Freeman v. Motor Convoy, Inc. Brief for the Union Defendants-Appellants

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IN THE
UNITED STATES COURT OE APPEALS 

FOR THE FIFTH CIRCUIT

No. 76-1359

MELVIN FREEMAN AND DOUGLAS SPENCER,
Plaintiffs-Appellees,

v.
MOTOR CONVOY, INC.

Defendant-Appellant,
and

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, 
WAREHOUSEMEN, AND HELPERS OF AMERICA; and LOCAL

UNION NO. 528
Defendants-Appe Hants

Appeal from the United States District Court 
For the Northern District of Georgia

BRIEF FOR THE UNION DEFENDANTS-APPELLANTS

•FREDRICK C. Me LAM 
1961 N. Druid Hills Road, N. E. 
Atlanta, Georgia 30329

ROBERT M. BAPTISTE 
ROLAND P. WILDER, JR.
25 Louisiana Avenue, N. W. 
Washington, D. C. 20001

Attorney for Teamsters Local 
Union No. 528

Attorneys for the Inter­
national Union



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 76-1359

MELVIN FREEMAN AND DOUGLAS SPENCER,
Plaintiffs-Appellees,

v.
MOTOR CONVOY, INC.,

and
Defendant-Appellant,

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND 

HELPERS OF AMERICA, 
and TEAMSTERS LOCAL UNION NO. 528,

Defendants-Appellants.

Appeal from the United States District Court 
For the Northern District of Georgia

CERTIFICATE OF COUNSEL
The undersigned, counsel of record for International 

Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of 
America, Defendant-Appellant, certifes that the following listed 
parties have an interest in the outcome of this case. These 
representations are made in order that Judges of this Court may 
evaluate possible disqualification or recusal pursuant to Local 
Rule 13(a) .



, ,11

Melvin Freeman, 
Douglas Spencer, 
Zonnie Jones,
L. Higgins,
H. Brooks,
W. Allen,
J . D. Glass,
S . Freeman,
K. Norwood,
E . Brooks,
G. Brooks, MacArthur Foy, and 
W. Samuels,

Plaintiffs-Appellees.
Motor Convoy, Inc.,

Defendant-Appellant.
Teamsters Local Union No. 528,
Teamsters Local Union No. 612,
Southern Conference of Teamsters, and 
International Brotherhood of Teamsters, 
Chauffeurs, Warehousemen and Helpers 
of America,

Defendants-Appellants.

ROLAND P. WILDER, JR.
Attorney of Record for International 
Brotherhood of Teamsters, Chauffeurs, 
Warehousemen and Helpers of America

NECESSITY FOR ORAL ARGUMENT
There is a superficial resemblance between this case and 

the freight industry cases under Title VII. As a result, the Panel 
is likely to have questions to ask counsel. In addition, this is 
the first discrimination case to arise in the car-haul industry 
and is of vital importance. The issues deserve full exploration, 
including oral argument.



iii

TABLE OF AUTHORITIES
Page

CASES:
Aeronautical Indus. Dist. Lodge 727 v.

Campbell, 337 U.S. 521 (1949) 40
Albemarle Paper Co. v. Moody, 422 U.S. 405

(1975) 51, 52
Barefoot v. International Brotherhood of 
Teamsters, 424 F.2d 1001 (C.A. 10), cert.
denied, 400 U.S. 950 (1970) 58

Benjamin v. Western Boat Building Corp.
472 F.2d 723 (C.A. 5, 1973) 54

Carey v. Greyhound Bus Co., 500 F.2d 1372 (C.A.
5, 1974) 51

Coronado Coal Co. v. UMW, 268 U.S. 295 (1925) ,59
Franks v. Bowman Transportation Co., 495 F.2d 

398, (C.A. 5, 1974), rev'd on other grounds,
423 U.S. 814 (1976) 34, 40

Gamble v. Birmingham Southern R.R., 514 F.2d
678 (C.A. 5, 1975) 49

Griggs v. Duke Power Co., 401 U.S. 424 (1971) 39
Guerra v. Manchester Terminal Corp., 498 F.2d

641 (C.A. 5, 1974) 49
Herrera v. Yellow Freight System, Inc., 505 F.2d

66 (C.A. 5, 1974) 59
IBEW (Franklin Elec. Constr. Corp.), 121 N.L.R.B.

143 (1958) 59
International Shoe Co. v. Washington, 326 U.S.

310 (1945) 54
Johnson v. Goodyear Tire & Rubber Co., 491 F.2d

1364 (C.A. 5, 1974) 34, 51
Johnson v. Ryder Truck Lines, Inc., 10 EPD 

11 10,535 (1975), judgment issued, 11 EPD 
11 10,692 (W.D. N.C. 1976), aff'd, 13 EPD
11 11,607 (C.A. 4, 1977) 49

LeBeau v. Libby-Owens-Ford Co., 484 F.2d 798(C.A. 7, 1973) 57



IV

Page

Macklin v. Spector Freight System, Inc., 478 F.2d 
979 (C.A . D.C. 1973), complaint dismissed on 
remand, 9 EPD 11 10,154 (D. D.C. 1975), aff'd,
13 EPD 1[ 11,418 (C. A . D.C. 1977) 51

McDonnell Douglas Corp. v. Green, 411 U.3. 792
(1973) 36

Murray v. OCAW Local 8-472, 88 L.R.R.M. 2119
(D. Conn. 1974) 40

Myers v. Gilman Paper Co., 544 F.2d 837 (C.A. 5,
1977) 45, 49, 57, 58

Patterson v. American Tobacco Co., 535 F.2d 257
(C.A. 4, 1976) 57

Pettway v. American Cast Iron Pipe Co., 494 F.2d
211 (C.A. 5, 1974) 34

Quarles v. Phillip Morris, 279 F. Supp. 505 (E.D.
Va. 1968) 34

Resendis v. Lee Way Motor Freight, Inc., 505 F .2d
69 (C.A. 5, 1974) * 59

Rodriguez v. East Texas Motor Freight System, Inc.,
505 F.2d 40 (C.A. 5, 1974), cert, granted,
44 U.S.L.W. 3670 (U.S., May 25, 1976), Nos.
75-651, 75-715, 75-718) 4, 33, 37, 42, 43

Roman v. ESB, 13 EPD 1[ 11,285 (C.A. 4, 1977) 33, 35
Rowe v. General Motors Corp., 457 F.2d 348 

(C.A. 5, 1972) 33, 46, 47
Sabala v. Western Gillette, Inc., 516 F.2d 1251 

(C.A. 5, 1975) 42, 54
Sagers v. Yellow Freight System, Inc., 529 F 

721 (C.A. 5, 1976)
.2d

54, 58 r 59
Stevenson v. International Paper Co., 516 F. 

103 (C.A. 5, 1975)
2d

45
Thornton v. East Texas Motor Freight, Inc., 

497 F.2d 416 (C.A. 6, 1974) 43, 44
United Constr. Workers v. Haislip Baking Co., 

223 F.2d 872 (C.A. 4), cert, denied, 350 
U.S. 847 (1955) 59



UMW v. Coronado Coal Co •  / 259 U.S. 344 (1922)
U.P.P. Local 189 v. United States, 416 F.2d 

980 (C.A. 5, 1969), cert, denied, 397 U.S. 
919 (1970)

United States v. Georgia Power Co., 3 [CCH] 
EPD 1! 8318 (N.D. Ga. 1971) , aff'd in part, 
vacated for consideration of other issues 
and remanded, 474 F.2d 906 (C.A. 5, 1973)

United States v. Jacksonville Terminal Co., 
451 F.2d 418 (C.A. 5, 1971), cert, denied, 
406 U.S. 906 (1972)

United States v. T .I.M.E.-D.C., Inc., 517 F. 
299 (C.A. 5, 1975), cert, granted, 44 U.S. 
3699 (U.S., May 24, 1976) (Nos. 75-636, 75 672)

Watkins v. Scott Paper Co., 530 F.2d 1159 (C 
'5,' 1976)--------- -----

Wright v. Rockefeller, 372 U.S. 52 (1963)

STATUTES:
Judicial Code:

28 U.S.C. §§ 1291, 1292(a) 
Civil Rights Act of 1964 
Georgia Code Ann. § 3-119

2d
L.W.

.A.



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 76-1359

MELVIN FREEMAN AND DOUGLAS SPENCER,
Plaintiffs-Appellees,

v.
MOTOR CONVOY, INC.,

Defendant-Appellant,
and

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, 
CHAUFFEURS, WAREHOUSEMEN AND 

HELPERS OF AMERICA, 
and TEAMSTERS LOCAL UNION NO. 528,

Defendants-Appellants.

Appeal from the United States District Court 
For the Northern District of Georgia

BRIEF FOR THE UNION DEFENDANTS-APPELLANTS

STATEMENT OF THE ISSUES

1. Did the lower Court err in concluding that



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the Plaintiffs-Appellees and members of the class they 
purported to represent were discriminatorily assigned 
on the basis of race to garage jobs, where such conclu­
sion was based solely on evidence of statistical im­
balance in the Defendant-Appellant Employer's road de­
partment?

2. Does a union violate Title VII by negotia­
ting and maintaining a classification seniority system, 
where:

a. Prior to October, 1969, unor­
ganized employees without seniority 
rights commenced their seniority upon 
transfer to bargaining unit jobs in 
the Road department; and

b. Upon organization in October,
1969, such employees voted against 
carryover seniority between the Garage 
and Road departments and in favor of 
classification seniority?
3. Does a union discriminatorily "lock" black 

employees hired without mechanical skills into inferior 
jobs by negotiating and maintaining contractual provisions, 
entailing training and layoff protection, which provide for 
automatic advancement to the best jobs available at the 
Employer's facility, whether or not vacancies are avail­
able, in the absence of evidence that such employees were



-3-

denied access to the advancement procedure and the Union 
knew of such denial?

4. Did the lower Court err in finding the De- 
fendants-Appellants Unions jointly liable with the Em­
ployer for monetary awards to Plaintiffs-Appellees and 
members of the class they purported to represent, based 
solely on the Local Union's action in negotiating senior­
ity provisions selected by the class members themselves?

5. Was the International Union properly found 
responsible for "discriminatory" seniority provisions ne­
gotiated by committees composed of Local Union officials, 
acting for and on behalf of Local Unions holding exclusive 
representational rights for the employees involved, where:

a. The International Union holds 
no representational rights for involved 
employees and is not signatory to the 
collective bargaining agreement;

b. The seniority provisions in 
issue were neogtiated historically by 
Local Union officials; and

c. Seniority is considered a mat­
ter of local concern, and seniority sys­
tems may be tailored to the needs and 
desires of employees at individual term­
inals by Local Unions?



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6. Does a union violate Title VII by continu­
ation of a "color-blind" seniority system, lawful on its 
face, simply because it provides for accrual of competi­
tive seniority in separate departments, where:

a. The seniority system was not
a product of an intent to discriminate; 
and

b. There is no evidence that the 
Union participated in alleged hiring 
and assignment discrimination by the 
Employer?
7. Is a seniority system providing for ac­

crual by all employees of seniority from the date of en­
try into a department "bona fide" within the meaning of 
Section 703(h)?

8. May fictional seniority credits be awarded
to all minority employees, solely on the basis of their
race, without regard to whether they were individually
affected by the alleged pattern or practice of discrimina- 

*/tion?—

Issues 6, 7 and 8 are currently before the Supreme 
Court in United States v. T.I.M.E.-D.C., Inc., 517 F.2d 
299 (C.A. 5, 1975), cert, granted, 44 U.S.L.W. 3669 (U.S., May 24, 1976) (Nos. 75-636, 75-672) and Rodriguez 
v. East Texas Motor Freight System, Inc., 505 F.2d 40 
(C.A. 5, 1974), cert, granted, 44 U.S.L.W. 3670 (U.S., 
May 25, 1976) (Nos. 75-651, 75-715, 75-718). They are 
presented in this appeal solely to preserve them pending 
the Supreme Court's final action. Thus issues 6, 7 and 8 will not be actually argued here.



-5-

forum?
9. Was the International amenable to suit in the

STATEMENT OF THE CASE

The United States District Court for the Northern 
District of Georgia handed down its judgment and order, with 
an accompanying opinion, on December 11, 1975; it is reported
at 409 F. Supp. LlilO and is reprinted in the Joint Appendix,
at . On February 11, 1976, the District Court supple­
mented its judgment and order pursuant to a motion for recon­
sideration made by Plaintiffs-Appellees. The District Court's 
Order on Reconsideration is informally reported at 13 EPD 
1(11,518; it is reprinted in the Joint Appendix, at 
The Union Defendants-Appellants filed a timely notice of ap­
peal from the District Court's Order of December 11, 1975, and 
further filed a timely supplementary notice of appeal from the 
District Court's Order on Reconsideration. The notice and sup­
plementary notice are reprinted in the Joint Appendix, at

This Court has jurisdiction under 28 U.S.C. §§ 1291,
1292 (a).

A. Statement of Facts
1. Nature of the Employer's Operation and Hourly 

Rated Jobs. Defendant-Appellant Motor Convoy, Inc. (herein­
after the "Employer") is an interstate carrier of motor vehi­
cles; it was incorporated under Georgia law in 1934, and main­
tains its principal office in Atlanta, Georgia. (Tr. I, 13)
In addition, the Employer maintains facilities located in the



-6-

following cities: Jacksonville, Miami and Tampa, Florida; Bir­
mingham, Alabama; Baton Rouge, Louisiana; and Nashville, Tennes­
see. (P. Exh. 18)—  ̂ Within the Southern Conference of Team­
sters, as of March 10, 1975, the Employer employed 204 road dri­
vers, of whom 5 were black (2 at Atlanta and 3 at Birmingham);
24 yard employees, of whom 2 were black (1 at Atlanta and 1 at 
Birmingham); and 40 shop employees, of whom 10 were black and 
located at the Atlanta facility. (P. Exh. 18)

The Employer's business consists entirely of trans­
porting new vehicles from the manufacturer or importer to dis­
tribution points, where they are marketed to the public. Ap­
proximately 75 percent of its business is derived from the Ford 
Motor Co. (Tr. Ill, 81, 83); it fluctuates in the same manner 
as does the auto manufacturer's business. Automobiles and other 
new vehicles (units) may be picked up directly at the manufac­
turer's plant, or at railheads if they are shipped by rail, and 
then delivered to dealers. (Tr. Ill, 80) The basic equipment 
utilized by the Employer is an auto rack, holding six to eight 
new vehicles, which is hauled by a diesel-powered tractor.
(Tr. Ill, 84) Due to the cyclical nature of the Employer's 
business, its need for drivers varies considerably during the 
model year. (Tr. Ill, 82-83)

1/ The Employer also maintains additional facilities in North 
and South Carolina within the Eastern Conference of Teamsters. 
These facilities are not affected by this action because the 
scope of the class was restricted to the Southern Conference of Teamsters. (JA ) .



The hourly rated jobs at the Employer's terminal fa­
cilities fall generally into three categories: road drivers,
yard employees and shop or garage employees. Road drivers are 
responsible for operating equipment and loading units; checking 
and noting damages; keeping daily logs and-expense records; and 
following Government regulations as well as procedures estab­
lished by the Ford Motor Co. (Tr. Ill, 84-88; P. Exh. 21, 1[ 3B) 
Experience is preferred but is not an absolute prerequisite for 
being employed as a road driver. The formal requirements for 
the job are that the applicant be: (a) twenty-one years of age;
(b) pass the ICC physical examination; (c) pass a road driving 
test and an open-book test on applicable Government regulations; 
(d) possess a valid driving license; and (e) have a good driving 
record. (Tr. I, 16-17) All drivers are on a single seniority 
list for each terminal; there are no separate "city" and "road" 
classifications. (P. Exh. 14) The Employer's Atlanta drivers 
have been represented since the early 1950's (Tr. I, 13-14), 
first by Teamsters Local 728, and by Teamsters Local 528 after 
1965. (Tr. Ill, 14, 19)

The duties of employees in the Yard Department in­
cluded the checking and signing for new units from Ford Motor 
Co., driving the units from Ford to the Employer's facility, 
moving the units to bay areas from which drivers pick them up 
for loading, and assisting drivers in checking and inspecting 
units received by truck or railroad. (Tr. Ill, 88-89; P. Exh. 
21, K 3A) Qualification criteria for yardmen include the abil­
ity to read and write, the requirements of good eyesight and



-8-

normal physical condition, and the possession of a valid driving 
license.

Shop employees work in the garage servicing tractors 
and auto racks. Their duties include welding, mechanical work 
on engines (both gasoline and diesel), greasing vehicles, chang­
ing tires, steam cleaning and general clean-up work. Signifi­
cant job skills are required in order to be a welder or mechanic. 
All of the Employer's welders and mechanics, other than Plaintiff 
Freeman, had prior experience and were fully qualified at hire. 
(Tr. Ill, 92, 103) Other jobs in the garage require less skill. 
Thus cleaning duties are performed by porters, while tire chang- 
ing, greasing and gassing of equipment are performed by helpers 
or apprentice mechanics, as they are now classified.

2. Recruitment and Hiring. Recruitment and hiring 
for all positions, including road jobs, are accomplished by De­
fendant Motor Convoy primarily through word-of-referrals and 
wal^-i-ns>" (Stip., 11 11.) Local Union No. 528 plays no role 

whatever in the recruitment or hiring process. (Tr. II, 134) 
Motor Convoy employed its first black driver at Atlanta on May 
28, 1971. Thereafter, eight additional black drivers were
either hired or offered jobs at Atlanta, of whom tyo remain in 
the~ernpXoyme1it~TeTatXonThdp^ (Tr. I, 16-17) Three other black 
drivers were employed at Defendant Company's Birmingham Termi­
nal on February 1, 1973. (P. Exh. 14, at 65) No road jobs 
were available at the Atlanta terminal in 1969 or 1970. (P. 
Exh. 23, 115)



-9-

Defendant Motor Convoy never maintained a policy of 
excluding blacks from its road department before or after enact­
ment of the Civil Rights Act of 1964. (Tr. Ill, 136, 170) At 
least since the late 1960's, the Employer has been engaged in 
actively recruiting black drivers (Tr. Ill, 133-135, 157-159, 
179-182, 185, 203) and its hiring personnel have long been in­
structed to hire blacks for road jobs whenever minimum quali­
fication standards were met. (Tr. Ill, 179-182, 185, 203)
These efforts were initiated because few black drivers had ap­
proached the company seeking employment. CTr. m ,  133-35, 157) 
In recent years since 1965, opportunities for road jobs have 
declined, as evidenced by the fact that the road board at At­
lanta now carries only 140 drivers, including those on layoff, 
down from approximately 214 drivers in 1965. (Tr. I, 16; II,
81)

Seven yardmen are employed at Defendant Motor Convoy's 
Atlanta facility, of whom one is black. (Tr. I, 16) The last 
yardman employed at Atlanta was hired in 1969. Employment op­
portunities in the shop also have declined because Motor Convov 
has been replacing its gasoline powered equipment with diesels 
needing less maintenance. Accordingly, only five employees 
have been hired in the shop since 1965 and only one was hired 
after 1968.

3. Assignment of Hirees to Jobs and Departments.
Black employees currently on the Atlanta shop seniority roster 
were assigned to shop jobs at hire by the Employer's officials.



-10-

Only two— J. D. Glass and Grover Brooks— claimed prior driving 
experience. The remaining employees in the alleged class had 
no particular qualifications for road jobs, if any, that were 
available at the time they were hired.- These employees ac­
quired whatever driving ability they now claim while in Motor 
Convoy's employ. (U. Exh. 17, at 10; Tr. I, 104; Tr. II, 151) 

Brooks' truck driving experience occurred in the Army; it 
was limited to driving a truck to the mess hall. (Tr. II, 15) 
J. D. Glass tractor-trailer experience in the Army was limited 
to twenty-five miles per day in Korea. He also testified to 
driving a small truck for the Hapeville Lumber Co. (Tr. I, 
135-136)

Consistent with its preference for experienced dri­
vers (Tr. I, 16) Defendant Motor Convoy has hired and assigned 
to its road department sixteen whites and two blacks not having 
actual road experience before coming to work. (P. Exh. 12; D.
Exh. 1) Six inexperienced whites were employed and assigned as dri­
vers in 1953; three were employed in 1954, 1955 and 1957, respec­
tively; two others were employed in 1958; the next two were hired in 
1959 and 1963, respectively; two more were hired in 1968; and the 
last white driver without road experience was hired in 1971. (P. Exh.
14, at 52) No black shop employee was hired during the years 1953,

2/. MacArthur Foy, a black driver domiciled at the Employer's Birmingham facility, had prior trucking experience with furni­
ture companies and hauling slag. (Tr. II, 157) He was hired 
as a yardman on September 7, 1971. (Tr. II, 152) He trans­
ferred to the road on February 1, 1973, as soon as he bid.
Only two vacancies arose— on June 29, 1972 and January 8, 1973—  between his hire and transfer. (P. Exh. 14, at 65)



-11-

1958, 1959, 1968 or 1971. (P. Exh. 14, at 40) There is no in­
dication that any black shop employee made application for a 
driving job, or expressed any interest in driving at hire.

A comparison of the hire dates of black shop employees 
employed in 1954, 1955 and 1957 with those of white drivers with­
out experience employed during those years discloses the follow­
ing :
Black Shop Employees White Drivers

Name Hire Date Name Hire Date
L. Higgins 6/4/54 J. A. Carter 12/17/54H. Brooks 2/17/55 H. D. Hicks 6/9/55W. Allen 3/9/55J. D. Glass 6/3/57 W. C. Bates 8/26/57
Between the dates Higgins and Carter were hired in June and De­
cember, 1954, Defendant Motor Convoy employed four experienced 
road drivers. Similarly seven drivers with experience were 
hired between February and June, 1955, when Brooks and Hicks 
were employed, respectively, four of whom were hired after 
Allen but before Hicks. (P. Exh. 14, at 52-53)

4. Collective Bargaining Negotiations in the Car-Haul 
Industry. Car-Haul bargaining on a multi-employer, multi-union 
basis began in 1948, when Local Unions in the Southern and Cen­
tral Conferences negotiated an agreement with their Employer 
counterparts. This agreement was designated a "National Agree­
ment, " even though it did not purport to cover Local Unions and 
Employers located in other sections of the United States. (Tr. 
Ill, 44—45) Sectional bargaining in the industry continued ex­
clusively until 1967, when the first National Master Automobile



-12-

Transporters Agreement was concluded. The National Agreement 
provided uniformity with regard to certain conditions of em­
ployment, but left to sectional bargaining all terms and con­
ditions of employment as to which uniformity was considered 
unnecessary or infeasible. (Tr. Ill, 45-46) From 1958, it 
has been recognized that uniform seniority arrangements in 
the Car-Haul industry were not feasible. (Tr. Ill, 64-65)

The Employer and Teamsters Local 528 are parties to 
the National Master Automobile Transporters Agreement and the 
Central and Southern Conference Areas Supplemental Agreements. 
(Tr. I, 13) Local 528, as the successor to Teamsters Local 
728, has been the exclusive bargaining representative for the 
Employer's drivers since December, 1965, and for its shop and 
yard employees in Atlanta since late 1969. (Tr. Ill, 174-175) 
The Employer's Birmingham employees are represented by Team­
sters Local 612. The International Union holds no representa­
tional rights among the Employer's employees. (Tr. Ill, 58-59) 
The National Master Agreement was negotiated for Locals 528 and 
612 in both 1970 and 1973 by the National Automobile Transpor­
ters Union Committee. (P. Exhs. 19, at 59; 37, at 49) The 
Conference Area Supplemental Agreements were negotiated in 1970 
and 1973 by the Central and Southern Conference Supplemental 
Agreement, Truckaway Negotiating, Local Negotiating and Garage 
Negotiating Committees. (P. Exhs. 19, at 100, 135, 157 & 168; 
37, at 85, 122, 144 & 156) The Committees obtain their ne­
gotiating authority under powers of attorney by which Local



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Unions, the exclusive bargaining agents of employees, authorize 
the Committees to act on their behalf. (Tr. Ill, 59-60)

In both 1970 and 1973, the National Negotiating Com­
mittee was composed of Local Union officials selected by dele­
gates from all Local Unions having members working in the Car- 
Haul industry. (Tr. Ill, 41-44) Walter J. Shea, a salaried 
employee of the International Union, also served on the Na­
tional Committee. (Tr. Ill, 43) The Central and Southern 
Conference Negotiating Committee in 1970 and 1973 was composed 
exclusively of Local Union officials selected by delegates from 
Local Unions representing car haulers within the Conference 
Areas. (Tr. Ill, 65-66) The International Union's General 
President, F. E. Fitzsimmons, was listed as the titular chair­
man of both the National and Conference Negotiating Committees. 
His role was restricted to attendance at the first meeting of 
Local Unions in 1970 prior to commencement of negotiations. He 
attended no meetings in 1973, and had no part in the negotia­
tions for either the 1970 or 1973 contract. (Tr. Ill, 56)
Nor did Mr. Fitzsimmons appoint the members of various commit­
tees established by the contract. (Tr. Ill, 49)

The manner in which proposals were developed and ne­
gotiations were undertaken on the Union side were the same in 
1970 and 1973. The Union proposals for the National Master 
and Supplemental Agreements were formulated by the National 
and Supplemental Union Negotiating Committees, respectively.
(Tr. Ill, 57) In drafting such proposals, the Committee



-14-

members reviewed suggested contract changes submitted by each 
Local Union having members working in the Car-Haul industry. 
(Tr. Ill, 57, 74) After the initial proposals for the Master 
and Supplemental Agreements were drafted, they were reviewed 
by delegates from each Local Union and approved for presen­
tation to the Employers. (Tr. Ill, 57) Bargaining then com­
menced with an exchange of initial proposals. Negotiations 
for the National Master and Supplemental Agreements in both 
1970 and 1973 were conducted separately.

Upon reaching tentative agreement with the Employers 
on the National and all Supplemental Agreements, the proposed 
agreements are submitted to a ratification vote by the member­
ship working in the Car-Haul industry for approval or disap­
proval. (Tr. Ill, 58, 61-62) In both 1970 and 1973, the Na­
tional and all Supplemental Agreements were ratified by the 
membership. Under the International Constitution, "if a ma­
jority of the votes cast by Local Union members voting approve 
such contract, it shall become binding and effective upon all 
Local Unions involved and their members." (P. Exh. 32, Art. 
XVI, § 4(a))

5. Seniority Practices Under the Agreements and 
Local Riders. Seniority is dealt with substantively in the 
National Master Automobile Transporters Agreement only in 
regard to the merger, acquisition or purchase of carriers 
(P. Exhs. 19 & 37, Art. 5, § 1(1)), the opening or closing 
of branches, terminals, divisions or operations (id., § 2),



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and the means by which employees laid off at one terminal can
obtain work at another terminal where additional help is needed
(id*/ § 3). Otherwise the National Master Agreement deals with
seniority in general terms:

Terminal seniority shall prevail to the 
extent to which it is set forth in writing 
in this Agreement and in each of the Sup­
plemental Agreements hereto, including Local Riders . . . .  [Id., §1.]
The extent to which seniority is applied and accrued, 

as well as the methods of such application, at covered 
terminals is set forth in the Central and Southern Conference 
Areas Supplemental Agreements covering Truckaway Local and Ga­
rage operations. (P. Exhs. 19 & 37) Seniority provisions 
covering Garage employees are set forth in Part V of the Sup­
plemental Agreement. Article 81, § 1 of the 1973-76 Agreement 
(P. Exh. 19) and Article 77, § 1 of the 1970-73 Agreement (P. 
Exh. 37) provide as follows:

(a) Company garage seniority shall 
be determined by the time and date each 
employee's payroll earnings begin, as of' his last hire-in date.

(b) Garage employees shall not bump into any other division nor shall any em­
ployee from another division exercise sen- ority in the garage.

(c) Classification seniority shall 
commence at the time and date each employee's 
payroll earnings begin in such classification

Separate seniority lists are also maintained in the 
Yard and Road divisions.



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Transfer between divisions at Motor Convoy's Atlanta 
terminal with carryover competitive seniority is not permitted, 
and no employee has ever transferred while retaining his ac­
crued company seniority, except for fringe benefits and vaca­
tions.—^ (Tr. I, 14-15, 17) Employees on layoff, however, are 
permitted to return to work in a division other than the one 
from which they were laid-off, while retaining their seniority 
standing and recall rights to their former jobs. Upon being 
recalled, however, the employee must decide whether to return 
to his former job, or remain in his new department. If he 
elects to remain in his new department, his seniority dates 
from the time he began therein and he forfeits all rights in 
his old department. (Tr. I, 14-15) Intervenor Spencer moved 
to a road job with Local 528's assistance under this procedure. 
(Tr. I, 99-100; II, 197-99) Likewise, employees W. Samuels 
and M. A. Foy obtained road jobs at Birmingham in this fashion, 
although Mr. Samuels was not on layoff at the time. (Tr. Ill, 
108)

Both the National Master and the Central and Southern 
Conference Areas Supplemental Agreements authorize Local Unions 
to negotiate local riders with individual employers "governing 
any phase of employment they mutually deem necessary . . . ."
(P. Exh. 19, Art. 2, § 6; P. Exh. 37, Art. 2, § 2.) "[T]he

— _ At Motor Convoy's Birmingham terminal, however, a local 
rider permits yard employees to exercise their seniority in the office and clerical department. (Tr. Ill, 188)



-17-

Local Union and the Employer must make a concerted effort to 
mutually agree on Local Riders." (Id., § 7) Seniority is 
specifically designated as a suitable subject for local rider 
treatment. (P. Exh. 19, Art. 5, §§ 1 & 4, Art. 37, §§ 1 & 6; 
P. Exh. 37, Art. 5, §§ 1 & 4, Art. 33, §§ 1 & 6) Although 
Local Unions and employers are empowered to execute local 
riders changing the provisions of the supplemental agreements, 
these riders must be approved by the Central-Southern Confer­
ence Joint Arbitration Committee, a body composed of equal 
numbers of employer and local union officials involved in the 
auto transportation industry within the Central and Southern 
Conference Areas. (P. Exh. 19, Art. 2, § 6; P. Exh. 37, Art. 
2, § .6; Tr. Ill, 46-52)

In order to process and approve local riders, the 
Joint Conference Committee for the Central and Southern Con­
ferences formed a subcommittee called the "Rider Committee." 
The function of this subcommittee was to review the numerous 
riders negotiated by Local Unions and employers shortly after 
the National Master Agreement, together with its Supplemental 
Agreements, was executed to insure that such riders do not 
undercut the wage and fringe standards established by the Sup­
plemental Agreements. International officials do not serve on 
the Joint Grievance Committee or its Rider subcommittee. The 
decision of the Grievance Committee approving a rider is final 
and not subject to further review. (Tr. Ill, 46, 52)

Local riders establishing seniority rules different 
than those set forth in the Supplemental Agreements are used



-18-

extensively in the auto transportation industry. As a result, 
seniority systems (considered to be a matter of local concern) 
differ substantially from employer to employer and even from 
terminal to terminal. (Tr. Ill, 64) Defendant Local 528 has 
negotiated local riders with Complete Auto Transit, one of the 
Employer's competitors, that provide for carryover seniority 
between the Yard and Road divisions at Atlanta (U. Exh. 14),i/ 
and carryover seniority between the Garage and Road divisions 
at Doraville, Georgia. (Tr. II, 212-14; Tr. Ill, 63-64) Other 
instances of local rider departure from the Supplemental Agree­
ments were also noted on the record. (Tr. II, 180-181, 214;
Tr. Ill, 188)

6. Defendant's Shop and Yard Before Their Unioniza­
tion in 1969. Before 1969, none of the shop employees was clas­
sified, although the terms "mechanic" and "helper" have since 
been used to describe their job functions. (Tr. Ill, 90) Only 
trained mechanics and welders performed skilled work on engines 
and auto racks; however, these employees also were called upon 
to perform less skilled and even unskilled tasks. (Tr. I, 84- 
85) Less skilled employees did a variety of jobs in the shop 
and the yard consistent with their ability as assigned by super­
visory personnel. (Tr. Ill, 90-91) Such jobs would include the 
greasing, gassing and cleaning of equipment, as well as changing 
or repairing tires and general clean-up work.

1/ Complete's Atlanta shop employees voted to rescind the carry­
over seniority provisions of their local rider in the early 1960's. (Tr. IV, 25)



-19-

Plaintiff Freeman, sometimes assisted by J. D. Glass, 
frequently worked at changing engines. This involved unbolting 
the engine, removing some equipment that could interfere with 
the change or be damaged by it, lifting the engine with a 
hoist, and replacing the engine with another by reversing 
the process. (Tr. I, 146-47, 149) No actual mechanical 
work on the engine was performed during the change. (Tr. Ill, 
92) Neither Freeman nor Glass performed line mechanical work 
prior to 1969. (Tr. I, 88, 147) Freeman was paid 15jzf to 20jzf 
per hour less than the skilled mechanics. (Tr. Ill, 90) He 
was compensated at a higher rate than was J. D. Glass. (Tr.
I, 140)

Defendant Motor Convoy did not maintain any rule for- 
shop employees from transferring to the Road department 

before or after 1965. (Tr. Ill, 133, 136) It was well under­
stood, however, that since the shop was unorganized and thus 
its employees were not in the bargaining unit represented by 
the union, that such transferees would have to start in the 
Road department at the bottom of the seniority list. As a 
practical matter, this involved no hardship for transferees 
from the shop or yard because such employees had no seniority 
to lose. (Tr. Ill, 150) While there is a dispute whether 
Plaintiff Freeman requested a transfer to a road job (Tr. Ill, 
160), he testified that he was told that he would have to re­
sign and begin as a new employee for competitive purposes.
(Tr. I, 36)



-20-

V

£

In 1965, pursuant to direction of its Board of Di­
rectors, the Employer offered its black yard and shop employ­
ees the opportunity to transfer to road jobs as vacancies arose. 
(Tr. Ill, 132) It was understood that these unorganized employ­
ees, without seniority rights, would have begun their seniority 
for competitive purposes upon entry into the bargaining unit.
(Tr. Ill, 109, 132) There was no response to this offer, ap­
parently because the shop employees preferred the stability of 
their jobs to the fluctuations in road work. (Tr. Ill, 133)
The transferring employee would have been required to terminate 
his employment in the non-union department after qualifying for 
a bargaining unit job. (Tr. Ill, 109, 117)

7. Organization of the Shop and Yard By Local 528.
Teamsters Local 528 is an autonomous labor organization, af­
filiated with the International Brotherhood of Teamsters. It 
elects its own officers free from International supervision 
or control. The Local Union maintains its own bank accounts and 
other property; the International Union has no right to, or con­
trol over, such properties. Other than receiving a monthly per 
capita tax, the International plays no role in Local 528's fi­
nancial affairs. (Tr. Ill, 20-22) The Local Union decides what 
units to organize, and carries on its own organizational activ­
ities. No International officials, employees or agents assisted 
Local 528 in organizing employees, negotiating contracts or 
processing grievances from its inception in 1965. (Tr. Ill, 
66-67)



-21-

Local 528 succeeded in obtaining recognition for the 
shop employees upon a showing of a majority of authorization 
cards in October, 1969. (Tr. I, 14; II, 175) Several weeks 
later, Defendant Motor Convoy extended recognition to Local 
Union No. 528 for the Yard upon a majority showing among yard 
employees. (Tr. IV, 10) Sometime after October 13, 1969, but 
before organization of the Yard (Tr. IV, 11, 26), a meeting of 
shop employees was held for the purpose of voting whether to 
apply the classification seniority provisions of the Central 
and Southern Supplemental Agreements, or to negotiate a rider 
with Motor Convoy providing for a form of seniority carryover 
between the Garage and Road divisions, similar to that negoti­
ated by Local 528 with Motor Convoy's closest competitor, Com­
plete Auto Transit. Shop employees were notified of this meet­
ing by a notice posted on a bulletin board at the shop. Ap­
proximately fifteen or sixteen employees, only three of whom 
were white, attended this meeting. (Tr. II, 179)

Employees attending this meeting voted against allow­
ing shop employees to exercise seniority in the Road division 
and permitting drivers to exercise seniority in the shop. (Tr. 
II> 179-180) This proposal, which was enthusiastically sup­
ported by the drivers who were subject to frequent layoffs due 
to the seasonal nature of Motor Convoy's business (Tr. IV, 5- 
"7, 15-17) , was rejected by shop employees because they were 
concerned about the possibility of being bumped by road dri­
vers. (Tr. IV, 24-25) This result was similar to the decision



-22-

of shop employees at Complete Auto Transit's Atlanta facility 
where, in 1961, they voted to rescind a seniority carryover 
system between road and shop departments that had been in ef­
fect for many years. (Tr. IV, 14, 25) Accordingly, the Em­
ployer and Local Union entered into a rider agreement for the 
period October 13, 1969 through May 31, 1970, which, inter 
alia, applied the seniority provisions of the Supplemental 
Agreements to the shop. (P. Exh. 7)

The procedure followed in this matter was consistent 
with Local Union No. 528's practice of first ascertaining the 
wishes of the smaller department in the matter of seniority 
rights, instead of submitting the matter directly to a vote 
of all affected employees, where the smaller group would be 
dominated by the larger. (Tr. IV, 22-23) This was particu­
larly important at Motor Convoy's Atlanta facility because the 
road drivers had long been on record as favoring carryover 
seniority between the Road, Yard and Shop divisions. (Tr.
IV, 23-25) Consistent with the above-described practice, yard 
employees subsequently decided against affording carryover sen­
iority between the Road and Yard divisions, opting instead for 
the seniority provisions of the Central and Southern Conference 
Areas Supplemental Agreements. (Tr. IV, 13-14)

8. Advancement and Transfer After Unionization of 
of the Shop and Yard Employees. Under the provisions of the 
Central and Southern Garage Supplement (P. Exh. 19, Art. 81,
§ 1; P. Exh. 37, Art. 77, § 1), an employee's company garage



-23-

seniority shall be determined by the time and date his payroll 
earnings begin; he "shall not bump into any other division nor 
shall any employee from another division exercise seniority in 
the garage;" and his "classification seniority shall commence 
at the time and date [his] . . . payroll earnings begin in 
such classification . . . The shop employees were classi­
fied according to their skills and job functions: Welder-
Mechanics (5), Mechanics (16), Helpers (9) and Porters (3).
On October 31, 1969, Defendant Motor Convoy posted a seniority 
list which erroneously set forth the classification seniority 
dates of nearly all shop employees as of October 13, 1969.
(P. Exh. 14, at 32) This list was protested by employees; 
it was some six months before Local 528's business represent­
ative, C. P. Cook, managed to get the various seniority list­
ing problems worked out to everyone's satisfaction. (Tr. II, 
197) Thereafter, all shop employees were credited with their 
proper classification seniority (i.e., the date each employee 
began work in his classification). (Tr. II, 196)

Plaintiff Melvin Freeman was originally classified 
as a helper. Claiming he should have been classified as a 
mechanic, he complained to Local 528 which obtained his re­
classification as a mechanic at the lower steps of the griev­
ance procedure. (Tr. I, 54; II, 193-195) Freeman was unhappy 
at being assigned a classification seniority date of January 
3, 1970, and he filed a grievance protesting such date. (U. 
Exh. 6) This grievance was processed to a Joint Committee



-24-

hearing, with the result that Freeman was awarded a seniority 
date of October 13, 1967. (U. Exh. 7) Additional grievances
dealing with a back pay claim (unsuccessful) and a human 
rights claim (successful) were processed by Local 528 on 
Freeman's behalf. (U. Exhs. 8, 9, 10 & 11) Local 528 also 
counseled Freeman after he admitted an inability to perform 
line mechanical duties and asked to be returned to the task 
of changing engines and obtained his reinstatement as a line 
mechanic through conferences with the Employer. Similarly 
Local 528 was successful in obtaining an earlier classifica­
tion seniority date for Intervenor Spencer. (Tr. I, 111-112; 
U. Exh. 12)

In June, 1970, the Garage Supplement of the Central 
and Southern Conference Area Agreement was significantly a- 
mended to eliminate the helper classification and reclassify 
all former helpers as apprentices. (P. Exh. 37, Art. 79, § 
4(e), at 153) This change resulted in the following shop em­
ployment profile as of March, 1975:

Classification Black White Total

Welder-Mechanic 0 4 4Mechanic 1 12 13Advanced Apprentice Mechanic 0 0 0Apprentice Mechanic 7 3 10Porter 2 0 210 19 29

The importance of the 1970 amendments is that seven



-25-

black and three white employees immediately became eligible to 
advance to the mechanic's classification through the so-called 
"Advanced Apprentice Mechanic" route. Under Article 79, § 1, 
nn. 2 & 3 of the Agreement, any individual who has actually 
worked in the apprentice classification for two years (all 
black employees except Freeman and the two porters)—' were 
entitled to request in writing promotion to advanced appren­
tice status paying 2Ojzf per hour less than mechanics. The sole 
requirement is that they be minimally qualified for the job; an 
opening or vacancy is not required. (Tr. II, 70-72; III, 98- 
102) The qualification determination, if adverse to the appren­
tice, can be processed through the grievance procedure to arbi­
tration. (Tr. Ill, 149)

Thereafter, advanced apprentices advance at the rate 
of five cents per hour each six months until the classification 
and rate of journeyman mechanic is reached. This is an automa­
tic procedure in which an employee's mechanical ability is not 
again questioned after he becomes an advanced apprentice mechan­
ic. (Tr. Ill, 98-102) A mechanically qualified employee, whe­
ther an apprentice or a porter, may also use his company garage 
seniority to bid directly into an opening in the mechanic's

— The 2 porters were Hugh Brooks and Sam Freeman; Brooks never 
attempted to obtain promotion to an apprentice mechanic job, 
while Freeman was given a trial period on the duties of that 
classification, and stated that he could not perform them. (Tr. Ill, 102-103)



-26-

classification. (Tr. Ill, 152) The mechanic and welder- 
mechanic classifications are considered highly skilled jobs 
carrying a current pay rate of $6.60 and $6.70 per hour 
straight time. (P. Exh. 19, Art. 83, § 1) In comparing the 
skilled mechanic's job with the semi-skilled drivers' job, 
it was estimated that a driver would have to work sixty to 
seventy hours each week in order to earn what a mechanic is 
paid for a forty hour week. (Tr. Ill, 147-148)

No black or white apprentice has ever requested 
promotion to advanced status. (Tr. Ill, 99, 164) Nor did 
any apprentice or porter bid on the single mechanic's vacan­
cy that arose in November, 1970. To perform as an advanced 
apprentice, an employee would have to acquire his own hand 
tools. (Tr. I, 148) In .the event of layoff from the jour­
neyman mechanic classification, a former apprentice would be 
entitled to use his garage seniority to bump into the ap­
prentice classification. (P. Exhs. 19, Art. 81, § 2(a); 37, 
Art. 77, § 2(a).) Thus apprentices may utilize this proce­
dure to advance to the mechanic classification without fear 
of sacrificing their accrued seniority.

%
B. The Decision Below

The District Court held that the Plaintiff's sta­
tistical evidence established "a prima facie case of past 
discrimination in hiring and job assignment" with respect to 
the class as a whole. This showing, the Court said, had not



-27-

been rebutted by Defendants. In particular, the Court con­
cluded :

Defendants have discriminated against 
black applicants for employment on ac­
count of their race and defendants have 
also discriminated against black em­
ployees by assigning them to lower pay­
ing, less desirable jobs, and by refusing 
to recognize their equal right to pro­
motional opportunities and on-the-job 
training. [JA ]

Based on this conclusion, the Court held that the classifica­
tion seniority provisions of the collective bargaining agree­
ment locked black employees into inferior jobs, and thus per­
petuated initial hiring and assignment discrimination. The 
Unions and the Employer were held jointly and severally liable 
for the continuing discriminatory effects of the seniority 
system.

The lower Court held that the International Union 
had been properly served under Ga. Code Ann. § 3-119, in that 
service had been perfected by serving an official of Local 
528. Since the Court concluded that the Plaintiffs had shown 
a substantial connection between the International and the 
seniority provisions in issue, it stated that maintenance of 
the suit did "not offend 'traditional notions of fair play 
and substantial justice.’" The basis on which the Interna­
tional was found responsible for the alleged discriminatory 
seniority provisions turned on its status rather than its 
conduct:

This is a system wide case, governed by 
system wide policies of discrimination.



-28-

But for the existence of the International 
Union, these policies could not be effec­
tively perpetuated by the existence of the 
system wide seniority system. As a result, 
this Court has concluded that the Interna­
tional Union must be held liable for the 
discriminatory effects of this seniority 
system. [JA ]

The District Court made no finding of International involve­
ment in negotiations of the Supplemental Agreement containing 
the disputed seniority system; nor did it find that the Inter­
national had approved such agreement. No findings of actual 
International control over the negotiations were made. The 
Court acknowledged the Local Union's effective control over 
seniority arrangements but found this fact immaterial.

The Court defined the class to include all black em­
ployees in the Southern Conference,—^ other than office or 
supervisory personnel, and established the back pay recovery 
period as commencing on February 12, 1968. It held, however, 
that black applicants could not be represented by Plaintiffs. 
Thereupon the Court entered an extensive injunction, providing 
for, inter alia, transfer with seniority carryover between the 
Garage, Shop and Yard divisions at the Employer's Atlanta ter­
minal; transfer with seniority carry over to the Road division 
at other Southern Conference terminals; promotion between clas 
sifications within divisions with carryover seniority; and 
training, recruitment, hiring and reporting provisions. The

6/ Former black employees who were terminated after August 16 
1969, were also included in the class.



-29-

transfer rights of the injunction were conditioned upon the 
existence of a "vacancy" which the Court redefined on Febru­
ary 11, 1976, to include positions subject to the recall rights 
of employees. (JA )

SUMMARY OF ARGUMENT
1. The plaintiffs and class members were not as­

signed to shop jobs on the basis of race; they were assigned 
at hire based on their qualifications and the availability of 
vacancies. Evidence of statistical imbalance in the Employer's 
Road department, attributable to the paucity of minority ap­
plicants and circumscribed recruitment, is not probative of 
the separate issue of assignment discrimination.

2. The class was not "locked into" shop jobs after 
hire. Their was no evidence, other than perhaps statistical, 
of pre-act transfer discrimination. In 1965, the Employer 
expressly offered class members the opportunity to transfer 
to the Road department; as unorganized employees without sen­
ility rights, they would begin to accrue seniority for the 
first time upon their entry into the bargaining unit. After 
their organization in 1969, the class members rejected a local 
rider seniority adjustment that would have permitted them to 
exercise their new-found hire date seniority in the Road de­
partment. Moreover, the Supplemental Agreement contained a 
promotion procedure which, if utilized by the class members 
would have led to their promotion to the lucrative mechanic



-30-

classification, the most prestigious hourly job available at 
the Employer's facility.

3. On this record, the Union defendants should not 
have been held jointly and severally liable for back pay, costs 
and attorneys fees. So far as the District Court concluded 
that the Unions, along with the Employer, discriminated in 
hiring, job assignment, promotion and work training opportu­
nities, its findings or conclusions were clearly erroneous.
The record is clear that the Union had no role whatever in 
such personnel actions, except insofar as it remedied Em­
ployer conduct adverse to Plaintiffs and class members through 
the grievance procedure. Local 528 offered to obtain senior­
ity adjustments to enable black employees to exercise their 
full seniority on the road. It obtained and implemented an 
automatic procedure for promotion to mechanic. If these ef­
forts were frustrated by the class or the Employer, it is im­
proper to hold the Union responsible therefor.

4. Plaintiffs' proof failed to show a substantial 
connection between the International Union and the seniority 
provisions at issue. The International neither negotiated nor 
approved these provisions. Seniority is totally under the 
control of Local Unions. The lower Court's finding that, but 
for the International Union, there would be no Conference wide 
agreement with discriminatory provisions is clearly erroneous. 
Conference wide agreements had existed for twenty years before 
the National Master Automobile Transporters Agreement came into

\



-31-

existence. Thus the lower Court erred in finding the Interna­
tional responsible for the conduct of Local 528, an autonomous 
labor organization, and in holding the International amenable 
to suit in the forum State.

ARGUMENT

I. BLACK EMPLOYEES WERE NOT
ASSIGNED TO SHOP JOBS ON 

THE BASIS OF THEIR RACE AND COLOR

This case does not arise in the freight industry and 
does not involve the National Master Freight Agreement. It 
presents issues arising out of different facts than the freight 

, cases with which this Court is familiar. Motor convoy employs 
no city drivers; all driving personnel are carried on a single 
terminal seniority list. The employees in the alleged class 
are shop personnel who were not hired to drive; who expressed 
no interest in driving at hire; and who possessed no particular 
qualifications at hire to suit them for employment as drivers. 
Unlike the freight industry cases, the alleged class here is 
not composed of black city drivers who wanted to drive and 
exhibited sufficient ability at hire to cause the employer to 
put them behind the wheel of a tractor-trailer. The importance 
of this fact is that it bears on the weight to be accorded 
Plaintiffs' statistical evidence in the ultimate determination 
of whether minority employees were placed in particular jobs 
because of their race.



-32-

j
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i

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This Court has held that statistical evidence show­
ing a significant disparity in the racial composition of city 
and road units establishes a prima facie case of discrimina­
tion. Rodriguez v. East Texas Motor Freight, 505 F.2d 40 
(C.A. 5, 1974). In United States v. T.I.M.E.-D.C., 517 F.2d 
299 (C.A. 5, 1975), this Court referred to "the decisive sig­
nificance of flagrant statistical deviations" in the freight 
industry. It is not our purpose or burden to challenge these 
holdings here. For, on this record, we shoulder the burden 
of going forward to demonstrate why "the apparent disparity 
is not the real one," Rowe v. General Motors Corp., 457 F.2d 
348, 358 (C.A. 5, 1972), at least in regard to the asserted 
racially motivated job assignments in issue.

In this respect, it is worthy to note 
that the establishment of a prima facie 
case does not require a finding in favor 
of the party establishing it; but only per­
mits that finding. Wright v. Rockefeller,
372 U.S. 52, 57 (.1963). A risk on non­
persuasion is yet on the plaintiff . . .
just as is a risk of non-persuasion on the 
defendant if he does not rebut the prima 
facie case . . . .  So the court, in de- 
termining whether a party has successfully 
overcome the risk of non-persuasion, should 
consider all of the statistical information 
before it, as well as all the other evidence 
bearing on the presence or absence of dis­
crimination in employment. [Roman v. ESB,13 EPD 1[ 11,285 (C.A. 4, 1977) . ]
In this case, the racial imbalance in the Road depart­

ment shown by Plaintiffs' statistics was attributable to a pau­
city of minority applicants and overly restrictive recruitment



-33-

practices, such as reliance on "walk-ins" and "word of mouth" 
advertising. (Tr. I, 17) Unlike the freight industry 
cases, where minority drivers applied and were assigned to 
°ity instead of road jobs, the racial imbalance in Motor Con­
voy's Road department was attributable to the small number of 
minority applicants for driver positions.-/ Thus Plaintiffs' 
statistical evidence creates a much weaker inference of as­
signment discrimination— the ultimate fact to be proved-/ 
than has been true in other cases before this Court. It fol­
lows that Plaintiffs' risk of nonpersuasion is commensurately 
greater.

In determining whether black employees were discrim- 
inatorily assigned to shop jobs, it is obviously relevant whether

y Unlike Franks v. Bowman Transp. Co., 495 F.2d 398 (C.A. 5, 
1974), rev'd on other grounds, 423 U.S. 814 (1976), the Plain- 

here did not show that any individual black applicant for 
a driving job was denied employment because of his race. (Tr II, 49-54; 54-60; III, 184-214)

8 /— _ The theory upon which restrictive seniority systems are 
said to perpetuate the effects of past discrimination, first developed in Quarles v. Phillip Morris, 279 F. Supp. 505 
iE:?*-Ya* 1968) and U.P.P. Local 189 v. United States, 416 F.2d 980 (C.A. 5, 1969), cert, denied, 397 U.S. 919 (1970), 
requires a showing that minority employees were assigned or 
placed in^inferior jobs and departments. See Pettway v. 
American Cast Iron Pipe Co.. 494 F.2d 211, 218 (C.A. 5, 1974)
( until 1961 the Company formally maintained exclusively black 
jobs and exclusively white jobs."); Johnson v. Goodyear Tire & 
Rubber Co., 491 F.2d 1364, 1373 (C.A. 5, 1974) “ ("Once it has 
been determined that blacks have been discriminatorily assigned 
to a particular department within a plant, departmental sen­
iority cannot be utilized to freeze those black employees in­to a discriminatory caste.")



-34-

the Employer acted on the basis of job-related attributes, or 
whether race is the only identifiable factor explaining what­
ever statistical disparities may exist. Roman v. ESB, supra,
13 EPD 1| 11,285, at 5934. Thus in United States v. Jackson­
ville Terminal Co., 451 F.2d 418 (C.A. 5, 1971), cert, denied, 
406 U.S. 906 (1972), this Court held, inter alia, that the 
Government had failed to sustain its burden of proving that 
Defendant Terminal had engaged in racially discriminatory job 
assignments after July 2, 1965. Terminal officials testified 
that they applied a "best qualified" standard exclusively; 
they recounted how they were able to place experienced persons, 
or those who had attained a certain educational level in par­
ticular jobs, and generally the testimony revealed "that super­
visory personnel believed they were assessing applicants' qual­
ifications in terms of job-related attributes, not race, after 
the Act's effective date." Id., at 445. Instead of attempting 
to contradict this testimony, "the Government chose to stand on 
statistics elucidating post-Act employment disparities." This 
was not enough:

Once Terminal officials proffered jus­
tifying explanations for their actions, the 
Government should have shown that stated 
policies and assignment realities did not 
coincide after July 2, 1965. [Id., at 446.]
This aspect of Jacksonville Terminal throws into sharp

perspective the central issue in this case, that is, whether the 
assignment of black applicants for employment to shop instead of 
road jobs in the years prior to Title VII's effective date was



>t a.-.v jv - . . i.u 3 ■>- — u

-35-

discriminatory where such employees had no driving experience 
or other qualifications suiting them for road employment. At 
the trial, Company officials testified to their efforts to ob­
tain the best qualified drivers (e.g., Tr. Ill, 185), and that 
Motor Convoy never had a policy of barring blacks from road 
jobs. (Tr. Ill, 136) It was stipulated that the Company pre­
fers road drivers with prior driving experience (Tr. I, 16); 
and exhibits introduced by the parties show only sixteen white 
nd two black drivers without actual driving experience were 

hired. (P. Exhs. 11 & 12) And of those sixteen white drivers, 
many had some related experience with motor vehicles and con­
struction equipment (e.g., P. Exh. 11), or in Raymond Hill's 
case, with securing heavy equipment by means of chains and 
other restraints (Tr. II, 96-97), suggestive of job-related 
attributes.

The Fifth Circuit Court of Appeals has stressed that 
Plaintiffs in Title VII cases need not demonstrate that indi­
vidual members of a certified class meet the criteria set forth
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411

^  l 9/U.S. 792 (1973),- as part of their case-in-chief in order to

_/ '"phe complainant in a Title VII trial must carry the initial 
burden under the statute of establishing a prima facie case of 
racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qual­
ified for a job for which the employer was seeking applicants;(iii) that, despite his qualifications, he was rejected; and
(iv) that, after his rejection, the position remained open and 
the employer continued to seek applicants from persons of com­
plainant's qualifications." 411 U.S. at 802.



establish a prima facie case which must be met or explained 
by defendants. Rodriguez v. East Texas Motor Freight, supra, 
505 F.2d at 55. This holding does not mean, however, that 
record evidence demonstrating that new employees were assigned 
to jobs and departments consistent with the availability of 
vacancies and their abilities can be disregarded. For it would 
be anomalous to conclude that an employer has pursued a pattern 
or practice of assignment discrimination against a class on a 
record indicating, as here, that individuals within the class 
were not discriminatorily assigned on the basis of race.

Thus in the instant case, it is clear that all but 
four of the black shop employees in the alleged class were as­
signed to the shop instead of the road department because Motor 
Convoy was able to obtain experienced drivers for its road va­
cancies during the years such shop employees were hired. Four 
black shop employees were hired and assigned in 1954, 1955 and 
1957, years in which three white drivers (J.A. Carter, H. D. 
Hicks and W. C. Bates), without prior road experience were 
hired. Carter and Bates acquired their familiarity with vehi­
cles and motors by driving on a farm and working as a mechanic, 
respectively. (C. Exhs. 15g & 15i)

More important, it does not appear that these three 
. whites were hired and assigned to road vacancies that were 
available at the times black employees Higgins, Brooks, Allen 
and Glass were hired and assigned to the shop. Thus in the 
intervening six months between the dates Higgins and Carter



-37-

were employed, Motor Convoy hired four experienced road drivers. 
Similarly seven drivers with experience were employed, respec­
tively, four of whom were hired after Allen but before Hicks. 
Supra at pp. 10-11. Consequently it affirmatively appears that 
Carter and Hicks were not hired for road vacancies for which 
the employer was seeking applicants at the times Higgins, Brooks 
and Allen were hired and assigned to shop jobs.— ^ The unavail- 
ability of vacancies is fatal to an allegation of discrimination 
in assignment in class actions, as well as in individual dis­
crimination cases. See United States v. Georgia Power Co., 3 
[CCH] EPD 1[ 8318, at 7089 (N.D. Ga. 1971) , aff'd in part, va­
cated for consideration of other issues and remanded, 474 F.2d
906 (C.A. 5, 1973).

Defendant Unions submit that the foregoing evidence 
constitutes a sufficient explanation of why black employees 
were assigned to shop instead of road jobs at hire, and rebuts
any inference of assignment discrimination arising from Plain­
tiffs' statistical evidence. This result is particularly ap­
propriate here because, as distinguished from the freight in­
dustry cases, the statistical profile of Motor Convoy's road 
department furnishes an unreliable indicator of why alleged 
class employees were assigned to shop jobs, and thus the Court

10/ T —  In regard to J, D. Glass, it likewise appears that there 
were no road vacancies available at the time he was hired on 

v June 3, 1957. The next road vacancies were filled in late 
August 1957, when 5 road drivers were hired, including W. C. 
Bates.^ (P. Exh. 14, at 51-53) This fact, together with Glass'

^.mechanical training, suggests that his assignment to a shop job 
assisting Plaintiff Freeman was a rational, "nondiscriminatory jpb action. \  J'V. TV\

A



-38-

should view such statistics with some skepticism. Instead of 
resting on their statistics, therefore, Plaintiff and Inter- 
venor were required to come forward with evidence that Motor 
Convoy had driving vacancies at the time they were hired, or 
at least within the period between the time they first sought 
employment with the employer and their hire dates, and they 
were equally or better qualified than the white drivers who 
filled these vacancies. The failure of Plaintiff and Inter- 
venor to carry their ultimate burden of proof requires a find­
ing that members of the alleged class were not discriminatorily 
assigned to shop jobs on the basis of their race or color.

II. BLACK SHOP EMPLOYEES WERE
NOT "LOCKED INTO" THE JOBS TO 
WHICH THEY WERE ORIGINALLY 

ASSIGNED PRIOR TO THE EFFECTIVE 
DATE OF TITLE VII OF THE CIVIL RIGHTS 

ACT OF 1964
It is well established that Title VII is not to be ap­

plied retrospectively, and in order to establish a post-Act vio­
lation, it must be shown that minority employees were "locked in­
to" inferior jobs and departments after July 2, 1965, by overtly 
discriminatory employment practices, or by practices, neutral on 
their face, having the effect of unlawful discrimination. Griggs 
v. Duke Power Co., 401 U.S. 424 (1971); U.P.P. Local 189 v. Uni­
ted States, supra, 416 F.2d at 987. There was considerable tes­
timony to the effect that black shop employees were entitled to 
transfer to the Road department long before Local 528 became 
their representative. In 1965, pursuant to direction by Motor 
Convoy’s Board of Directors, company officials offered black



-39-

shop employees the opportunity to transfer to road jobs. (Tr. 
Ill, 132) Those who transferred would begin to accumulate 
competitive status seniority on the date they began as road 
drivers.

This evidence refutes any allegation that Defendant 
Motor Convoy maintained or applied a no-transfer policy after 
July 2, 1965, the effective date of Title VII.— ^ The fact 
that transferees would have started at the bottom of the road 
seniority list cannot be considered an inhibition against trans­
fer within the meaning of Title VII. Unorganized and other non­
unit personnel, upon transfer to a bargaining unit job, always 
begin to accrue seniority as of their date of transfer. There' 
is nothing discriminatory or unlawful about this universal pro­
cedure. See, e.g., Murray v. OCAW Local 8-472, 88 L.R.R.M. 2119 
(D. Conn., 1974). Furthermore, seniority is solely a creature of 
contract. Aeronautical Indus. Dist. Lodge 727 v. Campbell, 337 
U.S. 521, 526 (1949). As unorganized employees not covered by 
a contract, black garagemen had no seniority to lose by trans­
ferring to road jobs. Indeed, they would gain legally cogniz­
able seniority rights by such transfer.

In late 1969, as a result of designating Local 528 
as their exclusive representative and the subsequent execution 
of the Central and Southern Garage Supplement, shop employees 
acquired seniority rights. The nature of these rights, however,

Compare Franks v. Bowman Transportation Co., supra, 495 F.2d 
at 411, where minority employees were told they could not trans­fer at all.



was not dictated in national or regional bargaining. Nor were 
the seniority rights obtained for shop employees determined by 
the majority choice of a predominately white group. It was 
shown at trial that Local 528 held a meeting of shop employees, 
properly advertised in advance, at which they voted on the 
question whether to apply the classification seniority provi­
sions of the Garage Supplement, or to negotiate a rider agree­
ment with Motor Convoy providing for seniority carryover be­
tween the Shop and Road departments. This meeting, attended 
by twelve black and three white employees, resulted in a vote 
in favor of adopting the Garage Supplement. Supra at pp. 21- 
22 .

The testimony regarding this vote was in conflict. 
Plaintiffs' witnesses stated that the only vote they recalled 
dealt with seniority carryover between the Yard and Shop de­
partments, a proposal defeated by the Yard employees, and that 
they remembered no vote concerning a seniority merger with the 
Road department. (Tr. IV, 29-53) The District Court thought 
it unnecessary to resolve the conflict in testimony, incor­
rectly viewing the evidence as being addressed to the Interna­
tional Union responsibility issue. (JA )— / This was *
error. The evidence was highly material to the questions of

— ^ As noted in Part IV below, it is the exclusive authority 
of Local Unions over seniority arrangements at individual ter­minals, not whether a particular vote was taken, that is im­
portant in regard to International responsibility.



-41-

whether class employees were "locked into" shop jobs by the 
Union, and whether the Union intentionally engaged in an un­
lawful employment practice. 42 U.S.C. § 2000e-5(g).

The District Court relied on Rodriguez v. East Texas 
Motor Freight, Inc., 505 F.2d at 51 and Sabala v. Western Gil­
lette, Inc., 516 F.2d 1251 (C.A. 5, 1975), in concluding that 
the vote of the shop employees constituted no defense for the 
Union. In Rodriguez, this Court rejected a business necessity 
defense based on a vote of Defendant Local 657's city drivers, 
the majority of whom were minority persons, against a merger of 
city and road seniority lists. This vote was taken two weeks 
after the close of the trial, and the record did not disclose 
"what assumptions were made implicit." Moreover, "the extent 
to which the vote represent[ed] the actual preference of the 
class . . . [was] unclear," 505 F.2d at 51, because Local 657's
membership was not "congruent" with the class alleged in the 
Complaint. The Court also noted that seniority carryover from
the city to the road, without reciprocal rights for road dri-

13/vers, could have been allowed.—
Rodriguez presented a much different situation than 

the instant case. Here virtually every member of the class

13/—  The Sabala case provides no guidance in the instant case 
whatever. There the defendant Local Union petitioned the Na­
tional Freight Industry Negotiating Committee to merge the road and city seniority systems. On this ground, and because it did 
not initiate or negotiate the contracts, the Local Union argued that it had not violated Title VII. This Court stated, "Given 
the Local's informed decision to participate in the national bar­
gaining negotiations despite discrimination, because of the tangi 
ble economic benefits a national contract promised to its members 
we find that argument unpersuasive." 516 F.2d at 1263.



-42-

voted. The vote itself was taken immediately upon organiza­
tion of the Shop. It was neither superimposed upon years of 
bargaining history nor taken in response to litigation. And 
its assumptions, based on Local 528's carryover seniority ar­
rangements with Complete Auto Transit, were explicit. Further 
the shop employees involved were newly organized. They had no 
established seniority rights to be protected by the preferen­
tial transfer treatment suggested by this Court in Rodriguez. 
Nor, in view of the inherent instability of road employment, 
is it clear that shop employees would have been benefited by 
a one-time transfer to the road, which would have precluded 
their return to the shop. Finally the issue here is not whether 
the vote precluded a remedy for past discrimination perpetuated 
on business necessity grounds. For it is clear that, had carry­
over seniority been authorized by the class in 1969, there would 
be no alleged discriminatory seniority provisions to perpetuate 
the challenged assignment discrimination found by the Court be­
low. Thus the vote in this case relates to liability and not 
to remedy. Rodriguez is not controlling.

We submit that Local 528 was entitled to rely on the 
above-described vote of black shop employees in favor of divi­
sional and classification seniority, and that it cannot be 
found in violation of Title VII for implementing the wishes 
of its black members.— ^ Cf. Thornton v. East Texas Motor

14/ ~Local 528 is quite conscious of the wishes of its black 
members in that they comprise 40% of its total membership.(Tr. Ill, 9)



-43-

Freight Inc., 497 F.2d 416, 426 (C.A. 6, 1974). This choice 
by a majority of black employees refutes the notion that they 
were locked into shop jobs by action of their bargaining a- 
gent.

Nor was road employment the only route to high-pay­
ing, prestigious work at the Employer's facilities. The Cen­
tral and Southern Garage Supplement covering, among others, 
the Employer's Birmingham and Atlanta terminals contains an 
automatic upgrading procedure whereby employees working at ap­
prentice work for at least two years eventually become mechan­
ics by requesting promotion to the advanced apprentice classi­
fication in writing, and displaying their ability to perform 
advanced apprentice work. Thereafter, their pay is increased 
at six-month intervals until, two years after they became ad­
vanced apprentices, they reach the pay rate and classification 
of mechanic. No vacancy is required to advance under this 
system, and an advanced apprentice's ability to perform as a 
mechanic is not again questioned after his entry into the pro­
gram. (P. Exhs. 19, Art. 83, § 1; 37, Art. 79, § 1) An em­
ployee becoming a mechanic in this fashion is given seniority 
credit in the mechanic classification for time spent as an 
advanced apprentice. (Id., Art. 81, § 3(c))

No member of the alleged class sought advanced ap­
prentice standing. (Tr. Ill, 99, 164) At trial, the Plain­
tiffs urged that this advancement procedure was discriminatory 
for two reasons: First, since advanced apprentices may not



-44-

work while mechanics are laid off under the contract (Art. 8,
§ 2(a)), Plaintiffs contended that white employees could bump 
black employees with greater terminal seniority. Second, 
Plaintiffs argued that promotion to advanced apprentice status 
was in the sole discretion of white supervisory personnel, a 
discretion not limited by objective qualification criteria.
The lower Court made no specific findings regarding the ad­
vancement procedure. It did say in general terms that Defend­
ants have refused to recognize the equal right of black em­
ployees "to promotional opportunities and on-the-job training." 
(JA ) The Court ordered the Employer to establish a me­
chanic training program at its Atlanta terminal, and to develop 
objective qualification criteria for promotion to mechanic. 
Vacancies in mechanic jobs were to be offered to qualified 
class members first (JA ) with seniority to be based on
qualification date.

The District Court erred in several respects concern­
ing the availability of promotional opportunities in the Ga­
rage. Absent actual findings that the advanced apprentice 
route to mechanic jobs was discriminatory or perpetuated past 
discrimination, the District Court was without authority to 
modify it. Myers v. Gilman Paper Co., 544 F.2d 837 (C.A. 5, 
1977); Watkins v. Scott Paper Co., 530 F.2d 1159, 1174 (C.A.
5, 1976); Stevenson v. International Paper Co., 516 F.2d 103, 
118 (C.A. 5, 1975). And, most certainly, the District Court 
was not entitled to re-introduce a vacancy requirement and



-45-

direct the Employer to develop what no doubt will be elaborate 
qualification criteria, thereby diminishing employee protec­
tions won through collective bargaining. We show below that 
the advanced apprentice procedure is nondiscriminatory in fact 
as well as in name; that black employees could resort to it 
without penalty arising from past discrimination.

The first consideration is whether black employees 
had a realistic chance of qualifying for advanced apprentice 
standing. Plaintiffs contended they did not because there were 
no objective standards to limit the discretion of white super­
visory personnel. By this argument, they attempted to bring 
themselves within the rule of Rowe v. General Motors Corp., 
supra, 457 F.2d 348, where this Court held that in an un­
organized plant, the employer violated Title VII by not es­
tablishing objective qualification criteria to guide its mostly 
white supervisory force in determining the eligibility of em­
ployees for promotion from hourly to salaried jobs. What dis­
turbed the Court in Rowe was that "there [were] . . .  no safe­
guards in the procedure designed to avert discriminatory prac­
tices." Id., at 359.

Here, in contrast, shop employees are supported by a 
vigorous representative, and the question whether an apprentice 
is sufficiently qualified for advanced standing is expressly 
made subject to the grievance procedure. (P. Exh. 19, Art. 83, 
§ 1 n.3, at p. 163) The record unambiguously shows that the 
Union obtained Plaintiff Freeman's re-classification as a



-46-

journeyman mechanic. (Tr. I, 54; II, 193-195) It obtained 
an earlier classification date for him through the grievance 
procedure, and also successfully processed a human rights 
claim on his behalf. (U. Exhs. 10, 11) Obviously, then, the 
Employer's discretion regarding advancement to the mechanic 
classificiation is not unbridled and is subject to safeguards 
far more adequate than those envisioned by this Court in Rowe.

Employees may obtain promotion to the mechanic clas­
sification without sacrificing their seniority and layoff pro­
tection. Although advanced apprentices may not work when me­
chanics are on layoff,— ^ the contract prohibits bumping into 
the advanced apprentice classification. (P. Exh. 19, Art. 8,
§ 2(a)) If there is insufficient work in the mechanic classi­
fication necessitating a layoff of mechanics, advanced appren­
tices would exercise their total Garage (company) seniority in 
the apprentice classification. And the junior-most mechanic 
would go out on layoff before the advanced apprentice. (Id.; 
Tr. II, 71-72) As noted above, moreover, upon reaching the 
mechanic classification, the former apprentice receives full 
seniority credit for the time he spent in advanced status.

The preceding discussion demonstrates that the con­
tractual promotion procedure is superior in every way to the 
program decreed by the lower Court. Instead of qualification

The purpose of this provision is to insure that an em­
ployer does not undercut the wage and benefit standards of 
the contract by laying off mechanics, while using lower- paid advanced apprentices to do their work.



-47-

date seniority, the promotee receives seniority credit for the 
time he spends in training. The contract procedure is auto­
matic; there can be no disqualification of the apprentice once 
he reaches advanced status. He receives regular pay incre­
ments during training. Entry into the program is governed by
minimum standards and enforced through the grievance proce- 

16/dure. It follows that the lower Court erred in holding
that the collective bargaining agreement "insure[s] that the 
members of plaintiffs' class are effectively locked into their 
lower paying, less desirable jobs, with no adequate opportun­
ity to transfer into more desirable jobs." (JA

III. THE UNION DEFENDANTS SHOULD NOT 
HAVE BEEN HELD LIABLE FOR BACK 
WAGES, COSTS AND ATTORNEYS'

FEES ON THIS RECORD

The lower Court ordered that "all awards of costs, 
attorneys' fees and back pay shall be borne by the defendants 
jointly." (JA This result fails to take into account
the respective' fault of the parties, assuming arguendo, that 
Title VII liability was properly found. We submit that even 
given the lower Court's wide latitude in formulating remedies, 
an allocation of monetary responsibility not firmly grounded

16/ In the arbitration proceedings, the Employer would be re­
quired to "prove by evidence" that the applicant for advanced 
status "was not qualified." If "the panel ruled that he was, 
he would automatically go in. That decision would be final and binding." (Tr. Ill, 149)



-48-

on findings regarding the relative culpability of the parties 
cannot be upheld. Cf. Johnson v. Ryder Truck Lines, Inc., 10 
EPD 1[ 10,535 (1975), judgment issued, 11 EPD K 10,692 (W.D.
N.C. 1976), aff'd, 13 EPD 11 11,607 (C.A. 4, 1977). See gen­
erally Myers v. Gilman Paper Co., supra, 544 F.2d at 851-852.

this Circuit, of course, a finding that seniority provi­
sions constitute a concurrent cause for the perpetuation of 
past employer discrimination exposes the defendant unions to 
backpay liability. United States v. T.I.M.E.-D.C,, Inc., 
supra, 517 F.2d at 316. It is equally true as this Court has 
recognized, that the inquiry does not end with the notion "it 
takes two to tango in collective bar-gaining."

That* argument provides useful guidance 
in identifying the wrongdoers, but it 
is conclusional and largely irrelevant 
once a court passes the finger-pointing 
stage and begins deciding who is to 
bear the dollars and cents responsibil­
ity for righting the wrong. [Guerra v.
Manchester Terminal Corp., 498 F.2d 
641, 655-656 (C.A. 5, 1974).]
An empirical consideration of the Union's culpability, 

if any, must take note of the fact that the Union has no his- 
of segregation. Compare Gamble v. Birmingham Southern 

Rj_R. , 514 F.2d 678, 686-687 (C.A. 5, 1975). Rather the Union 
is heavily integrated (approximately 40 percent black), with 
black officers and a pre-1965 record of affirmative action.
(Tr. Ill, 8—13) In terms of the violations found by the lower 
Court, such as hiring and job assignment discrimination, it is



-49-

clear that the Union had no role in job assignment or hiring. 
(Tr. II, 134) There is no record evidence that the Union dis 
couraged transfer between departments at Motor Convoy. In­
deed, the sole evidence, as related by Plaintiff Spencer, is 
to the contrary. (Tr. I, 112) At trial, there was no hint 
from any source that the Union somehow failed to recognize 
the right of black employees to equality in promotion and job 
training. Again, the only evidence is to the contrary. (Tr.
I, 89-90)

On the other hand, there was substantial evidence 
that the Union represented employees in the alleged class a- 
gressively and fully. All but one of Plaintiff Freeman's 
grievances were won by the Union; these included two rein­
statements for wrongful discharges. (Tr. I, 63-66) The one 
unsuccessful grievance, relating to a claim for back pay 
during the period Freeman contended he should have been clas­
sified as a mechanic, was processed to arbitration and the 
arbitral committee rejected his claim. (Tr. I, 67-68) Fol­
lowing organization of the Garage in October, 1969, many em­
ployees protested their seniority by the Employer. After con 
siderable effort, Local 528 managed to resolve all classifi­
cation seniority grievances in favor of the employees. (Tr.
II, 196-197)

These are the facts. They refute any suggestion 
that the Union participated or acquiesced in any act of dis­
crimination against any black employee. Since it cannot be



-50-

seriously disputed that the Union acted in good faith, the 
door to equity is open and it may at least press its claims 
"on the Chancellor's conscience." Albemarle Paper Co. v.
Moody, 422 U.S. 405, 422 (1975). Such a claim is par­
ticularly appropriate where, as here, the Union's alleged 
offense of entering into a seniority system lawful on its 
face is wholly derivative from the Employer's asserted dis­
crimination in job assignments. In considering the Union's 
equitable claim, it must be noted that the issue is not whether 
deserving black employees, if any, will be made whole for past 
injuries. Rather the issue is which defendant will bear the 
dollar and cents responsibility for doing so.

In many cases where labor organizations have been 
held monetarily liable, the unions involved have resisted em­
ployer overtures to change suspect seniority systems. E.g., 
Carey v. Greyhound Bus Co., 500 F.2d 1372 (C.A. 5, 1974); 
Johnson v. Goodyear Tire & Rubber Co., supra, 491 F.2d 1364.
In others, union liability was predicated on the organiza­
tion's "passivity at the negotiating table" in the face 
of asserted employer discrimination. Macklin v. Spector 
Freight System, Inc., 478 F.2d 979, 989 (C.A. D.C. 1973), com­
plaint dismissed on remand, 9 EPD 1| 10,154 (D. D.C. 1975), 
aff'd, 13 EPD 1[ 11,418 (C.A. D.C. 1977). In the instant case, 
no finding of either resistance to Title VII's purposes or



-51-

negotiating passivity can ke macje> a s noted above, Local
528's negotiating posture was dictated by the members of the 
alleged class at a meeting held to determine whether the Union 
would attempt to obtain seniority carryover rights between the 
Garage and Road departments, or to obtain the departmental 
seniority system in the Supplemental Agreements. Departmental 
seniority was the overwhelming choice.

From the standpoint of pure equitable considerations, 
we submit that the Union should not be required to respond in 
what may amount to extensive monetary damages for back pay, at­
torneys' fees and costs for simply implementing the wishes of 
its minority members freely expressed. To require the Union 
to shoulder extensive liability on this record would not fur­
ther Title VII's central statutory purpose "of eradicating 
discrimination throughout the economy . . . ." Albemarle 
Paper Co. v. Moody, supra, 422 U.S. at 421. Would such 
a result cause labor organizations to engage in any form of 
meaningful self-examination of their practices? We think 
not. Most will simply assume that liability will attach as 
a matter of course. The more likely message is to employers

We do not believe that the advanced apprentice upgrading 
procedure in the contract, which the Union negotiated and 
obtained for the express benefit of garagemen— can be fairly 
termed "passivity." Particularly in light of the class mem­
bers' choice of departmental seniority, the Union's negotia­
tion of this alternative route to a high-paying, prestigious 
job is entitled to significant weight in balancing the equit­
able scales in the Union's favor. See Albemarle Paper Co. v. Moody, supra, 422 U.S. at 422.



-52-

whose incentive toward compliance will be diminished by the 
understanding that, regardless of their own overt discrimina­
tion, their employees' representative will have to pay.

IV. THE INTERNATIONAL UNION IS NOT RESPONSIBLE FOR THE CONDUCT OF 
LOCAL UNION OFFICIALS IN NEGO­
TIATING DISCRIMINATORY SENIOR­

ITY PROVISIONS AND WAS NOT 
AMENABLE TO SUIT IN THE FORUM

The District Court held that the International Union 
was "jointly liable with the defendant Local and the defendant 
Company for the pattern and practice of racial discrimination 
in employment . . . .  (JA In the lower Court's
view, there would be no Conference wide agreement and no Con­
ference-wide discrimination "but for the existence of the In­
ternational Union . . . ." (JA On this basis, the
Court found responsibility on the International's part, and 
since such a "substantial connection had been shown on the 
merits, this connection is also sufficient to uphold a find­
ing of in personam jurisdiction." (JA The Interna­
tional has no quarrel with the District Court's analytical ap­
proach to the personal jurisdiction issue. Plainly if Inter­
national responsibility is demonstrated in the traditional 
sense--that is, by showing that the International caused, par­
ticipated in or ratified illegal conduct— then a sufficient 
basis for personal jurisdiction exists. But if this case is 
to herald a new approach to union responsibility, turning on



-53-

an International's "existence," due process requires that 
suit against the International be maintained in another forum. 
International Shoe Co. v. Washington, 326 U.S. 310 (1945); 
Benjamin v. Western Boat Building Corp. 472 F.2d 723, 730 
(C.A. 5, 1973).

Inasmuch as this Court does not approach the Inter­
national responsibility issue through entirely uncharted 
waters, it may not be necessary to deal with personal juris- 
diction at all. For the record, in this case contains none of 
the indicia of International liability. In Sagers v. Yellow 
Freight System, Inc., 529 F.2d 721 (C.A. 5, 1976), this Court 
found sufficient International responsibility for negotiation 
of the freight agreements on the ground that "the National 
Negotiating Committee is staffed by high-ranking officials of 
the International." On this same basis, the Sabala panel viewed 
the International as a party to national negotiations and an 
"architect" of the seniority system. Sabala v. Western Gil- 
lette, Inc., 516 F.2d 1261 (C.A. 5, 1975).

These cases furnish no authority for finding Inter­
national responsibility here. The National Automobile Trans­
porters Committee in both 1970 and 1973 was composed of eight 
Local Union officials, two from each Conference Area, who were 
selected by delegates representing Local Unions having members 
working in the Car-Haul industry. (Tr. Ill, 41-44) A salaried 
employee of the International also served on the National Com­
mittee. (Tr. Ill, 43) This was the only International "in-



-54-

fluence" on the Committee, inasmuch as General President Fitz­
simmons, the titular chairman of the Committee, did not par­
ticipate in negotiations in either 1970 or 1973. (Tr. Ill,
56) The National Agreement deals with competitive status 
seniority only in general terms:

Terminal seniority shall prevail to the 
extent to which it is set forth in writing 
in this Agreement and in each of the Supple­mental Agreements hereto, including Local 
Riders . . . .  [P. Exhs. 19 & 37, Art. 5,
§ 1.]
The manner in which seniority is applied and ac­

crued, as well as the methods of application, is set forth
iin the Central and Southern Conference Areas Supplemental 

Agreements. These Agreements were negotiated separately by 
the Conference Negotiating Committee, which was composed ex­
clusively of Local Union officials selected by delegates from 
Local Unions representing Car Haulers within the Conference 
Areas. [Tr. Ill, 65-66] There was no International "in­
fluence" on the Supplemental Negotiating Committee. The de­
velopment of proposals and the procedural steps of negotia­
tions have been described earlier. (See pp. 13-14, supra.) 
Suffice it to say, that negotiating strategy was developed 
and decisions were made by the Local Union officials serving 
on the negotiating committees and not by the International 
Union.

Upon reaching tentative agreement with the Employers 
on the National and all Supplemental Agreements, the agreements



-55-

are submitted to a ratification vote by the membership work­
ing in the Car-Haul industry for approval or disapproval.
(Tr. Ill, 58, 61-62) "If [as in both 1970 and 1973] a ma­
jority of votes cast by Local Union members voting approve 
such contract,it shall become binding and effective upon all 
Local Unions involved and their members." CP- Exh. 32, Art.
XVI, § 4(a)) The outcome of the ratification vote is the 
"determining factor;" ratified agreements are not approved 
by the International Union. (Tr. Ill, 62) The District 
Court concluded that, in view of the ratification procedure, 
"company employees as a whole will be bound by the provi­
sions of these agreements" "irrespective of the desires of 
the local union." (JA This is erroneous.

Under the Agreements in question, Local Unions are 
vested with extensive authority to negotiate Local Rider agree­
ments with individual employers changing the seniority provi­
sions in the Supplemental■Agreements. (See pp. 16-17, supra) 
That Local Unions have and freely exercise this authority is 
demonstrated by the various seniority riders negotiated by 
Local Union No. 528 and other local unions with employers in 
the industry establishing seniority systems, including carry­
over seniority from the shop to the road, which differ radi­
cally from the seniority provisions in the Supplemental Agree­
ments. (Tr. II, 212-214; Tr. Ill, 63-64) These rider agree­
ments are negotiated and placed into effect free of Interna­
tional control, subject only to the requirement they be approved



-56-

by the Central-Southern Conference Joint Arbitration Commit­
tee. This body is composed of employer and Local Union of­
ficials and not International officials. Their majority de­
cision is final and binding. (Tr. Ill, 46, 52)

Clearly competitive status seniority is a matter 
of local and not national concern, and Local Unions are able 
to adopt the kind of seniority required by individual situa­
tions. Each Local Union, therefore, is in a position to pre­
vent minority employees from being "locked into" the jobs to 
which they were discriminatorily assigned in circumstances 
where this has occurred. And since a determination of whe­
ther discriminatory assignments have been made by an indi­
vidual employer must necessarily occur on a terminal basis, 
the matters complained against by Plaintiff and Intervenor 
are peculiarly suitable for Local Rider treatment. The im­
portance of Local Rider agreements in demonstrating local, as 
opposed to International, union influence over terms and con­
ditions of employment has been recognized under Title VII. 
LeBeau v. Libby-Owens-Ford Co., 484 F.2d 798 (C.A. 7, 1973).

Consequently the facts of this case are much dif­
ferent than those of Myers v. Gilman Paper Co., supra, 544 
F.2d at 850-851, and Patterson v. American Tobacco Co., 535 
F.2d 257, 270-71 (C.A. 4, 1976), where International lia­
bility was based on the facts that an International officer 
or representative acted as an advisor to the Local Union in 
negotiations, and the International subsequently approved



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the contract in issue. Neither of these facts are true here. 
(Tr. Ill, 66-67) In this Circuit, "there must be a 'suffi­
cient connection' between the labor organization and the dis­
criminatory practice to render the organization liable."
Myers v. Gilman Paper Co., supra, 544 F.2d at 851, citing 
Sagers v. Yellow Freight System, Inc., supra, 529 F.2d at 
737. We submit that a "sufficient connection" cannot be 
based on the presence of one International employee on a ne­
gotiating committee of nine members, who dealt only with a 
national agreement providing for terminal seniority— i.e., 
the same remedial form of seniority ordered by the District 
Court— and who demonstrably had no contact with the. Supple­
mental Agreements or the Local Riders.

The District Court did not think so either.— ^ In­
stead, it took a different tack toward the International re­
sponsibility issue. Ignoring the facts that the scope of the 
case was restricted to the Southern Conference, and that 
black employees are found only at Atlanta and Birmingham (P. 
Exh. 18), the District Court concluded: "This is a system

18 /
— '  The District Court made no such finding or conclusion. 
Indeed, in an order dated June 30, 1975 (JA the
Court indicated that it was inclined to dismiss the Complaint as to the International Union. In an earlier order, dated 
June 30, 1972 (JA the District Court rejected Plain­
tiffs' argument that the International and Local 528 were not 
separate entities. See Barefoot v. International Brother- 
hood of Teamsters, 424 F.2d 1001 (C.A. 10), cert, denied, 400 
U.S. 950 (1970). It is undisputed that the International 
Union is neither a signatory to the contracts in issue (P.
Exhs. 37 & 19), nor the exclusive bargaining representative of 
Motor Convoy's employees. (Tr. Ill, 58-59)



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wide case, governed by system wide policies of discrimina­
tion. But for the existence of the International Union, 
these policies could not be effectively perpetuated by the 
existence of the system wide seniority system." (JA
This reasoning is wrong on the facts and on the law. Fac­
tually it was established at trial that an area-wide agree­
ment, covering the Central and Southern Conferences had 
existed since 1948. This agreement was developed by Local 
Unions in the Conference Areas. (Tr. Ill, 44-45) Le­
gally the entire thrust of the law militates against hold­
ing an International liable based on its "existence." E.g., 

. Coronado Coal Co. v. UMW, 268 U.S. 295, 299 (1925); UMW v. 
Coronado Coal Co., 259 U.S. 344, 393 (1922); United Constr. 
Workers v. Haislip Baking Co., 223 F.2d 872 (C.A. 4), cert, 
denied, 350 U.S. 847 (1955); IBEW (Franklin Elec. Constr. 
Corp.), 121 N.L.R.B. 143, 145-146 (1958).

The evidentiary showing made below brings the in­
stant case directly within Herrera v. Yellow Freight System, 
Inc., 505 F.2d 66, 68 n.2 (C.A. 5, 1974), where this Court 
held: "Because the separate seniority provisions originate
at the Southern Conference level, we find no violation of 
Title VII by the defendant Teamsters International." To 
similar effect is Resendis v. Lee Way Motor Freight, Inc., 
505 F.2d 69, 71 n.2 (C.A. 5, 1974). In Sagers (529 F.2d at 
737), this Court noted that the records made in Herrera and
Resendis failed to disclose "the International's involvement



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in the negotiation of the National Master Freight Agreement 
and the regional supplemental agreements . . . ." Here, 
after extensive litigation, the record affirmatively shows 
the very same lack of International involvement.

CONCLUSION

For the foregoing reasons, the decision of the 
District Court should be reversed and remanded.

Respectfully submitted,

ROBERT M. BAPTISTE 
ROLAND P. WILDER, JR.
25 Louisiana Avenue, N. W. 
Washington, D. C.-20001 Area Code 202, 624-6945
Attorneys for the International 

Brotherhood of Teamsters, 
Chauffeurs, Warehousemen and 

Helpers of America, 
Defendant-Appellant

FREDRICK C. McLAM
1961 N. Druid Hills Road, N. E. 
Atlanta, Georgia-30329 
Area Code 404, 321-7733
Attorney for Teamsters Local 528



CERTIFICATE OF SERVICE

The undersigned hereby certifies that he has served 
two copies of the foregoing BRIEF FOR THE UNION DEFENDANTS- 
APPELLANTS upon counsel for the Plaintiffs-Appellees and De­
fendant-Appellant by depositing copies thereof in an envelope 
in the United States mail, postage prepaid, this 17th day of 
May, 1977, addressed to:

John R. Myer, Esquire2415 National Bank of Georgia Building 
Atlanta, Georgia 30303
Alexander E. Wilson, III, Esquire 
Jones, Bird & Howell 
75 Poplar Street 
Atlanta, Georgia 30303