In the

l&tprpmp (ta r t  of tljp Mnitpii States
October T eem, 1985

I nternational H olders and Allied 
W orkers U nion, etc., et al.,

Petitioners,
v.

J ames H oward, et al.,
Respondents.

on  p e t it io n  fo e  a w r it  of certiorari to t h e  u n it e d  states

COURT OF APPEALS FOE THE ELEVENTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

Oscar W. Adams, I I I  
Suite 729
Brown Marx Tower 
2000 F irst Avenue, North 
Birmingham, Alabama 35203 
(205) 324-4445

Counsel for Respondents

E ric Schnappek 
Of Counsel



Table of Contents
Page

Statement of the C a s e .........• • ^
Reasons for Denying the Writ . . .  ®
Conclusion ........................ ^

Table of Authorities
Case;
Terrell v. United States Pipe 

& Foundary Co., 644 F .2d 
1112 (5th Cir. 1981) . . 8,9,10,11

Thornton v. East Texas Motor 
Freight, 497 F.2d 416 
(6th Cir. 1 9 7 4 ).............  12

williams v. General Foods Corp.,
492 F.2d 399 (7th Cir.
1 9 7 4 ) ........................ 12

Title VII, Civil Rights
Act of 1964 ..................

§ 703(c)(3), Civil Rights
Act of 1964 .................  '-

42 U.S.C. S 1981 6



No.  8 5 - 1 6 2 9

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1985

INTERNATIONAL HOLDERS AND ALLIED 
WORKERS UNION, etc., et al. ,

Petitioners,
v .

JAMES HOWARD, et al.,
Respondents.

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

for the Eleventh Circuit

RESPONDENTS' BRIEF IN OPPOSITION

Statement of the Case 
This is an employment discrimination 

action arising out of alleqedly racially 
discriminatory practices at the Tarrant



2 -

City, Alabama, plant of the Clow Corpora­
tion, a manufacturer of industrial pipe 
and fittings. Named as defendants were 
Clow, Local 100 of the International 
Molders and Allied Workers Union, and the 
International Molders and Allied Workers 
Union. The union was the collective 
bargaining representative of the hourly 
employees at the Tarrant City plant.

This action was filed in September, 
1 977. In 1 980 the Tarrant City plant 
closed, rendering moot all claims except 
those for monetary relief. In 1982 the 
company entered into a consent decree 
providing monetary relief to the class 
members; the union, however, declined to 
enter into a similar settlement. Respon­
dents' claims against the union were
tried in January, 1983



3

Prior to 1965 the union had engaged 
in concerted action with the employer to 
exclude blacks from any of the well paid 
skilled and semi-skilled positions at the 
plant. (Pet. App. 24a, 27a, 28a) Blacks 
were expressly forbidden to bid on these 
white jobs; indeed, for years the union 
opposed even the creation of any bid 
system for the black jobs. (Pet. 
App.30a) The union insisted that no black 
worker, whatever his or her position, be 
permitted to use tools of any kind, and 
intervened on behalf of whites when 
several blacks were discovered to be 
using hammers and pliers on the job. 
(Pet. App. 2.9a)

When Title VII was adopted represen­
tatives of the company and union met to 
discuss joint action to "temporiz[e]" the



4

effects of the statute. Shortly
thereafter the company announced that, 
although blacks could bid on the formerly 
white jobs, any person seeking promotion 
to most of those positions would have to 
pass a newly adopted test. (Pet. App. 
37a) The test measured an employee’s 
familiarity with machinery and tools, 
knowledge which the union had for decades 
successfully demanded be kept from its 
black members. The district court found 
that this new test was successful in 
preventing the movement of most black 
employees into the positions at issue. 
(Pet. App. 39a) Almost 90% of all blacks 
who took the test failed it; whites 
passed the test at a rate 5 times as high 
as blacks. (Id.)

1

1 Minutes of meeting of May 12, 1965, p. 8.



5

In 1970 two blacks filed a grievance 
alleging that the test violated the 
anti-discrimination provisions of the 
collective bargaining agreement. The 
union refused without explanation to 
process the grievance, and reached an 
agreement with the company that the test 
was permissible under the union's 
contract. (Pet. App. 38a~39a). On 
repeated occasion blacks objected either 
to the union, or the union's chief 
contract negotiator, about the test, and 
the negotiator promised to "look into" 
the problem. (Pet. App. 58a; Tr. 492). 
The district court found, however, that 
neither that negotiator nor any other 
union representative during contract 
negotiations ever proposed that the test 
be ended or even reconsidered (Pet. App. 
58a). The employer's willingness to 
accede to such a proposal was starkly



6

demonstrated when the company abandoned 
use of the test in 1977 immediately after 
the filing of the instant action. (Pet. 
App. 58a).

Respondent's complaint alleged, 
inter alia, that the union had violated 
Title VII and 42 U.S.C. § 1981 by 
knowingly acquiescing in the continued 
use of the allegedly illegal test. (Pet. 
App. 47a). The District Court recognized 
that a union was obligated to use 
reasonable efforts to eliminate a 
discriminatory practice if the union 
itself was "involved in [that] Title VII 
violation" (Pet. App. 51a), and held that 
the union here had such an obligation to 
seek an end to the illegal test. (Pet. 
App. 57a-59a) . The District Court found 
that the union had made no effort 
whatever to meet that obligation, and was 
thus liable to the respondents. (Pet.



7

App. 58a-59a) . Because of these factual 
conclusions the District Court did not 
find it necessary to decide whether the 
union's continued acquiescence in the 
test was racially motivated. (Pet. App. 
58a n .19, 76a n.1) Following a subsequent 
magistrate's report, the district court 
concluded that no individual class 
members were entitled to any monetary 
relief. (Pet. App. 76a-77a)

On appeal the union expressly 
acknowledged that it would have been 
obligated to seek elimination of the test 
if it had ever agreed to or acquiesced in 
the use of that test. The union insisted, 
however, that no such aareeinent or 
acquiescence had in fact occurred. The 
court of appeals affirmed that finding of 
the district court that such an obligation 
existed under the particular circumstances 
of this case. The court of appeals



8

reversed the denial of monetary relief, 
and remanded the case for the fashioning 
of an appropriate remedy.

REASONS FOR DENYING THE WRIT 
The decisions below do not, as 

petitioners suggest, announce or apply any 
rule imposing vicarious liability on an 
innocent union that merely fails to 
prevent employer discrimination. The 
actual holding of the District Court is as 
follows:

Whether a party involved in an 
established Title VII violation 
may Be excused from liabili- 
ty . . . turns upon whether that 
party has proved to the full 
satisfaction of the courts that 
it has taken every reasonable 
step to bring employment 
practice^ into compliance with 
the law.’

Pet. App. 51a (emphasis added and omit­
ted) , guot ing Terrell v. United States 
Pipe & Poundary Co., 644 F.2d 1112, 1129 
(5th Cir. 1981).



9

This language is taken verbatim from the 
earlier Fifth Circuit standard in Terrell 
v. United States Pipe & Foundary, 644 F.2d 
1112, 1129 (5th Cir. 1981), and it was the 
Terrell standard which the Eleventh 
Circuit expressly applied in this case. 
(Pet. App. 2a-31, 13a). Terrell and its 
progeny are concerned, not with any 
affirmative duties of innocent unions, but 
with the legal obligations of unions that 
agreed to, acquiesced in, or otherwise 
caused a violation of Title VII itself.

3
Petitioners did not question below,

Petition for Rehearing, pp. 3-6 ("[T]he 
Molders accept the 'Terrell test' with 
respect to those employment practices as 
to which the Union actively participates 
in creating . . . .")? Reply Brief of 
Cross-Appellants, 8 (approving "[t]he 'all 
reasonable means' test of such cases as 
Terrell v. U.S. Pipe . . ."); Brief of 
Defendants-Appellees, p. 51 ("A union need 
not successfully end a discriminatory 
practice to avoid liability —  it need 
only oppose the practice.")



10

and do not seek review by this Court, of 
the actual legal principle announced in 
Terrell and applied in this case —  that a 
union involved in unlawful discrimination 
must take affirmative steps to bring that 
discrimination to an end. Nor do peti­
tioners suggest that there is any dis­
agreement among the circuits about that 
principle. For over a generation there 
has existed among the lower courts, and 
within this Court, a unanimous agreement 
that a defendant must take action to 
disestablish discriminatory practices for 
which it bears significant responsibility. 
Terrell merely applies to Title VII that 
universal and uniformly accepted rule.

In some instances where a union 
bears partial responsibility for a 
discriminatory practice, the union may be 
unable to end that practice without the 
concurrence of the employer; rather than



impose strict liability in such a situa­
tion, Terrell requires only that a union 
do whatever is possible to alter the 
illegal practice. The "all reasonable 
effort" standard in Terrell thus marks a 
limitation on a defendant union's legal 
obliaation. That standard was adopted in 
Terrell itself at the behest of the union 
defendant in that case, and the peti­
tioners in the instant case expressly
endorsed that standard in the court 

4
below.

When a Title VII plaintiff alleges 
that a union unlawfully "caused" dis­
crimination by an employer, there will 
almost invariably be difficult factual 
issues regarding the extent to which the 
union may have agreed to, deliberately 
acquiesced in, aggravated, or perhaps

4 See n. 3, supra.



12

promoted the practice at issue. The 
appellate decisions which petitioners 
assert conflict with the decision below 
in reality turned on just such factual 
issues. In Thornton v. East Texas Motor 
Freight, 497 F.2d 416, 425 (6th Cir. 
1974), the defendant union local had 
formally requested the employer to end 
the illegal practice; in Williams v. 
General Foods Corp., 492 F.2d 399, 405 
(7th Cir. 1974), the union had aggres­
sively pursued a grievance challenging 
the unlawful practice. Under those 
circumstances the courts of appeals in 
those cases reasonably concluded that the 
respective unions had not "acquiesced" in 
or aareed to the disputed practices. See 
497 F.2d at 425. Neither the sixth or
seventh circuit disputed the obligation



1 3

of a union ho take steps to end discri­
minatory practices for which it bore 
responsibility.

The instant case presented an 
essentially factual dispute that is 
typical of section 703(c)(3) claims. At 
trial respondents offered probative 
evidence that the union had knowingly 
acquiesced in the use of the discrimina­
tory test, that the employer only con­
tinued to utilize the test because of that 
acquiescence, and that the test perpet­
uated the effects of earlier intentional 
union discrimination. Although there was 
conflicting testimony regarding a number 
of the subsidiary issues, we believe that 
substantial evidence supported the 
decision of the district court imposing 
liability on the unions.



14

First, the disputed test perpetuated 
in a particularly noxious manner the 
earlier intentional union discrimination. 
The specific test at issue in this case 
measured an employee's familiarity with 
basic tools and machinery. When that 
test was initially adopted in 1965, it 
was certain to exclude virtually all 
blacks seeking promotions, because the 
union had for years successfully demanded 
that no black be permitted to hold a 
skilled position where he or she might 
have acquired any knowledge of such
equipment.. The union had further

insisted that no 1black at the plant,
regardless of his or her position, should

ever be permitted to use any tool
whatever. The local union president
expressly insisted at a meeting with
company officials that "the colored

1aborers are not supposed to handle



15

tools", and the union intervened at the
behest of white members when several
black employees were discovered using

5
hammers and pliers on the job. Thus the
practical effect of the post 1965 test
was to prevent promotions of the very
black workers whom the union had insisted
be denied the experience necessary to

6
pass such a test.

Second, the local union deliberately 
and inexcusably refused to process a 
grievance challenging the use of the 
disputed test. In 1970, two blacks who 
had failed the test submitted a grievance 
to the union, alleging that the test 
violated the anti-discrimination provi­
sion of the collective bargaining 
agreement. Successful pursuit of this

5 Pet. App. 29a? Tr. 204, 210-1 1 ; minutes of 
meeting of March 14, 1956, pp. 2-4.

6 Pet. App. 37a.



16

grievance would have ended use of the
tests long before the filing of the
instant action, but the union refused to
process it. The district court found:

The union agreed with the company 
that [the] grievance was not subject 
to the grievance procedure.... The 
union offered no reason ... as to why 
it did not pursue the grievance on 
behalf of these black union mem­
bers.... [T]he court finds that [the 
black members] were without repre­
sentation in their grievance seeking 
to prove that the employer breached 
the 1968 contract. (Pet. App. 
38a-39a).

Union and company representatives dis­
cussed the merits of the test at length at 
a meeting on August 20, 1970, and reached
at least a tacit agreement that the test 

7
would continue.

The petition describes this incident as a 
union "protest" to the company about the 
test. Pet. 5. The district court found 
otherwise.



17

Third, despite repeated objections 
by black union members to the use of the 
test, the union refused to ever raise the 
subject in contract negotiations with the 
employer. In addition to the aborted 1970 
grievance, a black union member com­
plained about the test at a separate 
meeting during the same year (Pet. App. 
58a), and in 1972 another black member on 
several occasions complained directly 
about the test to the union's chief 
negotiator. (Tr. 49a). Although the 
negotiator promised to "look into" the 
problem (Tr. 492) the district court 
found that he never in fact asked the 
company to change or even reconsider its 
use of the test. (Pet. App. 58a). In 1975 
the Company expressly invited the union 
to raise with appropriate management 
officials any objections the union might



18

have to continued use of the test, but 
the union thereafter raised no such 
objection.

If the collective bargaining agree­
ment in this case had expressly approved 
the use of the illegal test, the union 
would clearly have been under an obliga­
tion to attempt to end the unlawful 
practice. Nothing in Title VII suggests 
that such union complicity had to be 
memorialized in a formal written agree­
ment; the pattern of conduct found by the 
district court clearly constituted, and 
communicated to the employer, union 
endorsement of the disputed test. In this 
Court petitioners continue to insist 
otherwise, contending that the union "had 
not agreed to Clow's use of the test." 
(Pet. 5). Neither court below, however,

8

8 Minutes of meeting of August 11, 1975.



19

accepted petitioners' factual contentions, 
and the fact-bound controversy that lies 
at the heart of the petition does not 
warrant review by this Court.

CONCLUSION
For the above reasons the petition 

for writ of certiorari should be denied.
Respectfully submitted,

OSCAR W. ADAMS, III 
Suite 729 
Brown Marx Tower 
2000 First Avenue, North 
Birmingham, Alabama 35203 
(205) 324-4445

Counsel for Respondents
ERIC SCHNAPPER 

Of Counsel



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