Philip Morris Incorporated v. Lewis Consolidated Reply Brief

    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.