Fullilove v. Kreps Brief for the Lawyers' Committee for Civil Rights Under Law as Amicus Curiae

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 29225

ANTOINE R. BOUDREAUX, et al.,
Plaintiffs, Intervenors-Appellants,

v.
BATON ROUGE MARINE CONTRACTING COMPANY,
RYAN STEVEDORING COMPANY and LOCALS 1830 and 1833 GENERAL LONGSHORE WORKERS, INTER­
NATIONAL LONGSHOREMEN'S ASSOCIATION,AFL-CIO,

Defendants-Appellees.

Appeal From The United States District Court 
For the Eastern District of Louisiana—Baton Rouge Division

APPELLANTS' REPLY BRIEF

GEORGE A. DAVIDSON 
CHARLES O. BLAISDELL ROBERT M. FUSTER One Wall Street 

New York, New York 10005
ALBERT J. ROSENTHAL 435 West 116th Street 

New York, New York 10027
Of Counsel

JOHNNIE A. JONES
1261-65 Government Street 
Baton Rouge, Louisiana 70802

GABRIELLE A. KIRK
1834 Southmore Boulevard Houston, Texas 77004

JACK GREENBERGWILLIAM L. ROBINSON
LOWELL JOHNSTON

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



TABLE OF CONTENTS
Page

ARGUMENT
I. Boudreaux's Status As A Person Aggrieved 

Is Not Affected By His Failure To Attend "Shape-ups" During The 90-Day Period 
Prior To Filing Of His Charges WithThe EEOC ...................................  1

II. 42 U.S.C. § 1981 Applied To Acts Of
Private Employment Discrimination . ,.........  8

III. The Civil Rights Act Of 1964, Title VII,
Does Not Preempt The Field Of Employment 
Discrimination So As To Repeal By Implica­tion 42 U.S.C. § 1981    10

CONCLUSION .......................................  16
APPENDIX .......................................
Decision in Waters v. Wisconsin Steel Works......  la

r



TABLE OF CASES
Page

Banks v. Lockheed-Georgia Company, 47 F.R.D.
422, 444 (N.D. Ga. 1968).........................  4

Clark v. American Marine Corp., 304 F. Supp.
603 (E.D. La. 1969)..........................  9

Cook County National 3ank v. United States,
107 U.S. 445 (1882)...............................  11

Cox v. United States Gypsum Co, 409 F. 2d
289 (7th Cir. 1969).............. ............ 2

Dobbins v. Local 212, International Brotherhood 
of Electrical Workers, 292 F. Supp.
413 (S.D. Ohio 1968)........................  9

Flast v. Cohen, 392 U.S. 83 (1968).......... .. 7
Harrison v. American Can Co., 2 FEP Cases 1

(S.D. Ala. 1969)................................. 9,13
Hurd v. Hodge, 334 U.S. 2 4 ......................  8
International Chemical Workers v. Planters Mfg.

Co., 259 F. Supp. 365 (N.D. Miss. 1966). . . .  3
Jenkins v. United Gas Corp., 400 F. 2d 28

(5th Cir. 1968).............................. 5
Jones v. Mayer Co., 392 U.S. 409 (1968)..........  8,9,10
King v. Georgia Power Co., 295 F. Supp. 943(N.D. Ga. 1968).............................. 4
Local 12, United Rubber Workers v. NLRB, 368 F. 2d 12, 24, n. 24 (5th Cir. 1966)

cert, denied, 389 U.S. 837 (1967)............  13
Norwegian Nitrogen Products Co. v. United States,

288 U.S. 284, 315 (1933)....................  3
Oatis v. Crown Zellerbach Corporation, 398

F. 2d 496 (1968)............................  5

ii



Page

Posadas v. National City Bank, 296 U.S. 497503 (1936)..................................  10
Skidmore v. Swift, 323 U.S. 134, 137, 139-40 (1944) 3
Scott v. Young, 412 F. 2d 193 (4th Cir. decidedJanuary 16, 1970)............................  14
Sullivan v. Little Hunting Park, Inc., U.S.

___, ____, 90 S. Ct., 400. 405(Dec. 15, 1969)............................  14
United States v. American Trucking Association,310 U.S. 534 (1940)................  3
United States v. Jefferson County Board of

Education, 372 F. 2d 836 (5th Cir. 1966) aff'd on rehearing en banc, 380 F. 2d(5th Cir., 1967)   3
Van Zandt v. McKee, 202 F. 2d 490 (5th Cir.1953).............................................  8
Waters v. Wisconsin Steel Works of InternationalHarvester Co., ____F. 2d ____, 62 CCH Lab.

Cas. f 9435 (April 28, 1970).................. 9 12

iii



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 29225

ANTOINE R. BOUDREAUX, et al.,
Plaintiffs-Intervenors-Appellants, 

v .

BATON ROUGE MARINE CONTRACTING COMPANY, 
RYAN STEVEDORING COMPANY and LOCALS 1830 
and 1833 GENERAL LONGSHORE WORKERS, INTER­
NATIONAL LONGSHOREMEN’S ASSOCIATION AFL-CIO,

Defendants-Appellees.

Appeal From The United States District Court For The Eastern District of Louisiana—Baton Rouge Division

1/APPELLANTS 1 REPLY BRIEF

ARGUMENT
I .

BOUDREAUX'S STATUS AS A PERSON AGGREIVED IS 
NOT AFFECTED BY HIS FAILURE TO ATTEND "SHAPE- 
UPS" DURING THE 90-DAY PERIOD PRIOR TO FILING OF HIS CHARGES WITH THE EEOC.

-—/ This brief was prepared with the assistance ofDouglas C. Foerster, One Wall Street, New York 
N.Y. 10005, a recent graduate of Northwestern 
University Law School who is not yet a member of the Bar.



Appellees urge upon this Court an incredibly 
narrow and unprecedented interpretation of the term 
"person aggrieved." Regardless of a plaintiff's history 
and prior dealings with an employer, Appellees maintain 
that no past discrimination renders him aggrieved.
Rather, only discrimination which has an immediate ad­
verse effect upon the individual and which can be dated 
within 90 days of a charge to the EEOC will suffice. No 
cases are cited in support of this interpretation and, 
indeed, what law there is clearly runs in the opposite 
direction.

For example, the case of Cox v. United States 
Gypsum Co., 409 F. 2d 289 (7th Cir. 1969), allowed plaintiff 
to proceed even though defendant there challenged the time­
liness of plaintiff's action. As in this case, the defend­
ant in Cox claimed that plaintiff was not a "person 
aggrieved" since he did not file his charges with the 
EEOC within 90 days of the occurrence. The Court there 
did not, as Appellees here suggest, find that the 90 day 
period was satisfied because of acts directed specifically 
against Cox during said period. Nonetheless, the Court 
held that Cox was a "person aggrieved" for several reasons, 
among which were: (1) the discrimination complained of

2



was of a continuing nature, (2) there was an effective 
labor contract which prescribed seniority rights and 
under which plaintiff was aggrieved by defendant's con­
tinuing discriminatory practices, and (3) the fact that 
the EEOC accepted the charges as timely is "important 
in determining whether the charge is adequate."

This case is strikingly similar to the Cox case.
As in Cox, here there is: (1) an allegation of continu­
ing discrimination, (2) a current bargaining agreement 
which affects Boudreaux's rights (App. 21), and (3) a 
determination by the EEOC that Boudreaux's charges, in­
deed, qualify him as a "person aggrieved." (App.. 21).

Appellees do not take issue with the proposition 
that interpretation of a statute by the executive agency 
charged with its administration and enforcement be given 
the highest respect by the courts. International Chemical 
Workers Union v. Planters Mfq. Co.. 259 F. Supp. 365 
(N.D. Miss. 1966); Norwegian Nitrogen Products Co. v.
United States, 288 U.S. 284, 315 (1933); Skidmore v.
Swift, 323 U.S. 134, 137, 139-40 (1944); United States v. 
American Trucking Associations. 310 U.S. 534 (1940);
United States v. Jefferson County Board of Education. 372 
F. 2d 836 (5th Cir. 1966), aff'd on rehearing en banc.
380 F. 2d 385 (1967); 1 Davis, Administrative Law Trea-

3



tise, § 5/06 and cases cited (1959). Therefore, when,
as in the instant case, the EEOC has determined that the 
complainant is a "person aggrieved," summary judgment 
should not be given defendants on that issue.

Moreover, where there is an allegation of con­
tinuing discrimination, it has been held that "filing 
within a specified time is not required to bring the 
action before this Court." Banks v. Lockheed-Georgia 
Company, 47 F.R.D. 442, 444 (N.D. Ga. 1968). It is 
significant that Appellees are unable to refute this 
position. Indeed, the discussion of King v. Georgia 
Power Co., 295 F. Supp. 943 (N.D. Ga. 1968), in the 
brief of defendant companies supports this proposition 
and focuses the question on one crucial issue: whether 
the violations complained of are continuing. The quota­
tion set-out on page 18 of that brief indicates that if 
the violations are not continuing (irrespective of 
against whom they are directed) then the 90-day requirement 
will not have been met and a motion for summary judgment 
will lie. The reverse of that statement is, of course, 
that if the violations are of a continuing nature, the 
90-day requirement is satisfied.

Indeed, the entry of intervenors Wells and Collins 
as plaintiffs herein reaffirms the continuing nature of

4



the discrimination now beiny challenged. To deny Wells 
and Collins the right to proceed on the basis of a novel 
semantic interpretation of Boudreaux's standing would 
realize the very situation the Court sought to avoid in 
Oatis v. Crown Zellerbach Corporation. 398 F. 2d 496 
(1968) wherein it was said:

"Racial discrimination is by defin­
ition class discrimination, and to require a multiplicity of separate, identical charges before the EEOC, filed against the same 
employer, as a prerequisite to relief through 
resort to the court, would tend to frustrate 
our system of justice and order." 398 F. 2d at 499.
In reality, it must be noted that the EEOC has 

sought and failed to obtain informal conciliation of 
Boudreaux's complaint which is identical to the com­
plaints of intervenors Wells and Collins. Boudreaux has, 
indeed, taken "on the mantle of the sovereign" and should 
be permitted to proceed. Jenkins v. United Gas Corn..
400 F. 2d 28 (5th Cir. 1968).

Boudreaux has been personally and directly victim­
ized by the practices which are the subject matter of his 
complaint. He has worked and lived under the challenged 
discrimination for over a decade. Boudreaux’s history 
of attending "shape-ups" left no doubt in his mind that 
he would never be considered for the only kind of work

5



to which his accident had now limited him. While able- 
bodied, he regularly attended "shape-ups" and regularly 
received the heavy work reserved for members of his race. 
Now injured and able only to perform the lighter work 
which ten years of employment has taught him is re­
served for whites only, he is told that he is not an 
aggrieved person because he failed during the crucial 
90 days before filing his charge with the EEOC to attend 
"shape-ups" and have his long years of experience with 
employment discrimination reconfirmed.

Such a position is like telling a man that he 
has no standing to complain of poor public transporta­
tion in his home town until he has stood in the rain 
awaiting a bus where it is known by all that no service 
is provided.

Defendant unions term "absurd" the notion that 
Boudreaux may be suing as a representative of persons 
similarly situated in Locals 1830 and 1833. (Brief of 
Locals 1830 and 1833, p. 10, n. 7). Said unions arrive 
at their conclusion from the logic that "Boudreaux is 
not suing for the Local; he is suing the Local." 
Boudreaux's position is, however, no more absurd than 
the classical status of a corporation shareholder bring­
ing a shareholder's derivative action against the corp-

6



oration on behalf of aggrieved share holders. Moreover, 
Boudreaux does not purport to sue on behalf of the Local 
but rather on behalf of such of its individual workers 
who have, like himself, been victims of racial dis­
crimination .

Finally, Appellees' reference to various analogies 
such as proceedings in bankruptcy, illegal search and 
seizure and taxpayer suits, in search of cases denying 
standing to persons challenging anticipated grievances 
are, at best, inapposite. Prospective bidders at bank­
ruptcy proceedings and persons convicted from evidence 
obtained by violation of another's right against unlaw­
ful search and seizure, suffer no invasion of any per­
sonal rights, constitutional or otherwise. Boudreaux, 
on the other hand, has suffered an invasion of both his 
Constitutional and contractual rights. The situations 
are so dissimilar that to attempt any kind of equation 
is, in the language of Appellee Unions, “absurd."

Last, with reference to the standing of a "mere 
taxpayer" to challenge acts of public officials, a com­
prehensive discussion and liberal construction of stand­
ing in such cases has been enuniciated by the Supreme 
Court in Flast v. Cohen. 392 U.S. 83 (1968), in which a 
taxpayer was accorded standing to challenge Congressional 
spending programs.

7



II.
42 U.S.C. § 1981 APPLIES TO ACTS OF 
PRIVATE EMPLOYMENT DISCRIMINATION.

Appellees rely on cases now superseded by Jones 
v. Mayer Co■, 392 U.S. 409 (1968) for the propositions 
that the Act of 1866 applies only to discrimination under 
color of state law and that 42 U.S.C. § 1981 does not 
confer a right to be free of racial discrimination in 
private employment.

The cases relied upon by Appellees are not only 
outdated, but they fail to support the two propositions 
for which they are cited. For example, in Hurd v. Hodge. 
334 U.S. 24, the Court held that judicial enforcement of 
racially restrictive covenants violates the Act of 1866, 
but the Court did not say that the Act was limited only 
to discrimination under state action or color of law.
Van Zandt v. McKee. 202 F. 2d 490 (5th Cir. 1953) cited 
for the same propositions is even more inapposite. In 
that case, the Court merely held that one does not have 
a right to work for a particular individual without the 
latter's consent. The opinion contains no discussion of 
the Act of 1866 and nowhere mentions the issue of dis­
crimination.

8



For the same propositions, Appellees cite 
Harrison v. American Can Co.. 2 FEP Cases 1 (S.D. Ala. 
1969). That case somehow interprets Jones v. Mayer.
^urpa, so as to conclude that § 1981 does not necessarily 
apply to private acts of employment discrimination. Other 
cases decided subsequent to Jones, however, have con­
cluded quite the contrary. See e.g.: Dobbins v. Local 
212, International Brotherhood of Electrical Workers.
292 F. Supp. 413 (S.D. Ohio 1968) and Clark v. American 
Marine Corp., 304 F. Supp. 603 (E.D. La. 1969). Since
there is some disagreement among different courts as to 
the impact of Jones v. Mayer, supra, it is best to rely 
upon the Supreme Court's opinion itself for an answer.
An extensive discussion on this point is found in the 
Brief of Appellants herein at pages 25-30.

Since the filing of our original brief in this 
case, the Court of Appeals for the Seventh Circuit has 
squarely held that 42 U.S.C. § 1981 applies to cases of 
private employment discrimination. Waters v. Wisconsin
Steel Works of International Harvester Co.. ______F. 2d
_______, 62 CCH Lab. Cas. 5 9435 (April 28, 1970).
Virtually all of the arguments offered by the appellees 
herein were specifically advanced to and rejected by

9



the Seventh Circuit. For the convenience of this Court,
a copy of the opinion in the Waters case is attached

. 2 /hereto.

III.
THE CIVIL RIGHTS ACT OF 1964, TITLE VII,
DOES NOT PREEMPT THE FIELD OF EMPLOYMENT 
DISCRIMINATION SO AS TO REPEAL BY IMPLICA­TION 42 U.S.C. § 1981.
Appellees, apparently concerned by the impact 

of Jones v. Mayer, supra, and its effect on 42 U.S.C.
§ 1981, seek to by-pass the entire problem by claiming 
that § 1981 is effectively repealed by Title VII of the 
Civil Rights Act of 1964.

The Court below did not hold that § 1981 was 
repealed by implication, and as stated in Posadas v. 
National City Bank. 296 U.S. 497, 503 (1936) (quoted with 
approval in Jones at 437): "The cardinal rule is that 
repeals by implication are not favored." Moreover, had 
Congress any intention of amending or repealing 42 U.S.C.
§ 1981 it certainly knew the method therefor. For example,

A contrary decision of a district court, handed 
down before the Waters case, which had previously not come to our attention is Smith v. North 
American Rockwell Corp., 62 CCH Lab. Cas. f 9443 (N.D. Okla. Feb. 25, 1970).

10



in Title I of the same 1964 Civil Rights Act, Congress 
amended provisions of 42 U.S.C. 1971 and specifically 
so stated in the Act. The same technique is found in 
numerous other sections of the Civil Rights Act of 1964 
and, indeed, in nearly every other piece of legislation. 
Significantly, no such effort is made with respect to 
42 U.S.C. § 1981.

Appellees seek to relegate 42 U.S.C. § 1981 "to 
historians" by claiming that Appellants' rights are now 
defined and regulated only by the 1964 Act. Appellee 
unions, in a display of either misunderstanding or ex­
treme lack of candor, seek to support this notion by 
citing numerous cases which allegedly stand for the pro­
position that when a more recent law embracing an entire 
subject is passed, it may withdraw the subject from the 
operation of an older general law as effectively as though 
the general law were repealed.

Appellee Unions' leading case is Cook County 
National Bank v. United States, 107 U.S. 445 (1882).
Far more interesting than the language set-out in Appellee 
Unions' brief on page 18, is the language of the Court's 
opinion which Appellees omit. If the Court's opinion is 
read in full, the following important language is detected:

11



"***(I)f a particular statute is clearly designed to prescribe the only rules which 
should govern the subject to which it re­
lates, it will repeal any former one as to 
that subject, (citations omitted), ***The 
former law must yield to the latter and is 
to the extent of the repugnancy superseded by it." 107 U.S. at 451 (emphasis added).
Taken in context then, the rule stated in Cook

County and restated in all the other cases cited by
Appellees, cannot find proper application unless the
later law is designed to prescribe the only rules to
govern the subject and the later law is inconsistent and
repugnant to the former law. Then, and only then, the
former law must yield to the latter and, to the extent
of the repugnancy, is superseded by it. Appellees have
demonstrated no repugnancy between 42 U.S.C. § 1981 and
Title VII; moreover, Title VII is not clearly designed
to afford an exclusive remedy.

The Court of Appeals for the Seventh Circuit so
held in Waters v. Wisconsin Steel Works of International
Harvester Co., supra. at p. 6704, stating: "Contrary to
the assertions of defendants, the legislative history of
Title VII strongly demonstrates an intent to preserve
previously existing causes of action." And this Court
reached the same conclusion in a fair representation case,
Local 12, United Rubber Workers v. NLRB, 368 F. 2d 12, 24

12



n. 24 (5th Cir. 1966), cert. denied, 389 U.S. 837 (1967):
"Legislative history and specific provisions of the act 
itself make it apparent that Congress did not intend to 
establish the enforcement provisions of Title VII as the 
exclusive remedy in this area."

Finally, we come to the case of Harrison v.
American Can Co.. 2 FEP Cases 1 (S.D. Ala. 1969). Appellees 
rely heavily upon this one case for several propositions 
in addition to the two previously discussed herein. The 
additional propositions are: (1) Title VII preempts 
§ 1981, (2) passage of Title VII will be rendered an
"idle and unnecessary" Congressional gesture if § 1981 
is applied as Appellants seek, and (3) the courts will 
open the floodgates to a "welter of litigation" if con­
ciliation is by-passed by § 1981.

The first two of these propositions are nearly
identical to arguments raised in the Jones case and the

'c ' J d Q d )  ■ v b b  ' T T K cSupreme Court's discussion therein disposes of the issues.
. " ’r b*- *.f?o» A1In discussing whether a more recent and comprehensive

law. Title VIII of the Civil Rights Act of 1968, would
■ e  A l l  cb  £-,i~preempt an older and more general provision, 42 U.S.C.

§ 1982, the Court held:
•tOy\T2TOL7S Of fprj |gcr * * *(I)t would be a serious mistake 

to suppose that § 1982 in any way diminishes 
the significance of the law recently enacted

13



by Congress ***the existence of that statute 
would not 'eliminate the need for Congressional 
action' to spell out ‘responsibility on the part of the federal government to enforce the 
rights it protects.' The point was made that, 
in light of the many difficulties confronted by private litigants seeking to enforce such 
rights on their own, 'legislation is needed 
to establish federal machinery for enforcement 
of the rights guaranteed under Section 1982 
of Title 42*****+(T)he Civil Rights Act of 
1968***had no effect upon § 1982." 392 U.S.
at 415-16.
And as in this case, the Court noted the lack

of Congressional intent to repeal by implication:
"***The Civil Rights Act of 1968 does not 
mention 42 U.S.C. § 1982, and we cannot 
assume that Congress intended to effect 
any change, either substantive or proced­
ural, in the prior statute, (citations 
omitted). 392 U.S. at 416-17 n. 20.
See also Sullivan v. Little Hunting Park, Inc.,

____, U.S.______, ____, 90 S. Ct. 400, 405 (Dec. 15,
1969), reaffirming Jones, and also holding that the public
accommodations provisions of the 1964 Civil Rights Act
had not superseded the provisions of the 1866 Act;
Scott v. Young, 421 F. 2d 193 (4th Cir. decided January
16 , 1970) .

Thus, the Civil Rights Act of 1964 should be read 
for what it is--- a supplement in the arsenal against dis­
crimination. It is a provision of new machinery under 
which the Federal Government has attempted to spell-out

14



responsibility for enforcement of rights already extant 
under 42 U.S.C. * 1981. Certainly the mood of Congress 
and that of the Nation in 1964. following the assassina­
tion of President Kennedy, was not to cot back on any 
existing civil rights laws.

Finally, as to the third proposition of the 
— CiSOn Case' APP«llants direct this Court's attention 
to the penultimate sentence of that Court's opinion as 
set out on page 25 of Appellee Companies' brief:

Lt sh°uld ever appear that a plaintiff alleging conduct subject to Title VII after
T m e Wv?? and requ irem en t'’u n f e fTitle VII and exhausting his remedies there-
under would still be entitled to s Z  differentrelief (not inconsistent with Title VII) byreason of 42 U.S.C. § 1981 * * * it miaht th^n
no ??p;°priate to consider Aether a m u £

I?axntained under the latter statute.But this is not now the case here."
Here, Boudreaux has followed all of the adminis­

trative efforts to obtain voluntary compliance and con­
ciliation. under Appellees' theory of the case, Boudreaux 
cannot proceed further under Title VII, he has effectively 
exhausted his remedies. If this Court accepts the view 
of Appellees, this case would then present the one situa­
tion where even the Harrison court would apply 42 U.S.C.
§ 1981.

15



CONCLUSION

For the foregoing reasons, the judgment appealed 
from should be reversed.

Respectfully submitted,

1261-65 Government Street 
Baton Rouge, Louisiana 70802

GABRIELLE A . KIRK
1834 Southmore Boulevard Houston, Texas 77004

JACK GREENBERG 
WILLIAM L. ROBINSON LOWELL JOHNSTON

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants
GEORGE A . DAVIDSON 
CHARLES 0. BLAISDELL ROBERT M. FUSTER 

One Wall Street 
New York, New York 10005

ALBERT J. ROSENTHAL
435 West 116th Street 
New York, New York 10027

Of Counsel

16



CERTIFICATE OF SERVICE

I hereby certify that on the hUlh day of June, 1970 
I served a copy of the foregoing Brief for Appellants 
upon Attorneys for appellees, George Mathews, Dale, Owen, 
Richardson, Taylor and Mathews, P.0. Box 3177, Baton 
Rouge, Louisiana 70821 by depositing a copy of same in 
the United States mail air mail, postage prepaid.

Attorney fox' Appellants



APPENDIX



2 FEP Cases 574 WATERS v. WISCONSIN STEEL WORKS

he m ay be included in the class and  
th a t  a class action  m ay be m ain ta ined  
for in junctive relief only and  not for 
dam ages are  w ithout m erit. Bowe v. 
Colgate-Palm olive Co., supra.

T herefore it  Is the opinion of th is 
C ourt th a t  the  nam ed p lain tiffs m ay 
m ain ta in  th is  action  on behalf of 
them selves and  as represen tatives of 
the  class of w hich each is a member. 
Since the rep resen tative m ust be a 
m em ber of the class, it is necessary 
th a t  there  be two classes, each m ade 
up of the Negro m em bers of one of 
the  d efendan t locals and  each rep re ­
sen ted  by th e  nam ed p la in tiff who 
is a  m em ber of th a t  local.
M otions to Strike

The d efendan ts have moved ic 
s trike  from  C ount I, p a rag rap h  2, of 
th e  com plain t the  finding of the 
Equal Em ploym ent O pportunity  Com­
m ission on the  charges filed by the 
p lain tiffs. I t  is contended th a t  the 
find ing  is im m ateria l and  prejudicial. 
In  addition , th e  defendan ts have 
moved to strike  all of the  affidavits 
filed by the  p la in tjjfs  in opposition 
to the  d efen d an ts’ m otions, portions 
of the  am icus brief filed by the  EEOC 
and  the  p la in tiffs  have moved to 
strike  certa in  affidav its filed by the 
defendants.

T he m otion to s trike  the  portion 
of th e  com plain t referred  to above will 
be g ran ted . The find ing  of the Com­
mission quoted in the com plain t is 
no t necessary to estab lish  the ju ris ­
diction of th is  Court.

All o ther m otions to  strike wdll be 
denied. M otions to strike  are  no t 
favored under the  Federal Rules and 
the  num ber of such m otions filed in 
th is  case is sim ply having the  effect 
of clouding im p o rta n t issues. The 
m otion to s trike  provided lo r in Rule 
12(f) refers to  m a tte r  contained in 
th e  pleadings an d  n o t a m a tte r  con­
ta in ed  in briefs. As fa r  as the  a f ­
fidavits in th is case are  concerned, 
th e  C ourt is well aw are of w hich 
s ta tem en ts  are  adm issible in evidence 
and  which arc n o t and  they  have 
been trea ted  accordingly.

+

WATERS v. WISCONSIN STEEL
WORKS

U.S. Court of Appeals,
Seventh C ircuit (Chicago)

WATERS, e t al. v. WISCONSIN 
STEEL WORKS of INTERNATIONAL 
HARVESTER COMPANY an d  UNITED 
ORDER OF AMERICAN BRICKLAY­
ERS AND STONE MASONS, LOCAL 
21, No. 17895, April 28, 1970
CIVIL RIGHTS ACTS OF 1866 AND

1864
— R acial d iscrim ination  — H iring 

—Action under 1866 Act ► 106.06
Form er Negro employee and  Negro 

em ploym ent app lican t m ay m ain ta in  
ac tion  under Section 1 of Civil R ights 
Act of 1866 aga in st union for allegedly 
assisting  in  m ain tenance  of rac la  ly 
d iscrim inatory  h iring  system . U.S. 
Suprem e Court's decision in  Jones v. 
Alfred H. Mayer Co., w hich broadened 
Section 2 of Act to forbid private  as 
well as public racial d iscrim ination  in 
selling or ren ting  of property, is app li­
cable to Section 1, w hich outlaw s 
racial d iscrim ination  in m aking  and  
enforcing of con trac ts; 1866 Act was 
valid exercise of Congress’ power und  
T h irteen th  A m endm ent to U.S. Con­
s titu tio n  to en ac t legislation; Section 
1 was in tended to proh ib it p rivate  job 
d iscrim ination ; Section 1 is applicable 
to unions as well as to em ployers, In­
asm uch as rela tionsh ip  betw een em ­
ployee and  union essentially  is one of 
con tract.

—R acial d iscrim ination—Repeal by 
im plication of 1866 Act ► 108.09 
► 106.06

E nac tm en t of Title VII of Civil 
R ights Act of 1964 did no t constitu te  
im plied repeal of Section 1 of Civil 
R ights Act of 1866, despite contention  
th a t  Congress in  m aking T itle VII 
com prehensive schem e to elim inate 
racial d iscrim ination  in em ploym ent, 
au tom atically  abolished all rig h ts  p re ­
viously existing under Section 1 of 
1866 Act, where Congress was no t 
aw are of 1866 Act when it  considered 
1964 Act. Legislative h istory  dem on­
s tra te s  th a t  Congress would no t have 
In tended  repeal if it h ad  been aw are 
of 1866 Act, and possibility of conflict 
betw een T itle VII and  Section 1 does 
n o t dem onstra te  th a t  Section 1 wholly 
was repealed by im plication. Con­
flicts between the  two provisions m ust 
be resolved on case-by-case basis.

—R acial d iscrim ination—F ailure  to 
file charge w ith EEOC—Action under 
1866 Act ► 108.707 ► 10G.06

F ailure  to charge a p a rty  before



WATERS v. WISCONSIN STEEL WORKS 2 FEP Cases 575
EEOC p u rsu an t to Section 706(e) of 
Civil R ights Act of 1964 does not 
preclude action  under Section 1 oi 
Civil R ights Act of 18(56, w her; ag ­
grieved person pleads reasona:die ex­
cuse for failure to exhaust EEOC 
remedies. Language ot section 706(e 
does not expressly require prior re ­
course to Commission, and  legislative 
history  fails to dem onstrate  conclu­
sively th a t  Section 706(e) was designed 
to preclude civil actions by aggrieved 
persons w ithou t prior recourse to 
Commission. However, if Congress had  
been aw are of existence of cause of 
action  under Section 1, it would h a te  
m odified absolute rig h t to bring ac ­
tion  under th a t  provision, inasm uch 
as legislative History of Iitle  v u  
dem onstrates strong  Congressional 
preference for resolution of ui^puteo 
by conciliation ra th e r  th a n  by court 
action.

__Racial d iscrim ination—Failure to
file charge w ith K EO C -Iteasonable 
excuse ► 106.06 ► 108.707 ► 108.503

Form er Negro employee and Negro 
em ploym ent app lican t ‘W  “ ‘f t  
action under Section 1 of Civu R ights 
Act of 1856 ag a in st union for allegedly 
assisting in m ain tenance  of racially 
d iscrim inatory  h iring  system , since 
the ir failure to Me charge against 
union w ith EEOC was reasonable. 
Prim ary allegation  of racial disc rim - 
ination  ag a in st union is based on 
am endm ent to collective-bargaim ng- 
apreem ent a fte r  filing of charR^ 
against em ployer, and union suffered 
only sligh t prejudice from  com plain­
a n ts ’ failure to file charge aga in st it 
it apnearing  th a t  union .vas aw are of 
charge ag a in st em ployer shortly  a fte r 
charge was filed. To aind comp*am- 
an ts  by in fo rm al charge would defeat 
effective en fo rcem ent of policies u n ­
derlying T itle VII of Civil R ights Act 
of 1964.

_ R acial d iscrim ination  — Action
under 1866 Act — S ta tu te  of lim ita ­
tions b 106.06 ^  106.237

Action against union under Section 
1 of Civil R ights Act of 1866 is not 

' barred  by 120-day filing Period for 
claim s of d iscrim ination  provided by 
Illinois F air Em ploym ent Practices Act 
(SLL 23:201 > * since Illinois Act Is not 
m ost analogous s ta te  act. Illinois Act 
provides only adm in istra tive  rem edy 
reviewed by courts and  seeks to en ­
courage conciliation and  private settle  
m rn t, w hereas private litig an t has en ­
tire  burden under Section 1 of investi- 
trating and developin'.' case, and  when 
court relief is sought, conciliation 
generally  has failed. F ive-year sta te

s ta tu te  governing civil actions no t
otherwise provided for is applicable 
lim itations period, where s ta tu te  has 
been applied to  action  under Section 2 
of 1866 Act.
LABOR MANAGEMENT RELATIONS 

ACT
— Section 301 action  — Action 

against employer — R acial d iscrim ­
ination  ► 106.16

Form er Negro employee and Negro 
em ploym ent app lican t rnay m ain ta in  
action under Section 301 of LMRA 
against employer, since th e ir com ­
p la in t may be read to allege th a t  em ­
ployer trea ted  them  in d iscrim ina­
tory fashion in violation of collective 
bargain ing  agreem ent between em ­
ployer and  union. At pleading stage, 
it may not be said beyond a doubt 
th a t com plainants' allegations th a t  It 
would have been futile to seek redress 
th ro u g h  con trac tual grievance m ech­
anism  are insuffic ien t to excuse the  
failure to exhaust th e ir  con trac tual 
remedies.

— Section 301 action  — Action 
ag a in st union — R acial d iscrim ina­
tion ► 106.16

Form er Negro employee and  Negro 
em ploym ent app lican t m ay m ain ta in  
action under Section 301 of LMRA 
ag a in st union, since, viewed in ligh t 
m ost favorable to them , th e ir  com ­
p la in t alleges th a t  union failed to a s ­
se rt tim ely grievance aga in st employer.

Appeal from U.S. D istric t C ourt for 
the  N orthern  D istrict of Illinois (1 
FEP Cases 858. 71 LRRM 2886, 301 
F S u p p  663). Reversed and  rem anded.

Before SWYGERT, Chief Judge. 
CASTLE. Senior C ircuit Judge, and 
FAIRCHILD, C ircuit Judge.

Full Text of Opinion
SWYGERT, Chief Ju d g e :—T his ap ­

peal raises im p o rtan t questions con­
cerning the  availability  and  scope of 
various federal rem edies for com bating 
racial discrim ination  in em ploym ent. 
P lain tiffs. W illiam  W aters and  Donald 
Samuels, b rough t a class action  seek­
ing dam ages and in junctive relief 
against the W isconsin Steel W orks of 
In te rn a tio n a l H arvester Com pany and 
Local 21, U nited O rder ol Am erican 
Bricklayers and  Stone Masons. They 
alleged th a t  H arvester, w ith th e  as­
sistance of Local 21. m ain ta in ed  a 
discrim inatory  h iring  policy designed 
to exclude N  egroes, including th e  p la in ­
tiffs from em ploym ent as bricklayers 
at, W isconsin Steel Works. P la in tiffs  
claim ed th a t  these allegations of racial



2 FEP Cases 576 WATERS v. WISCONSIN STEEL WORKS

discrim ination  sta ted  a cause of action 
under four sep ara te  s ta tu tes: section 1 
of th e  Civil R ights Act of 1866, 42 
U.S.C. §1981; T itle VII of the  I t 64 
Civil R ights Act. 42 U.S.C. §§2000e 
to  e-15; section 301(a) of the Labor- 
M anagem ent R elations Act. 29 U.S.C. 
5 185(a); and the  N ational Labor Re­
lations Act. 29 U.S.C. §§ 151 to 167.1 
On the  m otion of defendan ts the d is­
tr ic t  court dism issed p la in tiffs’ com ­
p la in t. The p la in tiffs appeal from  the 
order of dism issal. We reverse and  
rem and  for trial.

In  th is  appeal we m ust determ ine 
w hether p la in tiffs  have sta ted  a cause 
of action  under any of the s ta tu to ry  
grounds cited in  th e ir com plaint. We 
tre a t  the  d istric t co u rt’s dism issal of 
the  com plain t as a sum m ary judgm ent 
for th e  defendan ts and  consider the 
affidavits presented in the d istr.c t 
cou rt to supplem ent the  bare a llega­
tions of the com plain t.-
[FACTS]

The facts as alleged in  the com plaint 
an d  supplem ented by affidavits are 
n o t in m ateria l dispute. H arvester 
employs over forty-five hundred  p e r­
sons a t  W isconsin Steel Works in 
Chicago, including a sm all force of 
'bricklayers (less th a n  fifty  m en). Local 
21 is the exclusive bargain ing  repre­
sen ta tive  for the  bricklayers emploved 
by H arvester.

The com plain t alleges th a t  prior to 
Ju n e  1964 H arvester, w ith the acqui­
escence of Local 21, m ain ta ined  a 
d iscrim inatory  h iring  policy which ex­
cluded Negroes from  em ploym ent as 
bricklayers. D uring June  1964 five 
Negroes, including W illiam W aters, 
were h ired  as bricklayers. W aters, a 
m em ber of Local 21, worked in  th a t  
capacity  from  Ju n e  13, 1964 un til he 
was laid off on Septem ber 11, 1964. 
Nine o th e r bricklayers including all of 
th e  Negroes h ired  in  June  were d is­
charged  a t th a t  time.

U nder the collective bargain ing  
agreem ent workers achieve seniority  
only a fte r  n inety  consecutive days on 
the  job. T hus all of the  Negro brick­
layers h ired  in Ju n e  1964 worked as

1 P la in tiffs  w ithd rew  th e ir  c la im  u n d e r  th e  
N ational Labor R e la tions Act in th e  d is tr ic t 
c o u r t. A lthough  th e  a lleg a tio n  of Ju risd ic tion  
u n d e r  t h a t  prov ision  has n o t been str ick en  
fro m  th e  co m p la in t, it  was n o t  reasserted  on 
appeal We there fo re , deem  it to  be waived. 
See I l l-B , in fra .

2 T h e  d is tr ic t c o u r t 's  o rder of d ism issa l was 
n o t  d en o m in a ted  as a su m m ary  Judgm en t 
for th e  d e fen d an ts . N evertheless, a ffid av its  
were su b m itte d  by bo th  sides an d  w ere n o t 
excluded  by th e  c o u r t. F rom  its  m em o ran d u m  
op in io n  i t  is ev id en t th a t  th e  d is tr ic t co u rt 
considered  these a ffid av its  M oreover all 
p a rtie s  have relied on a ffid av its  to  tom e 
e x te n t  in th is  appeal. See Fed R.Civ.P. 12(c).

probationary  employees an d  did no t 
acquire seniority  and  the accom pany­
ing rig h t to preferen tial re in sta tem en t 
when bricklayer jobs were again  avail­
able. P lain tiffs allege th a t  th is sen io r­
ity system , agreed to by Local 21, Is 
p a r t  of a system atic a tte m p t to ex­
clude Negroes from  em ploym ent as 
bricklayers.

In  April 1966 W aters sought bu t was 
no t offered reem ploym ent w ith H ar­
vester. At the  sam e tim e, Donald 
Samuels, a m em ber of Local 21, also 
applied for em ploym ent w ith  H arvester 
as a bricklayer. Sam uels, who had 
no t previously worked for H arvester 
was denied em ploym ent.
[CHARGES FILED]

On M ay 20, 1966 W aters and  Sam uel 
filed charges w ith the Illinois F air 
Em ploym ent Practices Commission a l­
leging th a t  H arvester refused to hire 
them  as bricklayers on account of 
th e ir  race. Three days la te r  th e  sam e 
charges were filed w ith th e  Equal 
Em ploym ent O pportunity  Commission 
On February  16, 1967 the EEOC found 
th a t  no reasonable cause existed to 
believe th a t  H arvester violated T itle 
VII of the  Civil R ights A ct*

In  M arch 1967 p la in tiff W aters p e ti­
tioned for reconsideration of the  
EEOC’s finding and provided the fol­
lowing additional allegations to sup ­
po rt h is request. In  Septem ber 1965 
a num ber of white bricklayers on 
layoff s ta tu s  elected to receive sever­
ance paym ents. By accepting sever­
ance pay under the collective b a r­
gain ing agreem ent these bricklayers 
lost all righ ts  to p referen tia l re in ­
s ta tem en t and  became eligible for re ­
em ploym ent on th e  sam e basis as new 
employees. Subsequently, on Ju n e  15 
1966 H arvester and  Local 21 am ended 
th e ir  collective bargain ing  agreem ent 
to restore seniority  to e igh t w hite 
bricklayers whose seniority  h ad  been 
lost a f te r  receiving severance pay. 
Three of these bricklayers were offered 
and accepted em ploym ent. R esto ra ­
tion of seniority  to the rem aining five 
workers relegated p la in tiffs to a lis t 
fu rth e r  away from recall. As a resu lt 
p la in tiffs  alleged th a t  the ir app lica­
tions for em ploym ent were no t given 
equal consideration and  th a t  reem ploy-

.1 O n M arch 8. 1907 W aters an d  th e  o th e r  
b rick layers d ischarged  in  S ep tem ber 1964 were 
o ffered  reem ploym en t. B elieving th a t  he  had  
been u n su c cesfu l tn  h is ac tio n  before th e  
EEOC. W aters accep ted  em ploym ent an d  
w orked as a b rick layer from  M arch 20 u n til  
May 19. 1967 w hen he  w as aKaln d ischarged  
In  A ugust 1967 he was attain  o ffered  e m ­
p lo y m en t by H arveste r b u t refused  since h is 
p e titio n  for reco n sid era tio n  was th e n  p e n d ­
ing  before th e  EEOC.



WATERS v. WISCONSIN STEEL WORKS 2 FEP Cases 577

m en t of the  th ree  white workers and 
restoration  of seniority  to all eight 
bricklayers perpetuated  H arvester’s 
continuing policy of h iring  only w hite 
bricklayers.

On Ju n e  14, 1067 the EEOC gran ted  
W aters’ request for reconsideration. 
On July 10, 1968 the  EEOC w ithdrew  
Its previous decision and  issued a new 
find ing  th a t  “reasonable cause exists 
to  believe th a t  respondent [H arvester] 
violated T itle VII of the Civil R ights 
Act of 1964 . . . . ” On November 29, 
1968 the  EEOC notified W aters and 
Sam uels th a t  its conciliation efforts 
w ith H arvester h ad  failed and provid­
ed them  w ith notice of th e ir r ig h t 
to sue.
[COMPLAINT FILED!

On D ecem ber 27, 1968 p la in tiffs filed 
th e ir  com plain t in  the  d istric t '•ourt 
aga in st H arvester and  Local 21. The 
d is tric t cou rt gave num erous grounds 
for dism issing the  com plaint. The 
cou rt held th a t  the  Suprem e C ourt’s 
holding in  Jones v. Alfred H. M ayer 
Co.. 392 U.S. 409 (1968), could no t be 
extended to c rea te  a cause of action 
for “p riva te” racial discrim ination  in 
em ploym ent un d er 42 U S.C. § 1981. 
The court fu r th e r  held th a t  even if 
such a cause of action  existed prior 
to  1964, it  was, nevertheless, preem pted 
by the en ac tm en t of T itle VII of the 
1964 Civil R ights Act. F urtherm ore, 
th e  court concluded th a t  any action 
under section 1981 would be barred  by 
th e  120-day filing period of the  Illinois 
F air Em ploym ent P ractices Act.

The d istric t court disposed of p la in ­
tiffs’ Title VII count against Local 21 
by holding, p u rsu a n t to section 706(e) 
of T itle VII, 42 U.S.C. § 2000e-5(e>, 
th a t  Local 21 could no t be joined as 
a d e fen d an t since p la in tiffs  had not 
previously charged  the union with 
d iscrim inatory  practices in a pro­
ceeding before the  EEOC. The court 
fu rth e r  held th e  action  against H ar­
vester should also be dismissed since 
Local 21 and  individual white brick­
layers could be adversely affected  if 
p la in tiffs’ action  continued, thereby 
m aking  Local 21 and  the bricklayers, 
parties “needed for ju s t ad jud ica tion” 
un d er Rule 19, F ederal Rules of Civil 
Procedure.
[FINAL HOLDING]

Finally, the  cou rt held th a t  the 
failu re of p la in tiffs  to exhaust the 
grievance and  a rb itra tio n  procedures 
under the co n trac t precluded su it 
under section 301 fa) of the  Labor- 
M anagem ent R elations Act. In  a foot­
note the court also sta ted  th a t  p la in ­

tiffs failed to s ta te  a cause of action 
under the N ational Labor Relations 
Act, since exclusive ju risd iction  under 
th a t  Act is vested in the  N ational 
Labor Relations Board.

The cen tral issue in th is  appeal is 
w hether Local 21 can  be sued directly 
in  the d istric t cou rt w ithout previously 
being charged before th e  EEOC. If 
Local 21 is properly a defendan t, full 
relief can  be g ran ted  an d  the  applica­
bility of Rule 19, Fed.R.Civ.P. need 
n o t be considered. We hold th a t  a 
rig h t to sue under section 1981 for 
“p riva te” racial d iscrim ination  in  em ­
ploym ent existed prior to  1964. By 
enacting  Title VII of th e  1964 Civil 
R ights Act, Congress did no t repeal 
th is  rig h t to  sue. However, in  order 
to avoid irreconcilable conflicts be­
tween the provisions of section 1981 
and  T itle  VII. a p la in tiff  m ust exhaust 
h is adm inistra tive rem edies before the 
EEOC unless he provides a reasonable 
excuse for his fa ilu re  to  do so. Since 
we find on the basis of the m ateria l 
before us th a t  p la in tiffs  have su ffi­
ciently  justified  th e ir  failure to charge 
Local 21 before the EEOC, we hold 
th a t  the  d is tric t court erred  in  d is­
m issing p la in tiffs ’ com plain t against 
th e  union. Accordingly, we reverse 
for tr ia l on th e  m erits of p la in tiffs’ 
com plain t against Local 21 under sec­
tion  1981 and  ag a in s t H arvester under 
T itle VII.
1. The Existence of a Right to Sue

Under Section 1981.
In  Jones v. Alfred H. M ayer Co., 

392 U.S. 409 (1968), the  Suprem e
C ourt was asked to determ ine the 
scope and  constitu tionality  of 42 U.S.C. 
§ 1982.* In  its original form  section 
1982 was p a rt of section 1 of the Civil 
R ights Act of 1866.5 T he C ourt held

4 U.S.C. { 1982 read s: "All c itizen s o f th e  
U n ited  S ta te s  have th e  sam e r lu h t. In  every 
S ta te  an d  T errito ry , as Is en joyed  by w hite  
c itizen s th e reo f to  In h e rit, p u rch ase , lease, 
sell, ho ld , an d  convey real a n d  personal p ro p ­
e r ty .”

5 Section  1 of th e  Civil R ig h ts  Act of 1866 
prov ided :

Be it enacted  by th e  S en a te  and House o f 
R epresen ta tives o f  th e  U nited  S ta te s  o f A m ­
erica in Congress assem bled , T h a t  a ll persons 
born  In th e  U n ited  S ta te s  an d  n o t su b je c t to  
an y  fo reign  power. . . . a re  h ereby  declared 
to  be c itizen s of th e  U nited  S ta te s ; a n d  su ch  
c itizen s , o f every race an d  color, w ith o u t re ­
gard  to  an y  prev ious co n d itio n  of slavery 
o r In v o lu n ta ry  se rv itu d e  . . . sha ll have th e  
sam e r ig h t. In every S ta te  a n d  T errito ry  In 
th e  U nited  S ta tes , to  m ake a n d  enforce c o n ­
tra c ts . to  sue. be parties, a n d  give evidence, 
to In h e rit, purchase , lease, sell. hold , and 
convey real and  personal p ro p erty , an d  to 
fu ll and  equal b en e fit of a ll law s a n d  pro­
ceed ings for th e  secu rity  of person  an d  
property , as is en joyed  by w h ite  citizens, and  
sh a ll be su b je c t to  like p u n ls h n e n t  pains, 
a n d  pena lties , an d  to  no n e  o th e i. an y  law.



2FE P C W K S578 WATKR8 v. WISCONSIN STEEL WORKS

th a t  section 1 and  its derivative sec­
tion 1982, p ro h ib it “all racial d iscrim i­
nation , p riva te  as well as public, in 
the  sale or re n ta l of property ”
Jones, supra, a t 413. The constitutio 'n- 
fU ty  of sect-ion 1982 was upheld on 
the  basis of Congress' power to en ac t 
legislation to enforce the th ir te e n th  
am e n d m e n ts

P la in tiffs  argue by analogy to the 
Jones case th a t  42 U.S.C. } 1981 t is 
al.s°  d '-rl,ved from  section 1 of the 
Civil R ights Act of I860; th a t  it is a 
valid  exercise of congressional power 
n n d er th e  th ir te e n th  am endm ent; and 
tn a t  i t  is in tended  to prohib it private 
rac ia l d iscrim ination  in em ploym ent 
by com panies and  unions. We agree.

There can be little  doubt th a t  sec­
tion 1981, as well as section '982, is 
roJiv<̂  dlrect]y from  section 1 of m e 
1866 Civil R ights Act. In  th is  ju d g ­
m en t we rest p rim arily  on the  views 
expressed by the  Suprem e C ourt in 
the  Jones case. In  footnote 78, the 
C ourt said th a t  ‘‘the rig h t to co n trac t 
fo r em ploym ent lisl a righ t secured 
by 42 U.S.C. § 1981 ( . . . derived 
from  § l  of the  Civil R ights Act of

'C P  • ) ” Jo n es- supra, a t  442. 
This s ta tem en t Is bu ttressed by fu r­
th e r m ention  of the derivation  of sec- 
* 0 0 1 9 8 ! in  footnote 28, Jones, supra, a t  4zz.

I VIEW SUPPORTED]
The Suprem e C ourt’s view of the 

genesis of section 1981 is also sup ­
ported by our own analysis. In  1870 
Congress reenacted  section l of the 
1866 Act as section 18 of the 1870 
Civil R ights Act. As p a r t  of the 1870 
Aot Congress also adopted section 16 
which is sim ilar, a lthough som ew hat 
broader, th a n  section l of the 1866 
Act For purDoses of determ in ing  the  
derivation  of section 1981 we believe 
the  en ac tm en t of section 16 of the 
1870 Act is superfluous since section
s ta tu te ,  o rd in an ce , reg u la tio n , o r  cus tom , 
to  th e  co n tra ry  n o tw ith s ta n d in g .

« T h e  th ir te e n th  a m e n d m e n t p rovides: 
S ection  1:

N e ith e r  slavery n o r In v o lu n ta ry  se rv itude , 
ex cep t as a  p u n ish m e n t for a crim e w hereof 
th e  p a rty  sha ll have been du ly  convicted  
sh a ll %cx ls t w ith in  th e  U n ited  S ta te s , o r any  
p lace  su b je c t  to  th e ir  Ju risd ic tio n  
S ec tio n  2:

C ongress shall have pow er to  enforce th is  
a r tic le  by a p p ro p ria te  leg isla tion .

7 42 U S.C. § 1081 provides: 
tt P^rsons w ith in  th e  Ju risd ic tio n  of th e  
U n ited  S ta te s  sha ll have th e  sam e r g h t  In 
every S ta te  an d  T errito ry  to  m ake a id e n ­
force c o n tra c ts , to  sue. be p arties , g l ,e  evi- 
dence, an d  to  th e  fu ll a n d  eq u a l b en e fit 
of all law s and  p roceed ings for th e  secu rity  
°\..*p ersons an d  Pr°P erty  as -is e n j o ^ d  bv 
w hite  citizens, a n d  sha ll be su b je c t to like 
p u n ish m e n ts , pains, pena lties , taxes, licenses 
a n d  exac tio n s of every k in d , an d  to nc o th e r

18 is sufficiently  broad to Include the 
provisions of section 1981. This con- 
clusion is supported by the failure of 
defendan ts to p resen t legislative h is­
tory to dem onstra te  th a t  Congress 
in tended  to narrow  the scope of the 
P ^ h t “to m ake and  enforce con- 
* ^ ts. Provision of section 1 of the  
1866 Act by the en ac tm en t of section 
16. In  fact, a con tra ry  in te n t is more 
JiKely sinee Congress by enacting  sec­
tion 16 undoubtedly was a ttem p tin g  to 
insure th a t  the r ig h t to m ake and  en ­
force con trac ts  w ithout regard  to race 
was supported by th e  fo u rteen th  as 
well as the  th ir te e n th  a m e n d m e n t8 

From  the discussion In the  Jones 
case, it  is also evident th a t  section 
1981, as p a r t of section  1 of the 1866 
Act. was a valid exercise of Congress’ 
pow er to en ac t legislation under the 
th ir te e n th  am endm ent. We rest p a r ti­
cularly  upon th e  Suprem e C ourt’s an - 
aiysis of Hodges v. U nited S tates, 203 

* f 1906). In  Hodges a  group of 
w hite workers were prosecuted under 
section  1981 for te rro ris t activities 
conducted against Negro employees of 
a saw mill. The Suprem e C ourt re- 
versed the d efen d an ts’ conviction, 
holding th a t  section 1981 was no t de­
signed to prohib it p rivate  ac ts of d is­
crim ination . The C ourt in  Jones exam ­
ined the  decision in Hodges and  ruled;

The conclusion of the majority in 
Hodges rested upon a concept of con­
gressional power under the Thirteenth 
Amendment irreconcilable with the posi­
tion taken by every member of this 
Court in the Civil Rights Cases and in- 
eompatible with the history and purpose 
of the Amendment Itself. Insofar as 

inconsistent with our holding
“ ‘V m M  overruled- Joncs' su-
f CONGRESSIONAL INTENT]

Every indicia of congressional in - 
te n t points to the conclusion th a t  
section 1981 was designed to  p roh ib it 
p rivate  job d iscrim ination. The words 
of the  sta tu te , which are alm ost iden-
VQCoao ln  f ei evan t a s p e c t  to  section 1982 m ust be construed to ex tend  be­
yond insuring  the bare legal capacity  
of Negroes to en te r in to  co n trac ts  
T hus Congress provided th a t:  "All 
persons . . . shall have the  sam e righ t 
to m ake and  enforce co n trac ts  as 
is enjoyed by white citizens.” We are 
no t persuaded th a t  the failu re  of 
Congress to expressly m ention  em ­
ploym ent con trac ts m akes section 1981 
d istinguishable from  section 1982. This

8 T h e  fo u r te e n th  a m e n d m e n t w as n o t  
ad o p ted  u n t i l  1868

I' See genera lly  A. L arson. New Law  of Race 
R e la tio n , 1968 Wls.L. Rev. 470.



WATERS v. WISCONSIN STEEL WORKS 2 FEP Cases 579

conclusion is supported by the legis­
lative h istory  of the I f66 Act which 
dem onstra tes Congress’ in te n t th a t  
section 1 apply to em ploym ent con­
trac ts . As the  Suprem e Court noted in 
Jones:

Tlie congressional debates are replete 
with references to private injustices 
against Negroes—references to white em­
ployers who refused to pay their Negro 
workers, white planters who agreed 
among themselves not to hire freed 
slaves without the permission of their 
former masters. Jones, supra, at 427.
As ari exam ple of Congress’ concern 
are  the  words of R epresentative W in- 
dom delivered on the  floor of the  
House:

Its object is to secure to a poor, weak 
class of laborers the right o make con­
tracts for their labor, the power to en­
force the payment of their wages, and 
the means of holding and enjoying the 
proceeds of their toil. Cong. Globe, 39th 
Cong. 1st Sess. 1159 (1866).
This exp lanation  of the  purpose of 
section 1 of th e  1866 Act dem onstrates 
th a t  Congress contem plated  a proh ib i­
tion  of racial d iscrim ination  in  em ­
ploym ent w hich would extend beyond 
s ta te  action.
[UNION DISCRIMINATION]

R acial d iscrim ination  in  em ploym ent 
by unions as well as by em ployers is 
barred  by section 1981. The re la tio n ­
sh ip  between an  employee and  a union 
is essentially one of contract. Ac­
cordingly, in  the perform ance of its 
functions as ag en t for the  employees 
a union can n o t d iscrim inate  aga in st 
some of its m em bers on the  basis of 
race .10 W ashington v. Baugh Con­
struction  Co., 61 LC II9346 a t  6908, 
2 FEP Cases 271, 278 (W.D.Wash. 1969) 
Dobbins v. Local 212, IBEW, 292 F. 
Supp. 413, 1 FEP Cases 387, 69 LRRM 
2313 (S.D.Ohio 1968).

D efendants m ake several argum ents 
to  re fu te  th e  existence of a  cause of 
action  based on p rivate  racial d is­
c rim ination  In em ploym ent prior to 
the enac tm en t of T itle VII of the  1964 
Civil R ights Act. These argum ents 
m erit only brief discussion. D efend­
an ts  m a in ta in  th a t  th e  Jones decision 
was “foreshadow ed” by cases such as 

•Hurd v. Hodge, 334 U.S. 24 (1948); 
Shelley v. K raem er, 334 U.S. 1 (1948); 
B uchanan  v. W arley, 245 U.S. 60 (1917) 
and  th a t, since sim ilar “foreshadow ­
in g ” is no t p resen t under section 1981, 
the  Suprem e C ourt would no t ex tend

10 We need n o t decide w h e th e r  nn em ployee 
possesses r ig h ts  u n d e r  § 1981 ag a in s t th e  u n io n  
If h e  Is n o t a m em ber. See S teele  v. L o u is­
ville & N R.R. Co., 323 'U .a . 112. 198-99, 15 
LRRM (1944).

its  ruling in  Jones to  private  d iscrim i­
n a tion  in em ploym ent contracts. If, 
by foreshadow ing, th e  defendan ts 
m ean th a t  th e  sta te  action  concept 
has som etim es been employed in  a 
flexible fashion to achieve Just results, 
the  cases upon w hich they  rely fo re­
shadow the demise of the  requirem ent 
of s ta te  action  under section 1981 as 
well. F urtherm ore, i t  is m istaken  to 
suggest th a t  courts have no t used 
sim ilar m eans to circum vent th e  re­
quirem ent of s ta te  ac tion  in  the  area 
of em ploym ent contracts. See Steele 
v. Louisville & Nashville R.R. Co., 323 
U.S. 192, 198-99, 15 LRRM 708 (1944).

D efendants also argue th a t  th e  Jones 
case is distinguishable from  the  case 
a t  bar since property  rig h ts  have t r a ­
ditionally  been subject to g rea te r gov­
ernm en ta l regulation  th a n  o th e r p ri­
vate activity. We disagree. Labor 
co n trac t re la tions a re  sub jec t to  gov­
ernm en ta l regulation  nearly  as ex ten ­
sive as property  rights. Furtherm ore, 
we are unclear why de fen d an ts’ as­
sertion, even if it were true, is re levant 
in constru ing section 1981. Finally, 
defendan ts m a in ta in  th a t  the  Jones 
case should be given retroactive app li­
cation. This a rgum en t is sufficiently  
answ ered by the fa c t th a t  the  S u­
prem e C ourt has a lready  applied the 
Jones case retroactively  in  Sullivan v. 
L ittle H unting  Park , Inc., 396 U.S. 229 
(1969).
II. Title VII of the Civil Rights Act

of 1964
A. Did Title VII repeal section 1981 by

implication?
H aving established th e  existence of 

a cause of action  under section 1981 
p rio r to 1964, we m ust now ascerta in  
w hether Congress, by th e  en ac tm en t 
of T itle VII, in tended  to  repeal the 
r ig h t to bring su it for rac ia l d iscrim i­
n a tio n  in em ploym ent under the  fo rm ­
er section. The rules governing this 
determ ination  have been sta ted  by 
the Suprem e Court in  Posadas v. N a­
tional City Bank, 296 U.S. 497, 503 
(1936):

The amending act just described con­
tains no words of repeal; and if it ef­
fected a repeal of § 25 of the 1913 act, 
it did so by i m p l i c a t i o n  only. 
The cardinal rule is that repeals 
by Implication are not favored. Where 
there are two acts upon the same sub­
ject, effect should be given to both if 
possible. There are two well-settled cate­
gories of repeals by implication—(1) 
where provisions in the two acts are in 
Irreconcilable conflict, the later act to the 
extent of the conflict constitutes an Im­
plied repeal of the earlier one: and (2' if 
the later act covers the whole subject 
of the earlier one and is clearly intended



2FEP Cases 580 WATERS v. WISCONSIN STEEL WORKS

as a substitute, it will operate similarly 
«? * repeal of the earlier act. 3u t. In 
either case, the intention of the leeisla- 

to repeal must be clear anc manl- 
fest, otherwise, at le: st as a general 
thing, the later act is to be construed 
as a continuation of. and not a substi­
tute for the first act and will continue 
to speak, so far as the two acts are
actm ent^ *IOm the time of the first en-
We need concern ourselves only w ith 
th e  doctrine of repeal by im plication 
since T itle VII does no t provide for 
express repeal of previous legislation, 
fu rth e rm o re , the  second category of 
repeal by im plication  noted  by the 
faupreme Court is inapplicable since 
section 1981 covers righ ts o th e r th a n  
the rig h t to co n trac t for em ploym ent.
T CONTENTION]

D efendants argue th a t  Title VII v/is 
in tended by Congress to be a com pre­
hensive schem e to elim inate racial 
discrim ination  in em ploym ent thereby 
au tom atically  abolishing all righ ts  p re ­
viously existing under section 1981 
They point firs t to the  fac t th a t  Con­
gress in  enacting  T itle V II was u n ­
aw are of the possibility th a t  aggrieved 
persons could bring civil suits" under

1T81'11 They would d is tin ­guish the Jones case on th is  basis since 
availability  of section 19C2 was 

m entioned In debate over T itle VIII 
of the 1968 Civil R ights Act. Jones 
supra, a t  413-17. A fter the  recen t de- 
£“ i?n  Tin s “ !iivan  v- L ittle  H unting

J n f -  i 396 U 229 (19691 ■ this  a rgum ent Is no longer viable, in
Sullivan the  Suprem e C ourt held th a t  
iooorig h t to Jir in K su it under section 
^ f8?v,wan lL1?,affected  ^  the  en ac tm en t ° f  the.  Public A ccom m odations provl-

° f \ l e 1,964 F lvil R1^h ts  Act. even though the legislative h isto ry  of th a t 
Act fails to m ention  section 1982 
Sullivan, supra, a t 237. T hus the  rele­
v an t question for th e  purpose of de- 
te rm ln ing  w hether rig h ts  under sec­
tion 1981 were repealed by Im plication 
is no t w hether Congress was aw are of 
section 1981, bu t w hether the  legisla­
tive history  dem onstra tes th a t  Con­
gress would have in tended  repeal if

re,!y “ P e d a lly  upo n  th e  follow ing s ta te m e n ts  by C ongressm an  L indsay :
T *‘c s itu a tio n  in  th e  law  as i t  ex ists to - 

hOUt th e  bu i before us h av in g  passed 
is th a t  any  ind iv ld i/a l can  b rin g  t,n ac tion  

*  p ro tec tio n  o f th e  14th am end"
U l w i i m i n  rcspoo ' to  a d ep riv a tio n  of a con- a tltu tio n a lly  p ro tec ted  r ig h t.
u sL ee°ther * 0rds- t h?re ls a custom  or 
h “ K th e  ■ tnr%  ‘L  tflc, c, ls a p rac tice  w hich
w hich  h a / S .  ,f„  S, a te  Ix,wer b eh in d  It.. s S ta te  involvem ent, in  it. th e n  to ­
day an  ind iv id u a l m ay b rin g  ac tio n  for m  
in ju n c tio n , n o  Cong. Re? ]§66 ( i 664)

i t  had  been aw are of preexisting  rig h ts  
under the 1866 Civil R ights Act.

C ontrary  to the assertions of de- 
fendan ts the legislative h istory  of 
■ , * . 1 strongly dem onstra tes an
in te n t to preserve previously existing 
causes of action. T hus Congress re ­
jected  by m ore th an  a  tw o-to-one 
m arg in  an  am endm ent by S enato r
£ ° w& & ei lclud!  a Eencles o ther th a n  the EEOC from  dealing w ith practices 
covered by T t le  VII. n o  Cong. Rec. 
136d0-52 (1964). Courts have accord- 
mRly held  th a t  Title VII does n o t p re­
em pt the  Jurisdiction of the N ational 
Laoor R elations Board to h e a r charges 
1°1L , ^ airJ labor practices based on the 

duty  of fa lr  rep resen tation . U nited Packinghouse, Food & Allied 
^ “ r^ e rs  In te rn a tio n a l Union v. NLRB, 
t i e  P-2£ U26, 70 LRRM 2489 (E.C. Cir 
1969); Local 12, U nited R ubber W ork-
S h C t M *  ™  n  63 “ RM 2395
I INDICIA OF INTENT]

D efendants argue, however, th a t  the 
m ost im p o rtan t indicia of in te n t are 
the  provisions established in  T itle VII 
itself and  th a t  the  existence of a cause 
or a c t on under section 1981 would 
V1J  uaiiy destroy these provisions. In  
addJ tlo n  to the availab ility  of im ­
m ediate access to the courts, they 
p o in t to large d ifferences In the  class 
of persons covered by T t le  VII and 
section  1981 and varia tions in the  sub­
stan tiv e  prohibitions of th e  two e n ­
actm ents. We agree th a t  the difficul-
T?ti»VTTreconclllnE section 1981 and T itle VII are g rea t an d  th a t  the  areas 
of passible conflict are num erous. 
N evertheless, the  Posadas case cautions 
th a t  ‘ the  in ten tio n  . . .  to repeal m ust 
be clear and  m an ife s t” and  holds th a t  
e« e c t  should be given to both  if 

?wSw u '  T h i?-S we can n o t conclude th a t  the  possibility of conflict dem on­
s tra te s  th a t  section 1981 was wholly 
repealed by im plication .1* We are  
convinced th a t  the  two ac ts  can in 
large m easure, be reconciled and  effect 
given to the congressional in te n t in  
both enactm ents. T herefore, we hold - 
th a t  conflicts m ust be resolved on a * 
case-by-case basis.1* Accordingly we 
tu rn  to section 706(e) n  to  determ ine

, generally  C o m m ent, R acial D iscrim -
ln a tio n  In E m ploym ent U nder th e  Civil R ig h ts  
Act of 18b6. 36 U.Chl L.Rev. 615 (1969).
_if*We in tim a te  no views co n cern in g  th e
nueneroua co n flic ts  betw een $ 1981 and  

V II c !tf d by Local 21 an d  Confine our  
*5 / esolu tio n  o f  th o se  co n ­

flic ts  w hich  are before u* in  th is  case. t
e v a n t2 p arf;0  1 2° 00<“ 5 (e ) provldf* ln » 1 -
w u u t hl r t jr days a f te r  a  ch arg e  Is filed  w ith  th e  C om m ission . . . th e  C om m ission



WATERS v. WISCONSIN STEEL WORKS 2 FEP Cases 581

w hether p la in tiffs ' cause of action  
u n d er section 1931 ag a in st Local 21 
can be reconciled w ith the “charged 
p a rty "  language of Title VIL
B. T he effect of section 706(e) on th e  

r ig h t to  bring su it un d er section 
1981.
Previously In constru ing  section 706 

(e) th is  court h as  held th a t:  “I t  Is a 
ju risd ic tional prerequisite to  the  filing 
of a su it under T itle VII th a t  a charge 
be filed w ith  the  EEOC ag a in st the 
p a rty  sough t to be sued, 42 U.S.C.
1 2000e-5(e).” Bowe v. C olgate-Pal­
molive Co., 416 F.2d 711, 719, 2 FEP 
Cases 121 (1969).

O ther courts w hich have considered 
the question have also held th a t  the  
“charged p a rty  ' language of section 
706(e) p rohib its T itle VII su its in the 
d istric t court aga in st persons n o t p re ­
viously charged  before the EEOC. 
M iller v. In te rn a tio n a l P aper Co., 408 
F.2d 283, 1 FEP Cases 647, 70 LRRM 
2743 (5th Clr. 1969); Mickel v. South 
Carolina Em ploym ent Service, 377 F.2d 
239. 1 FEP Cases 132, 65 LRRM 2328 
(4 th  Clr.), cert, denied, 389 U.S. 877, 
I FEP Cases 300, 67 LRRM 2898 (1967); 
B utler v. Local 4, Laborers’ Union, 61 
LC H 9348 a t  6917, 2 FEP Cases 569 
(N.D.I11. 1969); Cox v. U nited S ta tes 
Gypsum Co., 284 F.Supp. 74. 1 FEP 
Cases 602, 70 LRRM 2423 (N.D.Ind.
1968) , m odified, 409 F.2d 289. 1 FEP 
Cases 714, 70 LRRM 3278 (7th Cir.
1969) ; Sokolowski v. Sw ift & Co., 286
F.Supp. 775, 1 FEP Cases 611. 70 LRRM 
2440 (D.Minn. 1968); Mondy v. Crown 
Zellerbach Corp., 271 F.Supp. 258, 1 
FEP Cases 253, 66 LRRM 2721 (E.D.La. 
1967); Moody v. A lbeniarle P aper Co., 
271 F S upp . 27, 1 FEP Cases 234, 66 
LRRM 2099 (E.D.N.C. 1967). Since
these courts were n o t presented w ith  
argum ents concerning the  existence of 
a rig h t to sue under section 1981. the  
cases cited were properly decided. They 
do no t hold, however, th a t  failure to 
charge a p a rty  before the EEOC p re ­
cludes su it under section 1981. We 
hold such su its can be reconciled w ith 
section 706(e) and  continue to exist 
in a lim ited class of cases.
fLANGUAGE]

The language of section 706(e) i t ­
self does n o t compel the conclusion 
th a t  Congress in tended  to repeal the 
rig h t to bring  su it directly  under sec-
h as been u n a b le  to  o b ta in  v o lu n ta ry  co m ­
pliance  w ith  th is  su b -c h a p te r , th e  C om m is­
sion  sha ll so n o tify  th e  person  ngsrleved  an d  
a civil a c tio n  m ay. w ith in  th ir ty  days th e re ­
a f te r. be b ro u g h t a g a in s t th e  re sp o n d en t 
nam ed  in  th e  ch arge  . . .  by th e  person  
c la im in g  to  be aggrieved.

tion 1981. Even though  th a t  section, 
in  discussing access to th e  courts, 
concen tra tes on the  situ a tio n  w here 
an  aggrieved party  h as  firs t proceeded 
to  the EEOC, there  is no provision 
w hich specifically requires p rio r re ­
course before the  Commission. Since 
Congress has expressly prohib ited  
d irec t access to  federal courts in  sim i­
la r  situa tions under o th e r s ta tu te s ,15 
we h esita te  to read  section 706(e) as 
requ iring  recourse before th e  EEOC as 
a  ju risd ictional prerequisite  In all 
cases.

Furtherm ore, th e  legislative h isto ry  
of T itle VII fa ils to conclusively dem ­
o n s tra te  th a t  section 706(e) was de­
signed to preclude civil su its by ag ­
grieved parties w ithou t prior recourse 
before the EEOC. A lthough s ta te ­
m en ts by m em bers of Congress from  
the  floor during  debate  should be 
viewed w ith  cau tion ,16 we note the  
following assertion  by S enato r H um ­
phrey, p roponen t and  floor m anager 
of the bill: “ [T] he Individual m ay 
proceed in his own rig h t a t  any  tim e. 
He m ay take his com plain t to  the 
Commission, he m ay by-pass the  Com­
m ission, or he m ay go directly  to 
court.” 110 Cong. Rec. 14 188 (1964).

Despite these ind ications we are 
convinced th a t  h ad  Congress been 
aw are of th e  existence of a cause of 
action  under section 1981, the  absolute 
rig h t to sue under th a t  section would 
have been m odified.17 T hroughout 
the  legislative h istory  of T itle  VII. 
Congress expressed a strong  preference 
for resolution of disputes by concilia­
tion  ra th e r  th a n  court action. Con­
ciliation was favored for m any reasons. 
By establish ing the EEOC Congress 
provided an  inexpensive and  uncom ­
plicated  rem edy for aggrieved parties.

11 See Age D isc rim in a tio n  In  E m ploym en t 
Act of 1987, 29 U.S.C. 5 62«!<1), w here a 
civil ac tio n  bv a p riv a te  p erson  Is expressly 
p ro h ib ited  u n less  th e  S ecre tary  of L abor Is 
given six ty  days n o tice  d u r in g  w h ich  lim e 
h e  m ay a tte m p t c o n c ilia tio n .

Hi C on tra ry  s ta te m e n ts  were m ad e  by o p ­
p o n en ts . Inc lu d in g  S e n a to r  E rvin  w ho de-; 
sc ribed  th e  prov isions of sec tio n  706(e) as 
fo llow s: " (T lh e  bill p u ts  th e  key to  th e  
c o u r th o u se  door In th e  h a n d s  of th e  Com ­
m iss io n .” 110 Cong. Rec. 14 188 (1964).

17 O ur conclusion  Is n o t  In c o n sis te n t w ith  
th e  S uprem e C o u rt's  h o ld in g  in  Jo n e s  th a t  
th e  r ig n t to  proceed d irec tly  In federa l c o u rt 
u n d e r  5 1982 Is u n a ffe c te d  by th e  e n a c tm e n t 
of T itle  V III of th e  1968 Civil R ig h ts  Act. 
42 U S .C . §5 3601 to  3619. T h is  Is tru e  b e ­
cause  5 812 of t h a t  Act prov ides a n  aggrieved 
p a r ty  w ith  th e  a l te rn a tiv e  of by -pass in g  th e  
S ecre ta ry  of H ousing  a n d  U rb an  D evelop­
m e n t a lto g e th e r  a n d  p roceed ing  d irec tly  In 
a civil a c tio n  In th e  d is tr ic t  co u rt. Nor Is 
o u r  decision  In c o n s is te n t w ith  th e  S uprem e 
C o u rt's  ho ld ing  In S u lliv an  th a t  5 1982 was 
u n a ffe c te d  by th e  e n a c tm e n t of T itle  I I  of 
th e  1964 Civil R ig h ts  A ct. Section  207(b) of 
t h s t  t i t le  c o n ta in s  a n  express clause  saving 
p rio r  leg isla tion . S u lliv an , su p ra , a t  238.



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2 FEP Cases 582
WATERS v. WISCONSIN STEEL WORKS

m ost of whom  were poor an d  u n -  
sophisticated . C onciliation also was 
designed to allow a respondent to 
rectify  or explain  his action  w ithout 
th e  public condem nation  resu lting  
from  a  m ore form al proceeding. F u r­
therm ore, the  absence of d irect gov-
?.E5menA. coercion was th o u g h t to 
lessen the  an tagon ism  betw een p a r ­
ties and  to encourage reasonable se t­
tlem ent, The need for vo luntary  com ­
p liance  was stressed since m ore co- 

5en\edies were likely to inflam e 
responden ts and  encourage them  to 
t io n 1̂  subtle form s of d lscrim lna-

fREASONABLE EXCUSE]
Because of th e  s trong  em phasis w hich 

Congress placed upon conciliation, we 
d °  n o t th in k  th a t  aggrieved persons 
should be allowed in ten tionally  to by­
pass th e  Commission w ithout good 
reason. Wc hold, therefore, th a t  an  
aggrieved person m ay sue d irectly  
u n d er section 1981 if he pleads a 
reasonable excuse for his failure to ex­
h a u s t EEOC rem edies. We need no t 
define th e  full scope of th is  exception
& w « £ e\ e rKieleM- we believe th a tp la in tiffs  in  th e  case a t b a r have p re- 

a llegations su ffic ien t to justify
H }*A !ailure t0 charge Local 21 before the  Commission.

We rely p articu la rly  on the follow- 
ing  allegations. The p r im a r /  charge 
of racial d iscrim ination  m ade by p la in ­
tiffs  is based on an  am endm en t of the 
collective b arga in ing  agreem ent be­
tween H arvester an d  Local 21 T h a t 
am en d m en t occurred in June  1966 
a lte r  p la in tiffs  filed th e ir  charge be- 
fore the  EEOC. U ntil th is  am endm en t 
p la in tiffs  were, a t  least arguably, u n - 
aw are of the  p artic ip a tio n  of Local 21 
i )  H arvester's alleged policy of racial 
d iscrim ination . From  th e  affidav its 
before us, it  is ev ident th a t  Local 21 
was aw are of th e  charges ag a in st 
H arvester, an d  by s trong  im plication 
a f ai r:[?,t as early  as October
1966-1!) Subsequent to th is  tim e Local

] * Se generally  M. Sovern . L fgal R e - 
B ip .u x T s  o n  R acial D i s c r i m i n a t i o n  i n  E m - 
m .o t m i n t  ( 1 9 5 6 ) ;  D i s c r i m i n a t i o n  i n  E m -  
f i .o t u i .n t  a n d  i n  H o u s i n c : P rivate  E n f o f c t - 
M4A I —p R y v ,s ,O N S  o r  THE C i v i l  R i g h t s  A ct s  
Q* 19J4 AND 1968, 82 H aRv. L. R ev . 834 (1969)  

l •• We n o te  especially  th e  s ta te m e n ts  of 
Ja m e s  W. Q uisen  berry . an  in v e s tig a to r  fo r 
th e  EEOC, whose a if ld a v lt  read s in p e r tlm e n t p a r t :

In  th e  reg u la r  p e rfo rm an ce  of my offic ia l 
d u tie s , p u r su a n t to  a n  in v es tig a tio n  o f 
ch arg es filed May 23. 1966, by W illiam  W aters 
o . . D?,!ml,d S am uels a g a in s t th e  W isconsin 
b tee l W orks, I tw ice c o n tac ted  E dw ard T 
Joyce. P re s id en t of Local 21. U n ited  O rder 
of A m erican  B rick layers a n d  S to n e  M asons. 
T he f irs t  m ee tin g  o ccu rred  In O ctober 1966;
g u st 8hei967C° nd  m eetlnK  f0ck P “ ‘ce on  A u-

21 presum ably could have rectified  
any  ac ts  of d iscrim ination  on its p a rt 
Thus Local 21 suffered  only sligh t 
prejudice from  the  failu re  of p la in tiffs  
to charge It before th e  EEOC.
[PRESUMED INTENT]
soon! A  C o n c e iv a b le  th a t  Congress 
would have In tended  to  do aw ay w ith
J n l i r!ghA.t0 sue dlrectJy under section 1981 in  these circum stances. To do so 
would bind com plainan ts by th e  four 
e f ip e rs  of an  Inform al charge and  de­
fe a t the  effective en fo rcem ent of the 
policies underlying T itle VII. Cf. Cho­
a te  v. C aterp illar T rac to r Co.. 402 F  2d 

I FEP Cases 431, 69 LRRM 2486 
(7th Clr. 1968). At the  adm in istra tive  
stage the charge is usually d ra fted  by 
laym an u n tra in ed  In th e  law. A re ­
quirem ent th a t  th e  c o m p l a i n a n t  
charge every person who m ay be in ­
volved In the  alleged ac ts  of dis­
crim ination  would be unnecessarily  
harsh .-o  Nor do we believe th a t  the  
aggrieved p a rty  Is p ro tected  by th e  
rig h t to am end his charge since 
am endm en t procedures are  generally  
beyond the  com petence of laym an  com ­
pla inan ts. To hold otherw ise would 
be to deny effective relief in tended  by 
Congress solely on the  basis of pro­
cedural defects before the  Commls- sion.

Allowing Local 21 to be sued directly 
m  d is tric t court under section 1981 is 
consisten t w ith th e  flexible in te rp re ta ­
tion or the  requ irem ent of conciliation 
recently  given by o th e r courts. Ac­
tu a l conciliation or even an  a ttem p t 
a t  conciliation by th e  EEOC no longer 
p resen ts a  ju risd ic tional ba rrie r to 
filing  su it in  a d is tric t court. Miller 
v. In te rn a t ional P aper Co., 408 F.2d 
283, 1 FEP Cases 647, 70 LRRM 2743 
(5th Clr. 1969); Johnson  v. S eaboard

SStobei '  d u r in g  m y f ir s t  m ee tin g
w ith  E dw ard T. Joyce. I In fo rm e d  h im  fu lly

th e  n a tu re  o f th e  ch arges m ad e  by W il­
liam  W ater* a n d  D onald  S am uela. I  In ­
fo rm ed  M r Joyce th a t  W aters a n d  Sam uels 
c la im ed  th a t  W isconsin  S tee l W orks had  
d lsc rlm ln a to rily  re jec ted  th e ir  em p lo y m en t 
a p p lica tio n s  of April 3. 1966.

- » T he h arsh n ess  of su c h  a re q u ire m e n t 
Is p a rticu la rly  ev id en t In th is  case I f  th is  
a c tio n  were d ism issed  a g a in s t b o th  H arveste r 
a n d  Local 21. p la in tiff s  w ould be forced to  

c*?,*rBe?„.belorc  th e  EEOC. Section  
Ts , i c „V n  req u ire s  t h a t  ch arges be filed  \* lth  210 days a l t e r  th e  o ccu rrence  of 

th e  alleged u n law fu l em p lo y m e n t p rac tice  
U nless th e  fa ilu re  to  h ire  p la in tif f s  In April 

♦ w ere considered  to  be a  c o n tin u in g  
v io la tio n  new  charges a g a in s t H arv este r an d

A1 woVid wbe deem ed u n tim e ly  and  p la in tif f s  w ould  be le f t  w ith o u t a rem edy  
21 D efen d an ts  arg u e  th a t  th e  b u rd e n ’ of 

a m e n d m e n t shou ld  be p laced  on  Com m ission 
m em bers u n d e r  42 U.S.C $ 2000e-5(a). We 
th in k  th e  f a c t  th a t  th e  C om m ission  d id  n o t 
a t te m p t  to  am en d  p la in tiffs*  charge  in  th is  
Ck5e ^ em orw*ra te s  Inadequacy  of au ch  a

1r

i

o

o

o

O  f
i.
i
fI(•



WATERS v. WISCONSIN STEEL WORKS 2 FEP Cases 583
Air Line R.R. Co.. 405 F.2d 645 1 FEP 
Cases 456, 69 LRRM 2916 (4th Clr 
1968), cert, denied. 394 U.S. 918 1 FEP 
Cases 699, 70 LRRM 3062 <1969> ’ M ore­
over, courts have allowed com plain-
F m p WM ° i^ a v e >1iot been th eEEOC to jo in  w ith com plainan ts who
have been before the agency as m em ­
bers of a class seeking relief ag a in st 
a com m on employer. Bowe v. Colgate- 
Palm olive Co., 416 F.2d 711, 2 FEP 
Cases 121 (7 th  Clr. 1969); O atis v. 
Crown Zellerbach Corp., 398 F.2d 496 
( ^ P e a s e s  rJ28; 68 LRRM 2782 (5th Cir. 1968); Jen k in s  v U nited G as 
Corp-. 400 F.2d 28, 1 FEP Cases 364, 69 
LRRM 2152 (5th Cir. 1968). We th in k  
these cases dem onstra te  th a t  th e  po- 
licy In favor of conciliation should 
n o t be tran sfo rm ed  in to  a techn ica l 
device used to obstruct the  enforce­
m en t of p roh ib itions aga in st racial 
d iscrim ination  in  em ploym ent and  to 
deny relief to those Congress has 
sough t to protect.
[FINAL CONTENTIONJ

The d efendan ts m ake one final con­
ten tion  in argu ing  th a t  the d istric t 
co u rt was correct in dismissing p la in ­
tiffs  claim  aga in st Local 21. They 
Hr f>e (h a t p la in tiffs ’ action  under sec- 

barred  p u rsu an t to 28 
U.S.C § 16o2 an d  42 U.S.C. 5 1988 
by th e  120-day filing period for a 
d iscrim ination  claim  under the 111i—

** Fair„ E m ploym ent P ractices Act 
I l .R e v .S t a t .  ch 48 5 851 et seq., SLL 
23.201, 204 (1967). We disagree U n­
der those sections the  s ta tu te  of lim ­
ita tions applicable to civil righ ts ac- 
tions is controlled by the s ta tu te  of 
lim ita tions w hich governs the  m ost 
analogous s ta te  action. Jones v 
Jones, 410 F .2d 365 (7th Cir. 1969)!

n,ot convinced th a t  the Illinois 
f.E.P.A. is th e  m ost analogous s ta te  
action  under these provisions. The 
Illinois a c t provides only for an  a d ­
m in istra tive  rem edy and  review of 
Jbe . ^ E-P-C.’s findings in the s ta te  
courts. D ifferen t considerations obvi­
ously apply to suits by private iiti- 

c.ou r^s law. In  con trast to 
th e  Illinois F.E.P.A., the  en tire  b u r­
den of investigating  and  developing a 
case under section 1981 lies w ith the  
private  litigan t. F urtherm ore, the 
f h ° :r“, h m jta tions period contained in 
th e  Illinois ac t is designed to encour­
age conciliation  and  private s e ttle ­
m ent. W hen an  aggrieved party  seeks 
cou rt relief, conciliation has gener­
ally failed. Accordingly, the  app rop ri­
a te  lim ita tions period in th is case is 
governed by our recen t decision in 
B aker v. F & F  Investm en t (No. 17815 
Jan . 6, 1970). T h a t case helej th a t

civil actions u n d er section 1982 a re
subject to the  five-year s ta tu te  of 
lim itations provided in  111. Rev. S ta t 
ch 83 § 16 (1967), governing civil a c ­
tions no t otherw ise provided fo r Since 
j r e « e e  no difference betw een section 
1981 an d  section 1982 for purposes of 
determ in ing  th e  ap p ro p ria te  s ta tu te  
of lim itations, p la in tiffs ' action  aga in st 
Local 21 was tim ely  filed.

We hold th a t  th e  d istric t court 
in P lain tiffs’ com ­

p la in t against Local 21. Since the  re- 
!!e f available to p la in tiffs  under sec- 
tlon 1981 is po ten tia lly  as broad as 
th a t  available in  th e ir  action  ag a in st 
H arvester under T itle VII, Sullivan v.

H unU n* p ark. Inc., supra, a t 
238-40, we need no t consider the  dis- 

concerning the ap ­
plicability  of Rule 19, Fed.R.Civ.P .22
III. B reach of C on trac t an d  the  Duty 

of F a ir R epresentation  
A- Action A gainst H arvester Under 

Section 301 (a)
P la in tiffs  argue th a t  the  a llega­

tions of th e ir  com plain t also s ta te  a 
cause of action aga in st H arvester u n ­
der section 301(a) of th e  Labor-M an-

as underY11-2/5. We th in k  p la in tiffs m is- 
conceive the scope an d  purpose of 
section 301(a). N evertheless, these al- 
legatlons. If liberally  construed, are 
sufB clent to w ith stand  a m otion to 
dism iss under th a t  section. Accord- 
ingly, we hold th a t  the  d istric t court 
erred  In dism issing p la in tiffs’ action 
under section 301(a) an d  o rder th a t  
,tb e .lr  c,au s« of ac tion  against H ar­
vester for breach o f co n trac t be re ­
considered on rem and of th is  case 

Section 301(a), unlike T itle VII is 
n o t designed p rim arily  as a rem edy 
fo r racial d iscrim ination  In employ- 
??e n t» £ 1,s t?ad> Congress enacted  sec- 
tlon 301(a) to provide a m eans bv 
w hich collective bargain ing  ag ree­
m ents could be enforced In federal 
and  s ta te  courts. Suits under section 
301(a) require p la in tiffs  to allege spe­
cifically  which provisions of th e  col­
lective bargain ing  ag reem en t have 
been violated by th e  employer. P la in ­
tiffs com plaint alleges th a t  the  ag ree­
m en t am ending  th e  collective b a r­
gain ing  agreem ent en tered  in to  by

to c a ’ 21 a d e q u a te ly  re p re se n ts  th e  In ­
te re s ts  of a b se n t b rick layers th e re lty  re fu tin g  
th e  a rg u m e n t t h a t  In d iv id u a l w h ite  b ri^k- 
layers a re  Ind ispensab le  p artie s . Bowe v Col­
g ate-P alm olive  Co . 418 F.2d 711 719 2 FEP 
Cases 121 (7 th  Clr. 1989) ’

21 Section  301(a). 29 D S C  I 1PS(b ) (IM S) p rovides In re lev an t p a r t-  «»*»(•> U»C5>.
S u ita  for v io la tion  of c o n tra c ts  betw een 

a n  emDloyer an d  a  lab o r o rg an iza tio n  re- 
prp^ n t ln g  em ployees . . .  o r betw een  anv 

1 tl°n a . m av be b ro u g h t In 
an v  d is tr ic t  c o u rt of th e  U n ite d  S ta te s .



2 FEP Cases 584 WATERS v. WISCONSIN STEEL WORKS

Local 21 an d  H arvester In Ju n e  1966 
violated the sen iority  provisions of 
the con trac t. Since parties to a labor 
co n trac t are  alw ays tree to am end 
th e ir  agreem ents, we do n o t see how 
an  am endm en t th rough  the  o rd inary  

rocesses of collective bargain ing  can 
e considered a breach of con tract. 

H um phrey v. Moore, 375 U.S. 335, 
359, 55 LRRM 2031 (concurring
opinion of Mr. Justice  H arlan) (1964). 
N evertheless, th e  com plain t along 
w ith  the accom panying affidav its  of 
p la in tiff W aters, if broadly construed, 
m ay be read  to include allegations 
th a t  p la in tiffs  were trea ted  in  a dis­
crim inato ry  fashion by H arvester in 
violation of the  c o n tra c t between 
local 21 and  H arvester. This con­
struc tion  is su ffic ien t to survive a m o­
tion  to  dismiss. Czosek v. O 'M ara, 73 
LRRM 2481, 38 U.S.L.W. 4151 (Feb. 24. 
1970); Conley v. Gibson 355 UR. 41, 
45-46. 41 LRRM 2089 (1957). On re ­
m and  p la in tiffs  should be perm itted  
to  am end th e ir  com plain t to allege 
w ith  g rea te r specificity  w hich p rovi­
sions of th e  collective bargain ing  
agreem ent were violated by H arvester.
[EXHAUSTION]

To bring an action  under section 
301(a) an  individual employee also 
m ust ex haust the grievance provi­
sions cf his collective bargain ing  
agreem ent. Republic Steel Corp. v. 
M addox, 379 U.S. 650, £8 LRRM 2193 
(1965). As the Suprem e Court held 
in Vaca v. Sipes, 386 U.S. 171, 186, 64 
LRRM 2369 (1967):
[T]he wrongfully d i s c h a r g e d  em­
ployee may bring an action against his 
employer in the face of a defense based 
upon the failure to exhaust contractual 
remedies, provided the employee can 
prove that the union as bargaining 
agent breached its duty of fair repre­
sentation in its handling of the employ­
ee’s grievance.
In  the  In stan t case the  affid av it of 
p la in tiff  W aters alleges in very g en ­
eral term s th a t  any  a tte m p t to seek 
redress th ro u g h  th e  grievance m ech­
anism  of the  co n trac t would be fu - 
tlle .2-* H arvester argues th a t  p la in -

24 W aters’ a ffid a v it in c lu d es  th e  fo llow ing
s ta te m e n ts :

I have  repeated ly  ca lled  u p o n  th e  u n io n  
to  rep re sen t me nnd  to  p ro te c t me a g a in s t 
rac ia l d isc rim in a tio n  In  em ploym ent.

D esp ite  m y co m p la in ts , th e  u n io n  h as 
failed  ad eq u a te ly  a n d  fa irly  to  rep re sen t me 
in  d isp u te s  w ith  em ployers Involving rac ia l 
d isc rim in a tio n .* • *

B ecause N icholas Popovtc Is th e  o ffic ia l 
th ro u g h  whom  I w ould have  to  ch an n e l any  
fo rm al co m p la in ts  . . . an d  because Local 
21 h as failed  to  ch an g e  Its policy of d is­
c r im in a tin g  ag a lirs t b lack  bricklayers, even 
a f te r  receiv ing  n u m e ro u s  co m p la in ts  from

tiffs canno t prove a breach of th e  
duty of fa ir rep resen ta tion  su ffi­
c ien t to satisfy  the exhaustion  re ­
qu irem ent w ithout a t  least a tte m p t­
ing to p u t the grievance m echanism s 
in to  operation  by a  dem and on union 
officials. We disagree. A lthough i t  
m ay be d ifficu lt to estab lish  such  
proof in  th is  case, we can  envision 
situa tions in w hich union rep resen ta ­
tives repeatedly have breached th e ir  
du ty  of fa ir rep resen ta tio n  in  previ­
ous dealings w ith an  employee. In  
such  cases the employee could re a ­
sonably believe th a t  a tte m p ts  to  seek 
the  aid of th e  union In presen ting  a 
grievance would be u tte rly  futile, thu s 
justify ing  his failure to ex haust rem ­
edies. Cf. Glover v. St. Louts, San 
Francisco R Jt. Co., 393 U.S. 324, 70 
LRRM 2097 (1969). As a  resu lt we are 
unable to say beyond a doubt th a t  
p la in tiffs’ allegations of fu tility  are  
insuffic ien t to excuse th e ir  fa ilu re  to  
ex haust th e  grievance provisions of 
th e ir  con trac t. Czosek v. O’M ara, 
supra, slip opinion a t  2-3. On rem and  
of th is  case p la in tiffs  should be a l­
lowed to am end  th e ir  com plain t to 
allege circum stances supporting  th e ir  
assertion  th a t  a tte m p ts  to  persuade 
Local 21 to pursue th e ir  grievances 
would be futile.
A. D uty of F air R epresentation  Action

A gainst Local 21
P la in tiffs  assert th a t  Local 21 vio­

la ted  Its duty of fa ir rep resen ta tion  
by partic ipa ting  or a t  least acquies­
cing In H a rv e s te r 's  d iscrim inatory  
h iring  policies. They m a in ta in  th a t  
th is  breach  of duty by Local 21 s ta te s  
a cause of action  under section  301(a). 
A lthough p la in tiffs  ag a in  read  section 
301(a) too broadly, we believe th a t 
th e ir  c o n t r a c t  Czosek v. O’M ara 
strued, s ta te s  a cause of action  u n ­
der th a t  section. T herefore, on re ­
m and  of th is  case the  d is tric t court 
should  reconsider p la in tiffs’ com ­
p la in t aga in st Local 21 under section 
301(a).

P la in tiffs  are  incorrect in  arguing  
th a t  Section 301(a) is in tended  to 
provide federal ju risd iction  for su its 
seeking relief for violation of the  duty 
of fa ir  rep resen ta tion . S c iaraffa  v. 
Oxford P aper Co. 2 FEP Cases 398, 62 
LC U 9396 a t  6549 (S.D. Me. 1970). 
The origin of th a t  duty  is s ta tu to ry , 
firs t recognized in cases involving 
racial d iscrim ination  by unions cer­
tified  as exclusive bargain ing  agents 
u n d er the  Railway Labor Act. Steele 
v. Louisville & Nashville R.R. Co.. 323 
U.S, 192, 15 LRRM 708 (1943): T un -
m e, I believe t h a t  any  fu r th e r  a t te m p ts - to  
c h an n e l m y grievances th ro u g h  th e  u n io n  
w ould  be fuU le.



WATERS v. WISCONSIN STEEL WORKS 2 FEP Cases 585

W

V

O

V

c

stall v. B rotherhood of Locomotive 
F irem en & EngLnemen, 323 U.S. 210 
15 LRRM 715 (1943). The Supreme' 
C ourt subsequently  held th a t  the pro­
visions of the  N ational Labor R elations 
A ct included a sim ilar duty, Syres v 
Oil W orkers In te rn a tio n a l Union, 350 
U.S. 892, 37 LRRM 2068 (1955):
rev ’g, 223 F.2d 739, 36 LRRM 2290 
(5 th  Cir. 1955); Ford M otor Co. v 
H uffm an , 345 U.S. 330, 31 LRRM 2548 
(1953). Suits for breach of s ta tu ­
tory  duty may be brought under fed­
eral question or civil righ ts  ju risd ic ­
tional provisions. B rady v. T rans 
W orld Airlines, Inc.. 401 F.2d 87 69 
LRRM 2048 (3d Cir. 1968); W illiam s v. 
Pacific  M aritim e Assoc., 384 F.2d 935 
66 LRRM 2145, 2624, (9th Cir. 1967).-- 

T he duty of fa ir  rep resen ta tion  
h a s  only lim ited  relevance to actions 
u n d er Section 301(a). A union can  be 
jo ined as a  d e fen d an t under i.hat sec­
tion, if by breach of its s ta tu to ry  
duty, th e  union has prevented p re ­
sen tm en t or en fo rcem ent of an  em ­
ployee grievance under the collective 
bargain ing  agreem ent.10 V a c a  v. 
Sipes, supra , a t  197 n. 18. In  such 
cases a  p lain tiff-em ployee can  re ­
cover .only for in ju ry  w hich flows 
a o te ly J ro m  the  un ion’s own conduct. 
As a x e s u l t  p la in tiff’s recovery ag a in st 
th e  union is lim ited  in  m ost cases to 
com pensation  for th e  un ion ’s fa ilu re  
to  tim ely asse rt an  employee griev­
ance ag a in st an  employer, Vaca v 
Sipes, supra , a t  196-98. W hen viewed 
in a lig h t m ost favorable to  p la in ­
tiffs, we th in k  th e ir  com plain t m akes 
such  an  allegation. Accordingly, 
p la in tiffs ’ cause of action gainst the 
union u n d er section 301(a) should be 
considered on rem and.

For th e  reasons s ta ted , th e  Judg-

25 We do n o t  agree w ith  th e  d is tr ic t c o u r t ’*
co nclus ion  t h a t  su c h  su its  ca:i on ly  be 
b ro u g h t before  th e  N ational L abor R e la tio n s  
B oard. A lth o u ch  th e  N.L.R.B. h as assum ed 
Ju risd ic tio n  a n d  h a s  held  t h a t  b reach  of 
th e  d u ty  of fa ir  rep re se n ta tio n  c o n s titu te *  
an  u n fa ir  lab o r p ra c tic e  u n d e r  § 8 (b )(1 )  (A ). 
M iran d a  F u e l C o , 140 NLRB 181. 185, 51
LRRM  1584 (1962), en fo rc em en t d en ted . 328 
f ,2 d  172. M LRRM  2715 (2d Cir. 1963); Local 
12, u n ite d  R u b b e r. W orkers v. NLRB. 368 
F.2d 12. 63 LRRM 2395 (5 th  Cir. 1963), th e  
S up rem e C o u rt h a s  h e ld  t h a t  th e  NLRB’s 
Ju risd ic tio n  Is n o t exclusive. Vaca v. sine* , 
a u p ra , a t  178-81. S ince  p la in tif f s  hav e  w aived 
th e ir  c la im  th a t  th e ir  c o m p la in t s ta te s  a  
cau se  of a c tio n  u n d e r  th e  N ational L abor 
R e la tio n s  Act, see n . 1. su p ra , v c  need n o t 
con sid er th e  ap p licab ility  of th a t  A ct to  th e  
a lleg a tio n s  before / us.

26 U nions also can  be Jo ined as d e fe n d a n ts  
If th e  u n io n  Is a m oving  force n p ro d u c in g  
a v io la tio n  of th e  c o n tra c t  by t  ip em ployer, 
V aca V. Sipes, a t  197 n . 18 Cf. H u m ­
p h rey  V. M oore, 375 U.S. 335. 55 LRRM 2031 
(1964). We do n o t u n d e rs ta n d  p la in tif f s  to  
so allege In th is  case. However, on rem and  
leave sh ou ld  be g ra n te d  tQ allow  th e m  to  
m ake su c h  a lleg a tio n s.

m ent of the  d istric t court is reversed 
an d  th e  cause rem anded.

Concurring Opinion
FAIRCHILD, C ircuit Judge (con­

cu rrin g ): — l  concur in  reversal and  
rem and  for fu r th e r  proceedings 
against both defendan ts. I  have 
reached conclusions w hich d iffer in  
some respects from  those se t fo rth  In 
Chief Judge Sw ygert's m ajo rity  op in ­
ion. They are as follows:

H ) P la in tiff’s r igh t to  proceed  
against H arvester under T itle VII. 
P la in tiffs  allege th a t  H arvester, as  an 
employer, Is engaging In w h a t Con­
gress declared an  unlaw ful em ploy­
m en t practice. Congress authorized 
an  action  for th e  preven tion  and  
redress of such p ractice, bu t did no t 
suggest th a t  all p a rtie s  responsible 
for the practice or all p a r tie s  whose 
in te rests  m igh t be a ffec ted  by its 
te rm ination  m ust be joined. In  my 
opinion. Rule 19(b) F.R.C.P. does no t 
au thorize dism issal of a n  otherw ise 
p roper T itle V n  ac tion  ag a in st an  
em ployer on account of th e  absence 
of th e  union and  o th e r employees. 
Such use of Rule 19 would fru s tra te  
the  in te n t of Congress in  th is  type 
of case.

(2) P la in tiffs ’ Title  V II action  
against th e  union. P la in tiffs  allege 
th a t  the  union was a p a rty  to H a r­
vester’s collective bargaling  agree­
m ent, conta in ing  allegedly d iscrim ­
ina to ry  seniority lists, and  th a t  (af- 

charges were filed w ith 
EEOC) th e  union agreed to  a  m odifi­
cation , allegedly for the  purpose of 
perm itting  a d iscrim inatory  re in s ta te ­
m ent. See 2000e-2(c)(3) declares it  an  
unlaw ful em ploym ent practice  for a 
union “to cause or a tte m p t to cause an  
em ployer to d iscrim inate  ag a in st an  
Individual in  violation of th is  section .” 
The com plain t does n o t use s ta tu to ry  
language, bu t no a rg u m en t h as  been 
m ade th a t  it  failed to  allege an  u n ­
law ful em ploym ent p rac tice  on the 
p a rt of the  union.

Assuming th a t  the a llegation  is su f­
ficient, I t appears from  th e  com ­
p la in t th a t  the  union was to  some de­
gree responsible (In concert w ith  the 
em ployer) for th e  practice  of discrim ­
in a tion  under a ttack , ac ted  to fu rth e r  
th e  practice a f te r  a  charge  had  
been filed ag a in st th e  em ployer, and  
h ad  ac tual notice of th e  com m ission’s 
Investigation of the  charge. U nder 
all the  p a rticu la r c ircum stances of 
th is case. I  conclude th a t  a s tr ic t 
read ing  of the s ta tu to ry  au thoriza tion  
of an  action “aga in st th e  respondent 
nam ed in  the ch a rg e” is unw arran ted ,

/ p ?



2 FEP Cases 586 DIGESTS OF EEOC DECISIONS

and  th a t  the p la in tiffs could properly n . 'n o c te  r \ f  
bring action  aga in st both the em - o r
pioyer and  the  union. E E O C  D e c i s i o n s
[AMICUS BRIEF)

EEOC filed an  am icus brief In 
which it argued th a t  in th is case 
p la in tiffs could properly have jo ined 
th e  union as a defen d an t w ithout 
having  nam ed i t  in the ad m in is tra ­
tive charge. EEOC also suggested a 
procedure by w hich the defect, if any, 
could be cured. Under it, the  d istric t 
court would have stayed the  action, 
pending th e  filing of a charge by 
p lain tiffs ag a in st the union. EEOC 
could th en  process the charge so as 
to allow jo inder of the union. Such 
an  approach  has been employed In 
o th e r cases, e g. N orm an v. Missouri 
Pacific R ailroad (8th Cir„ 1969), 414 
F.2d 73, 1 FEP Cases 363, 71 LRRM 
2940; Local U. No. 329, I.L.A. v. South 
A tlan ta  & G ulf Coast Dist. (S.D. 
Tex., 1968), 295 F.Supp. 599, 1 FEP 
Cases 474, 69 LRRM 2970. I t  seems 
clear th a t  these steps would obviate 
any  jurisd ic tional question, but under 
th e  facts peculiar to th is record, It 
would seem  a n  unnecesary  exer­
cise.

(3) P la in tiffs’ possible action u n ­
der  § 1981. I agree th a t, given the 
Suprem e C ourt’s Jones v. M ayer read ­
ing of § 1982 w ith  respect to racial 
d iscrim ination  in the sale of property, 
th e re  is no persuasive reason for 
read ing  § 1981 m ore narrow ly w ith 
respect to rac ia l d iscrim ination  in 
em ploym ent. T here  rem ains the  d if­
ficu lt question of w hether an d  to 
w hat ex ten t the  en ac tm en t of T itle 
VII restric ted  reliance upon § 1981. 
I t  Is u n n e c e s sa ry  to resolve th a t  
question a t  th is stage  if p la in tiffs  
are pcrm ited  to  proceed against 
both d efendan ts under T itle VII. P e r­
haps the  tr ia l will develop facts 
w hich will m ake resolution im p o rtan t 
In th is  case, and  I th in k  it  wiser no t 
to a tte m p t an  answ er un til th a t  
point.

+

Following are digests o f decisions o f 
th e  Equal E m ploym ent O pportunity  
Commission on com plaints o f em ploy­
m e n t discrim ination under T itle  V II  
o f th e  Civil R ights A ct o f 1964. The  
s ta tu te  bars iden tifica tion  o f parties  
to proceedings before th e  Commission.
Decision No. 70670, March 30, 1970

R easonable cause exists to  believe 
th a t  em ployer violated T itle VII by 
te rm in a tin g  S ab b a ta rian  who refused 
to work from  sundown Friday to su n ­
down Saturday . In  Its claim  th a t  
charg ing  p a r ty ’s hours a rran g em en t 
would work undue “h a rd sh ip ’’ on o ther 
m em bers in his five-m an crew, em ­
ployer failed to show how th e ir  over­
all schedule would suffer. ► 108.11

C harging party , who was regarded 
as an  "excellent” worker, was h ired as 
an  In sta lle r-repairm an  by the em ­
ployer in  1956. His norm al working 
hours were from  8 a m . to 5 p.m. B ut 
since the  com pany provided 24-hour 
service daily, th ere  were occasions 
when he and  o th e r in s ta lle r-re p a ir­
m en were scheduled to work beyond 
5 p.m. and  on weekends an d  holidays.

In  November 1967, when he con­
verted to  his wife’s fa ith  (Radio 
C hurch of God), charg ing  p a rty  served 
w ritten  notice to the  com pany advis­
ing: “Because of m y religious belief, 
I can  no longer work on th e  Sabbath , 
w hich is observed from  sundow n F ri­
day till sundown S aturday . . . . How­
ever, I  will cheerfully  work any  o ther 
day an d  any  o th e r hours.”

Asserting th a t  such an  a rran g em en t 
would d iscrim inate  ag a in st o th e r em ­
ployees, the  m ajo rity  of whom ob­
serve Sunday as th e ir  w orship day 
and  m ust work sh ifts  detei m ined by 
custom er needs, the com pany rejected  
the  request. R efusing to work ou t a 
schedule program  whereby charg ing  
p a rty  could work his lunch  hours d u r­
ing the  week so as to free him  during  
his Sabbath , m anagem en t advised him  
th a t  he would be dropped from  th e  
payroll as a vo luntary  qu it if he failed 
to show for scheduled duty. The com ­
pany  subsequently te rm in a ted  ch a rg ­
ing p a rty  in  line w ith  th is  policy.

N oting th a t  he worked in a five- 
m em ber crew, the  em ployer argued 
th a t  to  g ra n t charg ing  p a r ty ’s request 
“would . . . provide a  h ard sh ip  for 
b o th  th e  rem ain ing  individuals and  
th e  com pany.”

U nder its  G uidelines on Religious

V