Vogler, Jr. v. McCarty, Inc. Opinion

    IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

N o . 7 1 - 1 4 5 8

PAUL VOGLER, JR., ET AL,
Plaintiffs-Appellees,

versus

McCARTY, INC., ET AL,
Defendants.

UNITED STATES OF AMERICA,
Plaintiffs-Appellees,

versus

LOCAL 53 OF THE INTERNATIONAL ASSOCIATION 
OF HEAT AND FROST INSULATORS AND ASBESTOS 

WORKERS, ET AL,
Defendants-Appellees,

MASTER INSULATOR’S ASSOCIATION OF NEW 
ORLEANS and BATON ROUGE, LA.,

Defendants-Appellants.

Appeal from the United States District Court for the 
Eastern District of Louisiana



2 PAUL VOGLER, JR. v. McCARTY, INC.

(November 17, 1971)

Before THORNBERRY, MORGAN and CLARK, 
Circuit Judges.

THORNBERRY, Circuit Judge: This appeal con­
cerns the district court’s equity jurisdiction to fashion 
remedies pursuant to Sections 708 and 707 of Title VII 
of the Civil Rights Act of 1964.’

Although the decision is simple, the facts are some­
what complex. We therefore begin by setting them out.

On May 31, 1967, the district court, based on its find­
ing that the Union2 had denied to Negroes opportunities 
for both employment referral and Union membership, 
ordered the Union to effectuate a system of alternate 
referrals of Negro and white workers and required it 
to develop a plan for the admission of new members 
based on factors other than race.

The parties to the original action were unable to a- 
gree on criteria for membership in the Union, and the 
referral system originally set up did not succeed in 
furnishing more than limited employment opportuni­
ties to Negroes. In order to resolve these problems, 
the district court, pursuant to proposals by the gov­
ernment, on February 19, 1970 entered a new order.

’ 42 U.S.C.A. § 2000e-5 to -6.
aLocal 53 of the International Association of Heat and Frost Insula­

tors and Asbestos Workers.



PAUL VOGLER JR. v. McCARTY, INC. 3

The February order provided in part that separate 
hiring boohs were to be maintained for four categories 
of employees: (1) White mechanics, (2) black mechan­
ics, (3) white improvers, and (4) black improvers. As 
before, the Union was to alternate referrals between 
Negro and white workers on a one-for-one basis. The 
order further provided that the Union could set up so- 
called “A” and “B” books for the white mechanics. 
Workers listed in the “A” book were to be those men 
with more than five 1200-hour years experience in the 
trade; workers listed in the “B” book were to be those 
men with less than five years of such experience. Re­
ferral preference could be given to workers listed in 
the “A” book.

The Union, on December 9, 1970, sought to modify 
the court order because of its alleged failure to accom­
plish the desired results in certain respects. Due to 
the influx of Negroes into the trade, along with a de­
pressed economy which substantially affected overall 
employment opportunity in the building and trades in­
dustry, the system established by the court had created 
a substantial backlog of persons who were potential 
employees, but who bad not been employed for long 
periods of time, or not at all. Full employment, because 
of the large number of employees in each seniority 
book, was thus impossible for a substantial number 
of workers. As a result of prolonged layoffs, many of 
the applicants appearing on the white mechanic lists 
had lost their eligibility for hospitalization and pension 
benefits.



4 PAUL VOGLER, JR. v. McCARTY, INC.

To remedy this unstable employment situation and 
the accompanying effects on the white mechanics, the 
district court on January 25, 1971 entered the order 
involved in the instant case. This order substituted 
three lists of white mechanics, cited as groups A, B, 
and C, based on different periods of experience, 
in place of the previous two lists. This resulted in in­
creased employment opportunity for the more exper­
ienced white employees at the expense of those white 
employees with less experience, and thus provided 
stable employment for at least some white workers. 
The order admittedly had no effect on the Negro work­
ers because the one-for-one referral system was pre­
served.

Appellant (Association)3 contends that the district 
court had no discretion to enter this order, which af­
fects only white Union members and which imposes 
on the Association terms of employment subject to col­
lective bargaining between the Union and the Associa­
tion.

We note at the outset that district courts are pos­
sessed of broad discretionary power under Title VII 
of the Civil Rights Act to fashion remedies which pre­
vent future discrimination and remedy the effects of 
past discrimination.

In formulating relief from such practices the 
courts are not limited to simply parroting the

sMaster Insulator’s Association of New Orleans and Baton Rouge, 
La., of which the defendant in the original district court ac­
tion, McCarty, Inc., is a member.



PAUL YOGLER, JR. v. McCARTY, INC. 5

Act’s prohibitions but are permitted, if not re­
quired, to “order such affirmative action as 
may be appropriate.”

Local 53 of the International Association of Heat and 
Frost Insulators and Asbestos Workers v. Paul Vogler, 
Jr., et al, 407 F.2d 1047. See also Louisiana v. United 
States, 380 U.S. 145, 85 S.Ct. 817 (1965). The district 
court’s discretion in preventing discriminatory prac­
tices and violations of federal law may even include 
orders affecting private agreements, including those 
under collective bargaining. J. I. Case Company v. 
NLRB, 321 IJ.S. 332, 64 S.Ct. 576 (1944); Philadelphia 
B. & W. R. R. v. Schubert, 224 U.S. 603, 32 S. Ct. 589 
(1912); United Papermakers and Paperworkers v. 
United States, 5th Cir. 1969, 4l6 F.2d 980; United Rub­
ber, Cork, Linoleum & Plastic Workers v. NLRB, 5th 
Cir. 1966, 368 F.2d 12.

Adequate protection of Negro rights under Title VII 
may necessitate, as in the instant case, some adjust­
ment of the rights of white employees. The Court must 
be free to deal equitably with conflicting interests of 
white employees in order to shape remedies that will 
most effectively protect and redress the rights of the 
Negro victims of discrimination. We hold, therefore, 
that the district court, under the circumstances of the 
instant case, did not abuse its discretion in making 
reasonable adjustments between the various classes 
of white employees.

The Association further contends that the district 
court order will eventually harm Negro employment



6 PAUL VOGLER, JR. v. McCARTY, INC.

opportunity. For present purposes the order will cause 
no disadvantage to Negroes because referrals will con­
tinue to be made on a one-for-one basis. It may, how­
ever, affect the Negro workers when the Negro and 
white mechanics’ lists merge, as is contemplated. If 
the seniority basis for referral is continued, it is feared 
that the “super-seniority” accorded the most senior 
white workers under the most recent court order might 
be used to give white workers hiring preference over 
the relatively new Negro- workers.

Our disposition of the Association’s first contention 
also takes care of this contention. Any harm to Ne­
groes resulting in the future from the district court plan 
can be remedied by the district -court’s further exercise 
of the rather broad discretionary power with which 
it is endowed under Title VII. There is no indication 
ait this time that such prejudice will occur or is likely 
to go without remedy.

Accordingly, we AFFIRM.

CLARK, Circuit Judge, dissenting:

I have no doubt that the discretion of a trial judge 
attempting to afford effective relief to employees who 
have been the victims of unlawful discrimination is 
one of the broadest with which he is invested. We have 
said so time and again. United States v. Jacksonville
Terminal Co., _ F.2d____ (5th Cir. 1971) [No. 30448,
August 31, 1971]; Hutchings v. United States Industries, 
Inc., 428 F.2d 303 (5th Cir. 1970). But we have never 
said, and I cannot agree we should say now, that this



PAUL VOGLER, JR. v. McCARTY, INC. 7

discretion should be exercised for any reason other 
than to insure compliance with the Civil Rights Act. 
That was not the purpose of the order which, by this 
decision, we affirm.. Indeed, the majority opinion 
states that the order “admittedly had no effect on the 
Negro workers because the one-for-one referral sys­
tem was preserved.”

An inevitable consequence of a court order which 
requires that more jobs be given to blacks than was 
previously the case, particularly where the total num­
ber of jobs actually available is on the decline, will 
be that fewer whites will be employed. However, com­
pliance with the Act will frequently require this result. 
This may be regrettable because most, if not all, of 
the workers thus detrimentally affected, played no part 
in the unlawful discrimination that necessitated the 
order. Be this as it may, the problem of white worker 
job referral immediately poses not only the question 
of how the problem should be solved, but also who 
should work out the solution.

It seems to be an implied premise of the majority 
that since the court’s order created the problem, the 
court should also be charged with, solving it. I am un­
willing to concede that the court created, the problem. 
On the contrary, the problem was created by the dis­
criminatory action of the employers and/or the union. 
A court should respond by taking steps necessary to 
both undo the effects of the past discrimination and 
also to prevent its future practice. But, that is all it 
should do. If effectuation of the court order also pro­
duces unsettling side effects — effects that would, in



8 PAUL VOGLER, JR. v. McCARTY, INC.

theory, have been present all along had the racial dis­
crimination never occurred — then those effects should 
be settled and dealt with through the processes of col­
lective bargaining. The vital importance of maintain­
ing the integrity and utility of those processes is too 
well-established to require discussion or illustration 
here. It is sufficient to say that the courts have ap­
proved judicial interference with those processes — 
and this was the situation in every case the majority 
opinion cites — only where such interference was 
clearly necessary to avoid a direct, inevitable, inexor­
able clash with the statutory mandate. We do not have 
such a situation before us.

Certainly it would be foolish to contend that the trial 
judge should fashion his corrective orders in a vacuum, 
or that he should be unmindful of the overall employ­
ment situation before him or be insensitive to the ef­
fects — other than the elimination of the discrimination 
—• his order is likely to cause. On the contrary, he 
should be fully informed of these other factors so that 
he can provide Title VII relief in such a, way as to 
carry out the purposes of the Act while still doing the 
least possible tampering with other interests of the 
parties. That is not the thrust of the order now on ap­
peal. It was designed only as a plan to deal with the 
non-racial effects of the initial collateral tampering. 
Rut it is not the only possible plan. There are others 
that the appellants for their part say they would prefer 
to see adopted. Without making a judgment as to the 
merit of any of these plans, I note that neither the 
one we are affirming, nor any of those appellants sup­
port, has anything to do with effectuating the purpose



PAUL VOGLER, JR. v. McCARTY, INC. 9

of, or insuring compliance with, the Civil Rights Act. 
This forces me to conclude that the selection and con­
tent of such a plan should come from free give and 
take between parties around the collective bargaining 
table, not from the chancellor’s pen at the trial court 
bench.

If we are to uphold this order on the ground that 
it at least provides stable employment for some white 
workers, albeit at the expense of less experienced white 
workers, what is to prevent the district judge by 
authority of this decision, from rectifying the ill effects 
of this particular order by still another order that sal­
aries be increased for those less experienced workers 
who are now working fewer hours? And then . . .? And 
then .. .? Once the court is permitted to dictate em­
ployment terms other than those absolutely necessary 
for the effectuation of the statutory purpose, we start 
an excursion on a downhill highway with no brakes. 
Eugene V. Debs, Samuel Gompers and John L. Lewis 
would be quick to advise the party who counts this 
case as won, that the subtle exchange of government 
by injunction for the right to bargain collectively will 
produce, at best, a Pyrrhic victory.

I would hold that the district court exceeded the am­
bit of its Title VII powers when it entered the injunction 
order here on appeal. I therefore respectfully DIS­
SENT.

Adm. Office, U.S. Courts—Scofields’ Quality Printers, Inc., N. O., La.