Greenberg Succeeds Marshall As NAACP's Chief Legal Council

    No. 85-2010

In The

ûprinni' Court of tltr Jlnttrii Stairs
October Term, 1986

United Steelworkers of America (AFL-CIO-CLC), 
Local 1165, United Steelworkers of America (AFL-CIO-CLC) 

and Local 2295, U nited Steelworkers of America 
(AFL-CIO-CLC),

Petitioners,
v.

Charles G oodman, Ramon L. M iddleton, R omulus C. 
Jones, Jr., Lymas L. W infield, and United Political 

Action Committee of Chester County, D avid D antzler, Jr., 
John R. H icks, III, D ock L. Meeks, individually and on 

behalf of others similarly situated,
Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS 
UNDER LAW, THE NATIONAL ASSOCIATION FOR THE 
ADVANCEMENT OF COLORED PEOPLE, THE AMERICAN 
CIVIL LIBERTIES UNION FOUNDATION, THE MEXICAN 
AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND AND 
THE WOMEN’S LEGAL DEFENSE FUND AS AMICI CURIAE IN 

SUPPORT OF RESPONDENTS

Harold R. Tyler 
James Robertson 
N orman Redlich 

Trustees
W illiam L. Robinson 
Judith A. W inston 
R ichard T. Seymour 

Lawyers’ Committee For 
Civil Rights Under Law 

1400 Eye Street, N.W. 
Suite 400 
Washington, D.C. 20005 
(202) 371-1212

March 9, 1987

Robert F. Mullen 
Counsel of Record

Stacey E. Elias 
Ivan F. Blejec.
Brooks R. Burdette 

Cravath, Swaine & Moore 
One Chase Manhattan Plaza 
57th Floor
New York, N.Y. 10005 
(212) 422-3000

Attorneys for Amici Curiae

Counsel continued on inside cover



Grover G. Hankins 
Joyce H. Knox

National Association 
F or The Advancement 
Of Colored People 

4805 Mount Hope Drive 
Baltimore, Maryland 21215 
(301) 358-8900

Joan Bertin 
Joan G ibbs

American Civil Liberties 
Union F oundation 

132 West 43rd Street 
New York, N.Y. 10036 
(212) 944-9800

Antonia Hernandez 
E. R ichard Larson 
Theresa Bustillos 

Mexican American Legal 
Defense And Educational 
Fund

634 South Spring Street 
Los Angeles, California 90014 
(213) 629-2512

Judith L. Lichtman 
Claudia Withers 

Women’s Legal Defense Fund 
2000 P Street, N.W.
Suite 400
Washington, D.C. 20036 
(202) 887-0364

Attorneys for Amici CuriaeAttorneys for Amici Curiae



Page

T able of A u th orities ............................................................. ii

C onsent of P arties.................................................................  2

Interest of A mici Cu r ia e ...................................................... 2

Statement of the C a se ..........................................................  3

Summary of A rgument..........................................................  3

A rgument...................................................................................  5

I. THE UNIONS’ DISCRIMINATORY FAIL­
URE TO PROCESS RACIAL GRIEVANCES 
VIOLATED TITLE VII AND SECTION 1981... 5
A. Under Title VII A Union Cannot Treat The

Right To Freedom From Discrimination 
Less Favorably Than Other Rights Se­
cured Under A Collective-Bargaining 
Agreement....................................................  6

B. The Unions’ Deliberate Refusal To Process
Racial Grievances Violated Section 1981. 10

II. UNION LIABILITY UNDER SECTION 1981
AND TITLE VII FOR REFUSAL TO FIGHT 
EMPLOYER DISCRIMINATION IS CON­
SISTENT WITH NATIONAL LABOR RELA­
TIONS POLICIES..................................................  11
A. Construing Title VII And Section 1981 To

Prohibit A Union From Discrimination In 
The Processing Of Members’ Grievances 
Is Consistent With The Duty Of Fair 
Representation............................................ 11

B. Requiring A Union To Meet Its Obligations
Under Title VII And Section 1981 Im­
poses No Excessive Burdens Upon 
Unions..........................................................  13

III. A UNION MAY NOT COMPROMISE
RIGHTS SECURED BY TITLE VII OR SEC­
TION 1981............................................................... 14

IV. DISCRIMINATION CAN BE EFFECTIVELY
ELIMINATED ONLY IF IT IS EXPOSED.......  17

C onclusion ................................................................................  21

TABLE OF CONTENTS



11

TABLE OF AUTHORITIES

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ....  14,15,18
Alexander v. Gardner-Denver Co., 415 U.S. 36 ( 1974) .. 13
Anderson v. City o f Bessemer City, 470 U.S. 564 (1985) . 10
Altman v. Stevens Fashion Fabrics, 441 F. Supp. 1318 

(N.D. Cal. 1977) ...........................................................  18
Bibbs v. Block, 778 F.2d 1318 ( 8th Cir. 1985) ................ 17
Bonilla v. Oakland Scavenger Co., 697 F.2d 1297 (9th 

Cir. 1982), cert, denied, 467 U.S. 1251 (1984) ..........  8
Burnett v. Grattan, 468 U.S. 42 (1984) ...........................  7
Chrapliwy v. Uniroyal, Inc., 458 F. Supp. 252 (N.D.

Ind. 1977)........................................................................  8,9
Diaz v. American Tel. & Tel., 752 F.2d 1356 (9th Cir.

1985) ...............................................................................  17
Emporium Capwell Co. v. Western Addition Community

Org., 420 U.S. 50 (1975) ............................................... 13, 15, 16,
17

EEOC v. Local 638 . . . Local 28, Sheet Metal Workers’
In t’l Ass’n, 532 F.2d 821 (2d Cir. 1976), a ff’d, sub 
nom. Local 28 o f Sheet Metal Workers’ In t’l Ass’n,
106S. Ct. 3019 (1986) ..................................................  18

General Bldg. Contractors Ass’n v. Pennsylvania, 458 
U.S. 375 (1982) .............................................................. 10

Goodman v. Lukens Steel Co., 580 F. Supp. 1114 (E.D.
Pa. 1984), a ff’d in part, rev’d in part, vacated in part,
111 F.2d 113 (3d Cir. 1985), reh’g denied, 40 Emp.
Prac. Dec. (CCH) f  36,153 (3d Cir.) (en banc),
cert, granted, 107 S. Ct. 568 ( 1986) .............................  passim

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ............. 13
Howard v. International Molders and Allied Workers 

Union, AFL-CIO-CLC, Local #100, 779 F.2d 1546 
(1 1th Cir.), cert, denied, 106 S. Ct. 2902 (1986) .......  8

Hughes Tool Co., 147 N.L.R.B. 1573 (1964)................... 16
International Bhd. o f Teamsters v. United States, 431 

U.S. 324(1977) .............................................................. 7
Local Union No. 12, United Rubber, Cork, Linoleum &

Plastic Workers o f America v. NLRB, 368 F.2d 12 
(5th Cir. 1966), cert, denied, 389 U.S. 837 (1967) ....  16



Ill

Page

Macklin v. Spector Freight Systems, Inc., 478 F.2d 979
(D.C.Cir. 1973) .....................................................    8,9,11

McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 
(1976) .............................................................................  15

McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) ................................. ..........................................  7

Nix v. Williams, 467 U.S. 431 (1984) .............................  18
Pullman-Standard v. Swint, 456 U.S. 273 (1982) .........  10
Reeder-Baker v. Lincoln N at’l Corp., 649 F. Supp. 647 

(N.D. Ind. 1986) ...........................................................  18
Rich v. Martin Marietta Corp., 522 F.2d 333 ( 10th Cir.

1975) ...............................................................................  18
Stamford Bd. o f Educ. v. Stamford Educ. Ass’n, 697 

F.2d70 (2d Cir. 1982) ..................................................  17,18
Steele v. Louisville & N. R.R., 323 U.S. 192 (1944) ......  12
Stephenson v. Simon, 448 F. Supp. 708 (D.D.C. 1978) . 18
Thompson v. Sawyer, 678 F.2d 257 (D.C. Cir. 1982)   18
Toney v. Block, 705 F.2d 1364 (D.C. Cir. 1983) ............. 18
Tunstall v. Brotherhood o f Locomotive Firemen, 323 

U.S. 210 (1944) .............................................................  13
United States v. Ceccolini, 435 U.S. 268 (1978) ............. 18
United States v. N. L. Indus., Inc., 479 F.2d 354 (8th 

Cir. 1973) ........................................................................  15
Vaca v. Sipes, 386 U.S. 171 (1967) .................................  11,12, 13,

16
Wallace Corp. v. NLRB, 323 U.S. 248 (1944) ................ 16
STATUTES

Fed. R. Civ. P. 5 2 ( a ) .................................................  10
Title VII of the Civil Rights Act of 1964, Pub. L.

No. 88-352, 78 Stat. 241, (July 2, 1964), codified 
as amended at 42 U.S.C. § 2000e et. seq. (1982) . passim
Section 703(c), 42 U.S.C. § 2000e-2(c) .............. passim

42 U.S.C § 1981 (1982) ............................................  passim
MISCELLANEOUS

110 Cong. Rec. 2732 (1964) ..................................... 19
Note, Union Liability fo r Employer Discrimination,

93 Harv. L. Rev. 702 (1980) ...............................  11, 12



No. 85-2010

In T he

( ta r t  at %  States
October T erm, 1986

United Steelworkers of America ( AFL-CIO-CLC),
Local 1165, U nited Steelworkers of America (AFL-CIO-CLC) 

and Local 2295, U nited Steelworkers of America 
(AFL-CIO-CLC),

Petitioners,
v.

Charles G oodman, Ramon L. M iddleton, R omulus C.
Jones, Jr., Lymas L. W infield, and U nited Political 

Action Committee of Chester County, D avid D antzler, Jr., 
John R. H icks, III, D ock L. Meeks, individually and on 

behalf of others similarly situated,
Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS 
UNDER LAW, THE NATIONAL ASSOCIATION FOR THE 
ADVANCEMENT OF COLORED PEOPLE, THE AMERICAN 
CIVIL LIBERTIES UNION FOUNDATION, THE MEXICAN 
AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND AND 
THE WOMEN’S LEGAL DEFENSE FUND AS AMICI CURIAE IN 

SUPPORT OF RESPONDENTS



2

Petitioners and respondents have consented to the filing of 
this brief. Petitioners’ letter of consent is being filed herewith. 
Respondents’ letter of consent has been filed with the Clerk of 
the Court.

CONSENT OF PARTIES

INTEREST OF AMICI CURIAE
The Lawyers’ Committee for Civil Rights Under Law 

(“Lawyers’ Committee” ) is a nationwide civil rights organiza­
tion that was formed in 1963 by leaders of the American Bar, at 
the request of President Kennedy, to provide legal representa­
tion to blacks who were being deprived of their civil rights. The 
national office of the Lawyers’ Committee and its local offices 
have represented the interests of blacks, Hispanics and women 
in hundreds of class actions relating to employment dis­
crimination, voting rights, equalization of municipal services 
and school desegregation. Over one thousand members of the 
private bar, including former Attorneys General, former presi­
dents of the American Bar Association and other leading 
lawyers, have assisted the Lawyers’ Committee in such efforts.

The National Association for the Advancement of Colored 
People is a New York nonprofit membership corporation. Its 
principal aims and objectives include promoting equality of 
rights and eradicating caste or race prejudice among the citizens 
of the United States and securing for them increased opportu­
nities for employment according to their ability.

The American Civil Liberties Union is a nationwide, 
nonpartisan organization of over 250,000 members dedicated 
to preserving and protecting the civil rights and civil liberties 
guaranteed by the Constitution and the laws of the United 
States.

The Mexican American Legal Defense and Educational 
Fund is a national civil rights organization established in 1967. 
Its principal object is to secure through litigation and education, 
the civil rights of Hispanics living in the United States.



3

The Women’s Legal Defense Fund (“WLDF”) is a 
nonprofit organization founded in 1971 to advance women’s 
rights. It represents women in employment discrimination 
litigation, operates an employment discrimination counseling 
program, conducts public education and represents women’s 
interests before the Equal Employment Opportunity Commis­
sion and other Federal agencies. A major priority for WLDF is 
its Employment Rights Project for Women of Color.

Amici have a direct interest in the law governing the 
construction and application of the civil rights statutes. Amici 
and those individuals whom amici represent litigate under these 
statutes regularly and thus have a strong incentive to prevent 
diminution of the statutes’ powers as sources of redress for civil 
rights violations.

STATEMENT OF THE CASE

Amici Curiae incorporate the Statement of the Case sub­
mitted by respondents herein.

SUMMARY OF ARGUMENT

The pervasive flaw in the arguments put forth in the briefs 
of petitioners and the Solicitor General is that they set out and 
attempt to resolve issues that are not now before this Court. 
The narrow question presented here is if a union, when 
requested by its minority membership to process meritorious 
racial grievances, refuses to do so solely because those griev­
ances are based upon racial discrimination, does that union 
violate Sections 703(c)(1) and (3) of Title VII (“Section 
703(c)” or “Title VII” ) and 42 U.S.C. § 1981 (“Section 
1981” ).

Holding a union liable under Title VII and Section 1981 
for its deliberate decisions not to attempt to eliminate employer 
discrimination prohibited by the collective-bargaining agree­
ment is consistent with national labor policy. It grants to a



4

union’s minority membership the added protection of tempe­
rance of a policy principled upon majority rule. Even under the 
National Labor Relations Act, where a union is the certified 
collective-bargaining agent for its membership, that union has a 
duty fairly to represent each union member in negotiating a 
collective-bargaining agreement and in enforcing that agree­
ment equally for all members. The National Labor Relations 
Board has determined that deliberate failure to process racial 
grievances is a breach of that duty. At a minimum, practices 
that violate that duty should be prohibited under Title VII and 
Section 1981.

Thus, this Court’s affirmance of the decision of the Court of 
Appeals for the Third Circuit would create no significant 
additional burdens or obligations because most of those sug­
gested herein already exist under the National Labor Relations 
Act. Moreover, squarely confronting an employer with racial 
discrimination grievances will persuade the employer to end 
discriminatory practices and will result in fewer grievances for 
the union to process overall.

The clear purpose of Title VII and the Civil Rights Act of 
1866 (which includes Section 1981), is to eliminate dis­
crimination and the harmful effects of decades of discriminatory 
practices. Deterrence of discrimination can best be effected if 
discriminatory conduct is brought out in the open. Grievances 
that ignore the motivating factor of discrimination in the 
conduct complained of, while they may serve to repair some of 
the damage done to a single individual, cure merely the 
symptom, but not the disease. Charges of discrimination 
stigmatize the individuals at whom they are aimed, making it 
more likely that unlawful practices will be terminated. When a 
union singles out meritorious racial grievances for less favorable 
treatment than all other meritorious grievances, it not only 
engages in illegal discrimination itself, but it also causes the 
perpetuation of illegal discrimination by the employer.

In litigating cases against employers with union contracts, 
Amici herein have repeatedly encountered the same factual



5

pattern as the instant case. There is virtually always a 
collective-bargaining agreement with a nondiscrimination 
clause, but most of the unions have never processed a single 
claim under the nondiscrimination provisions, and have en­
gaged in the practice of characterizing discrimination claims as 
some form of nonracial grievance or otherwise not processing 
the claims at all. These practices have, in fact, done nothing to 
eliminate entrenched patterns of discrimination; litigation 
against the employer was still necessary.

When a union seeks piecemeal relief for individual mem­
bers by processing “seniority” grievances where possible, in the 
long run that union wastes, rather than preserves, its valuable 
resources. As long as a union refuses to bring employer 
discrimination out into the open, discrimination will continue. 
Thus, ignoring the underlying problem will result in a treadmill 
of “seniority” or other such claims. This lawsuit is a perfect 
example of how fighting the symptom is not enough. Unless 
the curative measures are aimed at the disease of dis­
crimination, the ultimate goal of Title VII can never be fulfilled. 
There will always be another “seniority” grievance to process.

ARGUMENT

I. THE UNIONS’ DISCRIMINATORY FAILURE TO 
PROCESS RACIAL GRIEVANCES VIOLATED TITLE 
VII AND SECTION 1981.

The unions repeatedly argue that they are not vicariously 
liable for the discriminatory employment practices of Lukens. 
Petitioners’ Brief at 25-26.1 However, that was not the issue 
before either the District Court or the Court of Appeals, nor is it 
the issue now before this Court.

Here the question is whether the discriminatory conduct of 
the unions, found to be racially motivated, violated the rights of

1 Hereinafter “Pet. Br. at”. References to the Brief of the United 
States as Amicus Curiae are “U.S. Br. at”.



6

respondents and created union liability under Section 703(c) of 
Title VII2 and Section 1981.3 Amici submit the answer to that 
question is yes.

A. Under Title VII A Union Cannot Treat The Right To 
Freedom From Discrimination Less Favorably Than Other 
Rights Secured Under A Collective-Bargaining Agreement.

Petitioners make the unsupported statement that the only 
section of Title VII applicable to the issues herein is Section 
703(c)(3), and that the unions cannot be held to have

2 Section 703(c) provides:
Ҥ 2000e-2. Unlawful employment practices

“(c) It shall be an unlawful employment practice for a labor 
organization—

(1) to exclude or to expel from its membership, or 
otherwise to discriminate against, any individual because of 
his race, color, religion, sex, or national origin;

(2) to limit, segregate, or classify its membership or 
applicants for membership, or to classify or fail or refuse to 
refer for employment any individual, in any way which 
would deprive or tend to deprive any individual of employ­
ment opportunities, or would limit such employment 
opportunities or otherwise adversely affect his status as an 
employee or as an applicant for employment, because of 
such individual’s race, color, religion, sex, or national origin; 
or

(3) to cause or attempt to cause an employer to 
discriminate against an individual in violation of this sec­
tion.”

42 U.S.C. § 2000e-2 (1982).
3 Section 1981 provides:

“All persons within the jurisdiction of the United States shall 
have the same right in every State and Territory to make and 
enforce contracts, to sue, be parties, give evidence, and to the full 
and equal benefit of the laws and proceedings for the security of 
persons and property as is enjoyed by white citizens, and shall be 
subject to like punishment, pains, penalties, taxes, licenses, and 
exactions of every kind, and to no other.”

42 U.S.C. § 1981 ( 1982).



7

“caused” Lukens’ discriminatory practices in violation of that 
section. Pet. Br. at 25-26. Their argument fails on two counts. 
First, any time a union takes affirmative steps toward avoiding 
confrontation with an employer on the issue of racial dis­
crimination, that union contributes to the perpetuation of the 
employer’s discriminatory conduct in violation of Section 
703(c)(3). Second, deliberately deciding not to process racial 
grievances protected by Title VII in favor of the promotion of 
other rights secured under a collective-bargaining agreement is 
discrimination itself and violates Section 703(c)(1)4 as well.5

In choosing to process some, but not all, of the grievances 
raised by union members, a union naturally treats some types of 
claims differently from others. Where this type of selective 
practice is adopted, this Court has set forth the test to determine 
whether the procedure constitutes a discriminatory and unlaw­
ful employment practice under Title VII. “The ultimate factual 
issues are thus simply whether there was a pattern or practice of 
such disparate treatment and, if so, whether the differences 
were ‘racially premised’.” International Bhd. o f Teamsters v. 
United States, 431 U.S. 324, 335 (1977) (quoting McDonnell 
Douglas Corp. v. Green, 411 U.S. 792, 805 n.18 (1973)).

Almost every Federal court that has addressed the issue 
has held that under Title VII it is a union’s responsibility to take 
an active role in eliminating discrimination where it has the

4 From the commencement of this litigation, respondents herein 
asserted claims under both Sections 703(c)( 1) and (3) in the District 
Court. That court found that the union had discriminated against the 
plaintiff class and that such practices cause perpetuation of employer 
discrimination. See Goodman v. Lukens Steel Co., 580 F. Supp. 1114, 
1160 (E.D. Pa. 1984) (“The clear preference of both the company 
and the unions to avoid addressing racial issues served to perpetuate 
the discriminatory environment.”), aff’d in part, rev’d in part, vacated 
in part, 111 F.2d 113 (3d Cir. 1985), cert, granted, 107 S. Ct. 568 
( 1986).

5 It is questionable whether any procedure that disfavors Federal 
rights is lawful. Cf. Burnett v. Grattan, 468 U.S. 42, 53 n. 15 (1984).



8

power to do so.6 The seminal case, upon which the courts 
below relied, is Macklin v. Spector Freight Systems, Inc., 478 
F.2d 979 (D.C. Cir. 1973). There the court held:

“Where a union has not done so and where there is such 
solid evidence of employer discrimination as is alleged 
here, it would undermine Title VII’s attempt to impose 
responsibility on both unions and employers to hold that 
union passivity at the negotiating table in such circum­
stances cannot constitute a violation of the Act.”

Id. at 989.

The arguments put forth in both the petitioners’ brief7 and 
the Solicitor General’s brief,8 misstate the basic issue and ignore 
the findings of fact of the District Court:

“ [T]he evidence in this case proves far more than mere 
passivity on the part of the unions. The distinction to be 
observed is between a union which, through lethargy or 
inefficiency simply fails to perceive problems or is in­
attentive to their possible solution . . . and a union which, 
aware of racial discrimination against some of its mem­
bers, fails to protect their interests.”

Goodman, 580 F. Supp. at 1160; and the Court of Appeals 
affirmed echoing portions of the District Court opinion. See 
111 F.2d at 126.

6See Howard v. International Molders and Allied Workers Union, 
AFL-CIO-CLC, Local# 100, 779 F.2d 1546, 1553 (11th Cir.) (unions 
liable under Section 703(c)(3) for failing to make reasonable effort to 
end employer’s use of racially discriminatory nonvalid tests for 
promotions), cert, denied, 106 S. Ct. 2092 ( 1986); Bonilla v. Oakland 
Scavenger Co., 697 F.2d 1297 (9th Cir. 1982) (Title VII and Section 
1981 impose upon a union an affirmative obligation to oppose 
employment discrimination against its membership), cert, denied, 461 
U.S. 1251 (1984); Macklin v. Spector Freight Systems, Inc., 478 F.2d 
979, 989 (D.C. Cir. 1973); Chrapliwy v. Uniroyal, Inc., 458 F. Supp. 
252 (N.D. Ind. 1977).

7 See Pet. Br. at 26 (describing the issue as the “question of 
union responsibility for employer discrimination”).

8 See U.S. Br. at 10 (describing respondents’ theory as holding 
the unions liable for their “passive acquiescence in discrimination by 
the employer”).



9

The unions argue that they were justified in refusing to 
process racial grievances because they could get effective relief 
if they categorized such grievances as “seniority” or other 
nondiscrimination claims. See Pet. Br. at 42-43. The District 
Court, the Court of Appeals and the Macklin line of cases do 
not agree with the unions. Disparate treatment by unions of all 
grievances that if processed could help eliminate discriminatory 
employment practices is discrimination in violation of Title 
VII. 9

Moreover, a union’s deliberate refusal to assist its members 
in eliminating discrimination encourages and allows an em­
ployer to continue discriminatory employment practices. See 
Chrapliwy v. Uniroyal, Inc., 458 F. Supp. 252, 261 (N.D. Ind. 
1977) (holding that Title VII places an affirmative duty on 
labor unions to eliminate discrimination).

Regardless of whether this case is scrutinized under Section 
703(c)(1), prohibiting union discrimination, or Section 
703(c)(3), prohibiting a union from causing an employer’s 
discrimination, liability will lie under Title VII. Given the 
broad remedial intent of Title VII, it is in complete accord with 
the spirit of that legislation to hold the unions liable for 
discriminatory conduct that singles out for nonprocessing griev­
ances based upon racial discrimination. 9

9 Moreover, the unions’ argument fails completely with respect to 
probationary employees whose rights under the collective-bargaining 
agreement are virtually nonexistent. See Goodman, 580 F. Supp. at 
1159. Since 1965, the collective-bargaining agreement at issue before 
this Court has included a provision prohibiting employers from 
discriminating against probationary employees. See id. Dis­
crimination is virtually the only legitimate ground upon which a 
probationary employee may challenge employer conduct, and the 
probationary employee can only make such a challenge if the union 
files a grievance. Thus, the unions’ policy of never filing a grievance 
on behalf of a probationary employee, see id., is simply another way 
of avoiding their obligation to combat discrimination. Although 
respondents did not raise the issue below, the unions’ treatment of 
probationary employees could be violative of Section 703(c)(2) 
prohibiting classification of members in a way that would deprive the 
individual of employment opportunities.



10

B. The Unions’ Deliberate Refusal To Process Racial Griev­
ances Violated Section 1981.

Both the unions and the Solicitor General argue that 
General Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375 
(1982), is controlling and that the case proves that Section 
1981 “provide[s] no basis for holding a union liable for 
discriminatory conduct of an employer”. Pet. Br. at 45; see U.S. 
Br. at 25. In General Bldg., this Court overturned a finding of 
an employer’s liability under Section 1981 for a union’s dis­
crimination because the District Court had found a violation on 
proof of disparate impact alone and not upon proof of in­
tentional discrimination. Additionally, the employer therein 
had no knowledge of the union’s discriminatory practices. 458 
U.S. at 383.

In sharp contrast to General Bldg., the District Court herein 
found the unions guilty of deliberate and racially motivated 
conduct sufficient to give rise to liability under Section 1981. 
See Goodman, 580 F. Supp. at 1160 (holding the unions liable 
after noting that if racial animus is properly inferable there is 
liability under Section 1981). The District Court summed it up:

“A union which intentionally avoids asserting dis­
crimination claims, either so as not to antagonize the 
employer and thus improve its chances of success on other 
issues, or in deference to the perceived desires of its white 
membership, is liable under both Title II [sic] and § 1981, 
regardless of whether, as a subjective matter, its leaders 
were favorably disposed toward minorities.”

Id. The Court of Appeals affirmed; the necessary implication is 
that the findings of the District Court were not clearly er­
roneous. See Anderson v. City o f Bessemer City, 470 U.S. 564, 
566 (1985) (“a District Court’s finding of discriminatory intent 
. . . is a factual finding that may be overturned on appeal only if 
it is clearly erroneous” ); Pullman-Standard v. Swint, 456 U.S. 
273, 287 (1982) (Fed. R. Civ. P. 52(a) does not differentiate 
among categories of findings and, therefore, finding of dis­
criminatory intent must be clearly erroneous to be overturned). 
See generally Fed. R. Civ. P. 52(a).



11

II. UNION LIABILITY UNDER SECTION 1981 AND 
TITLE VII FOR REFUSAL TO FIGHT EMPLOYER 
DISCRIMINATION IS CONSISTENT WITH NATION­
AL LABOR RELATIONS POLICIES.

Petitioners and the Solicitor General argue that requiring a 
union to take a more active role in the fight against employment 
discrimination will somehow undermine the national labor 
policies embodied in the National Labor Relations Act 
( “NLRA” ). To the contrary, the Title VII and Section 1981 
obligations outlined in this case are wholly consistent with one 
of the basic principles of the NLRA—the union’s duty of fair 
representation of all members.

A. Construing Title VII And Section 1981 To Prohibit A 
Union From Discrimination In The Processing Of Mem­
bers’ Grievances Is Consistent With The Duty Of Fair 
Representation.

This Court has held that a union, as the exclusive bargain­
ing agent of the employees, has a duty fairly to represent all 
employees in both the negotiation and the enforcement of a 
collective-bargaining agreement. See Vaca v. Sipes, 386 U.S. 
171, 177 ( 1967). That duty is breached “when a union’s 
conduct toward a member of the collective bargaining unit is 
arbitrary, discriminatory, or in bad faith”. Id. at 190. Where 
the discrimination constituting a breach of the duty of fair 
representation is against one of the groups enumerated in Title 
VII, then Title VII is violated as well.

The pattern in the Federal courts has been that at least 
where the duty of fair representation is breached by a union’s 
failure fairly to represent one of the classes enumerated in 
Section 703(c)(1) or (3), then Title VII is also violated. See, 
e.g., Macklin, 478 F.2d at 989.10 The interpretation of Title VII 
and Section 1981 urged upon the Court would serve as an

10 See generally Note, Union Liability for Employer Dis­
crimination, 93 Harv. L. Rev. 702, 719-24 (1980) (decisions holding 
unions liable under Title VII for inaction based on facts that would 
constitute breach of duty of fair representation).



12

added incentive for unions to adhere to their preexisting 
obligations.11

Contrary to contentions made by petitioners and the 
United States, respondents herein are not urging this Court to 
render a decision that requires a union to commence a Title VII 
action every time an employer discriminates against one of its 
members. The question here is actually much narrower than 
that: Whether a union, which is the sole certified collective­
bargaining agent responsible for processing arbitrable griev­
ances, may single out and refuse to process meritorious griev­
ances when requested to do so by their aggrieved members 
simply because those grievances are based upon racial dis­
crimination.

The unions’ responsibilities to combat discrimination arise 
not only from Title VII but also from a collective-bargaining 
agreement that provides that Lukens must maintain a policy of 
nondiscrimination toward employees. The unions are obligated 
fairly to enforce that agreement, and the nondiscrimination 
provision therein. Under the national labor policy that prin­
ciple is embodied in the duty of fair representation. Civil rights 
policy prohibits a union from discriminating,12 or from causing 
an employer to discriminate.13 That policy is embodied in Title 
VII and Section 1981.

The purposes of Title VII, Section 1981 and the duty of fair 
representation have always been focused on eliminating dis-

11 Although respondents did not assert a claim under the NLRA, 
the Court of Appeals held that:

“The district court found that the unions intentionally avoided 
asserting claims of discrimination. In doing so, tire unions 
violated the duty of fair representation owed to their members. 
See Vaca v. Sipes, 386 U.S. 171 ( 1967); Steele v. Louisville & 
Nashville R.R. Co., 323 U.S. 192 (1944); see also, Note, Union 
Liability for Employer Discrimination, 93 Harv. L. Rev. 702 
(1980).”

Goodman, 111 F.2d at 127 (parallel citations omitted).
12 See Section 703(c)(1); Section 1981.
13 See Section 703(c)(3).



13

crimination. In Griggs v. Duke Power Co., 401 U.S. 424, 429-30 
(1971), the Court held:

“The objective of Congress in the enactment of Title 
VII is plain from the language of the statute. It was to 
achieve equality of employment opportunities and remove 
barriers that have operated in the past to favor an identi­
fiable group of white employees over other employees.”

And just as Title VII and Section 1981 arose out of a 
demonstrated need to wipe out the last vestiges of dis­
crimination, so too:

“The statutory duty of fair representation was developed 
over 20 years ago in a series of cases involving alleged 
racial discrimination by unions certified as exclusive 
bargaining representatives under the Railway Labor Act

99

Vaca v. Sipes, 386 U.S. at 177 (citing Steele, 323 U.S. at 192 
and Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 
210, 213-14 (1944)). More recently this Court has held that 
“national labor policy embodies the principle of nondiscrimina­
tion as a matter of highest priority . . . .” Emporium Capwell Co. 
v. Western Addition Community Org., 420 U.S. 50, 66 (1975) 
(citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 47
(1974)). How could Title VII and Section 1981 be offensive to 
a doctrine that arose out of the same problems and maintains 
the same goal?

B. Requiring A Union To Meet Its Obligations Under Title 
VII And Section 1981 Imposes No Excessive Burdens Upon 
Unions.

The unions claim that they will face substantial hardships 
if forced to prosecute all racial grievances. See Pet. Br. at 44. 
This argument fails for three reasons.

First, a union is never required to process all grievances 
brought by its members. Cf. Vaca v. Sipes, 386 U.S. at 191 
(“ frivolous grievances are ended prior to the most costly and



14

time-consuming step in the grievance procedures” ). Under 
Title VII, Section 1981 and the duty of fair representation, 
nonmeritorious claims should not be processed.

Second, as noted above, because the unions are already 
required by the duty of fair representation to pursue a course of 
conduct in compliance with Title VII and Section 1981, few 
additional burdens would be placed on the unions’ resources.

Third, the argument is inapplicable to the facts herein. 
The District Court found that the unions refused to process 
racial grievances for reasons other than lack of their resources. 
The District Court held the unions liable because they in­
tentionally singled out for nonprocessing discrimination claims 
“either so as not to antagonize the employer and thus improve 
its chances of success on other issues, or in deference to the 
perceived desires of its white membership”. Goodman, 580 F. 
Supp. at 1160. Moreover, the unions recognized some of the 
claims as meritorious, and processed them; but they refused to 
identify the claims as racial grievances. Other claims they 
refused to process at all.14 But for the unions’ insistence on 
treating known acts of discrimination as isolated, nonracial 
events, the pattern of discrimination might have been ended 
long ago. As a result of their insistence, there have instead had 
to be fourteen years of litigation in the Federal courts.

III. A UNION MAY NOT COMPROMISE RIGHTS SE­
CURED BY TITLE VII OR SECTION 1981.

Petitioners contend that their right to refuse to process 
meritorious racial grievances stems from the unions’ right to 
“determine their own bargaining agendas and their own prior­
ities and make their own compromises and agreements”. Pet. 
Br. at 37.

In Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-18
(1975), this Court held that the elimination of discrimination

14 See discussion regarding probationary employees at footnote 
7, supra.



15

had to be part of the union’s agenda, whether the union wanted 
it to be or not. This Court stated:

“ If employers faced only the prospect of an injunctive 
order, they would have little incentive to shun practices of 
dubious legality. It is the reasonably certain prospect of a 
backpay award that ‘providejs] the spur or catalyst which 
causes employers and unions to self-examine and to self- 
evaluate their employment practices and to endeavor to 
eliminate, so far as possible, the last vestiges of an 
unfortunate and ignominious page in this country’s his­
tory.’ ”

Id. at 417-18 (quoting United States v. N. L. Indus., Inc., 479 
F.2d 354, 379 (8th Cir. 1973)).

In McDonald v. Santa Fe Trail Transp. Co., A ll  U.S. 273 
( 1976), two white Teamsters were dismissed for mis­
appropriating company property. A third and equally guilty 
accomplice, who was black, was not discharged. One of the 
discharged employees brought a Title VII action against the 
Teamsters Union. The union moved to dismiss on the ground 
that “ in representing all the affected employees in their rela­
tions with the employer, the union may necessarily have to 
compromise by securing retention of only some”. 427 U.S. at 
284-85. This Court rejected that argument stating:

“The same reasons which prohibit an employer from 
discriminating on the basis of race among the culpable 
employees apply equally to the union; and whatever 
factors the mechanisms of compromise may legitimately 
take into account in mitigating discipline of some employ­
ees, under Title VII race may not be among them.”

Id. at 285.

In Emporium Capwell Co. v. Western Addition Community 
Org., 420 U.S. 50 ( 1975), this Court discussed the relationship 
between the union’s duty to represent the majority and the



16

union’s obligations to prevent discrimination against its 
membership:

“ In vesting the representatives of the majority with 
this broad power Congress did not, of course, authorize a 
tyranny of the majority over minority interests . . . Con­
gress implicitly imposed upon it a duty fairly and in good 
faith to represent the interests of minorities within the 
unit.”

Id. at 64 (citing Vaca v. Sipes, 386 U.S. 171 and Wallace Corp. 
v. NLRB, 323 U.S. 248 (1944)). This Court then acknowl­
edged two cases wherein the National Labor Relations Board 
imposed upon a union the obligation to take action against 
discrimination. See id. (citing Hughes Tool Co., 147 N.L.R.B. 
1573 (1964) (failure to process racial grievances in violation of 
duty of fair representation is an unfair labor practice) and 
Local Union No. 12, United Rubber, Cork, Linoleum & Plastic 
Workers o f America v. NLRB, 368 F.2d 12 (5th Cir. 1966) 
(Board ordered union to propose in collective-bargaining spe­
cific contractual provisions to prohibit racial discrimination), 
cert, denied, 389 U.S. 837 (1967)). It makes little sense that 
the union would not be liable under Title VII—legislation 
enacted to correct the injustice caused by decades of “majority 
rule”—for the same conduct that would violate the duty of fair 
representation under the NLRA.

The fundamental principle of Emporium is that the union 
and not the aggrieved member is the proper party to present 
racial discrimination grievances to the employer for arbitration. 
Aside from holding that the collective-bargaining agreement 
precluded minority factions from going straight to the employ­
er, this Court highlighted why the union is the better candidate:

“The collective-bargaining agreement involved here pro­
hibited without qualification all manner of invidious dis­
crimination and made any claimed violation a grievable 
issue. The grievance procedure is directed precisely at 
determining whether discrimination has occurred. . . . Nor



17

is there any reason to believe that the processing of 
grievances is inherently limited to the correction of individ­
ual cases of discrimination.”

Id. at 66 (footnotes omitted). This Court recognized not only 
that the union would be more effective than the individual at 
processing racial discrimination claims, but also that a united 
front is more capable of eliminating overall discrimination.

In Emporium, this Court described the national labor 
policy as “ long and consistent adherence to the principle of 
exclusive representation tempered by safeguards for the protec­
tion of minority interests”. Id. at 65. The effect of Title VII and 
Section 1981 of deterring unions from deliberately refusing to 
challenge known patterns of discrimination—even though re­
quested to do so by aggrieved members—is one of those 
safeguards.

IV. DISCRIMINATION CAN BE EFFECTIVELY ELIMI­
NATED ONLY IF IT IS EXPOSED.

Petitioners cannot avoid Title VII liability by arguing that 
the unions brought claims for wrongs other than discrimination 
when presented by members with complaints of discrimination. 
Allowing a union repeatedly to classify racial discrimination 
claims as nonracial grievances would undermine Title VII’s 
purpose of deterring discrimination.

A central purpose of Title VII is to deter discrimination. 
See Bibbs v. Block, 778 F.2d 1318, 1324 (8th Cir. 1985) (“ ‘by 
proving unlawful discrimination, appellant prevailed on a 
significant issue in the litigation’ . . . and thereby vindicated a 
major purpose of Title VII, the rooting out and deterrence of 
job discrimination” ) (citation omitted); Diaz v. American Tel. 
& Tel., 752 F.2d 1356, 1360 (9th Cir. 1985) ( “ [ i ] t is, of course, 
true that Title VII was designed to deter and remedy dis­
crimination on the basis of group characteristics and to remove 
barriers that favor certain groups over others” ); Stamford Bd.



18

o f Educ. v. Stamford Educ. Ass’n, 697 F.2d 70, 73 (2d Cir. 
1982) (“public policy goals of Title VII, for example, are to 
deter discrimination by reason of sex and to compensate 
aggrieved persons for the injuries caused to them by reason of 
the discrimination” ) (footnote omitted); Thompson v. Sawyer, 
678 F.2d 257, 291 (D.C. Cir. 1982) (“Title VII relief is to be 
targeted to deter illegal discrimination and to compensate its 
victims” ); Rich v. Martin Marietta Corp., 522 F.2d 333, 342 
( 10th Cir. 1975) (“objects and purposes of Title VII . . .  are to 
achieve equality of employment opportunity and to deter 
discriminatory practices” ).

Courts have explicitly discussed and fashioned Title VII 
doctrine in terms of deterrence of future discrimination. See 
Albemarle Paper Co. v. Moody, 422 U.S. at 417-18; Toney v. 
Block, 705 F.2d 1364, 1373 (D.C. Cir. 1983) (employer 
required to prove by clear and convincing evidence that there is 
no basis for backpay, and employee can get ruling on liability 
even where there are no damages) (Tamm, J., concurring in 
result); EEOC v. Local 638 . . . Local 28, Sheet Metal Workers’ 
In t’l Ass’n, 532 F.2d 821, 832 (2d Cir. 1976) (back pay); 
Reeder-Baker v. Lincoln N at’l Corp., 649 F. Supp. 647, 663 
(N.D. Ind. 1986) (punitive damages); Stephenson v. Simon, 
448 F. Supp. 708, 709 (D.D.C. 1978) (attorneys’ fees); Altman 
v. Stevens Fashion Fabrics, 441 F. Supp. 1318, 1321 (N.D. Cal. 
1977) (individual liability of officers).

Title VII’s utility as a deterrent to discrimination will be 
undercut if Title VII claims are regularly characterized merely 
as claims for wrongs other than discrimination. Obviously, a 
deterrent scheme only works if people know it exists and is 
being enforced. Thus, in the context of a Fourth Amendment 
exclusionary rule case, this Court has noted that the “concept of 
effective deterrence assumes that the police officer knows the 
probable consequences of a presumably impermissible course 
of conduct”. Nix v. Williams, 467 U.S. 431, 445 (1984) 
(quoting United States v. Ceccolini, 435 U.S. 268, 283 (1978) 
(Burger, C.J., concurring in judgment)).



19

The foregoing is consistent with the District Court’s state­
ments that:

“ [I]t seems obvious that vigorous pursuit of claims of 
racial discrimination would have focused attention upon 
racial issues and compelled some change in racial attitudes. 
The clear preference of both the company and the unions 
to avoid addressing racial issues served to perpetuate the 
discriminatory environment. In short, the unions’ 
unwillingness to assert racial discrimination claims as such 
rendered the non-discrimination clause in the collective 
bargaining agreement a dead letter.”

Goodman, 580 F. Supp. at 1160. The unions’ failure to focus 
that attention resulted not only in the perpetuation of Lukens’ 
discriminatory employment practices, but also in demonstrated 
ambivalence and prejudice from class plaintiffs’ white co­
workers. 15

Upon submission of the bill that became Title VII to the 
Judiciary Committee of the House of Representatives, Rep. 
Dawson explained the need for deterrent legislation:

“Racial discrimination harms not only the person 
against whom it is directed, but also scars the mind and 
morals of those who indulge or acquiesce in it. In addition, 
the country as a whole is weakened because substantial 
numbers of its people are thus deprived of adequate 
education, employment, recreation, voting participation, 
and other essentials of our national life to which all citizens 
ought to contribute to the maximum of their abilities.”

110 Cong. Rec. 2732 (1964).

The facts of this case amply demonstrate the continuing 
harm caused by discrimination and the sensitivity of the lower 
courts to redress that condition. Before the commencement of

15 “Plaintiffs presented a mass of evidence of individual instances 
of racial harassment and/or discriminatory treatment.” Goodman, 580 
F. Supp. at 1147. The incidents ranged from obscene statements to 
derogatory graffiti to demonstrated Ku Klux Klan activities. See 
generally id. at 1147-51.



20

this lawsuit, minority employees were discriminated against by 
Lukens, harassed by co-workers and denied assistance from 
their union in processing their grievances. Despite the unions’ 
attempts to secure relief by processing nonracial grievances on 
behalf of victims of discrimination, the discrimination and the 
harassment continued. Since this lawsuit, Lukens has agreed to 
a settlement and the unions have processed significantly more 
racial grievances; one must assume that, because of the pend­
ency of this action and the relief awarded by the lower courts, 
racial harassment at Lukens has subsided.

If the unions had taken earlier action and assisted their 
members in fighting discrimination, far less harm would have 
visited the class plaintiffs herein. Had the unions acted as 
Congress intended they act, discrimination at Lukens could 
have been eliminated long ago without the need for fourteen 
years of litigation or the involvement of this Court.



21

CONCLUSION
The judgment for the Court of Appeals for the Third 

Circuit should be affirmed.

Harold R. Tyler 
James Robertson 
N orman Redlich 

Trustees
W illiam L. Robinson 
Judith A. W inston 
R ichard T. Seymour 

Lawyers’ Committee For 
Civil R ights Under Law 

1400 Eye Street, N.W.
Suite 400
Washington, D.C. 20005 
(202) 371-1212

G rover G. Hankins 
Joyce H. Knox 

N ational Association 
F or The Advancement 
Of Colored People 

4805 Mount Hope Drive 
Baltimore, Maryland 21215 
(301) 358-8900

Antonia Hernandez 
E. R ichard Larson 
Theresa Bustillos 

Mexican American Legal 
Defense And Educational 
Fund

634 South Spring Street 
Los Angeles, California 90014 
(213) 629-2512

Respectfully Submitted,

Robert F. Mullen 
Counsel of Record

Stacey E. Elias 
Ivan F. Blejec 
Brooks R. Burdette 

Cravath, Swaine & Moore 
One Chase Manhattan Plaza 
57th Floor
New York, N.Y. 10005 
(212) 422-3000

Joan Bertin 
Joan G ibbs

American Civil Liberties 
Union F oundation 

132 West 43rd Street 
New York, N.Y. 10036 
(212) 944-9800

Judith L. Lichtman 
Claudia Withers 

Women’s Legal D efense Fund 
2000 P Street, N.W.
Suite 400
Washington, D.C. 20036 
(202) 887-0364

Attorneys for Amici Curiae