Philip Morris Incorporated v. Lewis Consolidated Reply Brief
Public Court Documents
February 7, 1977

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Brief Collection, LDF Court Filings. Philip Morris Incorporated v. Lewis Consolidated Reply Brief, 1977. e271a7c0-be9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ba06790b-9476-48ea-9223-13a0703b9289/philip-morris-incorporated-v-lewis-consolidated-reply-brief. Accessed July 13, 2025.
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Pnitefr States Court of JVpprals FOR THE FOURTH CIRCUIT RECORD NOS. 76-1998 76-1999 PHILIP MORRIS INCORPORATED, et al., Appellants v. NORA LEWIS, et al., Appellees CONSOLIDATED REPLY BRIEF OF TOBACCO WORKERS INTERNATIONAL UNION AND LOCAL UNION NO. 203, TOBACCO WORKERS INTERNATIONAL UNION Jay J. Livit STALLARD & LEVIT 2120 Central National Bank Building Richmond, Virginia 23219 Counsel For Appellants Tobacco Workers International James F. Carroll Union 1120 Connecticut Ave., N.W. Suite 940 Washington, D.C. 20036 FRED R. SU R FA C E & ASSOC. INC., H ER ITA G E BU ILD IN G , RICHMOND, VA. (804) 643-7789 'i. > ~ - 7 C A S E S Page Associated Builders v. NLRB, 91 LRRM 2559 (CA 4, 1976)........................ .. . .4 Roman, et al. v. ESB Inc,, 4th Circuit, decided 12/23/76 Docket No. 73-2423 ..................................... 4 f ' T ' T ^ .1 VffVpP UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT NOS. 76-1998 — 76-1999 NORA LEWIS, et al. Appellees, v . PHILIP MORRIS INCORPORATED, et al. Appellants. CONSOLIDATED REPLY BRIEF OF TOBACCO WORKERS INTERNATIONAL UNION AND LOCAL UNION NO. 203, TOBACCO WORKER S INTERNATIONAL UNION In their brief, plaintiffs make the following arguments in support of their contention for Union liability: 1. International Union liability is predicated upon the argument that the International participated in collective bar gaining agreement negotiations, approved collective bargaining agreements reached, and approved the by-laws of defendant Local Union No. 203, (Pltf.’s Br., 112). - This specious argument simply ignores the fact that the District Court found no evidence of Union arbitrary action or bad faith conduct toward class mem bers in the collective bargaining process with the Company (Jt. App., 136); also ignored is the District Court's finding that there is no evidence of Union arbitrary action or bad faith con duct toward class members in the handling of class members’ griev ances (Jt. App., 136); further ignored, is the District Court’s finding that collective bargaining contract seniority, transfer, and promotional provisions need not be changed (Jt. App„, 135); and finally, plaintiffs ignore the District Court’s finding that there has been no breach of the Union statutory duty of fair representation (Jt. App„, 136). Although it is our position as stated in our opening briefing that the International has never been a collective bargaining agent or party to any of the collec tive bargaining agreements involved, assuming arguendo tint it was, nevertheless, no International Union liability and, indeed, no Local Union liability can be sustained in view of the District Court's foregoing findings which have not been cross-appealed by the plaintiffs. 2. In the same vein, plaintiffs speciously argue (Pltf.’s Br., p. 39) that the "local union has failed to seek redress of black employee g r i e v a n c e s T h i s argument must be rejected out of hand by this Court because it is diametrically in conflict with the District Court's finding that there is no evidence of Union arbitrary action or bad faith conduct toward class members in the handling of class members' grievances (Jt. App., 136). There has been no cross-appeal by plaintiffs of this finding by the District Court. 3. In their brief (pages 38-40), plaintiffs argue that the Local Union failed to equalize wage rates of job classifications in the Stemmery with those in permanent employment. - Again, this ar gument should be rejected out of hand by this Court as a basis for Union liability, because it is diametrically opposed and in con flict to the findings of the District Court stated hereinabove, and these findings of the District Court have not been cross-appealed by the plaintiffs. Indeed, the uncontroverted testimony of Union witness Mergler was that the Local Union had to protect the jobs of the less skilled seasonal workers (adjudged by the District Court to be "poor workers") because of customer complaints to the Company and the legitimate Union fear (as well as that of its black membership) that the resulting drop in productivity could mean the loss of jobs (Jt. App., 879-882; 886-887). 4. Plaintiffs argue that the District Court found the contractual transfer system to be discriminatory. - This is not true. In reality, the District Court found liability upon what it called its "theory" that class members who did not bid or apply for jobs may have done so because of their belief that their race so precluded them (Jt. App., 136). Thus, the District Court, as plaintiffs concede (Pltf.'s Br., p. 105) found that the existing transfer provisions need not be changed. This find ing of the District Court has not been cross-appealed by the plaintiffs, and plaintiffs' argument (Pltf.’s Br., p. 106) that the "transfer restriction is a clear violation of Title VII"... "'blatantly discriminatory on its face," should accordingly be rejected out of hand by this Court. What the District Court did ii this case, in reality, was to promulgate a novel theory of "discrimination", which assumed (notwithstanding abundant evidence to the contrary) that black seasonal employees, apparently only because they were black, were ignorant of the existing non-discriminatory employment policies. There is no basis for this in Title VII. Plaintiffs fail to squarely face this issue, although they reluctantly acknowledge the District Court's theory that the Unions "did nothing to 'mollify' class members present (theoretical) understanding" which all par ties agree would have to be a misunderstanding. Even the plain tiffs themselves refer to the District Court's ruling on liability as a "theory" (Pltf.’s Br., p. 110). - 4 It is clear that the District Court's theory of liability goes to the on-the-spot, day-to-day operations of the employer which no one contends would involve the International Union. Thus, for example, plaintiffs claim (Pltf.'s Br., p. 39) that the Local Union allegedly failed to properly handle employee grievances (notwithstanding the District Court's non-appealed finding to the contrary). And the District Court found (and this finding has not been appealed by plaintiffs) that it is the Company's "initial assignment policies that taint the system" (Jt. App„, 135). This finding along with the District Court's theory of class member misunderstanding, clearly establish that "the relationship between the International Union and the locals was not such that the con duct of the locals should be attributed to the International short of knowledge, authorization or ratification." Associated Biilders v. NLRB, 91 LRRM 2559 (CA 4, 1976). Finally, plaintiffs rely upon isolated bits and pieces of statistics, notwithstanding the District Court's non-appealed finding of no breach of the Union duty of fair representation. In Roman et al. v. ESB Inc., (4th Cir. decided 12/23/76, Docket No. 73-2423), a Title VII case involving alleged racial discrimination, the prevailing opinion pointed out the impropriety of attempting to construct a prima facie case from isolated sta tistics saying: "But we do not believe that isolated bits of statistical information necessarily make a prima facie case when divorced from other and contrary statistics and from the statistical picture of all the employment at the plant. We also think the absence of other evidence of discrimination should be considered in deter mining whether a prima facie case is made, just as the presence 5 - of other evidence of discrimination should be considered in arriving at the same conclusion. "In this respect, it is worthy to note that the establish ment of a prima facie case does not require a finding in favor of the party establishing it; but only permits that finding. (Slip opinion p. 20). "If we consider that the statistical evidence called to our attention by the plaintiffs makes a prima facie case, we are of opinion that the whole statistical evidence does not, or, to put• it another way, if the plaintiffs' prima facie statistical case has been made, it has been rebutted by other statistical evidence as well as the absence of other evidence of discrimination." (Slip opinion p. 22). The teaching of Roman applied to the statistics in the case at bar compels, we submit, the conclusion that the plaintiffs have failed to make out a prima facie case or, if they have, it has been rebutted. For the foregoing reasons and for the reasons stated in the Unions' opening briefs, the decision below should be reversed with instructions to the District Court to enter final judgment in favor of the defendants with costs. CONCLUSION Respectfully submitted, TOBACCO WORKERS INTERNATIONAL UNION, and LOCAL UNION NO. 203, TOBACCO Jay J. Levit STALLARD & LEVIT 2120 Cen. Natl. Bank Bldg. Richmond, VA 23219 James F. Carroll 1120 Connecticut Ave., N.W. Suite 940 Washington, D.C. 20036 Counsel for Tobacco Workers International Union and Local Union No. 203, Tobacco Workers International Union I hereby certify that on February 7, 1977, I mailed two copy of the foregoing reply brief to Henry L. Marsh III, Esq. 214 East Clay Street, Richmond, Virginia 23261, counsel for appellees; and to Lewis T. Booker, Esq., Ilunton & Williams, P 0. Box 1535, Richmond, Virginia 23212, counsel for appellant CERTIFICATE Philip Morris, Inc.