Alexander v. Aero Lodge No. 735, Petition for a Writ of Certiorari

    IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1977 
NO. 77 -

RAMSEY ALEXANDER, et al.,

Petitioners,

v .

AERO LODGE NO. 735, INTERNATIONAL ASSOCIA­
TION OF MACHINISTS AND AERO SPACE WORKERS, 
AFL-CIO, and AVCO CORPORATION, AEROSPACE 
STRUCTURES DIVISION.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

JACK GREENBERG 
0. PETER SHERWOOD 
ERIC SCHNAPPER

10 Columbus Circle, Suite 2030 
New York, New York 10019

AVON N. WILLIAMS, JR.
1414 Parkway Towers
404 James Robertson Highway
Nashville, Tennessee 37219

RUSSELL C.B. ENNIX, JR.
Morris Memorial Building 
330 Charlotte Avenue 
Nashville, Tennessee 37201

Attorneys for Petitioners

ALBERT J. ROSENTHAL 
Of Counsel

1



TABLE OF CONTENTS

PAGE

Opinions Below .........................  1

Jurisdiction............................  2

Questions Presented.....................  3

Statutory Provisions Involved............  3

Statement of the Case...................  5

Reasons for Granting the Writ ..........  11

Conclusion .............................  17

-  l  -



Table of Authorities

Cases
PAGE

Franks v. Bowman Transportation Co.
424 U.S. 747 (1976)................  13, 14,15

Furnco Construction Corp. v. Waters,
_____ U.S. _____, No. 77-369 ......  17

International Brotherhood of Teamsters 
v. United States, 431 U.S. 424 
(1976).............................  14,16

Hazelwood School District v. United
States, 433 U.S. 299 (1977) ....... 16

United Airlines, Inc. v. Evans,
431 U.S. 553 ( 1977) ...............  14

Village of Arlington Heights v.
Metropolitan Housing Development
Corp. , 429 U.S. 252 ( 1977) ........ 17

Waters v. Wisconsin Steel Works, 502 
F.2d 1309 (7th Cir. 1974), 
cert, denied 425 U.S. 997 (1976).... 15

Statutes

Civil Rights Act of 1866
42 U.S.C. §1981 .....................  3,5

Title VII, Civil Rights Act of 1964
42 U.S.C. §§2000e et seq............. Passim

Federal Rules of Civil Procedure
Rule 52 ...........................  16

-  l i  -



PAGE

Other Authorities

Bureau of National Affairs, Basic 
Patterns in Union Contracts 
(8th ed. 1-975) ...................  12

- iii -



IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1977 
NO. 77 -

RAMSEY ALEXANDER, et al.,

Petitioners,

v .

AERO LODGE NO. 735, INTERNATIONAL ASSOCIA­
TION OF MACHINISTS AND AERO SPACE WORKERS, 
AFL-CIO, and AVCO CORPORATION, AEROSPACE 

STRUCTURES DIVISION

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

The petitioners respectfully pray that a 
writ of certiorari issue to review the judgment 
and opinion of the United States Court of Appeals 
for the Sixth Circuit entered in this proceeding 
on November 1, 1977.

Opinions Below
The decision of the United States Court of 

Appeals for the Sixth Circuit, reported at 565 
F .2d 1364, is reprinted infra at p. 78a. The
order of the court denying the petition for



2

rehearing eri banc of the petitioner herein has 
not been reported, but is reprinted at p. 120a. 
The memorandum opinion of December 18, 1973, of 
the United States District Court for the Middle 
District of Tennessee is reported at 7 E.P.D. 
\'9117 and reprinted at p. la. The implement­
ing order of August 20, 1974, of the district 
court is reported at 380 F.Supp. 1282 and re­
printed at p. 67a. The further order of Febru­
ary 11, 1975, of the district court, amending 
its previous order, is reported as Addendum to 
the opinion of the United States Court of Appeals 
for the Sixth Circuit, at 565 F.2d 1385-88, and 
is reprinted at p. 113a.— ^

Jurisdiction
The judgment and opinion of the Court of 

Appeals was entered on November 1, 1977. The 
petitioners' petition for rehearing and rehear­
ing en banc was denied on January 24, 1978.
Jurisdiction of this Court is invoked pursuant 
to 28 U.S.C. §1254(1).

1/ Orders of June 3 and June 20, 1975 of the 
district court, relating to back pay and attor­
neys' fees, are not involved in the petition for 
certiorari and are therefore not reprinted.



3

Question Presented
Did the court of appeals err in holding that

Title VII of the 1964 Civil Rights Act and 42
U.S.C. §1981 permits an employer to provide a
special training program for an all-white group of
employees, which enables them to bump black
employees from their jobs, even though that
program was adopted for the purpose, and had the
effect, of discriminating on the basis of race?

Statutory Provisions Involved
Section 703 of the Civil Rights Act of 1964,

78 Stat. 241, 255-57, 42 U.S.C. §2000e-2 (1970),
,  2 /read m  pertinent part as folLows: —

SEC. 703. (a) It shall be an unlawful
employment practice for an employer

(1) to fail or refuse to hire or 
to discharge any individual with res­
pect to his compensation, terms, con­
ditions, or privileges of employment, 
because of such individual's race, 
color, religion, sex, or national 
origin; or

(2) to limit, segregate, or clas­
sify his employees in any way which 
would deprive or tend to deprive any

2/ Minor amendments to §§703(a)(2) and (c)(2) 
made by §8 of the Equal Employment Opportunity 
Act of 1972, P.L.92-261, would have had no bear­
ing on any of the issues in this case.



4

individual of employment opportunities 
or otherwise adversely affect his 
status as an employee, because of such 
individual's race, color, religion, 
sex, or national origin.

*  *  *

(c) It shall be an unlaw­
ful employment practice for a labor organi­
zation —

(1) to exclude or to expel from 
its membership, or otherwise to dis­
criminate against, any individual 
because of his race, color, religion 
sex, or national origin;

(2) to limit, segregate, or clas­
sify its membership, or to classify or 
fail or refuse to refer for employment 
any individual, in any way which would 
deprive or tend to deprive any indivi­
dual of employment opportunities, or 
would limit such employment opportuni­
ties or otherwise adversely affect his 
status as an employee or as an appli­
cant for employment, because of such 
individual's race, color, religion, 
sex, or national origin; or

(3) to cause or attempt to cause 
an employer to discriminate against 
an individual in violation of this 
sect ion.

(d) It shall be an unlaw­
ful employment practice for an employer, 
labor organization, or joint labor-management 
committee controlling apprenticeship or 
other training or retraining, including on- 
the-job training programs to discriminate



5

against any individual because of his race, 
color, religion, sex, or national origin in 
admission to, or employment in, any program 
established to provide apprenticeship or 
other training.

*  *  *

(h) Notwithstanding any
other provision of this title, it shall not 
be an unlawful employment practice for an 
employer to apply different standards of 
compensation, or different terms, conditions, 
or privileges of employment pursuant to a 
bona fide seniority ... system, ... provid­
ed that such differences are not the result 
of an intention to discriminate because of 
race, color, religion, sex, or national 
origin ...

*  *  *

Statement of the Case
In 1966 and 1968, respectively, petitioners 

Ramsey Alexander and Robert F . Newman brought 
actions under Title VII of the Civil Rights Act 
of 1964, 42 U.S.C.§§2000e et seq., and section
1 of the Civil Rights Act of 1866, 42 U.S.C. 
§1981, against both respondents on behalf of 
a class of black employees and applicants for 
employment, alleging a wide range of racially 
discriminatory practices. Following a consoli­
dated trial between June and August of 1972, 
the district court found that both respondents



6

had discriminated against black employees in a 
number of respects, both before and after July 2, 
1965, the effective date of Title VII.

This petition for certiorari seeks review 
only of the reversal by the court of appeals of 
the district court's finding of unlawful dis­
crimination with respect to the Globe-Wernicke 
incident, described below, in 1971-72. The long 
and dismal tale of the other discriminatory 
practices of the respondents will be mentioned 
only to the extent that portions may be relevant 
to that incident.

Collective bargaining contracts between the 
respondent company and union dictate the prior­
ities among employees with respect to promotions, 
layoffs and recalls. These contracts "gave an 
absolute preference to employees with prior, 
satisfactory service in the particular occupa­
tion" ( 565 F . 2d at 1376, 95a), a preference
referred to by the parties and the courts below

3/ • •as "job equity." —  Because of past favoritism
for whites in awarding the better jobs, this
system disproportionately excluded blacks from
opportunities to be transferred into such jobs,

3/ Among those with job equity, length of 
service with the company was decisive.



7

even though they were in fact capable of doing 
work. The disadvantage to blacks was compounded 
by preferential treatment accorded whites in 
being given training and experience on the more 
attractive jobs. Thus the rules governing prior­
ity among employees with respect to promotions, 
lay-offs and recalls almost always worked strongly 
to the disadvantage of black employees.

In 1971, however, a situation developed 
in which the opposite was about to occur. The 
Globe-Wernicke Division of the company, which 
manufactured furniture, was to be phased out 
in late 1971, and its employees terminated. 73 of 
these employees had seniority dating from 1950 to 
1960. All 73 were white. Meanwhile,, in the 
aircraft operations of the same employer there 
was an occupation known as "assembler-bench 
and jig." The number of employees assigned to 
this occupation fluctuated widely with the com­
mencement and completion of successive contracts. 
Most of the blacks employed by Avco were in this 
occupation, and most had fairly short seniority. 
But none of the Globe-Wernicke employees had ever 
worked as assemblers-bench and jig, and they 
therefore had no right to bump more junior em­
ployees in that occupation. Thus the job equity



-  8 -

rules which in the past had so successfully worked 
to the detriment of frustrated black employees 
were about to afford them a small measure of 
protection.

To prevent this from occurring the respon­
dent employer, under pressure from the respon­
dent union, initiated a special program to train 
these 73 senior Globe-Wernicke Division employees 
in the assembler-bench and jig skills and then 
hired them into that occupation. Nothing similar 
had ever been done by the respondents when it 
would have benefited black employees. The res­
pondents knew that because of periodic wide 
fluctuations in employment in airplane manufac­
turing, there would soon be layoffs among assem­
bler-bench and jig workers. They also knew that 
many blacks in that occupation had short seniority, 
and that they would bear the brunt of the expected 
layoffs if they were deprived of the absolute 
priority they had had over the Glove-Wernicke 
employees by virtue of the latter not having 
worked in the occupation. Within a few months 
precisely that occurred; because of the new rights 
conferred on the 73 whites from Globe-Wernicke, at



9

least 52 blacks, almost a third of the black bench4/and jig employees were laid off.—  Of the 73 Globe— 
Wernicke workers who benefited from the special 
training program, 100% were white; of the 73 
bench and jig employees who were displaced and 
lost their jobs as result of that program, 80% 
were black. Thus adopting the special program 
was tantamount to a decision to fire a group 
of black employees and replace them with a group 
of whites.

The district court, relying on this evid­
ence, its finding that respondents knew the 
program would result in the displacement of 
blacks by w h i t e s a n d  the company's long history

4/ These figures are derived from the district 
court's findings, 7 E.P.D. at p.6688, 34a. 
Slightly different numbers were set forth in the 
court of appeals opinion, 565 F.2d at 1381, 
n.10, 103a, n.10, but the grossly disparate racial 
impact of the incident was not questioned.

5/ 7 E.P.D. at pp.6687-88. 34a. This finding 
was upheld by the court of appeals, 565 F.2d at 
1380, 103a. One finding of fact not directly 
relevant was not upheld; the district court had 
found that the rehiring of the Globe-Wernieke 
employees into assembler-bench and jig occupation 
violated the collective bargaining contract, while 
the court of appeals held that the procedure was 
neither compelled nor forbidden by the contract. 
(565 F.2d at 1380; 103a.)



10

history of discrimination held, that the deci­
sion to provide special training to the 73 whites 
was intentional discrimination. 7 E.P.D. at 
p.6688, 35a. The majority of the court of appeals, 
while not questioning the district court's finding 
of intent, held that the special training program 
was immune from attack under Title VII because the 
white beneficiaries were senior employees of the 
company. Judge Edwards dissented on this issue and
voted to affirm on the ground that that finding of

6/discriminatory intent was not clearly erroneous.—

6/ No matter how desirable a general
policy of training laid-off employees 
for future job opportunities in their 
former employer's plant might be, if, 
as the District Judge appears to have 
held here, it is done for the first 
time in the history of the company in 
a situation where the company's past 
employment policy was clearly discri­
minatory to black employees and the 
company knows that the new program 
will have the result of eliminating 52 
out of the total 286 black employees in 
the plant, in ray view the Judge was not 
clearly erroneous in finding the prac­
tice to be discriminatory. 565 F.2d at 
1388, 119a.



11

REASONS FOR GRANTING THE WRIT 
The decision of the court of appeals pre­

sents a serious threat to the full implementa­
tion of Title VII of the 1964 Civil Rights Act. 
Although the district court found that the res­
pondents had engaged in intentional discrimina­
tion, and the record showed that the disputed 
training program had a striking disparate racial 
impact, the Sixth Circuit thought neither fact 
relevant. It explained:

Rather, we conceive the real issue to be 
whether Avco had a duty to refrain from 
retraining and hiring recently laid off and 
more senior employees in order to protect 
the interests of newer employees, who en­
joyed less seniority but were more racially 
balanced in their composition. We are loath 
to hold that the practice of a company and 
a union of retraining its older employees 
so that they could enjoy the benefit of 
continued employment is discriminatory in 
nature merely because its implementation 
tends to adversely affect the racial com­
position. 565 F.2d at 1381, p. 103a.

Although the court of appeals was aware that 
racial motive was the basis of the district court 
decision,—  ̂ it declined to discuss that issue,

7/ The court noted "Defendants strenously urge 
that the district court misconstrued their intent 
in retraining and rehiring the laid off Globe- 
Wernicke employees...." 565 F.2d at 1380, p. 102a.



12

apparently concluding that racial discrimination
was not actionable under Title VII if the white

8/beneficiaries had, in any sense,—  more seniority 
than the black victims.

This decision is not merely wrong, but 
dangerous. Approximately two-thirds of all 
collective bargaining agreements allow more senior 
employees to bump less senior workers i_f the more 
senior employees are in fact qualified to do the

9 /job held by the less senior worker.—  Because 
of a pervasive history of racial discrimination, 
in many industries the most senior employees are 
overwhelmingly white. Although these collective 
bargaining agreements generally work to the ad­
vantage of whites, the qualification requirement 
provides some degree of job security for blacks 
in a period of layoffs. Under the Sixth cir 
cuit's decision, however, an employer facing

8/ Of course prior to 1971 the whites at Globe- 
Wernicke had less seniority rights to bench-jig 
jobs than the blacks then holding those jobs. 
The whites were "older" in the sense they had 
worked longer for the company, but that fact by 
itself conferred no seniority right to a parti­
cular job.

9/ Bureau of National Affairs, Basic Patterns 
in Union Contracts, pp. 66,68 (8th ed. 1975).



13

a need to make layoffs in one department could 
choose to give the whites involved special train­
ing to qualify for jobs then held by blacks, and 
thus enable them to bump the blacks out of their 
jobs. That decision invites and sanctions a new 
form of discrimination which, in a time of continu­
ed economic uncertainty, threatens the job secur­
ity of blacks.

The opinion of the court of appeals is 
clearly inconsistent with the decision of this 
Court in Franks v. Bowman Transportation Co., 
424 U.S. 747 (1976). In Franks whites had been 
the beneficiaries of discrimination in hiring, 
and were able under the collective bargaining 
agreement to use their unlawfully acquired 
status to enjoy a variety of benefits, includ­
ing protection against layoffs, at the expense 
of the black victims of that discrimination. 
The company and union there urged that the black 
victim had no right to relief under Title VII, 
since, regardless of the presence of racial 
malice in the hiring decision, the application 
of a seniority system to the circumstances pro­
duced by that discrimination was immune from 
scrutiny under Title VII. This Court rejected 
that contention, holding that regardless of



14

whether the seniority system involved is bona 
fide, a black victim must be afforded relief 
from the effects of the'hiring discrimination or 
"He will perpetually remain subordinate to per­
sons who, but for illegal discrimination, would 
have been in respect to entitlement to these 
benefits his inferiors." 424 U.S. at 768. That 
is precisely the situation in this case except 
that the critical act of intentional discrimina­
tion related, not to hiring, but to special 
training for whites. Prior to 1971, the whites 
at Globe-Wernicke were inferior in seniority, 
insofar as a right to hold a bench and jig job 
was concerned, to the black bench and jig opera­
tors. The disputed training program had the 
effect of bumping blacks out of their rightful 
places. Franks makes clear that those blacks are 
entitled under Title VII to return to those 
rightful places.

The conferring of special seniority rights 
on Avco1s white employees to the detriment of its 
black assembler bench and jig workers is not pro­
tected by §703(h) of Title VII. International 
Brotherhood of Teamsters v. United States,, 431
U.S. 324 (1977) and United Airlines, Inc. v.



15

Evans, 431 U.S. 553 (1977) do not sanction the
perpetuation of past discrimination by means of 
a seniority system. Those cases merely provide 
that, if such a system is bona fide, the action­
able violation is the original act of discrimina­
tion and that a timely charge must be filed 
as to that act. Such a charge and action were
filed with respect to the special Globe-Wernicke 
training program, and plaintiffs were entitled 
under Franks, as a remedy for that intentional 
violation, to relief from its perpetuation through 
dismissal based on the newly acquired job equity 
accorded the whites.

The sixth circuit's decision is also in 
conflict with that of the seventh circuit in a 
similar situation in Waters v. Wisconsin Steel 
Works, 502 F.2d 1309, 1320-21 (7th Cir. 1974), 
cert. denied, 425 U.S. 997 (1976). In that case, 
after being laid off by the employer, a group of 
whites elected to waive their recall rights in 
return for severance pay, thus placing them 
behind a black steelworker, Mr. Waters, who did 
not exchange his recall rights for severance pay. 
When the employer began rehiring, it agreed to



16

disregard the whites' waiver, and thus hired them 
ahead of the laid off black. The seventh circuit 
held that Title VII forbade the employer from 
gratuitously conferring special seniority benefits 
on white employees to the detriment of blacks. 
502 F.2d at 1321. That is what occurred in the 
instant case.

Were the court of appeals' decision read as 
overturning the district court's finding of in­
tentional discrimination, that decision would 
represent a serious and unwarranted departure 
from the normal allocation of fact-finding res­
ponsibility between the trial and appellate 
courts. Hazelwood School Dist. v. United States, 
433 U.S. 299 ( 1977). The record before the 
district court was clearly sufficient to support, 
if not to require, a finding of intentional dis­
crimination, especially since none of the bene­
ficiaries, and almost all the victims, of the 
disputed program were black, Teamsters v. United 
States, 431 U.S. 424 (1977), and the program re­
presented an unprecedented departure from past



17

practice. Arlington Heights v. Metropolitan Hous­
ing Development Corp., 429 U.S. 252, 266-67 
(1977). The district court's analysis of that 
record involved neither disputed evidentiary 
rulings nor questions- of law. Under these cir­
cumstances the court of appeals was required to 
accept the district court's findings unless they 
were clearly erroneous. Rule 52, Federal Rules 
of Civil Procedure. The sixth circuit did not 
hold those findings to be clearly erroneous and, 
as Judge Edwards observed, could not have done 
so on the record in this case. We note that 
another case regarding the fact finding roles 
of trial and appellate courts in Title VII cases 
is already pending before this court. Furnco 
Construction Corp. v. Waters, No. 77-369.

CONCLUSION
For the foregoing reasons, a writ of cer­

tiorari should be issued to review the judgment 
and opinion of the court of appeals for the 
sixth circuit.



18

ALBERT J. 
Of Counsel

Respectfully submitted,

JACK GREENBERG 
0. PETER SHERWOOD 
ERIC SCHNAPPER

10 Columbus Circle, Suite 2030 
New York, N.Y. 10019

AVON N. WILLIAMS, JR.
1414 Parkway Towers
404 James Robertson Highway
Nashville, Tennessee 37219

RUSSELL C.B. ENNIX, JR.
Morris Memorial Building 
330 Charlotte Avenue 
Nashville, Tennessee 37201

Attorneys for Petitioners

ROSENTHAL