Tucker v. Tobacco Workers International Union, AFL-CIO, CLC, Local 183 Brief for Appellants

    I

IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 73-1722

JAMES A. TUCKER, et al..
Appellants,

V.

TOBJvCCO WORKERS INTERNATIONAL UNION, 
AFL-CIO, CLC, LOCAL 183, AND TOBACCO 
WORKERS INTERNATIONAL UNION, AFL-CIO, 
CLC,

Appellees

On Appeal From The United States District Court 
For The Middle District Of North Carolina 

Durham Division

BRIEF FOR APPELLANTS

ADAM STEIN
CHAMBERS, STEIN, FERGUSON 

& BANNING
University Club Building 
157 East Rosemary Street 
Chapel Hill, N. C. 27514

CONRAD 0. PEARSON
203-1/2 E. Chapel Hill St, 
Durham, N. C. 27702

WILLIAM L. ROBINSON 
JACK GREENBERG

10 Columbus Circle 
New York, N. Y. 10019

J. LeVONNE CHAMBERS 
CHAMBERS, STEIN, FERGUSON 

& BANNING
951 South Independence Blvd. 
Charlotte, N. C. 28202

Attorneys for Appellants



TABLE OF CONTENTS
PAGE

Question Presented ................................
Statement Of The Case .............................
Statement of Facts ................................
ARGUMENT:

I. Title VII Of The Civil Rights Act Of 1964 
And Section 1 Of The Civil Rights Act Of 
1866 Each Confer Federal jurisdiction For An 
Action Challenging Racial Discrimination 
In Election Practices Of Merged Black And 
White Local Unions ........................ .

A. The Gravamen Of Plaintiffs' Complaint,
Racial Discrimination Manifest In An Adverse 
candidate Eligibility Ruling, Was Ignored By 
The District Judge ......................
B. Racial Discrimination Manifested In 
Union Election Practices Is Prohibited
By Section 703(c) Of The Civil Rights Act 
Of 1964, 42 U.S.C. § 2000e-2(c) .........

II.

C. The Racial Discrimination Alleged In 
This Case States a Cause of Action Under 
Section 1 of the Civil Rights Act of 1866, 
42 U.S.C. § 1981 .............. ..........

The District Court Erred In Dismissing This 
Case In Which Facts Were Alleged And Admitted 
Constituting A Prima Facie Violation Of The 
Civil Rights Acts Of 1866 and 1964 On The 
Ground That Title IV Of The Labor Relations 
And Disclosure Act of 1959 Imposes an Exclu­
sive Remedy For Challenging Union Elections,.

A. The Language and Legislative History 
of the LMRDA Demonstrate That Congress 
Did Not Intend That The Act Deal with the 
Evil of Racial Discrimination in Union 
Activities...............................

1
2

5

10

10

15

21

25

26



PAGE
B. Judicial Decisions Applying Title
IV of the LMRDA Have Not Precluded 
Private Actions Challenging Racially 
Discriminatory Union Election Practices ... 31
C. The Decision Below Stands Alone Holding
That A Non-Title VII Remedy for Racial 
Discrimination is Exclusive Rather Than 
Alternative ..............................  36

Conclusion .......................................... 47
Appendix ........................................... 49

11



TABLE OF AUTHORITIES 
Cases

Page

Bales V. Union Camp Corp., 5 EPD § 8052
(S.D. Ga. 1972)....................................  40

Bowe V. Colgate Palmolive Co., 415 F.2d
711 (7th Cir. 1969)................................  42

Boys Markets Inc. v. Retail Clerks Union,
398 U.S. 235 (1970)................................  43

Broadnax v. Burlington Industries Incorporated,
C.A. No. C-160-G-71 (M.D. N.C. 1971)................  22

Brotherhood of Locomotive Engineers v.
Louisville & N.R. Co., 373 U.S. 33 (1963)..........  37 I

Brotherhood of Trainmen v. Howard, 343 U.S.768 (1952)   37
Brown V. Gaston City Dyeing Machine Co., 467

F.2d 1377 (4th Cir. 1972)..........................  22, 46
Calhoun v. Harvey, 379 U.S. 134 ( 1 9 6 4 ) ..............  31, 45
Chicago Fed. of Musicians, Local 10 v.
American Fed. of Musicians, 2 EPD § 10, 212 
(N.D. 111. 1964)   17

Choates v. Caterpillar Truck Co., 402 F.2d 357 !
(7th Cir. 1968)   21 '

Dewey v. Reynolds Metals Co., 429 F.2d 324 (6th Cir.
1970)............................................... 42, 43

Dobbins v. Local 212, 1 BEW, 292 F. Supp. 413 i
(S.D. Ohio 1968)    23 i’

i

English v. Seaboard Coast Line RR Co., 4 EPD
§ 7645 (S.D. Ga. 1972) ............................  I7

Dent V. St. Louis-San Francisco Ry. Co., 406 F.2d
399 (5th Cir. 1969) ...............................  21

Garner v. Teamsters Union, 346 U. S. 485 (1953) . . . .  40
Glover v. St. Louis-San Francisco R.R. Co., 393

U.S. 324 (1969) . . ............................  31
Griffin v. Pacific Mari .me Ass'n, 5 EPD § 8598,
No. 72-2117 (9';h Cir. Apr. 25, 1973) ..............  42, 43

X X X



Pa^e

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ........
Hicks V. Crown Zellerbach Corp., 310 F. Supp. 536

(E.D. La. 1970) ..................................
Howard v. St. Louis-San Francisco R. Co., 361F.2d 905 (8th Cir. 1966), cert, denied, 385 U.S.

986 (1966) ........................................
Hutchins v. U.S. Industries, 428 F.2d 303

(5th Cir. 1970) ....................................
International Association of Machinists v.
Gonzales, 356 U.S. 617 (1958) ......................

Jamison v. Olga Coal Co., 335 F. Supp. 454
(S-D. W. Va. 1971) ................................

Johnson v. Seaboard Airline RR Co., 405 F.2d
645 (4th Cir. 1968) ................................

Jones V. Alfred H. Mayer Co., 392 U.S. 409 (1968) . . .
King v. Georgia Power Co., 295 F. Supp. 943

(N.D. Ga. 1968) ....................................
Local 12, United Rubber Works v. NLRB, 368

F.2d 12 (5th Cir. 1966) ............................
Local 53, International Ass'n of Heat and Frost 

I and A. Wkrs v. Vogler, 407 F.2d 1047 (5th 
Cir. 1969) ........................................

Long V. Georgia Kraft Co., 445 F.2d 331 (5th
Cir. 1972) .........................................

Macklin v. Spector Freight Systems, Inc., 5 EPD
§ 8605 (D.C. Cir. 1973) ............................

McDonnell Douglas Corp. v. Green, ___ U.S. ___,
L.Ed.2d 668 (1973) ................................

NLRB V. Tanner Motor Livery, Ltd., 349 F.2d
(9th Cir. 1965) ..................................

Newman v. Avco, 451 F.2d 742 (6th Cir. 1971) ........
Norman v. Missouri Pacific RR Co., 414 F.2d

73 (8th Cir. 1969) . . .............................

Oubichon v. North America,Rockwell corp., ___ F.2d ___^
No. 71-1540 (9th Cir. July 10, 1973) ..............

iv ^

34

17

37

42

23

22
I
I

2 1 ,  2 2 ,  52 

43 ,

40

i
18 1

I

17

42 t1/
2 0 ,  2 1 ,  41

41

43

1 1 ,  3 7 ,  38 ,  
44

42



Page

Parks V. International Brotherhood of ElectricalWorkers, 314 F.2d 886 (4th Cir. 1963), cert, denied,
372 U.S. 976 (1963)....................................  23

Peters v. Missouri-Pacific RR Co., ___ F.2d ___, 5
EPD § 8550 (5th Cir. 1973)   39

Quarles v. Phillips, 279 F. Supp. 505 (E.D.
Va. 1968)............................................ 12

Rios V. Reynolds Metals Co., 467 F.2d 54 (5th
Cir. 1972) ...........................................  42

Robinson v. Lorillard, 444 F.2d 791 (4th Cir.
1971)   12, 13, 35,

40, 44
Rock V. Norfolk and western Ry Co., C.A. No. 258- 

69-N (E.D. Va. 1972), aff'd, 473 F.2d 1344 (4th
Cir. 1973), cert, denied, ___ U.S. ___ (1973)........  17, 39

Rosenfield v. Southern Pacific, 293 F. Supp. 1219 
(C.D. Cal. 1968), aff'd, 444 F.2d 1219 (9th Cir.
1971) .................................................43

Russell V. American Tobacco Co., No. C-2-G-68,
M.D. N.C. Greensboro Div., 5 EPD § 8447,
(M.D. N.C. 1973)......................................  12, 13

Sanders v. Dobbs Houses, Inc., 431 F.2d 1097
(5th Cir. 1970)   22, 46

Saunders v. Shoemann, 80 LRRM 2903 (Ohio Ct. App. 1972) . 33
Scott V. Young, 421 F.2d 143 (4th Cir. 1970)............  22
Shultz V. Local 1291, International Longshoremen,

338 F. Supp. 1204 (E.D. Pa. 1972), aff'd 461
F.2d 1262 (3rd Cir. 1972) ..........................  19, 20, 32,

33, 34, 36
Spann v. Kay Wood, 446 F.2d 120 (6th Cir. 1971) . . . .  43
Steele v. Louisville & N.R. Co., 323 U.S. 192

(1944)   37, 40
Taylor v. Armco Steel corp., 429 F.2d 498

(5th Cir. 1970) ..................................... 41
Tippett V. Liggett & Myers Tobacco Company, 316

F. Supp. 292 (M.D. N.C. 1 9 7 0 ) ...................... 40

V



Page

Trbovitch v. United Mine Workers, 404 U.S- 528
(1972) ..........................................  .

United States v. Chesapeake and Ohio Ry Co., 4 
EPD § 7637 (E.D. Va. 1971), vacated in part and 
remanded, 471 F.2d 582 (4th Cir. 1972) ............

United States v. International Longshoremen, 460F.2d 497 (4th Cir. 1972) ..........................
United States v. Jacksonville Terminal Co., 451
F.2d 418 (5th Cir. 1971) ..........................

United States v. Local 86, International Ass'n of 
Bridge, S.O. and R. Ironworkers, 316 F. Supp. 202 
(W.D. Wash. 1970), affd 443 F.2d 544 (9th Cir.
1971) . ..........................................

United States v. Sheet Metal Wkrs Ass'n,
Local 36 (8th Cir. 1969) ........................

Vaca V. Sipes, 386 U.S. 171 (1967) ................
Voutsis V. Union Carbide Corp., 452 F.2d 889 (2nd Cir. 

1971) ............................................
Washington v. Baugh Construction Co., 313 F. Supp.

598 (W.D. Wash. 1969) ............................
Waters v. Wisconsin Steel works, 427 F.2d 476 (7th 

Cir. 1970), cert, denied, 400 U.S. 911 (1970) . . .
Western Addition Community Organization v. NLRB ___

F.2d ___, No. 71-1656 (D.C. Cir., June 29, 1973) . .
Whitfield V. United Steelworkers of America, 263 

F.2d 546 (5th Cir. 1959), cert, denied 360 U.S.
902 (1959)........................ ................

Wirtz V. Hotel Employees Union, 391 U.S. 492 (1968)
Wirtz V. Local 153, G.B.B.A., 389 U.S. 463 (1968) . .

31, 32

16, 39

18

38, 39

19 I

19
40

42

23

23, 146i
24, 41

i
41 
31
26, 27, 28, 
31, 45

Young v. International Telephone and Telegraph 
Co., 438 F.2d 757 (3rd Cir. 1971) ........ 22, 46

VI



Statutes

Page

Civil Rights Act of 1866, Section 1, 42 U.S.C. §§1981,
1982 .................................................  1-4, 21, 22,

51-52
Civil Rights Act of 1964, Title VII, 42 U.S.C. §§

2000e, 2000e-2(c), 2000e-2(d), 20003-4 ..............  1-4, 15-16,
18-19, 30, 32- 
33, 46,50

Equal Employment Opportunity Act of 1972, 42
U.S.C. § 2 0 0 0 e ..................................... 49-50

Labor Management Relations Act, 29 U.S.C. 1 4 1 ........  52
Labor-Management Reporting and Disclosure Act of

1959, 29 U.S.C. §§401, 411, 481-483, 523 ........  1-4, 10, 19-20,
25-27, 29, 31, 
33

National Labor Relations Act, 29 U.S.C. §§151,
157, 185 ...........................................  23, 39, 40-41,

46, 52
Railway Labor Act, 45 U.S.C. § 151 ..................  37-38, 46, 52

Other Authorities

Aaron, The Labor-Management Reporting and Disclosure
Act of 1959, 73 Harv. L.Rev. 851 ( 1 9 6 0 ) ..........  29

110 Cong. Rec. 13650 ( 1 9 6 9 ) ................ .. 46
Cox, Internal Affairs of Labor Unions under the 

Labor Reform Act of 1959, 58 Mich. L.Rev.
819 (1960) .........................................  28

EEOC, Legislative History of Title VII and XI of the
Civil Rights Act of 1964 (1964).................... 15

Griffin, The Landrum-Griffin Act: 12 Years of Experience
in Protecting Employee Rights, 5 Ga. L.Rev. 622 (1971). 30, 34

House Judiciary Comm. Report, No. 914, 88th Cong., 1st
Sess. (1964) .........................................  15

H.R. Rep. No. 741, 86th Cong., 1st Sess. (1959)........  27
2 A Moore's Federal Practice (2d Edition 1972) ........  11

vii



Page

2 NLRB, Legislative History of the Labor-Management
Reporting and Disclosure Act of 1959 ( 1 9 5 9 ) ........  29

Note, The Election Labyrinth: An Inquiry into
Title IV of the LMRDA, 43 N.Y.U. L.Rev. 336 (1968) . . 35

Rauh, LMRDA-Enforce It or Repeal It, 6 Ga. L.Rev.
643 (1971) ......................................... 35

S. Rep. NO. 187, 86th Cong., 1st Sess. (1959)........  27
Sub-Committee on Labor of the Senate Committee 
on Labor and Public Welfare, 92nd Cong., 2d 
Sess., Legislative History of the Equal Employ­
ment Opportunity Act of 1972 (Comm. Print 1972) . . .  50

5 Wright and Miller, Federal Practice and
Procedure: Civil (1st Edition 1969) ..............  11

V l l l



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

No. 73-1722

JAMES A. TUCKER, et al. ,
Appellants,

V.

TOBACCO WORKERS INTERNATIONAL UNION 
AFL-CIO, CLC, LOCAL 183, AND TOBACCO 
WORKERS INTERNATIONAL UNION, AFL-CIO,
CLC,

Appellees,

On Appeal From The United States District Court 
For The Middle District Of North Carolina 

Durham Division

BRIEF FOR APPELLANTS

QUESTION PRESENTED

Whether the district court erred in dismissing this action 
in which facts were alleged and admitted constituting a prima 
facie case of racially discriminatory union election practices 
in violation of Title VII of the Civil Rights Act of 1964 and Section 
1 of the Civil Rights Act of 1866 on the ground, that Title iv of 
the Labor-Management Reporting and Disclosure Act of 1959 imposes 
an exclusive remedy for challenging union elections?



STATEMENT OF THE CASE

This case of racial discrimination in union election prac­
tices comes here on appeal from a pre-trial order of dismissal 
of the United States District Court for the Middle District of 
North Carolina, Durham Division, entered April 19, 1973. The 
appeal involves the important issue as to whether Title iv of the 
Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C.
§§ 401 e_t seg. , precludes private enforcement of the prohibition 
against discrimination in union election practices under Title 
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e e_t seg. , 
and Section 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981^ 
This Court has jurisdiction of the appeal under 28 U.S.C. § 1291.

On January 20, 1972, plaintiff-appellant James A. Tucker 
executed a charge of racial discrimination against defendants 
Local 183, Tobacco Workers International Union, AFL-CIO, CLC and
Tobacco Workers International Union, AFL-CIO, CLC for filing with

I
Ithe Equal Employment Opportunity Commission in behalf of himself 

and other black union members. The charge was received by the 
EEOC on January 31, 1972. (A. 32-34). Tucker charged that the
local and international unions had allowed an ineligible white

I

employee to be nominated and elected to serve as the representative 
from a historically black work area at the American Tobacco Com­
pany in Durham, North Carolina on the union Shop Committee.

On May 8, 1972, Tucker and one hundred other black employees 
of American Tobacco Company filed their complaint in federal 
district court in their own behalf and as a class action. Plain­
tiffs alleged that defendant unions' election practices discrimi­
nated against black members and employees of American Tobacco

-  2 -



Company in violation of Title VII of the Civil Rights Act of 1964, 
42 U.S.C. §§ 2000 e_t seq. , and Section 1 of the Civil Rights 
Act of 1866, 42 U.S.C. §1981. Plaintiffs prayed for temporary and 
permanent injunctions (A. 3-13). Defendants answered on June 22, 
1972 interposing several defenses. (A. 14-20).

On August 4, 1972, Tucker received a letter from the EEOC 
advising him that the Commission had been unable to obtain volun­
tary compliance and authorizing him to file suit (A. 35). Plain­
tiffs then, on August 11, 1972, moved to amend their complaint to 
allege the necessary jurisdictional prequisites for bringing an 
action under Title VII (A. 27-31). The district court granted 
the motion with the consent of the defendants on October 11,
1972 (A. 36) .

Also, on August 11, 1972 plaintiffs moved for preliminary 
injunction (A. 27-29). On October 24, 1972, defendants responded 
to the motion and further moved the district court to dismiss the 
action in its entirety (A. 37-41). Defendants argued that the 
Labor-Management Reporting and Disclosure Act deprived the court 
of jurisdiction (A. 42-53). Plaintiffs responded,arguing that 
Title VII and § 1981 conferred jurisdiction on the court to 
adjudicate racially discriminatory union election practices (A. 
54-59). On January 12, 1973, plaintiffs moved for leave to file 
a second amendment to the complaint praying for monetary relief 
in behalf of the plaintiff Tucker for the money he would have 
earned as Shop Committeeman during 1972 (A. 68-69). The motion
was granted with the consent of the defendants (A. 70—72). On 
February 9, 1973, defendants answered the second amendment

- 3 -



(A. 73-74).
On January 11, 1973, plaintiffs filed interrogatories to 

defendants (A. 60-67), which defendants answered on March 13,
1972 (A. 76-83).

Oral argument on defendants' motion to dismiss was heard 
by the court on April 2, 1973. The Memorandum Order of April 9,
1973 stated that the motion should be allowed and instructed, 
defendants' counsel to present a proposed order setting forth 
proposed findings of fact and conclusionsof law. On April 19,
1973, the district court entered the Order of Dismissal. The 
primary finding of fact is that the controversy is a dispute over 
an internal union election. No mention is made of the racial 
discrimination alleged by the plaintiffs (A. 85-86). The
court concluded that the Labor-Management Reporting and Disclosure 
Act is an exclusive administrative remedy for internal union election

Idisputes (A. 86-88).
Plaintiffs filed their notice of appeal on May 10, 1973 (A. 

89-90). Plaintiffs here seek reversal of the district court's 
judgment that the Labor-Management Reporting and. Disclosure Act 
precludes consideration on the merits of actions brought under 
Title VII and Section 1981 charging racial discrimination in 
union election practices.

- 4 -



STATEMENT OF FACTS

The Tobacco Workers International Union, AFL-CIO, CLC 
[hereinafter "International Union"] is an international union with
principal offices and headquarters in Washington, D.C. The 
International Union operates in North Carolina through its several 
local unions (A. 6, 15). One of these local unions is Local 183, 
Tobacco Workers International Union, AFL-CIO, CLC [hereinafter 
"Local 183"], located in Durham, North Carolina, all of whose 
members are, or have been, employees of the American Tobacco 
Company in Durham (A. 6, 15). Local 183 has approximately 1200 
members of whom approximately 200 to 300 are black (A. 6, 15, 25). 
Local 183 operates pursuant to the Constitution of the Inter­
national Union and its own bylaws. For many years, Local 183 has 
had a collective bargaining agreement establishing terms and 
conditions of employment with the American Tobacco Company (A.
6, 15).

Before 1964, Local 183 was historically an all white local 
representing workers in traditionally white jobs and departments 
at American Tobacco Company in Durham (A. 7, 15, 77). Local 204, 
Tobacco Workers International Union, AFL-CIO, CLC [hereinafter 
"Local 204"] was the much smaller black counterpart of Local 183 
representing workers in traditionally black jobs and departments 
(A. 7, 15, 76). Local 183 had no black members as of 1963 (A. 7, 
15, 77). Prior to at least March, 1964, American Tobacco Company 
had a policy of limiting black employees to employment in certain 
job categories (A. 77).

- 5 -



In 1964, the International Union urged Local 183 and Local 
204 to merge so that the American Tobacco Company, a government 
contractor, would not be in violation of Executive Order 10925 by 
engaging in collective bargaining with racially identifiable local 
unions (A. 7, 15, 77). The Defense Supply Agency and represen­
tatives from the President's Committee on Equal Employment Oppor­
tunity also urged the merger of the local unions so that the American 
Tobacco Company would be able to continue to do business with 
the United States (A. 77).

Subsequently, representatives of the two local unions met to 
negotiate terms of merger. One of the hey matters of negotiation 
was representation on the shop Committee which had and still has 
the responsibility of handling all grievances arising under the 
collective bargaining agreement and negotiating with the Company 
for new collective bargaining agreements (A. 7, 15). Local 204 
representatives proposed that Local 183's Shop Committee be in­
creased from 8 to 13 members with the 5 new positions to be filled 
by former members of Local 204 which would have been black persons 
(A. 7, 15). Following negotiation on this matter, it was agreed 
that the Shop Committee be increased from 8 to 11 members.
Eleven departments or work areas were designated for the purpose 
of electing members to the Shop Committee; 8 departments or work 
areas were those formerly represented by Local 183 and tradition­
ally staffed by white workers and 3 were those formerly repre­
sented by Local 183 and traditionally staffed by black workers 
(A. 7, 15). The traditionally black departments or work areas 
were designated "Area 1," "Area 2," and "Area 3." The election

-  6 -



procedure of the Local has always provided that candidates 
actually working in a department or work area were eligible to run, 
although the local membership at large could nominate candidates 
and choose among them at the time of election (A. 9, 15, 66-67).
The merger agreement was ratified by the members of Local 204 
on January 10, 1964 and by the members of Local 183 on January 14, 
1964, becoming effective on January 31, 1964 (A. 7, 15). The 
merger provision dealing with representation on the Shop Committee 
was subsequently made a part of the Local 183 Bylaws as provided 
for in the agreement (A. 8, 15, 26, 66).

James A, Tucker, a black member, was president of Local 204 
at the time of merger. In each of the succeeding seven elections 
after the merger in January, 1964, Tucker was nominated and 
elected as the representative on the Shop Committee for Area 3 
until the election held in December 3, 1971 (A. 8, 15, 62-63,
78). At the time of the merger, more than 50 persons worked in 
Area 3 of whom 1 was white; at the time of the December, 1971 
election, more than 50 persons worked in Area 3 of whom 3 were 
white (A. 9, 16, 80).

In October, 1971, Tucker was r; nominated. Elbert Vaughn, a 
white member, was also nominated.

Immediate objections were raised to Vaughn's eligibility to 
be a candidate for representative from Area 3 by Tucker and other 
black members on the ground that Vaughn did not in fact work in 
Area 3 as required by the merger agreement and by bylaws.

Vaughn has been a member of the local and international since

- 7 -



1946 (A. 78) and has been an employee of T^erican Tobacco since 
at least that time (A. 79). He has held various offices of the 
local union over the years (A. 78). He was a trustee at the time 
of merger (A. 78). He served as Shop Committeeman for six years 
before merger from 1957 to 1963. He served as Shop Committeeman 
for five years after merger from 1964 to 1969. On each of these 
occasions he was the representative on the shop Committee from the 
area designated as American Suppliers, and now known as the Leaf 
Division, one of the eight original "white" departments. During 
all of these years he held the same job which is classified as 
Vacuum Operator and Maintenance. He was, of course, initially 
assigned to that job at a time when American Tobacco made 
job assignments on a racial basis (A. 78, 79).

In October of 1971 when Vaughn was nominated to be the 
representative from Area 3, he was still holding exactly the same 
job - Vacuum Operator and Maintenance - which he had held when he 
served on thf Shop Committee for the six years before and for the 
five years after merger as the representative of the American 
Suppliers division or, as it is now known, the Leaf Division 
(A. 79). The defendants have nowhere in this case shown, alleged, 
or even suggested why Vaughn had been considered to be a repre­
sentative of American Suppliers for many years and then suddenly 
to be eligible to represent Area 3 despite the fact that his 
job with T^erican Tobacco remained the same.

The objections to Vaughn's candidacy were referred by the 
President of Local 183, Rudolph Hobby, to the International Union. 
After an investigation by an International Union Vice-President,

-  8 -



the International Union President, Rene Rondou, determined that
1/Vaughn was eligible (A. 8-9, 15, 79).

On December 3, 1971, the election was held. Elbert Vaughn 
received 252 votes and James Tucker 207 votes among the member­
ship at large of Local 183 (A. 9, 16). On January 1, 1972,
Elbert Vaughn assumed office as representative for Area 3 on the 
Shop Committee for the year 1972 (A. 9, 16).

This suit was filed on May 8, 1972 by one hundred black 
employees of American Tobacco Company who are affected by the 
collective agreement administered by the unions and the

I
Company. Ninety of the 200-300 black members of Local 183 arej 
plaintiffs in this action as are twenty-five of the 50-60 persons 
who work in Area 3. They claim that the defendants have engaged 
in racial discrimination by permitting Elbert Vaughn to be nomi­
nated and elected and to serve as Shop Committeeman from Area 3.

~ The defendants claimed (A. 44) and the court found (A. 87) 
that the plaintiffs failed to exhaust internal union remedies.
The only remedy adverted to by the defendants was the inter­
national's national convention held in September, 1972 (A. 44).
The convention was nearly a year after the nomination dispute, 
nine months after the election and four months after this suit had 
been filed.

- 9 -



Argument
I.

Title VII Of The Civil Rights Act Of 1964 
And Section 1 Of The Civil Rights Act Of 
1866 Each Confer Federal Jurisdiction For An 
Action Challenging Racial Discrimination 
In Election Practices Of Merged Black And 
White Local Unions.

In this part of the brief we show that plaintiffs have 
alleged and defendants have admitted facts sufficient to state 
claims for relief under the Civil Rights Acts of 1866 and 1964, put­
ting aside for the moment consideration of Title IV of the 
Labor Management Reporting and Disclosure Act (LMRDA) which the 
district court thought to be dispositive of the case. In Part 
II we show that the LMRDA does not preclude consideration of 
plaintiffs' action.
A. The gravamen of plaintiffs' complaint, racial discrim­

ination manifest in an adverse candidate eligibility 
ruling, was ignored by the District Judge.
The district judge decided as a matter of law that the 

court lacked jurisdiction to consider the merits of the contro­
versy (A. 86-88). The court concluded that the dispute is 
governed by sections 402 and 403 of the Labor-Management Reporting 
and Disclosure Act of 1959 (hereafter, LMRDA), 29 U.S.C. §§ 482,
483 thus requiring that plaintiffs exhaust available union remedies 
concerning their grievance and complain to the Secretary of Labor 
who then investigates, seeks voluntary compliance and determines 

if probable cause exists for him —  not th«.> plaintiffs —  to
-  10 -



bring a civil action against the union. The factual basis 
of the decision is the court's characterization of the contro­
versy as simply "a dispute over an internal union election," 
without any mention of plaintiffs' allegations of racial dis­
crimination.

The gravamen of the complaint by the one hundred black 
employees of American Tobacco Company is that the local and 
international union, their bargaining representatives, permitted 
an ineligible white man, Elbert Vaughn, to be nominated and 
elected over the black candidate, James Tucker, as the 
representative of one of the three historically black work 
areas on the eleven-member union shop committee which processes 
grievances, administers the collective agreement and negotiates 
new agreements. The plaintiffs said in the district court 
that these actions by their unions constituted racial discrimina­
tion.

If an action for racial discrimination is maintainable, 
these allegations are sufficient standing alone to withstand 
a motion to dismiss. See, Norman v. Missouri Pacific RR. Co.,
414 F.2d 73 (8th Cir. 1969); 5 Wright and Miller, Federal Practice 
and Procedure; Civil §§ 1349, 1350 (1st Edition 1969); 2A 
Moore's Federal Practice, § 12.08 (2d Edition 1972).

In addition to the verified allegations supporting 
plaintiffs' claims of discrimination, there were a whole battery 
of facts which had been admitted by the defendants at the time 
the case was dismissed:

-  11 -



(1) There is a historical background of racial 
segregation and discrimination by the employer 
and union:

(a) The defendants have admitted that at
least until 1964, American Tobacco limited
black employees to employment in certain job
categories. (Defendants' Answers to Inter-

27rogatories, A. 77)
(b) Defendants have admitted that until 
January, 1954 there were racially segregated, 
dual local unions at American Tobacco in Durham. 
(Answers to Interrogatories; A. 76-77). There
were no blacks in Local 183 until after merger 
(A. 77).^

(2) A crucial issue in the negotiations leading to 
the merger agreement of the black and white locals 
was the number of additional positions on the shop 
committee. The black local had asked for five and 
received three representatives from the work areas 
it had previously represented.

American Tobacco's discriminatory policies were consistent 
with those of the industry, Quarles v. Phillip Morris, 279 
F. Supp. 505, 509-14 (E.D. Va. 1958); Robinson v. Lorillard, 444 
F.2d 791, 794 (4th Cir. 1971), and with its neighboring Reidsville 
facility. See Findings of Fact and Conclusions of Law, Russell v. 
American Tobacco Co. No. C-2-G-68, M.D.N.C. Greensboro Div. ,
5 EPD § 8447 (M.D.N.C. 1973).
^  The discriminat ry practices of the international and local 
is also consistent with findings of discrimination by this 
international, Robinson v. Lorillard, supra; Russell v. American

-  12  -



)

(3) Merger was pushed by federal agencies and 
the international union in order to keep American 
Tobacco from losing federal contracts (A. 77).
(4) The black plaintiff, James Tucker, who was 
the president of the black local at the time of 
merger had served as representative for the nearly 
all-black area continuously from merger to the time 
of the disputed election.
(5) Elbert Vaughn, the white candidate for Area 3
in 1971 had previously served before and after merger 
from 1957 to 1969, with the exception of 1964, as 
the representative for the American Suppliers, or as 
it is now called, the Leaf Division, one of the 
historically white work areas which had been repre­
sented by the white local on the shop committee. 
(Defendants' Answers to Interrogatories, A. 79.)
(6) At the time Vaughn's eligibility to serve as 
the representative from Area 3 was challenged in 
the local and international unions, Vaughn had 
exactly the same job, Vacuiam Operator and Maintenance,

^  (Continued)
Tobacco, supra, and by sister locals, Robinson v. Lorillard, 
supra; Russell v. American Tobacco, supra.

- 13 -



which he had held during the 11 years he 
represented the Leaf Division. (Defendants'
Answers to Interrogatories, A. 79.)
(7) Once the eligibility issue was decided 
against to Tucker and the other black Area 
3 and American Tobacco Workers, the local union's 
election procedures permitted the discrimination 
of which plaintiffs complaint. Although blacks 
constitute all but 3 of the 50 or 60 workers in 
Area 3 (A. 9; 80), they represent only somewhere 
between 200 and 300 of the 1200 or so members of 
the local (A. 6; 80). Representatives to the 
shop committee must be assigned to the work area 
they represent, but they may be nominated by any 
member of the local and are elected at large.
(A. 9; 80).

There is no mention or consideration given by the court 
below to these undisputed facts bearing upon plaintiffs' claim of 
discrimination. They are entirely ignored.

- 14 -



I

B . Racial Discrimination Manifested In Union Election 
Practices is Prohibited By Section 703(c) Of The 
Civil Rights Act Of 1964, 42 U.S.C. 2QQ0e-2(c).

Section 703(c) of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-2 (c) states:

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 member­
ship 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 employment 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 
section. 4/

The comprehensive scope of the prohibition is consistent 
with the broad purpose of Title VII, "to eliminate, through the 
utilization of formal and informal remedial procedures, dis­
crimination in employment based on race, color, religion, or 
national origin." House Judiciary Comm. Report, No. 914, 88th
Cong., 1st Sess. ___ (1954) in EEOC, Legislative History of Title
VII and XI of the Civil Rights Act of 1964, 2026 (1964). The 
discrimination provision remained essentially unchanged from 
the report of a bill by the House Judiciary Committee through the 
adoption of the Dirksen-Mansfield substitute by the Senate and 
the House with the exception of a House floor amendment that 
"sex" be added as one of the forbidden bases of discrimination.
Id. at 1005 (1954). Congress thereby indicated that the in­
ternal affairs of unions were to be regulated in the interest 
of eliminating discrimination just as earlier labor relations 
legislation had on behalf of other desirable social ends.

- 15 -



Section 703 (c) (1) is specifically addressed to dis­
criminatory exclusion from merabersliip in a labor organization, 
an evil which previous labor relations legislation had avoided 
addressing. See, infra at 37-44. Nevertheless, Section 703 (c) (1) 
also makes it illegal for a union "otherwise to discriminate," 
an omnibus provision, spelled out, in part, in Sections 703(c)
(2) and 703(d), designed to ensure that the full rights of 
membership in a labor organization will not be impaired in 
any way. The broad terms employed in these sections evidence 
the Congressional purpose of prohibiting all forms of racial 
discrimination in union affairs and activities. We would 
certainly think that the discrimination detailed in the previous 
subsection (lA) is prohibited by section 703 (c) (1).

We know of no case exactly like this one where black union 
members invoked Title VII complaining of discriminatory practices 
by a union which denied the election of a black member. However, 
the courts have consistently recognized that regulating leadership 
arrangements and union elections is necessary to insure that the 
merger of segregated unions under the auspices of Title VII is 
effectively accomplished. In United States v. Chesapeake and 
Ohio Ry Co., 4 Employment Practices Decisions [hereafter, EPD]
§ 7637 (E.D. Va- 1971), vacated in part and remanded on other 
grounds, 471 F.2d 582 (4th Cir. 1972) the order of the court to 
remedy the effects of past union practice of maintaining segregated 
locals included provisions requiring consolidation of leadership.

-  16  -



allocating various local and committee offices within five 
years and reporting of election results to the court to insure 
minority group members adequate representation at all levels 
of leadership. Similar provisions are included in the Amended 
Decree at 8-12 in Rock v. Norfolk and Western Ry. Co., C.A.
No. 258-69-N (E.D. Va. 1972), aff'd, 473 F.2d 1344 (4th Cir.
1973) . Comparable arrangements for Negro participation in 
the leadership of the merged union were ordered in Hicks v.
Crown Zellerbach Corp., 310 F. Supp. 536 (E.D. La. 1970) and 
Chicago Fed, of Musicians, Local 10 v. American Fed, of Musicians, 
2 EPD § 10,212 (N.D. 111. 1964). In English v. Seaboard Coast
Line RR Co., 4 EPD § 7645 (S.D. Ga. 1972) the order requiring 
two segregated union locals to merge included provisions that 
offices in the consolidated local be allocated between the 
present holders of such offices in the segregated locals. ,In | 
Long V. Georgia Kraft Co., 445 F.2d 331 (5th Cir. 1972) the Court 
held that the use of protective transitional measures was 
unnecessary where Negroes had already achieved a leadership' role

I

in the consolidated union. The importance of access to leadership 
positions for minority members of merged unions is unquestioned.

The facts of this case are similar to those just cited and 
discussed. Here there also was a federal requirement for the 
merger of segregated locals. Negotiations between the locals 
resulted in some measure of representation in union affairs by

_ 17



blacks. The arrangements agreed to lacked many of the protections 
for blacks which are present in the decisions mentioned above.
For example, at the time of merger, the agreement would have 
allowed someone outside of Area 3 to nominate the single white 
assigned to Area 3 and to be elected as the Area 3 representa­
tive by the predominantly white local. But what was done here 
was something very different. A white outsider was imposed 
upon the nearly all-black department as its representative.
Absent the merger agreement,plaintiffs have stated a claim of 
discrimination. The violation of the merger agreement fully

Ibrings into play the necessity for affording blacks 
protection in intra-union affairs as articulated in the Title

IVII merger cases.
Furthermore, courts have intruded into the internal affairs 

of unions under authority conferred by Title VII in a variety
I jof other instances. In United States v. International 

Longshoremen, 460 F.2d 497 (4th Cir. 1972), this Court ruled 
that maintenance of segregated union locals is a per se

i/
violation of Section 703 (c) (2) of the Act and approved as v/ell the 
abolition of the system of separate hiring halls. Alternating 
the referrals of members for employment and hiring by racial 
classification was deemed appropriate relief for racially 
discriminatory union practices in Local 53, International Ass'n 
of Heat and Frost I and A Wkrs v. Vogler, 407 F.2d 1047 (5th Cir. 
1969). A union-run referral program, neutral on its face, that

- 18 -



would have present and future discriminatory effect was 
deemed an unlawful employment practice in United States v.
Sheet Metal Wkrs Int. Ass'n Local 36 (8th Cir. 1969). A 
virtually all-white union and its apprenticeship committee were 
charged with the affirmative duty to effectively inform 
potential Negro applicants about membership, work referral and 
apprenticeship training matters in United States v. Local 86, 
International Ass'n of Bridge, S. O. and R. Ironworkers, 316 
F. Supp. 202 (W.D. Wash. 1970), aff'd. 443 F.2d 544 (9th Cir.
1971) . No less are these plaintiffs entitled to consideration! 
on the merits under Title VII.

The only case we have found which deals with discrimination 
in union elections with regard to Title VII is Shultz v. Local 
1291, International Longshoremen, 338 F. Supp. 1204 (E.D. Pa.
1972) , aff'd ■461 F.2d 1262 (3rd Cir. 1972), a case relied upon^ 
by the defendants below. Local 1291 was a case brought by the 
Secretary of Labor under Title IV of the LMRDA, not by private 
parties or the Government under Title VII of the Civil Rights

t

Act of 1964. The court agreed with the Secretary's contention 
that racial allocations of union officers violated the 
"reasonable qualification" provision of Section 401 of the LMRDA 
(29 U.S.C. § 481) and also violated Title VII, 338 F. Supp.
at 1207-08. There was no evidence that the racial allocation 
of officers was a necessary remedy for prior segregation. ^

^  Here there is no racial allocation of officers in the merger 
agreement involved in this case. The agreement simply affords

- 19



Lq ca1 1291 thus stands firmly for the proposition 
that racial discrimination in union election practices is 
prohibited by Title VII.

In part II of our brief we show that the fact that some 
6 /

instances of racial discrimination are also forbidden by 
LMRDA does not in any way interfere with plaintiffs' right 
to invoke their Title VII remedies.

In conclusion, therefore, it is clear that plaintiffs 
have made sufficient allegations to support their Title VII
claim. u

Indeed, the undisputed facts already

5/ (Continued) |
blacks a reasonable chance for representation on the Shop 
Committee by requiring that representatives be identified with the 
areas they represent in the context of a work situation, where 
there is considerable racial segregation. The merger cases 
discussed above make clear, however, that in some situations 
racial allocations are necessary to remedy unlawful segregation.
6/ The basis for the Secretary of Labor's complaint in Local 
1291 was that a by-law provision desegregating certain offices 
as white and black was not a "reasonable qualification" under 
Section 401 of LMRDA. Whether plaintiffs' complaint in this 
case would or could be found by the Secretary to come within 
the "reasonable qualification" provision or some other provi­
sion which would in turn cause him to bring suit is not certain.
_7_/ It is also clear that they have satisfied all of the juris­
dictional requirements for bringing the action which are:
(1) that they have filed a charge with the EEOC, (2) that they 
have received an appropriate notice from the EEOC advising them 
of their right to initiate an action in an appropriate federal 
district court, and (3) that an action was initiated in a 
federal district court within thirty days of receipt of the 
notice. McDonnell Douglas Corp. v. Green, ___ U.S. ___,36 L.Ed.2d

_  20  -



_8V
established constitute a prima facie case of unlawful racial 
discrimination under Title VII. See, McDonnell Douglas Corp. 
V. Green, supra. These facts, if unexplained, entitle plain­
tiffs to relief.
C. The Racial Discrimination Alleged in This Case States 

a Cause of Action under Section 1 of the Civil Rights 
Act of 1866, 42 U.S.C. § 1981.
Black persons have a right independent of Title VII or 

other statutes prohibiting discrimination because of race in 
employment to seek relief from racially discriminatory employ­
ment practices of employers and unions under Section 1 of the 
Civil Rights Act of 1866, 42 U.S.C. § 1981. Section 1981 
states:

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, given evidence, 
and to the full and equal benefit of all laws 
proceedings for the purpose of persons and 
property as is enjoyed by white citizens. ...

In Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), the 
Supreme Court upheld the constitutionality of a parallel pro­
vision of Section 1 of the Civil Rights Act, 42 U.S.C. § 1982,

7/ (Continued)
668, 675-76 (1973); Johnson v. Seaboard Airline RR Co., 405 
F.2d 645 (4th Cir. 1968); Dent v. St. Louis-San Francisco Ry. 
Co., 406 F.2d 399 (5th Cir. 1969); Choates v. Caterpillar 
Truck Co., 402 F.2d 357 (7th Cir. 1968). Plaintiffs have sat­
isfied these jurisdictional prerequisites. (A. 27-36)
_§/ pp. 11-14, supra.

_ 21 _



which guarantees all citizens the same right as is enjoyed by 
white citizens in real and personal property transactions as 
a valid exercise of Congress' power to enact legislation to 
enforce the Thirteenth Amendment.

In Scott V. Young, 421 F .2d 143 (4th Cir. 1970), this 
Court, in a case involving the discriminatory availability of 
contractual opportunity in a recreational facility, stated, 
after reviewing Jones, that "the provision invoked in this 
case, § 1981, the sister to § 1982, must be construed in a 
similar broad fashion." Id. at 145. Subsequently, the court 
has approved the award of back pay to a Negro worker subject 
to discriminatory employment practices under section 1981.
Brown v. Gaston City Dyeing Machine Co., 457 F.2d 1377 (4th Cir. 
1972). In Jamison v. Olga Coal Co., 335 F. Supp. 454 (S.D.
W. Va. 1971), the court ruled that plaintiffs have stated a 
cause of action under § 1981 by alleging racial discrimination 
in promotion and job opportunities by employer and unions. See 
also, Broadnax v. Burlington Industries Incorporated, C.A.
No. C-160-G-71 (M.D. N.C. 1971). The rulings of other circuits 
are also to the effect that § 1981 embraces private discrimina­
tion in employment. See e.g..Yovmg v. international Telephone and 
Telegraph Co., 438 F.2d 757 (3rd Cir. 1971); Sanders v. Dobbs 
Houses, Inc., 431 F.2d 1097 (5th Cir. 1970).

-  22 -



The Seventh Circuit has had occasion to address the issue 
of whether discriminatory union practices, as opposed to 
employer discrimination, is also covered by Section 1981. 
Waters v. Wisconsin Steel Works, 427 F.2d 476 (7th Cir. 1970), 
cert. denied, 400 U.S. 911 (1970). After a careful reexamina­
tion of the legislative history and Supreme Court authority 
the Court concluded that § 1981 applies to employment discrim­
ination and also to discriminatory union activity because a 
member's relationship to his union is essentially contractual:

Racial discrimination in employment by unions 
as well as by employers is barred by Section 
1981. The relationship between an employee 
and a union is essentially one of contract. 
Accordingly, in the performance of its func­
tions as agent for the employees a union cannot 
discriminate against some of its members on the 
basis of race. Washington v. Baugh Construction 
Co., 313 F. Supp. 598 (W.D. Wash. 1969); Dobbins 
V. Local 212, IBEW, 292 F. Supp. 413 (S.D. Ohio 
1968). Id. at 483.

The Waters characterization of the member/union relation­
ship as contractual is consistent with decisions construing 
Section 301 of the National Labor Relations Act, 29 U.S.C.I

i

§ 185. Parks v. International Brotherhood of Electrica1 Workers, 
314 F.2d 886, 914-16 (4th Cir. 1963), cert. denied, 372 U.S.
976 (1963), and is consistent with the prevailing law in the
states. See, International Association of Machinists v.
Gonzales, 356 U.S. 617 (1958).

_ 23 _



There are several § 1981 contractual bases for plain­
tiffs’ claim. First, the plaintiffs allege that the defendants 
violated its own by-laws by letting Vaughn be nominated and 
elected to the Shop Committee and that this by-law violation 
was done with a discriminatory purpose and had a discrimina­
tory effect. Secondly, the plaintiffs assert that these 
actions violate the 1964 merger agreement between the black 
and white locals. Third, the discrimination affects the 
black employees' employment relationship with the employer

Iby interfering with their rights to representation. See, j
Western Addition Community Organization v. N.L.R.B., ____
F.2d ____, No. 71-1656 (D.C. Cir., June 29, 1973). The
plaintiffs have clearly stated a claim under § 1981.

- 24 -



II,
The District Court Erred in Dismissing This 
Case in Which Facts Were Alleged and Admitted 
Constituting a Prima Facie Violation of the 
Civil Rights Acts of 1866 and 1964 on the 
Ground That Title IV of the Labor Relations 
and Disclosure Act of 1959 Imposes an Exclu­
sive Remedy for Challenging Union Elections.

We have previously shown that admitted facts in this case 
constitute violations of both Title VII and the Civil Rights 
Act of 1866. These claims were apparently thought by the 
district court to be irrelevant since they were ignored. The 
decision must be read, therefore, as holding that even if a I 
case of racial discrimination were established, dismissal is

I

required on the ground that Title IV of LMRDA requires resort 
to the Secretary of Labor who may, if he chooses, bring suit.

We show in this part of the brief that there is nothing  ̂

in the statute, its legislative history, or in the decisions ! 
construing it to support the conclusion that private actions
challenging union election practices under the Civil Rights

!
Acts are somehow barred by the LMRDA. And finally, we show 
that other labor statutes which have their own remedies have 
not been held to bar Title VII claims when their prohibitions 
overlap Title VII.

- 25 -



A. The Language and Legislative History of the LMRDA 
Demonstrate That Congress Did Not Intend That the 
Act Deal with the Evil of Racial Discrimination in 
Union Activities.
The district judge, after quoting from the provisions of

Section 482 setting forth the procedures for invoking LMRDA
protections which admittedly were not pursued in this case,
quoted and relied upon Section 483, 29 U.S.C. § 482:

The remedy provided by this subchapter for 
challenging an election already conducted 
shall be exclusive.

The court did not refer to Section 603 of the Act, 29 U.S.C.
§ 523, which specifically preserves all other federal rights
and remedies of union members,

[E]xcept as explicitly provided to the con- '
trary, nothing in this chapter shall take 
away any right or bar any remedy to which 
members of a labor organization are entitled
under such other Federal law or law of any State. I!

Nor did the court mention the fact that the LMRDA does not 
address the matter of racial discrimination.

The Supreme Court has counseled against slavish reliahce
I

on one or another provision, phrase or word of the LMRDA:
We have cautioned against a literal reading of 
congressional labor legislation; such legisla­
tion is often the product of conflict and 
compromise between strongly held and opposite 
views, and its proper construction frequently 
requires consideration of its wording against 
the background of its legislative history and in 
light of the general objectives Congress sought 
to achieve. ... The LMRDA is no exception.

26 -



. _9/Wirtz V, Local 153, G.B.B.A., 389 U.S. 463, 468 (1968).
It is significant that the evil of racial discrimination 

in employment practices is not even alluded to in the Congres­
sional declaration of findings, purposes and policy at section 
2 of the Act, 29 U.S.C. 401. The Senate and House Reports 
indicate that Congress was specifically concerned with foster­
ing union democracy against such perils as unfairly entrenched 
leadership, corruption and racketeering. S. Rep. No. 187,
86th Cong., 1st Sess. 2-36 (1959); H.R. Rep. No. 741, 86th I

ICong., 1st Sess. 6-27 (1959). I
The absence of prohibitions against racial discrimination 

was intentional. Congress was not ready in 1959 to address 
that issue. There were at least two unsuccessful efforts to 
amend section 101(a), 29 U.S.C. §411, the equal rights provi-

ision of the union bill of rights section for just this purpose. 
The Minority Supplementary Views in the House Report states 
that;

9/ The Supreme Court elaborated its discussion in n. 6:
Archibald Cox, who actively participated in 

shaping much of the LMRDA, has remarked:
The legislation contains more than its share of 
problems for judicial interpretation because 
much of the bill was written on the floor of 
the Senate or House of Representatives and 
because many sections contain calculated ambi­
guities or political compromises essential to

-  2 7  -



This legislation has a bill of rights without 
any guarantee of civil rights. As it first came 
to us from the other body,, it did include some 
mention, but woefully inadequate, of equal rights. 
This was struck out in committee upon the motion 
of two members. We, therefore, believe that if 
there is to be a bill of rights in this legisla­
tion it must most assuredly include a guarantee 
of equal rights— the right of every working man to 
join a union and not to be segregated within that 
union because of race, creed, color, or national 
origin.

Id. at 101. Representative Powell, one of the co-signers of 
the Minority Supplementary Views, carried the struggle to 
amend the equal rights provision to the floor by proposing 
the following amendment:

Except that no labor organization shall dis­
criminate unfairly in its representation of all 
employees in the negotiation and administration 
of collective bargaining agreements, or refuse 
membership, segregate or expel any person on the 
grounds of race, religion, color, sex, or national 
origin.

In answer to this specific amendment. Representative Landrum, 
a principal sponsor of the House bill, replied:

9/ (Continued)
secure a majority. Consequently, in resolving 
them the courts would be well advised to seek 
out the underlying rationale without placing 
great emphasis upon close construction of the 
words. Cox, Internal Affairs of Labor Unions 
under the Labor Reform Act of 1959, 58 Mich.
L. Rev. 819, 852 (1960).

- 28 -



)

I would direct your attention to a careful 
reading of section 101 (a) of the amendment which 
I have proposed, which says this: "Every member 
of a labor organization shall have equal rights 
within that organization," and then it enumerates 
the things: to nominate candidates and to vote 
in elections or referendums. We do not seek in 
this legislation, in no way, no shape, no guise, 
to tell the labor unions of this country who they 
shall admit to their unions. No part of this 
legislation attempts to do that. ... This law is 
designed only to say that, if he is a member of 
a union, he shall have equal rights.

Representative Griffin, the other principal sponsor of the
House bill, agreed:

The labor reform legislation before the House 
at this time is directed at the regulation of the 
internal affairs of unions. It does not touch or 
deal in any way with the admission to, or retention 
of, membership in a union. There is a proviso in 
the Taft-Hartley Act which union leaders and the 
union members want preserved. I refer to a proviso 
in section 8(b) which reserves to unions the right 
to prescribe rules and regulations for the admis­
sion and retention of membership . ... The subject 
of the [Powell] amendment is outside the scope of 
the legislation and the hearings that were held on 
labor reform legislation. Under the circumstances, 
I urgently plead with the House riot to jeopardize 
this legislation by adopting an amendment which is 
so obviously designed for the purpose of killing 
the bill.

10/The Powell amendment was defeated 215-160.

10/ 2 NLRB, Legislative History of the Labor-Management Report­
ing and Disclosure Act of 1959, 1648-51 (1959); see, Aaron, The 
Labor-Management Reporting and Disclosure Act of 1959, 73 Harv. 
L. Rev. 851, 860-61 (1960). The Senate accepted the House 
version of the bill on this point.

- 29 -



This legislative history thus indicates that the exclu­
sive LMRDA procedures of Title IV for challenging union 
elections were not designed for claims of racial discrimina­
tion and surely not for such claims involving the merger 
agreement of two segregated unions by which a forme ly all- 
white local admitted black members under governmental pressure. 
It was not until the enactment of Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. §§ 2000eejt seq. that racial 
discrimination in union practices was, in fact, sought to be 
remedied. The felt necessity for subsequent legislation that 
deals specifically with racial discrimination itself argues 
against attributing to Congress the purpose in the LMRDA of
foreclosing a private action authorized by Title VII chal-

11/lenging discriminatory union electoral practices.

11 / In a recent post-enactment statement. Senator Griffin 
commented:

That the right to join a union was not included 
in the list of rights protected by Landrum-Griffin 
was an understandable fact of political life at 
the time of enactment, but the fact that some 
unions continue to exclude minorities from the job 
market despite subsequent enactment of equal 
employment legislation is neither understandable 
nor tolerable.

Griffin, The Landrum-Griffin Act: 12 Years of Experience in 
Protecting Employee Rights, 5 Ga. L. Rev. 622, 624-25 (1971)

- 30 -



B. Judicial Decisions Applying Title IV of the LMRDA 
Have Not Precluded Private Actions Challenging 
Racially Discriminatory Union Election Practices.
Existing Supreme Court interpretations of the purpose of 

Title IV provisions requiring an exclusive administrative 
remedy are consistent with allowing private actions challeng­
ing racial discrimination in union election practices. These 
interpretations include (1) encouraging union democratic 
processes by requiring, in the first instance, exhaustion of 
union remedies, (2) reliance on the expertise of the Secre­
tary of Labor by conferring on the Secretary the sole discre­
tion to initiate judicial enforcement, and (3) reliance on 
the Secretary of Labor to screen and centralize Title IV com­
plaints. Calhoun v. Harvey, 379 U.S. 134, 140-41 (1964); 
Wirtz V. Local 153, G.B.B.A., 389 U.S. 463, 470-71 (1968); 
Wirtz V. Hotel Employees Union, 391 U.S. 492, 496-99 (1968); 
Trbovitch v. United Mine Workers, 404 U.S. 528, 532-35 (1972), 
As to encouraging union democracy, the Supreme Court has made 
it clear that exhaustion is not required where the procedures 
are controlled by the very individuals from whose discrimina­
tory action the plaintiffs seek relief. Glover v. St. Louis-

12/
San Francisco R.R. Co., 393 U.S. 324 (1969). As to the

\2j The defendants’ claim of lack of such exhaustion by the 
plaintiffs falls squarely within the Glover rule.

- 31 -



expertise of the Secretary of Labor, Congress has subsequently 
specifically provided for the EEOC, not the Secretary of Labor, 
to investigage and seek conciliation of racial discrimination 
in employer and union employment practices. Failing voluntary 
compliance. Title VII allows private actions. 42 U.S.C.
§§ 2000e-4 ^  seq. The establishment of the EEOC and procedures 
for private actions under Title VII are also Congressionally 
mandated accommodations with the screening and centralizing 
function of the Secretary of Labor. Moreover, the Supreme 
Court in Trbovitch read the purpose of the exclusive remedy 
provisions of Title IV of the LMRDA narrowly, where there was 
an absence of on-point legislatory history, to allow individual 
complainants to intervene in Title IV actions initiated by the 
Secretary.

Most Title IV cases decided by the courts concern the 
election abuses contemplated by Congress. In the court below 
defendants cited only one Title IV case concerning racial dis­
crimination. Shultz V. Local 1291, International Longshoremen, 
338 F. Supp. 1204 (E.D. Pa. 1972), aff'd, 461 F.2d 1262 (3rd

- 32 -



13/Cir. 1972), supra. Research reveals that Local 1291 is, in
fact, the only such case to arise. Local 1291 concerned whether
the racial allocation of union offices was within the "reasonable
qualification" provision of section 401 of the LMRDA. 29 U.S.C.
§ 481. Unlike the present private action brought under Title
VII of the Civil Rights Act of 1964 and Section 1 of the Civil
Rights Act of 1866, Local 1291 was an action brought by the
Secretary of Labor under Title IV of the LMRDA. The case is
an instance of the Secretary seeking sanction for widening the
scope of his Title iv jurisdiction, but it is hardly precedent
for the proposition that the Secretary has exclusive jurisdiction
over such matters. The court stated explicitly:

It also appears that Rule 3(c)(3) [requiring 
racial allocation of offices] amounts to an 
unlawful employment practice within the meaning 
of 42 U.S.C. § 2000e-2(c).

Id. at 1207. The court then, as a necessary part of the process 
of decision, read into the Title iv of the LMRDA "reasonable 
qualification" language what Title VII of the Civil Rights 
Act of 1964 prohibits:

13/ Another case cited by defendants in their Brief in Support 
of Motion to Dismiss at A. 47-48, Saunders v. Shoemann, 80 LRRM 
2903 (Ohio Ct. App. 1972), is, in fact, inapposite since it is 
not a case in which racial discrimination was alleged or at 
issue nor was it a federal court decision.

- 33 -



The Supreme Court, in speaking of [Title VII] but 
with respect to unlawful employment practices by 
employers, 42 U.S.C. § 2000e-2 (a), stated: "Dis­
criminatory preference for any group, minority or 
majority, is precisely and only what Congress has 
proscribed. What is required by Congress is the 
removal of artificial, arbitrary, and unnecessary 
barriers to employment when the barriers operate 
invidiously to discriminate on the basis of racial 
or other impermissible classification. ... If an 
employment practice which operates to exclude 
Negroes cannot be shown to be related to the job 
performance, the practice is prohibited." (Empha 
added) [Emphasis added by judge] Griggs v. Duke 
Power Co., 401 U.S. 424 ... We cannot consider as 
reasonable for purposes of the Labor-Managem.ent 
Reporting and Disclosure Act what would be con­
sidered an unlawful employment practice under the 
Civil Rights Act of 1954. I

Id. at 1207-08. The lesson of Local 1291 is that concur-
M /rent jurisdiction exists in some cases for raising the issue 

of racial discrimination in union elections under Title VII 
of the Civil Rights Act of 1964 and Title IV of the LMRDA.

It is noteworthy that in LI4RDA cases Congress left the |I '
remedy of violations to the discretion of the Secretary of 

15/
Labor. Title VII violations, on the other hand, were

14/ It is not clear that every case of racial discrimination, 
or even this one, can be dealt with under Title IV. See fn. 15 
supra.
15/ Critical evaluations of the non-reviewability of the 
Secretary of Labor's discretion in determining whether a 
Title IV action should be brought against a recalcitrant 
union are not uncommon. See, e.g., Griffin, The Landrum- 
Griffin Act: 12 Years of Experience in Protecting Employee 
Rights, 5 Ga. L. Rev. 622, 625, 636-40 (1971); Note, The

- 34 -



determined by Congress to be of such importance so as to 
allow aggrieved persons to seek judicial relief even where 
the administrative agency found no cause for complaint. 
Robinson v. Lorillard, supra.

The decision of the district judge that this action 
should be dismissed for failure to resort to the purported 
exclusive administrative remedy of Title IV of the LMRDA is 
not within the purpose of the Act nor is it supported by any 
prior decision. The decision below stands alone. LMRDA is 
not a civil rights statute. At most, in some cases, some 
claims of racial discrimination may be cognizable. However, 
as we show in the following sub-part, other labor statutes 
also now reach racial claims. But they have never been read 
to preclude Civil Rights Act actions.

15/ (Continued)
Election Labyrinth: An Inquiry into Title IV of the LMRDA,
43 N.Y.U. L. Rev. 336, 359-86 (1968); Note, Election Remedies 
Under the LMRDA, 78 Harv. L. Rev. 1617, 1623-34 (1968); see 
also, Rauh, LMRDA— Enforce It or Repeal It, 6 Ga. L. Rev. 643 
(1971) (failure of the Secretary to enforce LMRDA with respect 
to United Mine Workers Union).

- 35 -



c. The Decision Below Stands Alone Holding That A Non- 
Title VII Remedy for Racial Discrimination is 
Exclusive Rather Than Alternative.

Although we know of no other Title VII case— and only
1 ^

one LMRDA case— involving racial discrimination in union 
election practices, the courts have been presented with a 
variety of cases where other remedies were available for 
aggrieved minority workers in addition to Title VI. The 
courts have rejected defendants' contentions that those other 
remedies were exclusive and should be pursued before or 
instead of Title VII. The plain message of those cases, 
which are discussed below, is that Title VII is the principal 
federal remedy for employment discrimination and that it is 
always available despite the existence of any other remedy.
The district court decision stands alone in holding that black 
plaintiffs having chosen to pursue their claims through 
the EEOC and then into federal court under Title VII and 
§ 1981 may not do so because of the existence of. another
possible federal remedy. We also show that post-enactment Title VII 
legislative history makes clear the congressional intent to pre­
serve all federal remedies against racial discrimination. And

16/ Shultz V. Local 1291, supra.

- 36 -



finally we show that the remedy to which the court below 
would remit the plaintiffs is considerably less adequate 
than that provided by Title VII and § 1981.

In a fashion similar to the LMRDA, the Railway Labor 
Act (RLA) , 45 U.S.C. § 151 ejt seg. . provides exclusive 
administrative remedies foj: unsettled grievances and craft 
disputes in the National Adjustment Board, Brotherhood of 
Locomotive Engineers v. Louisville & N.R. Co., 373 U.S. 33,
38 (1963), and in the National Mediation Board, Brotherhood of 
Trainmen v. Howard. 343 U.S. 768 (1952), respectively.
Moreover, RLA law existed prior to Title VII making craft 
classifications illegal if they were discriminatory. Steele 
V. Louisville & N.R. Co., 323 U.S. 192 (1944) . However, such claims 
had to be presented to the National Mediation Board before 
resorting to the courts. Brotherhood of Railroad Trainmen 
V. Howard, 343 U.S. 768, 774-775; Howard v. St. Louis- 
San Francisco Railway Company, 361 F.2d 905 (8th Cir. 1966), 
cert, denied, 385 U.S. 986 (1966).

The Eighth Circuit was recently called upon to determine 
whether black railroad employees were, after the enactment of 
Title VII, still required to submit their claims of 
discrimination to the Adjustment and Mediation Boards, which 
the court had required in the Howard case. Norman v. Missouri

- 37 -



Pacific Railroad, 414 F.2d 73 (8th Cir. 1969). In Norman, 
the district court had ruled "that only the National Mediation 
Board under the Railway Labor Act had jurisdiction over the 
matters alleged in the complaint and that Title VII of the 
1964 Civil Rights Act did not revise or change existing law 
relating to the Railway Labor Act." at 76. The Court
of Appeals concluded that the district court was wrong and 
that Title VII was a new and expansive grant of rights not 
to be limited by prior legislation.

"Surely Congress in the enactment of 
Title VII had in mind the granting of a 
new and enlarged basis for elimination of 
racial and other discriminations in employ­
ment. Title VII clearly is not a codification 
of existing law but is an enactment of a 
broad principle prohibiting discrimination 
against any individual 'with respect to his 
compensation, terms, conditions or privileges 
of employment, because of...race, color, 
religion, sex or national origin.'"

Id. at 83.
The Fifth Circuit has also rejected arguments advanced 

by railroads and unions that cross-craft relief cannot be 
required by a court in a Title VII case because Congress 
had left matters of craft and class to the Railway Mediation 
Board and the National Adjustment Board. United States v. 
Jacksonville Terminal Co., 451 F.2d 418 (5th Cir. 1971).
The court noted that prior to Title VII "federal courts __

- 38 -



)

had the power to protect employees against invidious dis­
crimination" under both the Railway Labor Act and National 
Labor Relations Act. Id. at 454-455. The court then 
observed:

"Supplementing the earlier enactments.
Title VII has expanded the scope of 
judicial inquiry and augmented the power 
of remedial relief in cases involving 
discriminatory employment practices based 
upon race, color, religion, sej^ or 
national origin." j[d. at 455.— '

Thus, Title VII is in no way displaced as to the railroad
industry by the provisions of the RLA which also afford
"exclusive" remedies against racial discrimination. Title ^
VII was enacted as the principal weapon in the federal
arsenal to combat employment discrimination. Other remedies
remain in tact, but Title VII is always available.

The NLRA cases mentioned by the court in Jacksonville 1Terminal are also instructive on this point. For some ! '
30 years unions have had a duty of fair representation under

17/ See also. United States v. Chesapeake & Ohio Railway
Co., 471 F.2d 582 (4th Cir. 1972), cert, denied, ____U.S.
_____ (1973), and Rock v. Norfolk and Western Ry.
Co., 473 F.2d 1344 (4th Cir. 1973), cert, denied, _____
U.S. ______ (1973), where this Court required cross-craft
relief notwithstanding the RLA. And see, Peters v. Missouri-
Pacific RR Co. , ____ F.2d ____ , 5 EPD § 8550 (5th Cir. 1973),
vAiere the court rejected the claim that the RLA duty to bargain 
in good faith is a defense in a Title VII case.

' - 39 -



the National Labor Relations Act making it a violation of
that act to discriminate in its representation of its
members on the basis of race. Steele v. Louisville &

17/
Nashville R. Co.. 323 U.S. 192 (1944). Such dis­
crimination is also, of course, a violation of Title VII. 
Robinson v. Lorillard Corp., supra. No court has ever held 
that since NLRA remedies pre-date Title VII, they must be 
pursued. See, Bales v. Union Camp Corp., 5 EPD § 8052 
(S.D. Ga. 1972). Indeed even where an action was brought

i
unsuccessfully challenging a seniority system as racially

I
discriminatory in violation of the duty of fair representation.

17/ The violation of the duty of fair representation is an 
unfair labor practice which may be pursued to the NLRB.
Local 12, United Rubber Works v. NLRB, 368 F.2d 12 (5th Cir.
1966) . However, such a complaint may be taken directly to ' 
court without resort to the NLRB, Vaca v. Sipes, 386 U.S.
171 (1967), notwithstanding the general rule that the labor 
l>oard has exclusive jurisdiction over unfair labor practice 
cases. Garner v. Tearasters Union, 346 U.S. 485 (1953).
This is so because the Board is thought to have no greater 
expertise in such cases than the courts. Interestingly,,
Judge Gordon recently recognized this principle in refusing 
to defer to the NLRB in a case involving Title VII and fair 
representation claims against this international and a sister 
local. Tippett v. Liggett & Myers Tobacco Company, 316 F.Supp, 
292 (M.D.N.C. 1970). Certainly the same principles apply 
here. The Secretary of Labor has no greater expertise than 
the courts to hear claims under Title VII and § 1981. And 
he clearly has less expertise than the EEOC.

- 40 -



V?hitfield v. United Steelworkers of America, 26 3 F-. 2d 546 
(5th Cir. 1959) (per Wisdom, J.), cert, denied, 360 U.S.
902, a later case, brought under Title VII, attacking the 
same seniority system was successfully ■ pursued. Taylor 
V. Armco Steel Corp., 429 F.2d 498 (5th Cir. 1970) (per 
Wisdom, J.).

Similarly, it is an unfair labor practice under the NLRA 
to discharge an employee for concerted activity protesting 
racially discriminatory practices by an employer because

}
tsuch activity is protected by Section 7 of NLRA.. NLRB

i
V. Tanner Motor Livery, Ltd., 349 F.2d 1, 4 (9th Cir. 1965); 
Western Addition Community Organization v. NLRB, p. 24, supra 
Significantly, this sort of concerted activity is treated 
differently and given more protection under the NLRA

Ithan other sorts of concerted activity even where it is j
I I

disruptive of normal collective bargaining activities. ' 
Western Addition Community Organization v. NLRB, supra.
Such discharges are also remedial under Title VII. j

McDonnell-Douqlas Corp. v. Green, supra. When cases 
arise under the NLRA, the courts give the act a construction 
consistent with Title VII protections. But again, even

- 41 -



though resort to the NLRB in these cases might afford 
full protection, the worker still may pursue Title 
VII instead.

There is another line of cases which also stand for 
the proposition that Title VII is available to aggrieved 
minorities even where other remedies are provided. These 
are cases which have arisen where there is a collective 
agreement containing an anti-discrimination provision and 
providing for arbitration of grievances arising under the 
contract.

Courts have held that a union member may seek Title 
VII relief notwithstanding a prior adverse decision by 
an arbitrator under a collective agreement containing 
a non-discrimination clause. Hutchins v. U.S. Industries, 
428 F.2d 303 (5th Cir. 1970); Bowe v. Colgate Palmolive Co.. 
416 F.2d 711 (7th Cir. 1969); Griffin v. Pacific Maritime 
Ass' n. . 5 EPD § 8598, No. 72-2117 (9th Cir. April 25,
1973); Oubichon v. North America Rockwell Corp. , ____ F.2d
______, No. 71-1540 (9th Cir. July 10, 1973); Macklin v.
Spector Freiqrht Systems, Inc., 5 EPD § 8605 (D.C. Cir.
1973); Rios v. Reynolds Metals Co., 467 F.2d 54 (5th Cir. 
1972); Voutsls v. Union Carbide Corp., 452 F.2d 889 (2nd Cir. 
1971); contra, Dewey v. Reynolds Metals Co., 429 F.2d 324

- 42 -



(6th Cir. 1970), but see, Spann v. Kay Wood, 446 F.2d 120 
(6th Cir. 1971) and Newman v. Avco, 451 F.2d 742 (6th Cir. 
1971).

The courts have also held that a union member with a 
discrimination claim need not resort to remedies provided 
by the collective agreement and may directly pursue the claim
under Title VII. Griffin v. Pacific Maritime Ass'n, ___ F.2d
____. 5 EPD § 8598, No. 72-2117 (9th Cir. April 25, 1973);
Rosenfield v. Southern Pacific, 293 F. Supp. 1219 (C.D. Cal. 
1968), aff'd, 444 F.2d 1219 (9th Cir. 1971); King v. Georgia 
Power Co., 295 F. Supp. 943, 949 (N.D. Ga. 1968).

These arbitration and election of remedy cases are important 
because arbitration and private grievance settlement procedures 
are generally accorded primacy in the overall scheme of 
labor-relations law. See, e.g., Boys Markets Inc, v. Retail 
Clerks Union, 398 U.S. 235, 242-43 (1970). Almost all 
disputes are considered by the courts to be finally settled 
when a grievance procedure agreed upon by the employer and 
the union has taken its course. Ibid. What the cases 
recognize, however, is that such doctrines, while of great 
importance for most purposes, must give way if they impede the 
overriding national policy of Title VII to eliminate the vestiges 
of racial discrimination in all aspects of employment.

- 43 -



Thus, we have seen that other important federal laws 
and policies which afford the possibility of some measure

or even complete, relief for racial discrimination cannot 
be invoked as a bar to a black person who chooses to avail 
himself of the remedies established in Title VII.

In the foregoing portion of this part of the brief we 
have urged that Title VII is always available notwithstanding 
other, presumably equally effective, federal remedies. we 
should note that Title IV of LMRDA does not afford protection 
against discrimination equal to Title VII. See Norman v. Missouri- 
Pacific RR Co., supra, at 82 - 83. (Remedies under the*
Railway Labor Act "appear without further examination to be 
inadequate" because Title VII is specifically a fair employment 
practice act.) We have shown that anti-discrimination provisions 
were affirmatively rejected when the statute was in Congress.
(See Part II, A, supra.) In a Title VII case, the complainant!I I
need only submit his claim to the administrative agency. Even 
if the EEOC finds no cause to believe that there is merit in 
the claim to the administrative agency. Even if the EEOC finds

Ino cause to believe that there is merit in the claim, he may 
still go to the courts with his case. Robinson v. Lorillard, 
supra. Under the LMRDA, the union member is bound by the 
discretionary decision of the Secretary of Labor as to

- 44 -



isywhether the case should be pursued. Only Title. VII
guarantees the union member's right to take his racial
dispute to court. Moreover, as we have pointed out above,
it is not clear that the Secretary of Labor would have the
authority to pursue plaintiffs' racial discrimination

12/claim under the LMRDA.
While it is sufficient to show that the district 

court opinion stands alone in opposing the prevailing, 
and otherwise universal, recognition of courts that

I

discrimination in employment necessarily requires a 
variety of federal remedies and enforcement procedures, 
and that none are exclusive, there is more. The legis-

Ilative history of the 1972 amendments to Title VII
contains express post-enactment sanction for the lesson

Z 2 /of these cases. In conference comimittee, floor and

18 / "It is apparent that Congress decided to
utilize the special knowledge and discretion 
of the Secretary of Labor in order best to 
serve the public interest. . . .  In so 
doing Congress, with one exception not 
here relevant, decided not to permit 
individuals to block or delay union 
elections by filing federal-court suits 
for violation of Title IV."

Calhoun v. Harvey. 379 U.S. 134, 140 (1964). See also, 
Wirtz V. Local 153, G.B.B.A.. 389 U.S. 463, 473 (1968).
19/ See pp. 26-30, supra.
2_0y The legislative history of Title VII itself strongly 
demonstrates the original intent of Congress to preserve

- 45 -



committee deliberations, both houses considered whether 
and administrative remedies for discrimination 

in employment under § 1981, the National Labor Relations 
Act, and the Railway Labor Act developed after the passage 
of Titlo VII in 1964 were consistent with the will of Congress. 
The unequivocal answer was approval for the continued avail- 
ability of a variety of federal alternative and complementary 
remedies to effectuate the purpose of Title VII. We set out 
in Appendix A the details of this legislative history.

Finally, the cases we have discussed concerning § 1981, pp, 
21-24 supra, which hold that Title VII neither preempts nor 
repeals by implication § 1981,-?^ taken together with the post- 
Title VII legislative history, demonstrates overwhelmingly 
that all remedies are needed and available. That in this 
one instance the major civil rights statutes are unavailable

20/ (Cont'd.)
preexisting causes of action. Congress rejected by more than 
a two-to-one margin an amendment by Senator Tower to exclude 
agencies other than the EEOC from dealing with practices 
covered by Title VII. 110 Cong. Rec. 13650-52 (1969); see also 
Waters v. Wisconsin Steel Works, supra at 485; Young v. Inter- national Telephone and Telegraph, supra at 763.
21/ Brown V. Gaston City Dyeing Machine Co., supra at
Waters v. Wisconsin Steel workers, supra at 484-89; Young v.' 
International Telephone and Telegraph, supra at 760-64; Sanders v, Dobbs Houses, Inc., supra at 1100-01.

- 46 -



because some other statute might offer some recourse is 
at war with what Congress and the courts have said and 
done for the past nine years.

In summary, therefore, it is clear that the dismissal 
of this case by the district court is inconsistent with 
all of the legal authority which has evolved since the 
passage of Title VII and the resurrection of § 1981. These 
civil rights statutes prohibit all racial discrimination 
bearing on people's right to work. They also allow the 
victims of discrimination to pursue their causes in 
federal court. It is indeed anomalous that these plain­
tiffs are told that they should have pursued an adminis­
trative remedy other than Title VII and § 1981 since the 
enactment of Title VII was a legislative judgment that 
such preexisting remedies were inadequate.

CONCLUSION

For the foregoing reasons, the decision below should 
be reversed.

Respectfully submitted,

ADAM STEIN
CHAMBERS, STEIN, FERGUSON 
& LANNING
University Club Building 
157 East Rosev.iary Street 
Chapf L Hill, N.C. 27514

- 47 -



CONRAD O. PEARSON
203-1/2 E. Chapel Hill St.
Durham, N.C. 27702

WILLIAM L. ROBINSON 
JACK GREENBERG10 Columbus Circle 

New York, N.Y. 10019
J. LeVONNE CHAMBERS 
ROBERT BELTON
CHAMBERS, STEIN, FERGUSON & BANNING 951 South Independence Blvd. 

Charlotte, North Carolina 28202

Attorneys for Appellants

- 48 -



APPENDIX

Summary of Pertinent Legislative History 
of Equal Employment Opportunity Act of 1972

- 49 -



The legislative history of the 1972 Amendments to Title 
VII xs set out in Sub-Committee on Labor of the Senate Committee 
on Labor and Public Welfare, 92nd Cong., 2d Sess., Legislative
History of the Equal Employment Opportunity Act of 1972 (Comm. 
Print 1972).

The final House and Senate versions of the 1972 amendments 
were in conflict on whether Title VII remedy for discrimination 
in the employment field should be exclusive. The House bill, H.R. 
1746, as passed, contained an exclusive remedy provision. m ,  at 
329. The senate bill did not and the Senate Report expressly 
stated, "neither the above provisions regarding the individual's 
right to sue under Title VII, nor any of the other provisions of 
this bill, are meant to affect existing rights granted under 
other laws. j[d. at 433. In the Conference Committee, H.R. 1746 
was accepted with extensive modifications including removal of its 
exclusive remedy provision. The joint Explanatory Statement of 
the Managers at the Conference state specifically that the 
House receded on this point. at 1837. The full meaning
of this modification is apparent upon consideration of the debate 
in both Houses concerning this matter.

In the Senate, Senator Hruska offered an exclusive remedy 
amendment to the Senate bill, stating his belief that permitting 
a multiplicity of actions for employment discrimination, as the 
courts allowed, was unfair to employers and unions. M. at 
1379-82, 1393-99. The Hruska amendment was rejected, id. at 
1405-07, after Senators Javits and Williams, principal sponsors

- 50 -



of the Senate bill, spoke in opposition. Both senators cited the 
position of the Justice Department, as stated by Assistant Attorney 
General David Norman at a House hearing:

In sum , although we favor the granting of 
judicial enforcement authority to EEOC, we are 
concerned that at this time there is no elimination 
of any of the remedies which have achieved some success in the effort to end employment discrimi­
nation. In the field of civil rights, the Congress 
has regularly insured that there be a variety of 
enforcement devices to ensure that all available 
resources are brought to bear on problems of dis­
crimination. For example, housing discrimination 
may be the subject of suit by the Attorney General, 
a private suit by the party affected, or a con­
ciliation effort by the Department of Housing &
Urban Developmento Again in the field of education, 
remedies for discrimination are available to private 
persons, the Attorney General and the Department 
of Health, Education & Welfare.

At this juncture, when we are all agreed that 
some improvement inthe enforcement of Title VII 
is needed, it would be, in our judgment, unwise 
to diminish in any way the variety of enforcement 
means available to deal with discrimination in em­
ployment. The problem is widespread and we suggest 
that all available resources should be used in the 
effort to correct it.

Id. at 1300-1400, 1404. Both senators spoke specifically of the 
remedy afforded by the Civil Rights Act of 1866 . Senator 
Javits stated:

One other aspect of the matter which is cut off is 
the possibility of using civil rights acts ante­
dating the Civil Rights Act of 1964 in a given 
situation which may fall, because of the statute of limitations or other provisions, in the inter­
stices of the Civil Rights Act of 1964. This is 
rather infrequent, but it is a valuable protection.
The Attorney General feels that it is desirable to 
maintain it, and we agree with him. The idea is to 
enforce the law and not let people drop between two 
stools where they are actually violating the law.

- 51 -



Id. at 1400. Senator Williams stated:
The law against employment discrimination 

did not begin with Title VII and the EEOC, nor 
is it intended to end with it. The right of 
individuals to bring suits in Federal courts 
to redress individual acts of discrimination, 
including employment discrimination was first 
provided by the Civil Rights Acts of 1866 and 
1871, 42 U.S.C. Sections 1981, 1983. It was recently stated by the Supreme Court in the case 
of Jones V. Mayer, that these acts provide fun­
damental constitutional guarantees. In any case, 
the courts have specifically held that Title VII 
and the Civil Rights Acts of 1866 and 1871 are 
not mutually exclusive, and must be read together 
to provide alternative means to redress indivi­dual grievances.

Id. at 1403. Both senators also specifically spoke of remedies 
afforded by the National Labor Relations Act, Labor Management 
Relations Act and the Railway Labor Act. Senator Javits held:

What is allowed by the present legal situation?
For one, Mr. President, it permits a range of actions under the National Labor Relations Act 
and the Railway Labor Act and before the National 
Labor Relations Board where an unfair practice 
can be charged by a worker against discrimination in a union or even by an applicant to join a 
union. We consider this opportunity to test out 
these questions in that forum as an extremely 
important one, and obviously the Attorney General does as well.

Id at 1400. Senator Williams stated:
In addition, the effect of this measure would 

be to repeal the validity of a longstanding legal 
doctrine that labor organizations under the 
Railway Labor Act and under the Labor Management 
Relations Act have a duty to fairly represent all 
employees in a collective bargaining unit. Cases 
to reinforce such a duty may conceivably not be 
reached in Title VII. The adoption of this 
amendment, therefore, may have the effect of de­
priving these workers of a most important legal remedy.

Id. at 1404. Objections of House members to the exclusive 
remedy provision in the House bill are at 242, 285-87.

- 52 -