Dewey v. Reynolds Metals Company Brief Amicus Curiae in Support of Plaintiff-Appellee's Petition for Rehearing

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 
NO. 19746

ROBERT KENNETH DEWEY,

REYNOLDS METALS COMPANY,
Defendant-Appellant.

BRIEF OF THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC. APPEAR­
ING AS AMICUS CURIAE IN SUPPORT 
OF PLAINTIFF-APPELLEE'S PETITION FOR REHEARING

Plaintiff-Appellee,
vs

CLARENCE W. OLMSTEAD, JR. 
53 Wall Street 
New York, N.Y. 10005

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN C. AMAKER

JOHNATHAN HARKAVY 2 Wall Street 
New York, N. Y.

WILLIAM L. ROBINSON
10 Columbus Circle 
New York, N. Y. 10019

Of Counsel



TABLE OF CONTENTS

Page

STATEMENT OF THE C A S E ..............................  2

STATEMENT OF THE F A C T S ............................  3

ARGUMENT

I. PLAINTIFF IS NOT BOUND BY THE DECISION 
OF THE ARBITRATOR WITH RESPECT TO HIS 
CLAIM THAT HIS DISCHARGE WAS IN VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 ..............

A. The Court's decision is contrary to the deci­
sions of the other Courts of Appeals which have considered the issue ........

B. The statutory framework for enforcing Title 
VII cliams and federal labor policy indicates 
that Plaintiff should not be bound by the arbitrator's decision ..............

1. The powers of enforcement of compliance with
Title VII are vested solely in the federal courts 9

2. The remedies available under Title VII are
different from the remedies available in the 
grievance-arbitration procedure ................  12

3. Requiring an employee to proceed with his con­
tractual remedies at the risk of waiving his 
Title VII remedies undermines federal labor 
policy which promotes settelment of disputes 
through the grievance-arbitration procedures. . . 12



TABLE OF CONTENTS (CONT'D)

Page

The arbitrator's decision was based solely
on the collective bargaining agreement..........  15

II. THE DISTRICT COURT'S HOLDING THAT DEWEY 
WAS DISCHARGED IN VIOLATION OF TITLE VII SHOULD BE A F F I R M E D ..................  15

III. CONCLUSION 17



TABLE OF CASES

Bowe v. Colgate-Palmolive Company, 416 F.2d

Hutchings v. United States Industries, Inc., 
F.2d ___(5th Cir., 1970) 63 L.C.

Page

Jenkins v. United Gas Corporation, 400 F.2d28, 32 (5th Cir., 1968)..................... 11

Local 53 of the International Association of Heat 
and Frost Insulators and Asbestos Workers 
v. Vogler, 407 F.2d 1047, 1052 (5th Cir.,1969)........................................  12

Newman v. Piggie Park Enterprises, 390 U.S. 400(1968)......................................  11

Republic Steel Corporation v. Maddox, 379 U.S.650, 652, 85 S. Ct. 614, 616 (1965)..........  13

Udall v. Taliman, 380 U.S. 1, 16 (1965)...........  16

United Steelworkers of America v. Warrior & Gulf 
Navigation Company, 363 U.S. 574, 578, 80 
S.Ct. 1347, 1350-51 (1960)..................  13



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 
NO. 19746

ROBERT KENNETH DEWEY,
Plaintiff-Appellee,
- vs -

REYNOLDS METALS COMPANY,
Defendant-Appellant.

BRIEF OF THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC. APPEAR­
ING AS AMICUS CURIAE IN SUPPORT 
OF PLAINTIFF-APPELLEE 1S PETITION FOR REHEARING

The NAACP Legal Defense and Educational Fund,
Inc., appearing as amicus curiae respectfully asserts 
that this Court should reconsider its opinion and order 
entered on June 4, 1970 in which it was held (a) that 
with respect to his claim that his discharge by Defendant- 
Appellant, Reynolds Metals Company (the "Company")



violated Title VII of the Civil Rights Act of 1964, 42 
U.S.C. §2000e ("Title VII"), Plaintiff - Appellant, Robert 
Kenneth Dewey, is bound by the decision rendered by an 
arbitrator pursuant to the grievance-arbitration pro­
cedures of the collective bargaining agreement and (b) 
that Dewey's discharge did not violate Title VII; that 
Plaintiff - Appellee's petition for rehearing should be 
granted; and that upon rehearing the judgment of the 
District Court should be affirmed.

STATEMENT OF THE CASE
This is a petition for rehearing pursuant to Rule 

40, Federal Rules of Appellate Procedure.

Plaintiff - Appellee, Robert Kenneth Dewey insti­
tuted this action pursuant to Title VII of the Civil Rights 
Act of 1964, 42 U.S.C. §2000e against Defendant - Appellant, 
Reynolds Metals Company. Dewey alleges that he was unlaw­
fully discharged from his employment by the Company be­
cause of his religious beliefs, which beliefs caused him 
to refuse to work on Sunday or to request other employees 
to replace him whenever he was scheduled to work on Sunday. 
Dewey seeks reinstatement and back pay. The District Court

2



after certain facts had been stipulated by the parties 
and the case had been tried by the court without a jury, 
ruled in favor of Dewey, ordered the Company to rein­
state him with back pay, and enjoined the Company from 
requiring him to work on Sunday, 304 F. Supp. 1116 (W.D. 
Mich., 1969). The Company appealed and this Court, in 
an opinion and order entered June 4, 1979, F.2d
-----(6th Cir. 1970), 63 L.C. f9455, reversed and re­
manded with instructions to dismiss the complaint.

STATEMENT OF THE FACTS
Dewey commenced working for the Company at its 

plant in Wyoming, Michigan on June 14, 1951. He held
positions until he became a die repairman which 

is the position he held until his discharge on September 
12, 1966. Dewey was a member of Local 277, United Auto­
mobile Aerospace and Agricultural Workers of America, 
AFL-CIO (UAW) the union which represents the production 
and maintenance employees at the Company's plant.

Prior to 1960, overtime work at the plant was 
performed on a voluntary basis. Commencing in 1960 the 
collective bargaining agreements between the Union and 
the Company included a section which provided that the

3



Company had the right to set overtime schedules and that 
an employee was obligated to work pursuant to such a 
schedule unless he had a substantial and justifiable 
reason for not doing so. In 1965, in response to a Union 
objection to the compulsory overtime clause, the Company 
issued an interpretation of the agreement to the effect 
that any employee assigned to overtime work could be re­
lieved from that assignment by arranging for another 
employee to replace him.

Since December of 1961, Dewey has been a member 
of the Faith Reformed Church, affiliated with the Reformed 
Church of America. As a part of his religion, Dewey be­
lieves that he should not work on Sunday, and that he 
should not induce anyone else to work on Sunday. it is 
undisputed that Dewey's beliefs are sincerely held.

Dewey was scheduled to work overtime on Sunday, 
November 21, 1965. He refused to work because of his 
religious beliefs and was given a verbal warning that a 
repetition of such conduct would lead to disciplinary 
action under Plant Rule 11 which prohibits "absence from 
work without reasonable cause" and provides a three-offense 
progression of punishment with discharge as the punishment 
for the third offense.

4



On the next five Sundays on which Dewey was re­
quired to work, between January and August 1966, he ob­
tained replacements. However, on Sunday, August 28, 1966 
when again required to work, Dewey because of his religious 
beliefs, refused to work and because of his religious be­
liefs, also refused to find a replacement. Dewey told the 
fellow employee who had been serving as his replacement 
that he would no longer ask said employer to replace him.
On the next Sunday that he was scheduled to work, September 
4, 1966, Dewey again refused to work or to obtain a re­
placement. He recieved a written warning and disciplinary 
layoff of three days. On Sunday, September 11, 1966,
Dewey again refused to work or to obtain a replacement and 
was discharged for violation of Plant Rule 11.

Upon his discharge, Dewey filed a grievance pur­
suant to the provisions of the collective bargaining agree­
ment. His grievance was denied at every step of the 
grievance procedure, including arbitration. At the arbitra­
tion hearing Dewey was represented by the Union in the 
persons of the International Representative and the chair­
man of the bargaining committee. He was not represented by 
an attorney although the Company was. A post-hearing brief 
was filed by the Company, but no brief was filed by the 
Union.

5



rendering his award denying Dewey's grievance, the 
arbitrator merely found that the discharge did not violate 
the collective bargaining agreement. Neither the Civil 
Rights Act nor the Constitution of the United States was 
before the arbitrator for interpretation.

Contemporaneously with the submission of the 
grievance pursuant to the provisions of the collective 
bargaining agreement, Dewey applied to the Michigan Civil 
Rights Commission for issuance of a complaint against the 
Company. The application was denied because the Com­
mission found insufficient grounds to issue a complaint.

Subsequently, Dewey filed a charge with the Equal 
Employment Opportunity Commission (the "EEOC") which issued 
a letter to the Company stating that the Commission had 
determined that there was reasonable cause to believe that 
the Company had engaged in employment practices which were 
in violation of Title VII. Upon failure of conciliation 
efforts, this action was commenced.

ARGUMENT
I. PLAINTIFF IS NOT BOUND BY THE DECISION OF

THE ARBITRATOR WITH RESPECT TO HIS CLAIM 
THAT HIS DISCHARGE WAS IN VIOLATION OF 
TITLE VII OF THE CIVIL RIGHTS ACT OF 1964
It is respectfully submitted that this Court should 

reconsider its decision that a grievance which is "finally

6



determined by an arbitrator may not thereafter be the 
basis for an action brought under Title VII.

A • The Court's decision is contrary to thedecisions of the other Courts of Annpal. 
which have considered the issue
The court's decision is contrary to the decisions 

of the other two Courts of Appeals which have considered 
this issue. See Hutchings v. United States Industries.
IBS.- ____F.2d (5th Cir., 1970) 63 L.C. f9465; Bowe v.
Colgate-Palmolive Company. 416 F.2d 711 (7th Cir., 1969).

In Hutchings v. United States Industries, Inc., 
.supra, plaintiff had twice pursued through the grievance 
procedure under a collective bargaining agreement a claim 
that his employer had discriminated against him in viola­
tion of Title VII by refusing him promotion to a certain 
position because of his race. The first grievance was 
prosecuted through the "third step" of the grievance pro­
cedure at which step the grievance was decided adversely 
to plaintiff and the matter was not submitted to arbitra­
tion. The second grievance was prosecuted through all 
three steps of the grievance procedure and was then sub- 
mitted to arbitration. The arbitrator concluded that 
the employer had not violated the collective bargaining 
agreement and denied the grievance claim. Plaintiff sub-

7



sequontly filed a charge with the EEOC which concluded 
that reasonable cause existed to believe that the employer 
had violated Title VII. Upon failure of conciliation 
efforts, plaintiff commenced an action in the District 
Court. The District Court held that plaintiff had made 
an election of remedies by processing his claim to finality 
through the grievance procedure and granted summary judg­
ment for defendant. The Court of Appeals reversed, hold­
ing that the invocation of his contractual grievance 
remedies did not bar plaintiff from seeking a remedy under 
Title VII in the federal courts. Hutchings v. United States 
Industries. Inc., supra at 6869.

In Bowe v. Colgate-Palmolive Company, supra plain— 
tiffs, female employees of the defendant, commenced an 
action under Title VII alleging that a system of job class­
ification, which deprived them of various opportunities in 
the plant and subjected them to discriminatory layoffs 
because of their sex, was in violation of Title VII. The 
District Court required plaintiffs to elect whether they 
would proceed with the action or whether they would seek 
a remedy through arbitration pursuant to the collective 
bargaining agreement. The Court of Appeals held that it 
was error to require such an election:

8



"[w]c hold that it was error not to 
permit plaintiffs to utilize dual or 
paralled prosecution both in court and 
through arbitration so long as election 
of remedy was made after adjudication so 
as to preclude duplicate relief which would 
result in unjust enrichment or windfall to 
the plaintiffs." (Emphasis added) Bowe v. 
Colgate-Palmolive Company, supra at 715.

B • The statutory framework for enforcing Title
VT1 claims and federal labor policy indicates that Plaintiff should not be bound by the arbitrator's decision "
Title VII does not expressly indicate the role 

which the grievance - arbitration procedure of a collective 
bargaining agreement is to play in the resolution of em­
ployment disputes involving alleged violations of Title 
VII. However, an examination of the statutory framework 
for enforcement of Title VII claims viewed against the 
background of well established labor policy which promotes 
settlement of disputes through the grievance—arbitration 
procedure indicates that Congress did not intend that a 
Title VII plaintiff should be barred from pursuing his 
Title VII remedies by reason of his having pursued his 
claim to completion under the grievance-arbitration pro­
cedure of the collective bargaining agreement.

1• The powers of enforcement of compliance with Title VII are vested solely in the federal courts

9



An examination of the enforcement provisions of 
Title VII reveals that Congress vested in the federal 
courts the sole power to enforce compliance with Title 
VII. Before an individual can commence an action in a 
federal court under Title VII, he must first file a charge 
with the EEOC. If the EEOC determines after investi­
gation that there exists reasonable cause to believe that 
the charge is true, the EEOC must endeavor to eliminate 
the alleged unlawful employment practice by informal methods 
of conference, conciliation, and persuasion. The EEOC has 
no power to compel compliance with the provisions of Title 
VII, however.

If the conciliation efforts of the EEOC are un­
availing, the individual may seek relief in the federal 
courts. In this event the individual's claim assumes an 
importance which extends beyond his individual situation. 
Because the EEOC has no power to compel compliance with 
Title VII and because the government does not become 
involved in Title VII litigation except in cases where 
the attorney general determines that a case is of "general 
public importance" or that an employer or group of em­
ployers is engaged in a "pattern or practice" which violates 
Title VII, the individual who brings an action under Title 
VII acts as a private attorney general who "takes on the

10



mantel of the sovereign." Jenkins v. United Gas Corp­
oration , 400 F.2d 28, 32 (5th Cir., 1968); Bowe v. Colgate- 
Palmolive Company, supra at 715; Hutchings v. United States 
Industries, Inc., supra at 6870; cf. Newman v. Pigqie Park 
Enterprises. 390 U.S. 400 (1968). In such a case the 
responsibility of the trial court extends beyond the 
immediate plaintiff:

"when, as frequently happens, the alleged 
discrimination has been practiced on the 
plaintiff because he or she is a member 
of a class which is allegedly discriminated 
against, the trial court bears a special 
responsibility in the public interest to 
resolve the dispute by determining the 
facts regardless of the position of the 
individual plaintiff." Bowe v. Colgate- Palmolive Company, supra at 715.

If resort to the federal courts by an individual
with a Title VII claim is to be foreclosed because the
individual has first processed his claim through the
grievance procedure, the value of the individual action
and the role of the federal courts in enforcing compliance

_ /with Title VII will be substantially undermined.

/ Moreover, many aggrieved parties will be unwillingto utilize the grievance-arbitration procedures 
with the result of undermining that mechanism as 
well, see part I,B.(3) of this brief

11



2. The remedies available under Title VII are 
different from the remedies available in 
the grievance-arbitration procedure
Because of the special responsibility which the 

trial court bears in cases arising under Title VII, it 
is invested by Section 706(g) of the Act, 42 U.S.C.
§2000e 5-(g), with a broad range of discretion in form­
ulating a decree to compel compliance with the provisions 
of the Act. Local 53 of the International Association 
of Heat and Frost Insulators and Asbestos Workers v.
Vogler, 407 F.2d 1047, 1052 (5th Cir., 1969). The 
arbitrator, on the other hand, is limited by the collective 
bargaining agreement and thus not empowered to grant relief 
which is available under Title VII. Conversely, the 
arbitrator may be able to grant relief which would not 
be available in a Title VII action. Bowe v. Colgate- 
Palmolive Company, supra at 715.

3. Requiring an employee to proceed with his
contractual remedies at the risk of waiving 
his Title VII remedies undermines federal labor policy which promotes settlement of 
disputes through the grievance-arbitration procedures
As a general rule federal labor policy promotes 

settlement of labor disputes through the grievance- 
arbitration provisions of collective bargaining agree­
ments and therefore it is in accord with federal labor

12



policy for an aggrieved employee to first seek a resolu­
tion of his grievance through the grievance-arbitration 
procedures in the contract. See Republic Steel Corporation 
v. Maddox, 379 U.S. 65C, 652, 85 S. Ct. 614, 616 (1965); 
United Steelworkers of America v. Warrior & Gulf 
Navigation Company. 363 U.S. 574, 578, 80 S. Ct. 1347,
1350-51 (1960). If aggrieved employees may proceed with 
a claim under the grievance-arbitration procedure only 
at the risk of waiving their remedies under Title VII, the 
result will be to discourage the use of the grievance- 
arbitration procedures when Title VII claims are involved. 
Accordingly, the Court of Appeals for the Fifth Circuit 
has concluded:

"we do not think that Congress intended 
for a result which would require an employee, 
thoroughly familiar with the rules of the 
shop, to proceed solely with his Title VII remedies for fear that he will waive these 
remedies if he follows the rules of the shop 
or to do both simultaneously, thereby frustrat­
ing the grievance procedure." Culpepper v. 
Reynolds Metals Company, 421 F.2d 888, 891-892 
(5th Cir., 1970) quoted in Hutchings v. United States Industries, Inc., supra at 6873
In Title VII Congress has enacted a scheme which

vests in the federal courts the final responsibility for
vindicating claims arising from discriminatory employment
practices. That scheme must be accommodated as much as
possible with federal labor policy which encourages use

13



of the grievance-arbitration procedure and private settle­
ment of labor disputes. Such an accommodation, however, 
must preserve the final responsibility of the federal 
courts with respect to Title VII claims. This is well 
summarized by the court in Hutchings v. United States 
Industries, Inc., supra at 6873:

"Title VII outlaws certain forms of 
discrimination in employment. An important 
method for the fulfillment of congressional 
purpose is the utilization of private grievance 
procedures. This comports not only with the 
national labor policy favoring arbitration as the means for the final adjustment of labor 
disputes . . .  but also with the specific en­
forcement policy of Title VII that discrimi­
nation is better curtailed through voluntary 
compliance with the Act than through court 
orders. Congress, however, has made the 
federal judiciary, not the EEOC or the private 
arbitrator the final arbiter of an individual's Title VII grievance . . . The EEOC serves to
encourage and effect voluntary compliance 
with Title VII. So also may the private 
arbitrator serve consistent with the scope of his authority. Neither, however, has the 
power to make the ultimate determination of 
Title VII rights." (Emphasis in original.Citations omitted)
It may be true that the result of such an accom­

modation will be that the employer but not the employee 
will be bound by the decision of the arbitrator. This 
result is the inevitable consequence of a legislative 
scheme which promotes settlement of labor disputes through 
the grievance-arbitration procedure and provides for 
federal judicial enforcement of Title VII rights.

14



c. The arbitrator's decision was based solely 
on the collective bargaining agreement
The arbitrator was limited by the collective bar­

gaining agreement to interpret the agreement for the pur­
pose of settling grievances. Accordingly, he did not 
even purport to apply the provisions of Title VII to the 
dispute. The issues before the arbitrator were not the 
same as those presented in this action under Title VII. 
Dewey therefore, should not be bound in this action by 
the arbitrator's decision.

II. THE DISTRICT COURT'S HOLDING THAT DEWEY WAS
DISCHARGED IN VIOLATION OF TITLE VII SHOULD BE AFFIRMED
It is respectfully asserted that the decision 

of the District Court that the overtime procedures of 
the Company, as applied, violated Title VII should be 
affirmed.

EEOC Regulation 1605.1 which became effective 
on July 10, 1967 requires employers to make "reasonable 
accommodation to the religious needs of employees" and 
that the employer has the burden of proving that the 
required accommodation to an employee's religious beliefs 
will work an undue hardship on the employer. In the words 
of the District Court: "There is no evidence concerning

15



what the effects would be of an accommodation by defendant 
to the religious beliefs of plaintiff." 300 F. Supp. 709, 
711. Accordingly, the Company has not met its burden 
under Regulation 1605.1.

Great weight should be accorded to this regula­
tion. Udall v. Tallman, 380 U.S. 1, 16 (1965). The fact
that this regulation was not in effect at the time of 
Dewey1s discharge should not be controlling in this action. 
In fact the District Court's order took account of this 
fact by ordering back pay for Dewey only from August 1, 
1967. The fact that Dewey was no longer in Defendant's 
employ at the time is not pertinent since the arbitration 
procedure was continuing at the time. The situation was 
not one in which the employee could not be found by the 
employer or had lost interest in retaining his position.
No undue hardship is likely to result from requiring the 
Company to comply with the 1967 regulations with respect 
to Dewey. Moreover, under 1966 Regulation 1605.1 (b)(4) 
an employer who altered an employee's work schedule which 
had previously not conflicted with the employee's religious 
obligations was required to attempt to achieve an accommo­
dation so as to avoid a conflict unless such an accommo­
dation would result in "serious inconvenience to the

16



conduct of his business or disproportionate allocation 
of unfavorable work assignments to other employees." 
There is no evidence of such a result here.

HI. CONCLUSION
For the reasons stated above and based on the 

authorities cited herein, the NAACP Legal Defense and 
Educational Fund, Inc., as amicus curiae, respectfully 
requests that this Honorable Court grant Plaintiff- 
Appellees s petition for rehearing and upon rehearing 
affirm the decision of the District Court.

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN C. AMAKER 
WILLIAM L. ROBINSON

10 Columbus Circle 
New York, New York 10019

CLARENCE W. OLMSTEAD, JR. 
53 Wall Street 
New York, New York 10005

JOHNATHAN HARKAVY 
2 Wall Street 
New York, New York

Of Counsel

17



CERTIFICATE OF SERVICE

I hereby certify that on the /J-day of July,
1970 I served a copy of the foregoing Brief Amicus Curiae 
on the following persons: Donald F. Oosterhouse, Esq.,
Vander Veen, Freihofer & Cook, 950 Union Bank Building, 
Grand Rapids, Michigan 49502; William A. Coughlin, Jr., 
Esq., Cross, Wrock, Miller & Vieson, 4200 Penobscot 
Building, Detroit, Michigan; Fred R. Edney, Assistant 
General Counsel, City Hall, Richmond, Virginia; and Equal 
Employment Opportunity Commission, 1800 G Street, N.W. 
Washington, D.C. by depositing a copy of same in the 
United States mail, air mail, postage prepaid.

Attorney for Amicus Curiae