Newman v. Avco Corporation Appellant's Appendix

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 
NO. 20669

3

ROBERT F. NEWMAN,
Appellant, 

v .

AVCO CORPORATION, et al., 
Appellees.

Appeal From The United States District Court For The Middle District of Tennessee 
Nashville Division

APPELLANT'S APPENDIX

AVON N. WILLIAMS, Jr.
Suite 1414, Parkway Towers 
404 James Robertson Parkway 
Nashville, Tennessee 37219

JACK GREENBERG 
WILLIAM L. ROBINSON

10 Columbus Circle Suite 2030
New York, New York 10019

Attorneys for Appellant



INDEX

Complaint ............................

Answer of Defendant, Avco Corporation . 

Answer of Defendant, Aero Lodge No. 735

Motion of Defendant, Avco Corporation, For Summary- 
Judgment ..................................

(Affidavit of Don A. Banta in Support of Motion 
of Defendant, Avco Corporation, For Summary 
Judgment)..........................  • • • •

Memorandum of the Court, March 26, 1970

Motion For a New Trial and/or For Relief From Operation 
of Memorandum, Judgment Or Order ................

Motion for Leave To File Brief Amicus Curiae and Present 
Oral Arugment Of the Equal Employment Opportunity 
Commission ............. ........................

Court's Order of June 10, 1970

Notice Of Appeal . .

Certificate of Service

Pago

1

17

22

27

30

34

39

41

45

47

47

Clerk's Certificate and Index of Record 48



i j ,r
! 1

IN THE UNITED STATES DI3THICT COURT 
POR THE MIDDLE DISTRICT OP TENNESSEE 

NASHVILLE DIVISION \

(

ROBERT P. NEWMAN, )
Plaintiff )

VS. }
AVOO CORPORATION - AEROSPACE )
STRUCTURES DIVISION, NA3HVTLLE,TENNESSEE, )
and )
INTERNATIONAL ASSOCIATION OP )
MACHINISTS AND AEROSPACE WORKERS,
AERO LODGE NO. 735. NASHVILLE, )TENNESSEE,

)Defendant*

CIVIL ACTION NO.

- f i W t k

US)

c. 3 b,

C O M P L A I N T
1.

The Jurisdiction of this oourt lc Invoked pursuant to the 
provisions of Title 1*2, United States Code, Section 2000e-5(f). 
This Is a suit In equity, authorised by Law (Title 1x2, United 
Stataa Code, Section 2000e5(a)-(k), lnolualve), to be brought 
to enjoin an employer, employment agency, labor organ!nation, or 
Joint labor-management committee, from engaging In osrtain unlaw­
ful employment prectloee and for other relief aa therein provided 
and as otherwise provided In Title VII of the Civil Righto Act 
of 1961* (Title 1*2, United States Code, Sections 2000e-2000e-15).

2.
This la a class action brought by the plaintiff on behalf 

of himself and all othar Nagroaa who are similarly situated and 
affected by the racially discriminatory and unlawful ample-fluent 
practices complained of heroin. Flaintiff is a L'ey.-o and is a 
citizen of the United States and of the State of Tennessee, re­
dding in Rutherford County, Tennessee. Prom about ■') Flay lvi'l 
to about 1 February 1966 on which lattor *«te ho was discharged 
an hereinafter shown, plaintiff was a regular employee of the 
defendant, Avco Corporation, in Its Aerospaoo Structures rivision,



o2'

at Nashville, Tennessee. From about 1957 until tho data of hln 
said discharge In February 1966, plaintiff was a regular member 
In good standing of the dsfsndant, Aero Lodge No. 735 of the 
International Association of Machinists and Aarospaoe Workers, 
ArL-CIO, hereinafter referred to as Aero Lodge No. 735. Plain­
tiff Is and has been at all times material hereto qualified and 
eligible for the training, transfer and upgrading opportunities, 
including promotions, wage Increases and Job reclassifixation 
sought by him as more fully set out hereinafter, but is and vnn 
denied and discriminated against In the enjoyment of said employ­
ment opportunities and bsnsflts by the defendants, solely be­
cause or his raos. The members of the class on behalf of which 
plelntlff sues are also Negroes and cltlsens of the Hnited Atate* 
and of the 3tate of Tennessee, who are or were likewise employed 
by the defendant, Avoo Corporation, and are or were members of 
the defendant. Aero Lodge No. 735. and who likewise possess the 
qualifications and eligibility for said training, transfer, 
upgrading opportunities, promotions, wage inoreases and lob ro- 
olassificationa, but are likewise denied or discriminated against 
In the enjoyment of suoh employment opportunities solely booause 
of their race by the defendants, Avoo Corporation and Aero 
Lodge No. 735. Other members of the class are Negro applicants 
and/or prospeotive applicants for employment by the defendant, 
Avoo Corporation, and for membership In the defendant, Aero 
Lodge No. 735, who srs denied such employment and/or subjected 
to discrimination as to the Job olassifloetiona for which they 
may apply or be trained, and an to tho starting rate-s of pay, 
wage Inoreases and transfer, and are subjected to other discrimi­
natory working oondltiona and terras of smployment, sr.Laly De­
cause of thalr race, by action of the defendant, Avoo Corooratio. 
with the acquiescence and/or participation of tho defendant,
Aero Lodge No. 735 In said discriminatory action. The memoa"s 
of this class are so numerous ns to make it Impractical to 
determine all of the members of the claas and to bring taam 
individually before this court, but oonanou qujsi j<n n or Law 
and fact are involved and a common relief is sought. The in-



3

teresta of the o Im i  are adequately represented by the plaintiff, 
further, the proaeoutlon of asperate action by individual Negro 
members of the class would oreate a risk of inconsistent or vary­
ing adjudications with respect to Individual members of the class 
which would establsh Incompatible standards of conduct for the 
defendants or would oreate a risk of adjudications with respect 
to Individual Negro members of the class which would ft8 a practi­
cal matter be dlepoeltlve of the interest, of the other members 
not parties to the adjudication* or substantially Impair or 
lnpede their ability to protect their intoreatn. further tho 
defendants have aoted or refused to act, in reference to the 
raoial discrimination haralnafter complained of, on grounds 
applicable to the olass, that is to-witi discrimination based 
on raoo, thereby making appropriate final injunctive relief or 
corresponding declaratory ralief with respect to the class as 
a whole, finally, the questions of law or faot common to the 
members of th. class in whose behalf plaintiff sues, predominate 
over any quostiona affecting only individual members, and a class 
action is superior to other available methods for the fair and 

adjudication of the controversy herein.
3.

This is a proceeding for an injunction: (1 ) enjoining
the defendants, Avoo Corporation, and Aero Lodge No. ?J^, their 
respective agents, servants, employees, attorneys and successors 
end all persona in active conoert and participation with them 
from engaging in certain unlawful employment practices within 
the meaning of Title !*2, United States Code, Seotion 2000e-2(al- 
(d) inclusive, as hereinafter set forth and (2) requiring the 
defendant, Avco Corporation, to reamploy and reinstate the plain­
tiff to the highest Job classification and position for which ho 
is or can be qualified and eligible arte.- a reason**!* ouriod of 
on the Job training and to pay him the difference between the 
pay he has earned in other employment since his discharge on 
1 ?,bwwry 1966 that which he -Tonld have earned, including 
overtime, in said highest Job classification for which he 
or couid reasonably have boon qualified and eligible from nn! 
oftar tho 1st day of February, lvo6.

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k-

Th. defendant, Avoo Corporation, at all times -nsntioned 
ho rain, was and la a corporation organited under and ousting by 
virtue of the lava of the State of Delaware, with a principal 
buainoaa offloa and a major manufacturing plant located in 
Nashville, Davldaon County, Tennessee, known as Aerospace 
Structure. Dlvl.lon, Nashville, Tenneaaee. wherein said defendant 
was and la engaged In the manufacture and production of various 
aircraft parte and machinery, electric and gas ranges, office 
furniture and elallar products for commerce within the meaning 
of Title VII of the Civil Rights Act of 1961* and was and is at all 
times material hereto an employer as defined in said Act (Title 
'*2, United States Code, Section 20D0e(b) and subject to all the 
provisions of said Act. Substantially all the goods manufactured 
by the defendant, Avoo Corporation, in Its eaid Nashville, 
Tennessee Plant, during the times hereinafter mentioned have 
been produced for coraaeroe as defined by the Act and have been 
transported, offered for transportation, shipped, delivered and 
sold In such commerce from the said defendant's said plant and 
place of bueinees at Nashville, Tenne.eee, to various points 
outside the State of Tennessee.

5.
The defendant, Aero Lodge No. 735, at all times mencloned 

herein, was and Is an unincorporated aseoolatlon and a local 
labor organisation engaged In an indu.try, including the industry 
In which defendant, Avoo Corporation, Is engaged, affecting 
oorameroe, that la to-witi the manufacture of aircraft parts 
and machinery, eleotrlo and gas rangee, office furniture and simll< 
products for tran.portatlon, shipment and sale outside the State 

- ol’ Tennessee, and aald defendant. Aero Lodge No. 733 and ice 
parent or national affiliate organization, the International 
Association of Machinists and Aerospace 'orkors, .i.t.-p t o , 
for the purpose, in whole or in part, of dealing uU:, employers, 
including the defendant, Avoo Corporation, concerning grievance*,, 
labor disputes, wages, rates of pay, hour:., and othe- fce-roj 0:. 
conditions of employment within the meaning of Title VII of the 
■Civil lights Act of 1 % ’j. and wore and arc at all timoa tiatarini 
hereto labor organisations as defined in a., id Act i f i u *



5

United State. Coda, Section 2000e-(d) (a) and subject to all the 
provision* of aald Aot. 31nc. January 15, 191*1, said defendant 
Aero Lodge No. 735 ha. been the eolo representative of all the 
production and maintananc. -nployaes (Including plaintiff and 
members of the claee on whose behalf he sues) of the defendant 
Avoo Corporatta, Aerospace Structures Division, Nashville,
Tenneases, and it* predeoeaaor companies on matters pertaining 
to wages, hours, and oonditiona of employment.

6.
Tha defendant, Avco Corporation, at all times mentioned 

herein, has mnployed and now employs more than one hundred par­
sons in the production of the above mentioned products for 
oomerce. Substantially .11 the eoods produced by these 
employees have been produced for oommercs within the moaning of 
the Act, and have b.en transported, offered for transportation, 
shipped, delivered and sold in oomoerce.

The defendant, Aero Lodge No. 735, at all times mentioned 
herein, ha. maintained or operated and no- maintains or operates 

hiring hall or a hiring offioo which procures employees for 
the defendant, Avco Corporation, and the number of member, of
said defendant, Asro Lodgs Ko. 7\< v,0. ko • rjs, xs ana has basn more tnan om>
hundred pareon. and said defendant. Aero Lodge No. 735, as 
aforesaid, is . certified representative of the employee, of 
the defendant, Avco Corporate, under the provision, of the 
National Labor Relation. Act, a, amended, and/or is a i*bo„ 
organisation recognised or acting a, the representative of said 
<-ploy.es of the .aid defendant, Avco Corporation, and, at the 
time of the matter, hereinafter stated, had negotiated ,, such 
representative, a ooll.otiv. bargaining Agreement which became 
3ff«ctive June 21, 1965 and remained in effect ?fcs
Plration date on June 2), 1968 covering the wage,, ,our., end 
conditions) of employment of all production and maintenance 
anployees of the Aerospace Structure Division, of said defend­
ant, Avco Corporation, in Nashville, "ennessoe. on information 
!md b*11#r 3alfl dar«n<lant union ha, recently .xecutod a new 
collective bargaining Agreement with the defendant, a v -.o Cor-



£

poratlon, whloh baoame effective about 3«pt«nbor or October,
1968. All 01 a aid production and maintenance employees o' the 
defendant, Avoo Corporation, vara and are governed by the terns 
of aald collective bargaining Agroamenta which have been oon- 
tlnoualy in affaot making defendant. Aero Lodge No. 7.W the 
representative of aald employees, including the plaintiff.

Sold defendant. Aero Lodge No. 735 and its national parent 
or affiliate, International Aaaoclation of Machinists and 
Aerospace ,Jorkora, AFL-CIO, are and have bean at all times 
material hereto, doing business in the 3tate of Tennessee by 
performing said aota for which said defendant labor organic?,tione 
were formed as hereinabove end hereinafter set forth.

8.
Under and pursuant to aald Agreement, the defendants have 

established an elaborate ayatea of occupations and occupational 
grades or Job classifications and factory wage schedules, .laid 
Job classifications include many skilled and/or seri-skill9.; 
occupational grades and/or classifications with guaranteed mini­
mum and maximum incentive wago rates applicable to ouch grads.
In addition to thsae Job classifications, defendants have estab­
lished under and by aald Agreement, a classification of laborer 
and Janitor for maintenance employees, with a fixed ..uge rata 
which ia lower than the lowaat minimum day work wage "ute of all 
the aald skilled or aemi-akilled Job classifications, and as to 
which fixed wags rate no inorease for incentive or otherwise, Is 
applicable. The said olaselfication of laborer is completely 
segregated racially in that only Negroes are employed &n.d graded 
in this classification. Ths classification of foreman is re­
served for white employees only. Negro employees and .’pollcants 
for employment by defendant, Avoo Corporation, arc goners*, Iv 
limited almost exclusively to said classifications l^or- - 
ami janitor, with said low, fixed rates of pay, ref, ns’-u..>«„• ;; 
their employee seniority and of their educations. , *: jjtr t -.ri».’ 
or technical qualifications, mbits employees c.r anrlicent? •>_ 
employment, no matter what their qualifications, start out at 
least in the job olassiflotion of general helper, end 3aor. novn 
ou to higher classifications, defendants n.-v.i;> or

-6-



7

Whit* employee. a* laborer*. In both tha machine shot, and the 
alr»oraft dlvleiona of the defendant, Avoo Corporation'* Nashville 
Plant, Negroes ara generally hired as laborer* regardless of 
thalr qualification* and ar* generally kept as laborer3 indefinite 
b/ awltohlng than from department to department, eoch time de­
stroying tha Negro employee's aenlorlty under aald union Agree­
ment with the defendant. Aero Lodge No. 735. The defendant, Avoo 
Corporation maintain* many a.gregatad department, m  its s-Hc 
Nashville Plant in whioh no Negroes arc enployod aid the policy 
of eald defendant la to r*fu*e or deny Negroea employment 'r. 
tho.a department*. In addition, said defendant refuse, tc offer 
Negro employ***, including th* plaintiff, on-the-job training, 
tranafar and promotion opportunities equal to those that are 
offered white employ*.* with equal or lees seniority and quali­
fications. Th* pollay and praotlo* of said defendant In p&at 
years has b**n to limit N*gro employment ecolus: vely to the 
menial oatogorlaa of laborer and Janitor. In recent y«ar8, 
after certain complaint* w*r* filed agalnat aald defendant 
with the President'■ Cocwlttea on Equal Economic Opportunity 
and other federal aganoiea and In the federal courts, aaid 
defendant began hiring and training a few Negroes on a token 
baeia In some Job classifications higher than that of laborer 
or Janitor. How*v*r, aald defendant has continued to tho pnB80n. 
day lta general policy and practice of discrimination on account 
of race or oolor agalnat Negro employees and applicants for 
employment, purwant to which It still limits the overwhelming 
majority of Negro amployee. and applicants to said menial and 
segregated olaaalfioatlons, paya aald Negro employees lower 
wage rates than whit* employees with almilar or lessor qualifi­
cation*, end refuses to upgrade or promote said Negro eroloyea* 
m'id. «P9He»*t« for* «nplo7"«»t, or to afford them on-tfuHoh train-. 
iA& ''PP°”b'-Uiltlee, transfers or- other ooportuni tlr.a sdr.v-ce- 
raout on the same tome and condMons at rhlur anm -m.,;, 
applicant* for employment.

9.

Ths defendant, Aero Lodge No. 735, has acquired i.-. ,u 
o' tha foregoing discriminatory practice, of thj lofeacur.t, avoo 
-Corporation, and has, indeed, partlolpatod thoroin or, - o-icour,.-»*



\ 2
and caused or attempted to ^ause same, by refusing to proteet 
•aid practice*, by Ignoring pr refualng to assist Negro employees 
In proseeutlng grievance* based on aald racially discriminatory 
practises, by falling and refusing to rocognlso or insist upon 
enforcement of the right* of Negro employees under the Agreement 
In th* same manner and to the same extent that it recognises and 
insist* upon enforcement of th* rights of white wuploynss, and by 
Itself refualng to provide training when It had an opportunity 
to do so or to Insist that the defendant, Avoo Corporation, adril6 
Hagro employees or applicants,for employment to Its apprentice 
programs or on-the-job trdhing programs on the same terras and 
conditions as white employees or applicants for employment are 
admitted to said grograms.

All of the foregoing discriminatory practice* by the de­
fendants have existed and have been maintained and enforced by 
the defendants for many yaar* prior to July 2, 1y6J, and Havo 
continued to exist from aald latter date to the present date.
The plaintiff, Hobart F. Newman, was discharged by defendant,
Avoo Corporation, on 1 February 1966 allegedly for failure to 
perform properly a new Job to which he had been assigned involv­
ing the lifting of heavy stove oven* down from a conveyer bait 
and mounting same at 5-*inute intervals. Plaintiff was initially 
employed by defendant, Avoo Corporation, 9 May 1951 and, except 
for layoffs in the years 1952, 1953 and 1954- wan thereafter con- 
tlnously employed until said discharge. His molarity rrm from 
16 October 1952. He worked as a laborer or general helper eloni- 
with all other Negro employees until 1962 when, na c result of 
a oomplalnt which he and four other Negro employees made to the 
President's Committee On Equal .employment Opportunity, he was 
upgraded to the classification of Incentive worker. Prior there­
to, the Company employed Negroes only as Janitors ,vid limi'irr 
menial work* Within two weeks pla»n»iff war return ri to a 
laborer classification and rewntned ouch until Or.tol'or 1 ,
after the passage of the Federal Ci.v.1 •.lphte Act of 3 t». , when 
be was again upgraded to an 1 tvs entire work class! -'lodrlon. ■'•s 
of 11 October 196V bo was assigned to department: r.:< - stove

-3-



Mount., A. How.*., he wa. initially aaeigned m  t,i8 ,3apartaea, 
to ” daywork" doing cleaning up, .va.plng, etc. "ubaeouently h. 
w.. aaslgnsd incnti*. work aa * Grata,. I, j,«o 1 ,63. h, w,s 
transferred to .noth., department but returned to Department 33i 
^  Octob*1* 1965. H. was raaaaignad to Crating Tor p. oh;-* while 
but waa than r.tum.d to »<Ujvark" aaaignment which waa not
ol.s.ified .a lac ant It . work although ha retained his c l a s s i f y  
tlon as a Stove Mount., A. On 21 December 1963 plaintiff waB 
assigned for th. fir.t time to tha 3tovo Lifting Job from which 

*ua discharged. On th. .am. day Herbert 1. Stover, , AitB 
«nployoa, who had b.an aa.ign.d to this Stove lifting «ob for 
i 1/2 *‘"T* ^.vioualy and who had not parfomed the ;,b sIciur„ii-,
W M  *fc M s  W t  to a Job in another department,
iinoopt for Stover'a fcran.f., to another department, the Stove 
Lifting job to which plaintiff was aceigned would and abould 
hav. been aa.ign.d to Stov.r b.oauae of hi. eeniority in the 
department, Beoaua. of plaintiff, previoua alownesa in catching 
on to other incentive work Joba, hla Sup.rviaor, Mr. Vamer. 
ta.v on December 21. 1963. that plaintiff wa. not quallfie/to 
perform the 8tor. Lifting Job efficiently. Nevertheless Warner 
asaigned plaintiff to thi. Job and expected hi* to p r f o m  
efficiently at the out.et. without allowing him even the two 
day training period provided in the union contract. plain.
tiff did not perform effi.iently Warner reported bln to the 
Director of Induetrial Relation, on 27 December 1963 and he 
was suspended for a p.riod of three and one half days at that 
time. No effort wa« made to tranafer him to le.a dirft cult 
employment or to allow him a further trial period at that tim,. 
Inetead he waa .u.panded bec.u.a the Director of Industrial 
lie! at Iona "thought thl. would be a help' to him. »n<5 
evaluating h!n performance fc, the one and one-hall l3 two snd 
or.n-haif days he had been on said job, Varner din -  
plaintiff a .  a trainee at all out cas.dsrad tv.,,* ... ...
h»'va any training time cominr altV>„r,h he had n e w  to*n 
to this particular incentive work rrouP. On the dr- ,,f
»»sp«alon P-alntiff had an automobile accident in ,v.cK 
su.it.ained in jur^®8®®^ as R reault li:: not; report b t,, vnri<n o t.



Jo

until 17 January 1966. H. va. told to return 21* January 1,66 
*nd at that time W . ordered to raturn to the same Job. Ha in­
formed Warner that ha va. phyaloally unable to do the Job and 
*aa .ant to th. Dir.otor of Indu.trial Halations who Advised him 
to obtain aadioal evld.noa In aupport of this Inal stance. When 
ha obtained auoh a latter fro. hia private phyeician. Dr. Cocovood 
a Negro, Indicating aoma r.aldual dla.billty In his loft knee, 
he va. referred by th. Director to the Company Physician who did 
not actually glv. hl» a phy.ielal examination but wrote a r,oport
Indicating that h. vaa able to return to work. At the direction 
of the Industrial Halation. Dir.otor, plaintiff returned to work 
on 31 January 1966 and vaa aa.lgned to the aame he- v stove lift­
ing Job although he continued to complain of his physical lnabilit; 
to perform this particular Job. Again he was evaluated on the 
bael. of perfect p.rfomano. and on the ba.is of such evaluation 
was found wonting and was fired after working the full day of 
31 January 1966 and approximately one half day on 1 February 1966. 
At time of p.alntlff., .aid di.eharge on 1 February 1%6 the 
defendant, Avco Corporation, had other Job, which plaintiff could 
have performed eatl.faotorlly to which he could have been trans­
ferred at tim. of hie .uapen.ion on 27 Deosnber 1969 and of hie 
dbcharge on 1 February 1966. Plaintiff In fact had requested 
auoh tran.f.r to mother Job which he could perform both prior 
to and at tim. of hi. di.eharge. The stove lifting Job to which 
plaintiff was assigned at time of hi. dlaohurge was *n especially 
difficult one and It nomally takas more than two and one half 
day. to become proficient at thla Job. On Information and belle 
defendant, Avco Corporation had never discharged any other 
employee for alleg.d inability to perform a partied a- job where
such employee waa allowed only two or three day,
to 1 arn said Job. In the department therein pin 
inS (Department 380) several white employee. In t

within which
■i - -  V .i -  . w  -;l 8  fi o  P i f  -

r^ce’it *>o 3 f
had ooen changed from one Job to another within the ,:.,;>-,rtm*r• 
or had been encouraged to seek transfer to Jobs under other 
supervisors where they were unable to porfom or ,ere unsuitable 
f°r th* papt,c"1« ’ job to which assigned; and Or 
. -17 pr.-etio© of the defendant, vco Corpor t5o::.Wh«r» whi tw



II
•mploy... were oonoerned. Plaintiff was denied such privilege 
of traneferlng to another job within the department or to another 
department to work under another eupervlaor because plaintiff was 
• Negro. Likewise plaintiff wa. denied a reasonable length of 
time and opporutnity to learn and become proficient at said Job 
of stove tlftlns beoauee he waa a Negro. Plaintiff was dis­
charged by the defendant, Avco Corporation, on 1 February 1966

!• b“°aU4,e h# W M  * »•«"> baoauea of racial discrimination by 
the defendant Corporation In applying different standards of p.r- 
romance a. between Negro and whit, employees and discriminating 
racially b.tw.an N.gro and white employees. Including the plalntlf. 
In their right, to tranaf.r from one Job to another and in other 
working conditions.

'! 0pOn b#ln6 notified of plaintiff, discharge, the defend­
ant, Aero Lodge No. 735. declined end refused to rale* the plain­
tiff. grievance that ha had baan tha victim of racial discrimina­
tion and substituted Its jud®«.nt in filing a grievance .Imply 
charging a violation of tha Coll.ctlve Bargaining Agreement in 
that tha Company waa wrong In Its contention that plaintiff fali#<! 
to perform hi. job proparly. In the homing on said grievance 
the defendant, Aero Lodge No. 735 .imply urged that plain tiff 
had a right to reoelve at least two day, of training on the new 
Job. said defendant Onion r.fuaad to raiae and prosecute piaintif. 
grievance and contention that tha defendant, Avco Corporation, 
acoorded whit, employ... privll.g.. .nd prerogatives not accorded 
N.gro.., although there waa and la ample evidence to sup p o s a i d  
charge. Said defendant, Aero Lo4g. No. 735, hua failed and re­
fused to proaeoute said grievance of the plaintiff or any other 
N.gro employee, who seek to r.dree. or .llainate any racial dis­
crimination. again.t thma. Said defendant Onion maintain, and 
pursues a tacit agreement and/or conspiracy with the defendant.
Avco Corporation, to encourage, par,ft, enforce oeepetunt* 
the racially discriminatory practice.- in amuloynai-.fc, -.karting 
waceo and rates of pay, up-grading, promtion, tranofer and 
training of Negro employee, described above, and said union 
acquiesces in said practices by deferent, fvco Corporation.
an'’ rofnaM to PpotMfe «ny e f fo r t  to elim inate arid

:Uaorimlnat 1 on against i t s  Negro lumbers. JMid defer,



Lodge No. 735, haa absolutely refused to Insist upon Its members 
who are Negro employees having their seniority rights recognised 
and being offered training, transfer and up-grading opportunities, 
Job olaeslfioatlon and reolasslfloation opportunities, and rates 
of pay equal to and upon the same terns as those that are offered 
to Its mmabsrs who are whlta employees, under the Collective 
Bargaining Agreementswhioh It la negotiated, although it does 
enforce and insist upon the recognition by said defendant, Avoo 
Corporation, of all the rights of its white employees under eald 
Agreements. Said refusal to insist upon the recognition of the 
rights of Negro moployees under eald Agreements cauae3 or helps 
to cause said employer to discriminate against plaintiff and other 
Negroes, similarly situated.

11.
The aforesaid racial discrimination by defendants, Avoo 

Corporation and Aaro Lodge No. 735, on aooount of race or color, 
against the plaintiff and other Negroes similarly situated on 
whose behalf he suss, whioh has continued to the date of the 
filing of this complaint In violation of Sections 703(a)(0) (d) 
of the Civil Rights Aot of 1964 (Title 42, United States Code, 
Seotlon 2000e-2(a)(0) and (d), thereby deprives said plaintiff 
and said olaas on whose behalf he sues or their rights under 
Title VII of the Civil Rights Aot or 1964 (Title 42, Uni ted 
States Cods, Sections 2000e-2000e-15).

12.
On the 30th day of April, 1966, the plaintiff signed *nd 

forwarded to the Equal Employment Opportunity CoMKisslon a formal 
charge of discrimination, a copy of said charge attached hereto 
marked Exhibit "A:, and mads a part hereof by reference. "Tie 
Kqual anploymont Opportunity Coeval a si on gave the defaidants,
Avoo Corporation and Aero Lodge No. 735, a copy of the charge 
and thereafter on or about August 3, 196?, after lav ;--t« ratio-, 
determined that there was reasonable cause to believe v:t the 
defendants had engaged In an unlawful employment, prt-.'.ticc with!.-, 
th 3 meaning of the Act as set forth In \tn decision -motad ha"*’..! -

J<2,

talonj



/3

"DKCI3I0M
Reasonable cauaa does exist to believe that S.apond- 
ant la In violation of Sootlon 703 (*) (1) Tito.* 
VII of tha Civil Right* Aot of 1961*. by the following 
aotai
1. By discharging Charging Party without giving 
him adequate tlma to train on tha Job;
2. By denying Charging Party tha privilege to 
tranafer whan auoh privilege was given a whit a 
employee In the aama altuatlon; and
3. By refualng to reinstate the Charging Party 
Without lose of seniority rights.
Reasonable oauas does axlat to believe that Respon­
dent union Is in violation of lection 703 (o/ (1) 
of Title VII of the Civil Righta Aot of 176-’4. in that 
it failed to fairly repretent Charging Party in his 
dispute with Respondent employer. "

The Equal asploymant Opportunity Conmlsaion then directed
conciliation of tha foragolng matters. Said conciliation efforts 
of the Consnisslon, however, did not achieve voluntary compliance 
by the defendant with Title VII of the Civil Rights Act of 196';., 
tni the plaintiff was notified of this faot by said Ccwnl selon 
by letter dated Deosmber 12, 1968, received by him on or nbc.it 
December 13, 1968, oopy of which Is attached as a p> rt of said
Exhibit "A" herato.

13.
The oonduot of tha defandanta complained of herein has 

resulted and la resulting In Irreparable Injury to olalntiff ar.d 
the members of his elasa. Defendants have had notiro for- more 
than tiree and one-half yaara of their duty to oomply with Title 
VII of the Civil fUghta Aot of 1961;. (Title 1\2. United States 
Code, Sections 2000e-2000e-l$), but, notwithstanding said notins, 
have deliberately failed and rafused to comply therawith as aet 
forth hereinabove. Eaoh Aty of the continuing deprivation of 
said rights to plaintiff and the class on whose behalf he sues, 
constitutes a loss of precious economic opportune.an which can 
novel* be recovered. Plaintiff and said class a;*a, therefore, 
entitled to immediate relief.

MlSiy'POHK, Plaintiff respectfully prays:
1. That upon the filing of this complaint: this Court 

advance tills oaea on the docket ar.d order t. speedy rearing of
efttno and upor- said hearing this court:

(a) Issue a preliminary and permanent injunction requiring



defendant, Avoo Corporation-Aerospace Structural Division, 
to Immediately reemploy and/or relnstato .he plaintiff,
Robart F. Newman, in tha highest Job which ha la qualified 
and oapabla of performing or being trained within a reason­
able time to perform in tha establishment of said defendant 
at Nashville, Tennessee, and to pay him the difference 
between the pay which he has earned from other employment 
since 1 February 1966 and that pay which he would have 
earned from auoh employment with said defendant, Avco 
Corporation.

(b) Issue a permanent injunction enjoining the defend­
ants, Avoo Corporation, Aerospace Structures JMvlaion, 
and Aero Lodge No. 735 of the International Association 
of Machinists, AFL-CIO, thalr agents, employeoo and suc­
cessors and all persons In aotlve concert and participation 
with them, from continuing, maintaining, or enforcing 
against plaintiff and other persona similarly situated, 
or, in the oase of the defendant, Aero Lodge i!o. 7j$, from 
acquiescing in and falling and refusing to ecorcl si its 
authority and duty to eliminate or insist upon tha elimi­
nation of, all policies end practices of racial discrimi­
nation and segregation In employment, Job classification 
and reolaaslflcations, training opportunities, wage in­
creases, working conditions, transfsrs between Jobs and 
other privileges enjoyed by employees, and from '.'ailing 
and refusing to hire or refer for hiring any individual, 
or Cram failing to prosecute the grievances of any in­
dividual based on racial discrimination Including that of 
the plaintiff herein, or otherwise disorlmlnailng against 
any Individual, Including the plaintiff herein, with re­
spect to hie compensation, terns, conditions or privileg 
of employment or the enforcement of his right3 under tha 
applicable Collective Barg&ir,in;.; Agreement, or ‘.’-on limitir. 
segregating or classifying any employees oy .lefen-Laat, Avar. 
Corporation, or members of defendant, <(?r. »ijy ho. vjq, 
in any way whloh would deprive or tend to deprive any in­
dividual, including tha pin? ntiff herei n, of emnlormant 
onnortunittea or otherwise adversely affect h.n statu? .o



m  employee, or from causing or attempting to cause the 
defendant, Avoo Corporation, or any other employer to dl s - 
criminate agalnat any individual, Including tho plaintiff 
herein, on account of race or color, or from discriminat­
ing against any Individual, inoludlng the plaintiff herein, 
in admission to or employment in any program established 
by defendants or either or then to afford apprentleeship 
or other training, because of raoe, color, religion, set, 
or national origin, and from continuing, maintaining, or 
pursuing any other unlawful employment practice or practices 
within the meaning of Title VII of the Civil lights let of 
196!). (Title !v2, United States Codo, Sections £030e-200'»e-lo) 

(o) Ieeue a permanent injunction requiring do'endant 
to establish a procedure for promotion, employment and 
on-the-job training which shall take into account oast 
discrimination agalnat Hegroes and shall provide for -s- 
cruitmcnt, special training, and other affirruitivs mea: ivcf 
designed to eliminate the effeot of such past discrimina­
tion limiting the «ployment opportunities afforded to 
Negroes and ensuring against a reourring of such conditions 
by subseqjontly establishing lines of progression and pro- 
cedure for promotions and on-the-job training before and 
after proswtiona whloh reoognlse seniority and substantial^ 
eliminate the opportunity for racial discrimination in tho 
employment, selection, promotion and transfer of company 
personnel.

(d) Grant plaintiff such other, additional or alterna­
tive relief aa may appear to the Court to be equitable,

(») Grant plaintiff hie reasonable attorney'a foes ani 
other costs of. the case.

s m  n . \miTmrrr~.ALbXANDSH LOCHS'
227 Charlotte /.venue
Naanvlile, Tonnoeso'c j?.?'v!-
JACK GHtiSNIKRG■‘OBI :T SIX TON
wir.r.iah 3. TUJir ; ;, n --
!’■' Columbus Circle
'.?*ti iJ'iO
Wnv v-o p k , .Vow Tont V*.U

• J lair.t.! i':'

15

Attornays for



/£>

STATS OP TEHWB3SB3 
DAVIDS OH COtJHTY

The undersigned, Robert P, Newman, makes oath In duo form 
of law that he Is the plaintiff in the store ease; that he has 
read and knows ths contents of the foregoing complaint, and that 
the s tat wants made therein are true as of his own knowledge, 
exoept as to those statements whioh are stated theroin to be made 
upon Information and belief, and those statements ho belters* 
to be true.

Sworn to and subsoribed before me

My OoBssission Bxplrest ~ 7 ”



/
ri

IK T.-ui UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT C? TE..LESSEE 

NASHVILLE DIVISION

ROBERT F. NEWMAN, )

Plaintiff, \

vs. {»
AVCO CORPORATION - AEROSPACE STRUCTURES )
DIVISION, NASHVILLE, TENNESSEE, ana )
INTERNATIONAL ASSOCIATION OF MACHINIST }
AND AEROSPACE WORKERS, AERO LODGE NO.
735, NASHVILLE, TENNESSEE, j

Defendant. )

ANSWER OF DEFENDANT, AVCO CORPORATION

Defendant, Avco Corporation, for its separate 
answer to the complaint, admits, denies and alleges as 
follows:

First Defense

1. Admits that this action is purportedly drought 
under Title 42, United States Code, secs. 2000e, at see.

2. Admits the allegations of Paragraph 2 with re­
spect to the identity of plaintiff, but denies the remaining 
allegations of Paragraph 2.

3. Admits that this is a proceeding for an injunc­
tion, but denies all allegations of fact in Paragraph 3.

CiVi^ .>a . tet

- £ W  5 m .  \ u , m

4. Admits the allegations of Paragraph 4



5. Admits the allegations of paragraph 5, except 
that it denies allegations implying that there is a class of 
members of Aero Lodge No. 735 on whose behalf plaintiff „uoa.

6. Admits the allocations of Paragraph 6.

7. Admits the allocations of Paracraph 7, except
that it has no knowledge or information sufficient to form 
a belief as to the operation by the Aero Lodge No. 735 of a 
hiring hall or hiring office, or as to the number of members 
of said Aero Lodge No. 735.

8. Denies the allegations of Paragraph 8, except 
that it admits the establishment of a ,jo'o classification 
system, with varying wage rates, and that incentive pay 
scales apply to some classifications, but not to others.

9. Denies the allegations of Paragraph 9.

10. Denies the allegations of Paragraph 10, except
that it admits thau plaintn.fi was employed by defeac.ant on 
or about May 9, 1951; that except for layoffs in 1952, 1953 

ana 195*1, he was continuously employed until February 1, i'poo, 
with reclassifications and rcasslgnments which defendant alleges 
were in accordance with his seniority rights and consented to by 
him; that he was then discharged and that the reason assigned 
was failure to perform properly the work to which he was assigned; 
and that defenoant, Aero Lodge No. 735, files a grievance protest­
ing his discharge, not charging that plaintiff had been she victim

2



of racial discrimination, but defendant alleges that plaintif 
ir.u.ividually amended the grievance to w.; .r. ;e raciaa r~.
and was represented by his own counsel at an arsisration ..ear 
resulting in an award in favor of defendant.

11. Denies the allocations of Paragraph 11.

12. Admits the allegations of Paragraph 12, except 
that it deniea that there was reasonable basis for the findin 
of "reasonable cause to believe" made by the Equal Employment 
Opportunity Commission.

13. Denies the allegations of Paragraph 13.

Second Defense

This action is not properly brought as a class act! 
and the complaint accordingly fails to state a claim, upon wr.i 
relief may be granted against this defendant.

Third Defense

Plaintiff's discharge was protested in a formal 
grievance filed by defendant, Aero Lodge No. 735, which 
grievance was amended by plaintiff so as to allege that nis 
discharge was racially discriminatory. The grievance was 
arbitrated in accordance with the provisions of the coalecti 
bargaining- agreement then in effect, resulting in an aware 
dated June 28, 1966, by Robert T. Amis, Arbitrator, ir. w.— c..



o

the grievance way uonied with an express A °r* u..-x\,e
qi> racial discrimination that the «oio c*~v— e e * —
v;as f.rievant's failure to-perform sat..siac«o..\iiy. 
arbitration hearing. (Arbitration i'ilo ho. o-.v. pood, Oriovar.so 
of Robert J?. Newman) was hold April 21 and ■ 22, -ess, _a
Nashville, Tennessee, and at the outset O; o..e hoar— .G, .̂.e 
parties stipulated that they were properly before the «--'-trasar. 
Plaintiff was represented at said hearing ay h.is own ecu.— e_
■well as by International Association of Xacnlaista ar.c Aerospace 
Workers, Aero Lodes No. 735, which was his statutory nj^r— — ucr 
the provisions of the Labor Manaae.v.ent Relations Act of 1 5 * 7 , 

as amended, pursuant to the aforesaid collec«_vc °c—  _a-n—  
agreement, which v:as effective from June 21, 19&5 to June 20, 
1968, and contained in Article IX thereof detailed provisions 
for adjustment of grievances, Including arbitration, with tr.e 
provision that: "The decision of the Arbitrator snalx be
and blnalnG upon the Company and the Union." Plaintiff e-ecsea 
the remedy under said Article IX of said collective 
agreement and ouch election is bindins on him and is a bar to 

this action.

Wherefore, this defendant demands judgment dismissing 
the complaint against it, and for costs anu the allowance 01 a 
reasonable attorney's fee as a part of the costs.

LAPLIN, SULLIVAN & L.'.NTA
j_0̂  V/CibVi AuQr.'G St j 0
Chicago, Illinois bOoOS
ualilr, lanslln, lcltcu 1  lavis
American Truss Buiioir.;-: _
Nashville, Tennessee pYROi

By- / ,» ŵli'U.lt.' **
Attorneys fo r  Befonunns, 
/vveo Coi’poifuiwr'*

4



'if

>
ii

% ’A

•*%-
X

o,/. iSif ' !

£ f

Certificate

X certify that copies of this answer have been 
this cay mailed to Avon N. Williams, Jr., Esq., 327 Charlotte 
Avenue, Nashville, Tennessee 37201, and Jack. Greenberg, Esq., 
10 Columbus Circle, Suite 0030, New York, N. Y. 10019, 
attorneys for plaintixT, this January 15, 1909.

9



IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION * *

ROBERT F. NEWMAN,

Plaintiff,

vs.

AVCO CORPORATION - AEROSPACE 
STRUCTURES DIVISION, NASHVILLE. 
TENNESSEE, and INTERNATIONAL 
ASSOCIATION OF MACHINIST AND 
AEROSPACE WORKERS, AERO LODGE 
NO. 735, NASHVILLE. TENNESSEE,

Defendants.

ANSWER OF DEFENDANT. AERO

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Civil No. 5258

LODGE NO. 735

Defendant, International Association of Machinist and
f.

Aerospace Workers; Aero Lodge No. 735, for its separate answer 

to the complaint, admits, denies and alleges as follows:

4 t First Defense

1. Admits that this action is purportedly brought under 

Title 42, United States Code, secs. 2000e, et seq.

2. Admits the allegations of Paragraph 2 with respect 

to the identity of the plaintiff, his race, and his past connection with 

each of the defendants. As to the allegations concerning plaintiff's 

eligibility and qualifications, the defendant lacks sufficient information 

to either admit or deny such allegations, plaintiff himself having taken 

varied positions in the past in regard thereto, and defendant therefore 

can neither admit nor deny such allegations. As to the remaining 

allegations of the said paragraph 2, defendant Aero Lodge 735 denies



and specifically denies that it has been motivated by any racially 

discriminatory motivation in regard to the plaintiff or any other members 

of the collective bargaining unit which it represents.

3. Admits that this is a proceeding for an injunction, 

but denies all allegations of fact in Paragraph 3.

4. Admits the allegations of Paragraph 4.

5. Admits the allegations of Paragraph 5, except that 

it denies allegations implying that there is a class of members of 

Aero Lodge No. 735 on whose behalf plaintiff sues.

6. Admits the allegations of Paragraph 6.

7. Defendant Aero Lodge No. 735 denies that it maintains 

and operates any hiring hall or hiring office for the procurement of 

employees for the defendant Avco; the defendant Aero Lodge No. 735 

denies that its parent organization is doing business in the state of 

Tennessee in relation to any of the operations of Avco, and the said 

defendant admits the other allegations of Paragraph 7.

8. Defendant Aero Lodge No. 735 admits the establishment 

of a job classification system, with varying wage rates, and that incentive 

pay scales apply to some classifications, but not to others. Defendant 

Aero denies the remaining allegations of Paragraph 8 of the said 

complaint, insofar as they are made against the said defendant. Regarding 

allegations made against the defendant Avco, as to its practices the 

defendant Aero Lodge No. 735 denies any involvement in such practices,

if such practices do exist.



9. Denies the allegations of Paragraph 9.

10. In response to Paragraph 10 of the plaintiff's complaint, 

the defendant Aero Lodge No. 735 adopts and relies upon the allegations 

contained in the corresponding Paragraph No. 10 of the answer heretofore 

filed by the defendant Avco.

11. Denies the allegations of Paragraph 11.

12. Admits the allegations of Paragraph 12, except that 

it denies that there was reasonable basis for the finding of "reasonable 

cause to believe" made by the Equal Employment Opportunity Commission, 

and asserts that such "finding" by the Equal Employment Opportunity 

Commission is, insofar as the said defendant has been able to ascertain, 

fictional.

13. Denies the allegations of Paragraph 13.

Second Defense

This action is not properly brought as a class action, 

and the complaint accordingly fails to state a claim upon which relief 

may be granted against this defendant.

Third Defense

This action is barred by the plaintiff's choice of remedies, 

in that the plaintiff filed a formal grievance under the existing collective 

bargaining agreement between the defendants to this action, which collective 

bargaining agreement provides for a grievance procedure culminating in 

final and binding arbitration. The defendant Aero Lodge No. 735 asserts 

that such arbitrational award is not subject to attack except by action to 

impeach the said arbitration award, and the defendent Aero Lodge No. 735



asserts that the said award is final, binding, and unimpeachable. The 

said defendant further asserts that the plaintiff filed  with it a grievance 

which was not based upon any charge o f racia lly-m otivated discrim ination, 

and that the defendant A ero  processed such grievance and did not add any 

ground o f rac ia lly  motivated discrim ination, having no knowledge then nor 

at present that rac ia lly  discrim inative motivations entered into the 

p la in tiff's loss of his employment. The said defendant A ero  further 

asserts that it prosecuted the said grievance on grounds on which it 

fe lt the grievance was valid and should be won. The said defendant 

further alleges that the plaintiff, through an attorney of his own, amended 

his grievance to add as a separate ground the assertion that his discharge 

was prompted by rac ia lly  discrim inatory motivation; that the said attorney 

demanded the right to appear and represent the grievant in the presentation 

o f that ground o f grievance, knowingly and intentionally submitting the 

said complaint o f rac ia lly  discrim inatory motivation to the arbitration 

procedure. Further, although individual grievants are not permitted to 

bring private attorneys into the arbitration procedure, the defendant 

A ero  had no confidence in the valid ity o f the charge of racia l discrim ination 

as a ground fo r the grievance, but it nevertheless recognized that the 

plaintiff had a right to make such charge and to obtain a final and binding 

arbitration decision on the validity o f such charge; having no confidence 

in its validity, and being advised that the p laintiff's attorney. Honorable 

Avon N. W illiam s, J r . , was the leading and most skilled Negro Law yer 

loca lly  available in the tr ia l o f disputes involving charges o f rac ia lly - 

motivated discriminar.on, the defendant A ero , in order to assure that 

the plaintiff could fa ir ly  present the charge which the defendant A ero  

Lodge No. 735 considered to be wholly without m erit, consented to the 

appearance o f the said Avon W illiam s, Jr. as attorney for the plaintiff 

in the said arbitration procedings. As a result, the said defendant



asserts that the plaintiff was represented by the best attorney available, 

he had open to him the best possible lines o f communication to 

the Negro employees o f Avco who would be most fam ilia r with any 

existing facts which might support a charge o f racially-m otivated 

discrim ination, and a fter a fa ir  hearing, a final and binding arbitration 

award was handed down ruling against the p laintiff's contentions, and 

such final and binding award is not subject ,to co llatera l attack by 

separate litigation under the C iv il Rights Act o r under any act other 

than Section 301 of the Labor-Management Relations Act of 1947, as 

amended, the defendant having been free  to ra ise and having actually 

raised in the said arbitration procedings a ll objections to his discharge 

which he could ra ise under the C iv il Rights A ct o f 1964.

CECIL D. BRANSTETTER

CARROL D. KILGORE

216 Third Avenue North 
Nashville, Tennessee 37201 

Attorneys fo r Defendant, A ero  Lodge No. 735

It is hereby certified  that copies o f this answer have been mailed to 
a ll attorneys o f record on this, the ____ day o f January, 1969.



^7

IiIL

IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

ROBERT F. NEWMAN, )
Plaintiff, ^

AVCO CORPORATION - AEROSPACE ' Civil No. 5258
STRUCTURES DIVISION, NASHVILLE,'
TENNESSEE, and INTERNATIONAL '
ASSOCIATION OF MACHINISTS AND '
AEROSPACE WORKERS, AERO LODGE '
NO. 735, NASHVILLE, TENNESSEE, '

Defendants. ) A  _ _

ly m o
MOTION OF DEFENDANT, AVCO CORPORATION,
FOR SUMMARY JUDGMENT ______

Defendant, Avco corporation, moves the court for 

summary judgment in its favor, for the reason that there j s 

no genuine issue as to any material fact and that said 

Defendant is entitled to a judgment as a matter of law.

In support of this Motion, said Defendant attaches 

hereto and makes a part hereof, the sworn Affidavit of 

Don A. Banta.

In further support of this Motion, said Defendant 
states that there is no genuine issue as to any of the following 

material facts:

1. That plaintiff’s discharge was protested in a 

formal written grievance filed by Defendant, Aero Lodge m o . 735, 

on or about February 2, 1966.

2. That Plaintiff’s discharge grievance was 

supplemented by him in writing on or about February 7, 1966 in



f

the form of an Amendment alleging that his discharge was 

racially discriminatory and in violation of Title VII of the 

Civil Rights Act of 1964.

on April 21 and April 22, 1966 in accordance with the provisions 

of the collective bargaining agreement then in effect, before 

Robert T- Amis, Arbitrator, at which time plaintiff was represented 

by Avon williams, Jr., Esq., his personal legal counsel, in 

addition to Defendant, Aero Lodge No. 735, his sole collective 

bargaining agent.

4. That during said arbitration hearing, and in the 

Individual Brief of Grievant filed in Plaintiff's behalf, it was 

contended by his said personal counsel that plaintiff's dis­

charge was racially discriminatory and in violation of Title VII 

of the civil Rights Act of 1964.

Robert T. Amis rendered his written Opinion and Award in which 

Plaintiff's discharge grievance was denied with an express 

finding on the charge of racial discrimination that "the sole 

cause for discharge was grievant's failure to perform satis­

factorily."

3. That Plaintiff's discharge grievance was arbitrated

5. That on or about June 28, 1966, Arbitrator

DON A. BANTA

WALLER,LANSDEN,DORTCH & DAVIS 
American Trust Building 
Nashville, Tennessee 37201

A partner
Attorneys for Defendant,



? L

Certificate

I certify that copies of this motion have been this 
day mailed to Avon N. Williams, Jr., Esq., 327 Charlotte 
Avenue, Nashville, Tennessee 37201, and Jack Greenberg, Esq., 
10 Columbus Circle, Suite 2030, New York, N. Y. 10019, 
attorneys for plaintiff, this January 8 , 1970.



STATE OF ILLINOIS )
) SS

COUNTY OF C 0 O K )
O

ROBERT F. NEWMAN, )
Plaintiff, )

)
vs. )

)
AVCO CORPORATION - AEROSPACE )
STRUCTURES DIVISION, NASHVILLE,) 
TENNESSEE, and INTERNATIONAL ) 
ASSOCIATION OF MACHINISTS AND ) 
AEROSPACE WORKERS, AERO LODGE ) 
NO. 735, NASHVILLE, TENNESSEE, ) 

Defendants. )

Civil No. .258

AFFIDAVIT OF DON A. BANTA IN SUPPORT 
OF MOTION OF DEFENDANT, AVCO CORPORATION,
FOR SUMMARY JUDGMENT.____________________

DON A. BANTA, having first been duly sworn, on oath 

deposes and says:

That this Affidavit is made on his personal knowledge, 

and that if he were sworn as a witness at the trial of the 

above-entitled cause he could competently testify to the 

following facts:

1. That his name is Don A. Banta; he is legal 

years of age; and he resides at 408 Willow Avenue, Deerfield, 

Illinois.

2. That since 1953 he has acted as one of the labor 

relations attorneys for Defendant, Avco corporation, and is 

familiar with the terms and conditions of the collective 

bargaining agreement between said Defendant, Avco corporation, 

and Defendant, Aero Lodge n o . 735, dated June 21, 1985, a true 

and correct copy of which is attached to this Affidavit, marked



Exhibit A, and hereby made a part hereof.

3. That on or about February 2, 1966, a grievance 

protesting his discharge was signed by plaintiff and filed 

with Defendant, Avco Corporation, by Defendant, Aero Lodge 

No. 735, a true and correct copy of which is attached to this 

Affidavit, marked Exhibit B, and hereby made a part hereof.

4. That on or about February 7, 1966, an Amendment 

to Grievance Filed by Robert F. Newman was submitted to and 

filed with Defendant, Avco corporation, by plaintiff, a true 

and correct copy of which is attached to this Affidavit, marked 

Exhibit C, and hereby made a part hereof.

5. That Plaintiff's aforesaid discharge grievance
was arbitrated upon due advance notice to all parties, including 

Plaintiff, on April 21 and April 22, 1966 in accordance with 

the provisions of Article IX of the collective bargaining 

agreement, attached hereto as Exhibit a , before Robert t . Amis, 

an Arbitrator appointed by the Director of the Federal Mediation 

& Conciliation Service pursuant to the provisions of Section 1, 

Step 3, of said Article ix. At such arbitration hearings 

Plaintiff and both Defendants were accorded unqualified 

opportunity to be heard and to adduce the sworn testimony of 

such witnesses as they desired, subject to full cross-examination 
by the respective opponents.

6. That at all times during the arbitration hearings 

and proceedings held on his discharge grievance. Plaintiff was 

represented his individual and personal legal counsel,

Avon Williams, Jr., Esq., a member of the Nashville, Tenneessee ba



as well as by Defendant, Aero Lodge No. 735, his sole 
collective bargaining agent under the aforesaid agreement.

7. That upon the conclusion of the hearings on 

Plaintiff's grievance, and following the delivery to the 

parties of a Transcript thereof, plaintiff's personal legal 

counsel, Avon Williams, Jr., served upon the parties and filed 

with the Arbitrator a post-hearing Individual Brief of Grievant, 

a true and correct copy of which is attached to this Affidavit, 

marked Exhibit D, and hereby made a part hereof.

8. That on or about June 28, 1966, Arbitrator 

Robert T. Amis rendered and delivered to rlaintiff and 

Defendants herein his written Opinion and Award denying 

Plaintiff's discharge grievance. A true and correct copy 

of said Opinion and Award is attached to this Affidavit, 

marked Exhibit E, and hereby made a part hereof.

DON A. BANTA

Subscribed and sworn to 
before me this 37 day of 

^ ._____ _, 1969 .

'  Notary Public



33

C e r t if ic a te

I  c e r t i f y  that copies of th is  a f f i d a v i t  have been th is  

day mailed to Avon N. Williams, J r . ,  Esq., 327 Charlotte  

Avenue, N ashville, Tennessee 37201, and Jack Greenberg, Esq.,  

10 Columbus C ir c le ,  Suite 2030, New York, N. Y. 10019, 
attorneys fo r  p l a i n t i f f ,  th is  January 8 , 1970.



IN THE UNITED STATES DISTRICT COURT RECE)VED p0R ENT!# 
FOR THE MIDDLE DISTRICT OF TENNESSEE______ff'.'/O___ /; M

NASHVILLE DIVISION ma r 2 6 1970

3 ^ -

ROBERT F. NEWMAN ]
]
] CIVIL MO. 5258
]

AVCO CORPORATION - AEROSPACE ] 
STRUCTURES DIVISION, NASHVILLE,] 
TENNESSEE, and INTERNATIONAL ] ASSOCIATION OF MACHINIST AND ] 
AEROSPACE WORKERS, AERO LODGE ] 
NO. 735, NASHVILLE, TENNESSEE ]

M E M O R A N D U M  •

Plaintiff, Robert F. Newman, brought this class 
action pursuant to Title VII of the Civil Rights Act of 
1964 (hereinafter Title VII) against defendants, Avco 
Corporation - Aerospace Structures Division (hereinafter 
Avco) and the International Association of Machinists and 
Aerospace Workers, Aero Lodge No. 735 (hereinafter the Union), 
alleging racial discrimination. The Union has made asser­
tions in the Third Defense in its Answer, which assertions 
the court construes to constitute a motion for summary 
Judgment. Avco has made a formal motion for summary judgment 
supported by a brief. Plaintiff has not filed a brief in 
opposition thereto.

Plaintiff, a Negro employee of Avco and member 
of the Union, was discharged from Avco on February 1, 1966, 
allegedly for failure to perform properly a newly assigned 
Job involving the lifting of stoves from a conveyor belt at 
specified intervals. On February 2, 1966, pursuant to the 
collective bargaining agreement (hereinafter the Agreement)



between Avco and the Union, a grievance protesting his dis­
charge was signed by plaintiff and filed with Avco by the 
Union, plaintiff's sole collective bargaining agent. Plaintiff 
sought reinstatement "in appropriate employment which he is 
able to perform in the Company's Plant," and sought an award 
for back pay and other expenses "occasioned by his wrongful 
discharge."

The Union alleged that Avco knowingly placed the 
plaintiff in a job he was incapable of performing because of 
injuries received in a prior automobile accident, that plain­
tiff was not allowed the proper training time required by the 
Agreement, and that because of plaintiff's thirteen years of 
service, Avco should have placed him on a Job within his 
capabilities. On February 7, 1966, plaintiff filed an Amend­
ment to Grievance in which he averred that his discharge was 
"unjust and racially discriminatory, in violation of the 
Union Agreement effective June 21, 1965, and also in violation 
of Title VII of the Civil Rights Act of 196*1." Also, in his 
amendment, plaintiff requested that his personal attorney be 
allowed to participate in the grievance hearing in his behalf, 
which request was allowed.

In accordance with the Agreement which provided 
that "[t]he decision of the Arbitrator shall be final and 
binding upon the Company and the Union," an arbitration 
hearing was held on April 21 and 22, 1966. At the outset 
the parties stipulated that they were properly before the 
Arbitrator. Plaintiff was represented by the Union and by 
his personal attorney, and all parties were accorded the 
opportunity to be heard and to adduce the testimony of such 
witnesses as they desired, subject to full cross-examination. 
Upon conclusion of the hearing, plaintiff's personal attorney



filed a post-hearing Individual Brief of Grlevant reiterating 
plaintiff's allegations as to racial discrimination. On June 
28, 1966, the Arbitrator rendered his opinion and held that 
the plaintiff was dismissed "for failure to perform his job," 
and made the express finding on the charge of racial dis­
crimination that "the sole cause for discharge was grlevant's 
failure to perform satisfactorily."

On May 2, 1966, seeking individual relief, plaintiff 
filed a charge with the Equal Employment Opportunity Commis­
sion (hereinafter EEOC) which found reasonable cause to believe 
that Avco and the Union were In violation of Title VII. There­
after, upon notification by the EEOC of failure to achieve 
voluntary compliance with Title VII through conciliation, the 
plaintiff brought the present action "on behalf of himself and 
all other Negroes who are similarly situated."

Avco moves for summary Judgment on the grounds that, 
first, in pursuing the collective bargaining procedure to a 
final conclusion before the Arbitrator, plaintiff made a bind­
ing election of remedies which forecloses his pursuit of 
individual relief in this action, and second, that in seeking 
general relief on behalf of the class, plaintiff raises issues 
in his complaint which were not raised in the charge filed 
with the EEOC and, therefore, the class action is barred. The 
Union also asserts that the plaintiff's pursuit of the collec­
tive bargaining procedure to its final conclusion before the 
Arbitrator constituted a binding election of remedies. The 
court is of the opinion that the Union's assertion and the 
first of Avco's grounds are well taken and dispositive of this 
action and, therefore, does not consider the second of Avco's 

grounds.
Avco relies primarily on the case of Washington v. 

Aerojet-General Corporation, 282 F. Supp. 517 (C.D. Cal. 1968),

3



in support of its first ground. In that case, the court held 
that a plaintiff, by pursuing the grievance procedure tc its 
completion, makes a binding election which precludes the 
maintenance of an action under Title VII. In reaching this 
conclusion, the court stated:

"Initially he may pursue his remedies in both 
forums but at some point a choice must be made. 
This point, as in the case of concurrent Juris­
diction between State and Federal courts, is 
reached when a litigant has pursued his remedies 
in one forum to decision, be it by settlement, 
the decision of an arbitrator, or the decision 
of a Judge. Such a rule is not only consonant 
with that applied in an analogous area, but also 
will contribute to the expeditious resolution of 
disputes in the equal employment area and promote 
the sound and equitable administration of Justice by precluding an aggrieved party from subjecting 
a defendant to multiple actions based upon the 
same claim." [Emphasis added.] 282 F. Supo. at 
523.

The plaintiff in this action could have proceeded 
in either forum to obtain relief from the racial discrimina­
tion allegedly practiced on him. He could, have followed the 
statutory procedure authorized by Title VII or the grievance 
procedure as set out in the Agreement covering his employment 
with Avco. In either forum he could have obtained the relief 
of reinstatement with full seniority and back pay. Thus the 
court is of the opinion that, in pursuing the collective 
bargaining procedure to completion, i.e., the decision of the 
Arbitrator, the plaintiff made a binding election of remedies 
and, therefore, is precluded from maintaining the present 
action in his own behalf.

Plaintiff is also precluded from maintaining this 
action on behalf of the class he purports to represent. In 
his complaint, plaintiff attempts to Include in the class 
discharged former, present, and prospective employees of Avco 
and members of the Union, all of whom he alleges have been

- i) -



3$

subjected to racial discrimination.

Without an adequate representative a cl&ss action 
brought pursuant to Rule 23, Federal Rules of Civil Procedure, 
must fail. It is elementary that "[a]n individual suing on 
behalf of the class must be a member of the class he is sup­
posed to represent." 2 Barron & Holtzoff, Federal Practice 
and Procedure § 567 at 308; see 3B Moore's Federal Practice 
t 23.04. A plaintiff cannot represent a class of which he is 
not a part.

Because, under the Arbitrator's decision, plaintiff 
was not discharged because of racial discrimination, plaintiff 
is not a member of a class of discharged former employees of 
Avco and members of the Union who have been subjected to racial 
discrimination.

In the case of Johnson v. Georgia Highway Express. 
I2£. > ^7 F.R.D. 327 (N.D. Ga. 1968) in which a discharged 
former employee attempted to represent a class which included 
prospective and present employees, the court held that the 
discharged former employee had no standing to "effectively 
represent the rights of either potential Job applicants or of 
present employees." Accord, Burney v. North American Rockwell 
Corp., 302 F. Supp. 86 (C.D. Cal. 1969). Similarly, a dis­
charged former member of a union cannot effectively represent 
the rights of prospective and present members of that union.

Thus, the court is of the opinion that the plaintiff 
herein is not a member of the class he purports to repre­
sent and, therefore, cannot adequately represent the class in 
this action.

Accordingly, for the reasons hereinbefore stated, 
the motions for summary Judgment are GRANTED as to the plaintiff, 
and the court, sua sponte, DISMISSES the class action for lack 
of adequate representation.



IN Tins DISTRICT COURT OP Tit-; UiJ f T-ID S?AT

?OS TITS MIDDLE DISTRICT Of Ti.NNESTT 
NaSHVILLT DIVISION

i<JJ>T "T f. I! S.irfAN )
GIVI.. iSf *K NO.

AVCO CO . POR T ION - AEROSPACE 
OT :UO TUT,DIVISION, NASHVILLE, 
TIXHSSS'S ,, and IN TURN ATI ON Al, 
ASSOCIATION OP MACHINIST AND 
A,i iOSPAC S KWClSRS, AS HO DODOS 
NO. 73 N Afil'/ILL N, TSNNKSSiL,

\/
)

l^io
MOTION 1*0.t A N1SW TRIAL AND/OH I'OH :T„.i : ' . SI 0P -,TJ j0 OP 

~T-IF'IHO VAllDTTM, JTtDGN TI T C T~~:U-.

Cone a She plaintiff, by hln u -T. -cigncd o.-ii.-,r«u, and raves 
The Court for a new trial pursuant Ik \'flc :ttP v  ’ 'or relief, 
pursuant to uie h'J of the Pedeen -C js oT Civ* ' ’ • .red'\re, from 
the operation of the Court's manor an. tun dated Lurch l 7 • 
rr’antinj, a motion for summary juci rtetit tiled ov tin: lelendant, 
Avco Corporation, without notice or bearing to the >1 aintiff.
The grounds of the plaintiff'3 motion herein are .■% foliows:

Plaintiff's counsel war, •u\,w t-c c-' - .lf. .. ’ 0e tg-o 
Co-irt-unoubl i -shod except in an obscure order or \h» 't-which 
repul res opooaing brief to a motion to bo Til : . ; ,. in 1C days 
and permits the Court to determine such mo Mon a hearing,

2. The memorandum dismissing the case ■■ n itw'ed Pc
March 1071 but plaintiff's counsel received no ro i r notice 
thereof until 5 days later, i.a. to-wit 1 ,p.-il ; - ,

hearing ar.
3. Counsel for plaintiff desires an ooo ar r.un . ty f or/Turtle

research and submission of authority in moos 1 the motion
of defendant, Avco Corporation Tor .« jm.su.ah, i " T. Ii. snooo't 
of the need for such further briefing of the o.i-.-t, ,.t in printed
our. tn , I'; th ■ only cases relied upo- K,T th j 1 e f p.r ■ T and one of
V lieh i« Tooi't adopted in i .s nem“ ( ■ ■ v. .'.nrp. er-
General .. ic o oration (C .D. Cai. 1 or ) w ure



’Hnfcrict yourt, Decisions. Afctr. chert hereto, marked f.xhibit "4" 
to this motion, is a copy of the Fifth Circuit'* recent decision 
in Culpeoooy v. Reynolds Metals Company Man- o, I. i?0) y.
‘’H*5 -------* wherein the Court appears to hold sub sllentio
toot resort to the contractual grievance machinery is not a 
o -ncing elac.tion of remedies, and the employee is not barred 
m m  filing rult under Title VII after having attempted to re- 

oolvo tn.:- care through the grievance machinery. (/«.« 0a0ea ?-■; 
ox' the at o.ached opinion)

CE.RTIFIC C'j
Thu undersigned certifies that carbon copy of the foregoin3 

Motion was mailed to Cecil I>, Brans bet to", !»nqui ?16 Third 
Avenue North, Nashville, Tennessee 37?01 , ,'illiam .'tiler, fsquire, 
American Trust Building, Nashville, Tennessee 37211 and Naohin, 
Bull Ivan 'Junta, Attorneys, 105 Vest Adams Street, Chicago,
Illanoi a 61603, Attorneys for the Defendants, this the 9th ^ay 
of April, I970.



EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 
1800 G Street, N. W.
Washington, D. C. 20506
Lutz A. Prager
Attorney for the Commission

IN THE DISTRICT COURT 07 THE UNITED STATES '%

FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ROBERT F. NEWMAN,
Plaintiff,

vs.
AVCO CORPORATION-AEROSPACE 
STRUCTURES DIVISION, NASHVILLE 
TEST...sSEE, ar.d INTERNATIONAL 
ASSOCIATION 07 MACHINIST AND 
AEROSPACE WORKERS, AERO LCDGE 
NO. 735, NASHVILLE, TENNESSEE,

Defendants.

The Equal Employment Opportunity Commission moves this Court 
for leave to file a brief amicus curiae in support of Plaintiff's 
Motion for a New Trial and/or for Relief from Operation of 
Memorandum,Judgment or Order, and present oral jument in this 
case for the reasons stated herein in the event the Court decic.es 
to hear argument on Plaintiff's Motion.

Statement of Interest to the Commission

This Court's decision of March 26, 1970, presents
important issues as to the interpretation and application of Ti^re

)
)) Civil Action No. 5258
)
)) MOTION FOR LEAVE TO FILE
) BRIEF AMICUS CURIAE AND
) PRESENT ORAL ARGUMENT
) OF THE EQUAL EMPLOYMENT
) OPPORTUNITY COMMISSION

> ^  I U  HUcj 7; H7 D
)
)



of the Civil Rights Act of 1964, 42 U.S.C. §§2000e-20.00e-15 
(1964), and the Rules and Regulations of the Equal Employment 
Opporluni ly Coiumj.union.

The Commission is the agency charged by Congress with the 
administration ar.d interpretation of Title VII. Since the 
Court's decision in this case may significantly affect the 
Commission's interpretation and administration of Tit] ' VII, 
it is in the public interest that the Commission present its views 
to the Court. Federal Rules of Civil Procedure 24(b).
Sac, Miller v. Intorm ticnal Paper Co. . 408 F.2d 283 (5th Cir., 
1369; , and Weeks v. Southern Imh 1 Telephone and Telegraph Co..
408 F.2d 228 (5th Cir., 1969).

Wo believe that ample reason exists to support a reconsiderat 
this Court1:: earlier decision in this case since the ease law 

relied upon by the Court does not represent the prevailing 
judicial interpretation of Title VII. Thus, with regard to 
Washington v. Aerojet General Com., 282 F.Supp. 517 (C.D. Cal it.,
1963, see Culpeoper v. Reynold;_Mo 1 a l C o . . __F.Supp.__,
51 LC '19374 (C.A. 5, 1970): I’cKhc v . n. d. SL-eel. Corn., (see 
attached copy); Bows v. Colgate-Palmolive Co.. 416 F.2d 711 
(C.A. 7, 1969); Deway v. Revno: ds ot r s Co. . 300 F.Supp. 709 
(E.D. Mich., 1969) , pending appeal 6th Cir., No. 19, 746; ana

F.Supp.with cespect to Johnson v. Georgia Highway Express Inc



_, 50 LC 59103 (S.D. Ga., 1063), see the reversal of that
accision at 417 F.2d 1122 (5th Cir., 1970).

Since the Commission did not receive a copy of Plaintiff's 
Motion until May 6, 1970, the Co.rmission requests until May 27, 
1070, to file its brief amicua curiae.

¥3

Respecti.ally submitted

STANLEY ?. MEBERT
General Counsel
RUSSELL SPECTER
Demis- Clan.:ml Counsel

LuTZ ALEXANDER PRAGER 
Attorney
EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION
1300 G Street, N. W. 
Washington, D. C. 20506

May 6, 1970.



C 1-1 <■ :ri' T F T C A T U  OF SFR VTC F.

It is hereby certified that copies of the foregoing 
tion for Leave to File Brief Amicus Curiae and Present 
^t. Argument of the. Equal Employment Opportunity Commission 
ve been mailed to the following counsel of record:

Avon Williams, Esquire 
1414 Parkway Towers 
Nashville, Tennessee 37219

Cecil D. Branstetter, Esquire 
216 Third Avenue North 
Nashville, Tennessee 37201

Naphin, Sullivan and Banta 
Attorneys at I,aw 
105 West Adams Street 
Chicago, Illinois 60603
William Waller, Esq.^ American Trust Building Nashville, Tennessee 37201

ay 6 , 1970

LUTZ A. PRAGEK
Attorney for the Commissi

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION.- 

1000 G Strec N. W.
Washington, D. 20506



IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

ROBERT F. NEWMAN

VS.

JON 10 1970
l'P'VO'-'y

,  ,r ,

CIVIL NO. 525°

c.'*

AVCO CORPORATION - AEROSPACE ] 
STRUCTURES DIVISION, NASHVILLE, ] 
TENNESSEE, and INTERNATIONAL ] 
ASSOCIATION OF MACHINIST AND ' ] 
AEROSPACE WORKERS, AERO LODGE ] 
NO. 735, NASHVILLE, TENNESSEE 3

O R D E R

This court recognizes that Its decision in this 
action, March 26, 1970, is contrary to some respectable 
authority cited by plaintiff in support of his "Motion for a 
New Trial and/or for Relief from Operation of Memorandum, 
Judgment or Order." However, the Court of Appeals for this
Circuit has now, in Dewey v. Reynolds Metals Co. , ---- . 2d
___ , decided June 4, 1970, foreclosed the matter.

In Dewey the issue was framed by the Court in 
terms of "whether suit may be brought in court after the 
grievance has been finally adjudicated by arbitration.
The Court's conclusion was that it cannot, saying: "Where
grievances are based on an alleged civil rights vio_at_on,
and the parties consent to arbitration by a nuvua— .. a------
arbitrator, in our judgment the arbitrator has a right to 

finally determine them."
Clearly, this holding applies with equal ’’o-mo

The plaintiff's Motion is aooo-d '.a -lyin the instant case.



denied. It follows that the 
Opportunity Commission for lc 
curiae and to present oral ar 
denied also.

It is so ORDSflD.

_ / V
UJli

C'Jt



IN THE UNITED STATES DISTRICT COURT 
TOR THE MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

' 1

ROBERT F. NEWMAN ]
)Plaintiff-Appellant ]
1

v * ] CIVIL ACTION NO. 5258
]AVCO CORPORATION - AEROSPACE ]

STRUCTURES DIVISION, )
NASHVILLE, TENNESSEE ]
and ]
INTERNATIONAL ASSOCIATION OF ]
MACHINISTS AND AEROSPACE WORKERS]
AERO LODGE NO. 735, NASHVILLE ]
TENNESSEE ]

]Defendant-Appellee ]

CLERK'S CERTIFICATE AND INDEX OF RECORD

r __ C u>:p
I ' M  4 u | u  3o, H 7 C

1

I, Brandon Lewis, Clerk of the United States District Court 
for the Middle District of Tennessee, do hereby certify that the 
papers and exhibits transmitted herewith and enumerated below, com­
prise the Record on Appeal in the above entitled civil action:

1. Complaint
2. Order Entered 1-16-69: Defendant, Aero

Lodge allowed additional time to file 
Answer

3. Answer of Defendant Avco Corp.
4. Answer of Defendant Aero Lodge #735
5. Avco's Motion for Summary Judgment; 

Affidavit of Don A. Banta attached
6. Memorandum of the Court entered 3-36-70; 

Motions for Summary Judgment granted, 
Clas Action Dismissed

7. Plaintiff's Motion for a New Trial£tc.
8. OEO's Motion to file Brief Amicus Curiae

9. Order Entered 6-10-70: Motion for New
Trial Denied; Motion of 0E0 to file 
Brief Amicus Curiae, Denied



IN THE DISTRICT COUNT OP THE UNITED STATES 
POH THE MIDDLE DISTRICT OP TENNESSEE 

NASHVILLE DIVISION

)
) CIVIL ACTION NO. 5258

)
)
)
)

I ' U , U 2 1 , W ®|i NOTICE OP APPEALI:
Notice Is hereby given that the olaintiff, Hobert P.

■ j Newman, hereby appeals to the United States Court of Appeals for
I;
the Sixth Circuit from the Judgments and orders entered in this 

,1 action on the 26th day of March, 1970, and the 10th day of June,

- Avon N. Williams, Jr. 
ll+llj. Parkway Towers 
Nashville, Tennessee 37219
JACK GREENBERG 
WILLIAM L. ROBINSON

I’ 10 Columbus Circle
|j Suite 2030

New York, New York 1001°
Attorneys for .'*3 aintiff

j!
CERTIFICATE OP SERVICE

The undersigned certifies that carbon copy of the fore- 
ij going Notice of Appeal was mailed to Cecil D. Branstetter, Esquir 
i 216 Third Avenue North, Nashville, Tennessee 37201, William Valle 
I,Esquire, American Trust Building, Nashville, Tennessee 37201, Nas 
,hin, Sullivan & Banta, 105 West Adams Street, Chicago, Illinois 
60603, Attorneys for Defendants and Honorable Lutz A. Prager, 
Equal Employment ODportunity Commission, /ashing ton, D. 0. 
this the 19th day of June, 1970.

1970.

lj ROBERT P. NEWMAN 
H VS.
AVCO CORPORATION - AEROSPACE 

|! STRUCTURES DIVISION, NASHVILLE, 
| TENNESSEE, and INTERNATIONAL 
!i ASSOCIATION OF MACHINIST AND 
|‘ AER03PACS WORKERS, AERO LODGE 
NO. 735, NASHVILLE, TENNESSEE

cun06,



IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF TENNESSEE 

NASHVILLE DIVISION

ROBERT F. NEWMAN 
Plaintiff-Appellant

1
]
]
]

AVCO CORPORATION - AEROSPACE ]
STRUCTURES DIVISION, ]
NASHVILLE, TENNESSEE 
and j
INTERNATIONAL ASSOCIATION OF 
MACHINISTS AND AEROSPACE WORKERS] 
AERO LODGE NO. 735, NASHVILLE ]
TENNESSEE ]

De fendant-Appellee

CIVIL ACTION NO. 5258

CLERK'S CERTIFICATE AND INDEX OF RECORD

! i . -—
< M  n [u L  3 d  1 ^ 7D

'1

I» Brandon Lewis, Clerk of the United States District Court 
for the Middle District of Tennessee, do hereby certify that the 
papers and exhibits transmitted herewith and enumerated below, com 
prise the Record on Appeal in the above entitled civil action:

1. Complaint

2. Order Entered 1-16-69: Defendant, Aero
Lodge allowed additional time to file 
Answer

3. Answer of Defendant Avco Corp.
A. Answer of Defendant Aero Lodge #735
5. Avco's Motion for Summary Judgment; 

Affidavit of Don A. Banta attached
6. Memorandum of the Court entered 3-36-70; 

Motions for Summary Judgment granted, 
Clas Action Dismissed

7. Plaintiff's Motion for a New Trial^tc.
8. OEO s Motion to file Brief Amicus Curiae

9. Order Entered 6-10-70: Motion for New
Trial Denied; Motion of OEO to file 
Brief Amicus Curiae, Denied



10. Plaintiff's Notice of Appeal; 
Cost Bond.

IN TESTIMONY WHEREOF, I have hereunto subscribed my name

and affixed the seal  of aforesa’d Court at Nashville, Tennessee 
this July 30, 1970.

BRaNUON • • _ CLERK
Uh I TED V l/TL: . iSTRICT COURT
M M>DLE DISTR '.T O F TENNESSEE

’>e[H • , ! i; r1'
ATTORNEY FOR PLAINTTFF-APPFTTAnt
Honorable Avon N. Williams, Jr.
1914 Parkway Towers 
James Robertson Parkway 
Nashville, Tennessee 37219

Honorable Jack Greenberg 
10 Columbus Circle - Suite 2030 
New York, N. Y. 10019

ATTORNEY FOR DEFENDANT-APPELLEE fAvcol 
Honorable William Waller 
Waller, Lansden, Dortch & Davis 
American Trust Building 
Nashville, Tennessee 37201

Naphin, Sullivan & Banta 
105 West Adams Street 
Chicago, Illinois 60603

ATTORNEY FOR DEFENDANT-APPELLEE fAero 
Honorable Cecil D. Branstetter 
Honorable Carrol D. Kilgore 
Branstetter, Moody & Kilgore 
216 Third Avenue, North 
Nashville, Tennessee 37201

ATTORNEY FOR EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Honorable Lutz A. Prager ------ ----- ------
Washington, D. C. 20506



‘.'ASH CIVIL DOCKET NO. 10 
Ml 1.0 ST AIKS DISTRICT COURT

52.™

6TH CCA NO.

Kmm No lfttiA R.v

Jury demand date:
At Issue: 1-30-69 JUDGE GRAY

T IT L E  OF CASEC I O S E D
ROBERT F. NEWMAN

ATTORNEYS

For plaintiff:
i! Avon N. Williams, Jr.

vs. V////////l/l/Vi/i/j/V 1414 ParkwayT owers
M / t m - M A M  AW./, Rtjxtkx

AVCO CORPORATION - AEROSPACE STRUCTURES 1 Nashville, Tennessee W N N  37219 
DIVISION, NASHVILLE, TENNESSEE
and
INTERNATIONAL ASSOCIATION OF MACHINISTS 
AND AEROSPACE WORKERS, AERO LODGE NO.735 
NASHVILLE, TENNESSEE

BASIS OF ACTION: Civil Rights Act of
1964. Seeking Injunction^ Class Action) 
- Alleged racially discriminatory and 
unlawful employment practices - seeking, 
immediate re-employment.

Jack Greenberg 
Robert Belton 
William B. Turner, III 

:j 10 Columbus Circle - Suite 2030 
'• New York, New York 10019

Atty:EQUAL EMPLOYMENT OPPORTUNITYCOMM.lutz A. Prager '

,, Equal Employment Opportunity Comraissio 
jj Washington, D. C. 20506

For defendant: Aero Lodge '*7 35
Cecil D. Branstetter,!j Carrol n. Kilgore
Branstetter, Mo.odv <5 Kilgore 
216 Third Avenue, North 
Nashville, Tennessee 37201

STATISTIC AL RECORD COSTS

.S. 5 m a ile d  1 2 - 3 0 - 6 3 C le rk

'.S . 6 m a ile d  3 - 2 6 - 7 0 M a rsh a l

fas is  o f  A c t i o n : D o c k e t  fe e

W itn e s s  fe e s

A c t io n  a ro s e  a t : D e p o s it io n s

For defendant: Ayco Corporation,etc, 
Will:.in- Waller
Waller, Lansdon, Dortch & Davis 
American TruM: Bldg,Nashville,32701

|| Naphln, Sullivan 5 Banta 
105 .<i \ t Ada:::' . fnmt 
Chicago, Illinois 1 603

II N A M E  OH , ,, , .
0 A T *' I RECK  [ I T  NO. :> ! l fA  • I: D i m s .f - 4——  . ;i

I1 12-30-68 Avon N. Will Lams”, Jr.
I'l.... .J 1, j f . ■ I ] /.
I i i

ll 6-23470 Avon Wll,]iam!s
I! !! $5. bo

v ^ k o



5258

*>

PROCM DINOS

12-30-68
12-30-68

1-16-69

1-16-69
1-22-69
1-30-69
1-9-70

3-26-70

4- 9-70
5- 7-70 
$-18-70

5-22-70

5-25-70

5- 4-70

6- 10-70

6-22-70

copies

Data Ordar < 
Judgment N*

Complaint filed.
Summons issued and delivered to U.S.Marshal with 2 att, 
of complaint for service on defendants.
Order Entered: Defendant, Aero Lodge No. 735 allowed ten days,
to and including January 30, 1969 to file answer or motion(Att. 
copy to attorneys for the plaintiff, and to Carrol Kilgore,Atty. 
for said defendant).
Filed: Answer of Defendant, Avco Corporation, c/s attached.
Marshal's Return: Summons executed in full. MEF $7.92.
Filed: Answer of Defendant, Aero Lodge,No.735, c/s attached.
Filed: Deft. Avco Corporation's Motion for Summary Judgment; 
Affidavit of Don A. Banta in support of Motion; attached.
Memorandum in Support of Motion; certificate^ ot serv

En««d: MEMORANDUM of t he Court - potion,* *
" L t ” c” o„“ fo° u t t T o l  adequate iepreseetatlon. Attested cop, 
to attorneys of record.

Filed: Motion for a New Trial and/or For Relief from Operation
of Memorandum, Judgment or Order, c/s, Exhibit A.Filed' OEO's Motion to file Brief Amicus Curiae & Present OralArguni 
Filed'" Brief of Deft., Avco Corp-Aero Space Structures Div -.J;n 
Opposition to Motion of Equal Employment Opportunity Commission for 
lv. to file brief Amicus Curiae.
Memorandum in Support of Plaintiff's Motion for a New Trial and/or 
for Relief from Operation of Memorandum Judgment or Order, wit 
certificate of service attached, - filed.
Filed- Supplemental Brief of Deft.Avco in opposition to Motion of 
E.E.O.Com. for Lv. to File Brief Amicus Curiae, c/s attached.
Filed: Memorandum of defendant, Avco Corp., in opposition to
plaintiff's motion for a new trial, etc.
Order Entered: Plaintiff's Motion for New Trial and/or 
from Operation of Memorandum,Judgment or Order
of 0E0 to file brief amicus curiae and present oral arguments 
Denied. Attested copy to attorneys of record.
Filed: Plaintiff’s Notice of Appeal from orders entered March 26
and June 10, 1970; Cost Bond, c/s.

lent ,c,

i t