Letter From Dimond to Court RE Motions and Supplemental Pleadings

    I n th e

H>it$rr£m£ (Emtrt at %  lutta* ^tato
October Term, 1975 

No. 75-1087

T obacco W orkers I nternational Union, 
AFL-CIO, L ocal 192,

Petitioner,
v.

E dgar R ussell, et al.,
Respondents.

OPPOSITION TO WRIT OF CERTIORARI

J. L eV onne Chambers
Chambers, Stein, Ferguson & Becton 
951 S. Independence Boulevard 
Charlotte, North Carolina 28202

J ack Greenberg 
B arry L. Goldstein 
Stanley E ngelstein 
O. P eter Sherwood 

10 Columbus Circle 
New York, New York 10019

Attorneys for Respondents



In th e

(Emtrt nf tk' States
October Term, 1975 

No. 75-1087

T obacco W orkers I nternational U nion, 
AFL-CIO, L ocal 192,

Petitioner,
v.

E dgar R ussell, et al.,
Respondents.

OPPOSITION TO WRIT OF CERTIORARI

Statement

The history of discrimination in this case parallels 
patterns and practices of discrimination that have been 
found to be unlawful in other cases involving the tobacco 
industry.1

Petitioners do not challenge the findings below that the 
plaintiffs and the members of the class have been the 
victims of unlawful discrimination which in large measure 
was the result of a history of segregated local unions and 
a contractually mandated departmental seniority system.

1 jS7.gr., see Quarles v. Phillip Morris, Inc., 279 F. Supp. 505 
(E.D. Ya. 1968); Robinson v. Lorillard Corp., 444 F.2d 791 (4th 
Cir. 1971); Cooper v. Phillip Morris, Inc. 464 F.2d 9 (6th Cir. 
1972).



2

Reasons for Denying the Writ

The questions presented by Petitioner do not justify 
the exercise of this Court’s certiorari jurisdiction on two 
grounds.

First Ground

The first two questions present issues of law that are 
well settled. There is no conflict in the circuits that the 
existence of an adopted contract does not exculpate the 
union from liability under Title VII of the Civil Rights 
Act of 1964 (as amended 1972), 42 U.S.C. §2000e et seq. 
Indeed this Court’s decisions in Alexander v. Gardner- 
Denver, 415 U.S. 36 (1974) and Albemarle Paper Co. v. 
Moody, 422 U.S. 405 (1975) confirm that rights protected 
under Title YII cannot be bargained away in the give 
and take of the collective bargaining process.

Second Ground

The third question presented raises an issue before this 
Court that was not addressed below. This question is not 
appropriate for review by this Court.



3

ARGUMENT

I

The Decision Below Was Correctly Decided.

In essence, Petitioners argue for adoption of a rule 
exculpating unions from responsibility under Title VII 
upon a mere showing that all its members are eligible to 
participate in a ratification vote and that no member 
actively opposed ratification of the contract which has the 
effect of discriminating against the union’s black members.2 
The circuit courts are unanimously in agreement with 
Judge Butzner’s decision below that when a union has 
entered into a contract which has the effect of unlawfully 
discriminating that union is responsible for a share of 
the monetary loss suffered by victims of the discrimina­
tion.3 Petitioner’s reliance on Thornton v. East Texas 
Motor Freight, Inc., 497 F.2d 416 (6th Cir. 1974) is in­
apposite because there the union was held not to be re­
sponsible. Thornton involved a company imposed a “no­
transfer” rule which the union had actively opposed. 497 
F.2d at 425. The ruling below for which the union seeks

2 There is a significant question of fact whether the diserim- 
inatees did vote for the contract. The record does not Show that 
all the plaintiffs were at the vote meeting nor whether those that 
were did in fact vote for the agreement. (There was no secret 
ballot. Hand or voice voting, even if “unanimous,” does not 
definitively establish that all present “voted.” )

sE.g., see Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 
1971); Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 
(5th Cir. 1974); Gamble v. Birmingham Southern Railroad Co., 
514 F.2d 678 (5th Cir. 1975) ; Carey v. Greyhound Bus Co., Inc., 
500 F.2d 1372 (5th Cir. 1974) ; Rodriguez v. East Texas Motor 
Freight, 505 F.2d 40 (5th Cir. 1974) ; EEOC v. Detroit Edison 
Co., 515 F.2d 301 (6th Cir. 1975); Machlin v. Specior Freight 
System, 478 F.2d 179 (D.C. Cir. 1973) ; United States v. Navajo 
Freight Lines,------ F .2d------ -, 11 F.E.P. Cases 787 (C.A. 9, 1975).



4

review here relates to anion responsibility for two con­
tractually mandated rules,4 which had the effect of un­
lawfully discriminating against the union’s black members. 
As the Sixth Circuit stated in EEOC v. Detroit Edison 
Co., 515 F.2d 301, 314 (6th Cir. 1975):

It has long been settled that a union must attempt 
to protect its minority members from discriminatory 
acts of an employer (citation deleted). This obliga­
tion requires a union to assert the rights of its minor­
ity members in collective bargaining sessions and not 
passively accept practices which discriminate against 
them (citation deleted). Acquiescence in a depart­
mental seniority system which produces unequal treat­
ment on the basis of race is sufficient to subject a 
union to liability under Title YII (citation deleted).

The decision in the Fourth Circuit is compelled by this 
Court’s decision in Albemarle Paper Co. v. Moody, 422 
U.S. 405 (1975) and Alexander v. Gardner-Denver Co., 
415 U.S. 36 (1974). In Moody, this Court held that mere 
good faith was not a defense to liability for back pay since 
the twin objectives of Title VII are to compensate the 
employees for economic loss and to assure affirmative com­
pliance with the Act. This Court made it amply clear in 
Alexander that rights and remedies under Title VII could 
not be confined within the borders of union contracts 
and arbitration procedures. “Title VII . . . concerns not 
the majoritarian process but an individual’s right to equal 
employment opportunities,” 415 at 51. Further, Petitioner’s 
implication of waiver of rights by ratification of the con­

4 The two rules are a “ lock-in” departmental seniority system 
and a six-month probationary period. As to the latter, the Com­
pany had proposed a shortening of the probationary period to 
35 days but the union actively opposed this proposal in order to 
protect certain of its white members. See pages 13 and 14 of Ap­
pendix to Petition for a Writ of Certiorari.



5

tract thereby relieving it of liability is contrary to this 
Court’s teaching in Alexander: “We think it clear that 
there can be no prospective waiver of an employee’s rights 
under Title VII,” 415 U.S. at 51.

Petitioner’s tkeoi’y of immunity from liability under 
Title VII makes a violation by the union of the Labor 
Management Reporting and Disclosure Act of 1959 (the 
Landrum-Griffin Act), 29 U.S.C. §401, et seq. a condition 
precedent to liability .under Title VII of the Civil Rights 
Act of 1964. The Congressional purpose in Title VII of 
compensating diseriminatees and ending employment dis­
crimination is independent of the statutory objective of 
Landrum-Griffin of ensuring union democracy. Compliance 
with Landrum-Griffin is not a license to violate Title VII.

II

Petitioner’s Third Question Presented Is Not Appro­
priate for Review by This Court Because It Was Not 
Addressed by the Courts Below.

The question of Petitioner’s liability for the discrim­
inatory selection of foremen and assistant foremen by the 
Company was not addressed or decided by the courts below.

Petitioner’s concern is that the lower court’s determina­
tion of the amount of its back pay liability “might well 
include” * 6 responsibility for failure to promote blacks to 
supervisory positions even though such promotion deci­
sions are exclusively within the discretion of the Company.6

6 Page 11 of Petition for a Writ of Certiorari.
6 The question of the extent to which the union is or is not 

responsible for the loss suffered by blacks who have been excluded 
from supervisory positions is presumably a disputed issue of fact 
which must be resolved by the district court in the first instance. 
For example, on remand the Company may seek to demonstrate



6

Petitioner’s concern is premature since the lower court 
has not yet made any determination on this issue. Clearly 
this issue is not ripe for review by this Court.

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that the petition for certiorari should be denied.

Respectfully submitted,

J. LeV onne Chambers
Chambers, Stein, Ferguson & Becton 
951 S. Independence Boulevard 
Charlotte, North Carolina 28202

Jack Greenberg
B arry L. Goldstein
Stanley E ngelstein
0 . P eter Sherwood 

10 Columbus Circle 
New York, New York 10019

Attorneys for Respondents

that while it alone selects foremen and assistant foremen, com­
position of the pool from which those foremen are selected results 
from operation of provisions of the collective bargaining agree­
ment. The union might seek to prove that placement in jobs 
within the bargaining unit has little or nothing to do with selection 
for supervisory positions.



MEIIEN PRESS INC. — N. Y. C. 219