Philip Morris Incorporated v. Lewis Brief of Appellants

    United States Court of Appeals
FOR IIIF. FOURTH UIRC'l Fi

RECORD NOS, 76-1993 76-1999

PHILIP MORRIS INCORPORATED, et al.,

Appel 1 ants

NORA LEWIS, et al.,

Appellees

BRIEF OF APPELLANT 
LOCAL UNION NO. 203 

TOBACCO WORKERS' INTERNATIONAL UNION

Jay J. Levit 
STALLARD & LEVIT
2120 Central National Bank Building 
Richmond, Virginia 23219

James F. Carroll
1120 Connecticut Ave., II.W.
Suite 940
Washington, D.C. 20036

Counsel for Appellant - Local Union Mo. 203, 
Tobacco Workers' International Union

FR ED  R. S U R FA C E  & ASSOC INC., H ER IT A G E  BU ILD IN G . RICHM OND, VA . (804) 643-7789



TABLE OF CONTENTS
PageSTATEMENT OF ISSUES 1

STATEMENT OF THE CASE 3
District Court's Orders and Defendants’
Appeals Therefrom 3
The District Court's Definition of theClass 5
The Substantive Issues at Trial 5
The District Court's Ruling With Res­
pect to the Quarles Decision 6
The District Court's Finding of Local Union 
Liability 7
The District Court's Finding of Interna­
tional Union Liability 9
The District Court's Theory That the Plain­
tiff Class Was Ignorant of the Long-Standing, 
Non-Discrimination Employment Policy 10

ARGUMENT H
1. In View of the District Court's Uncon­

troverted Finding of Fair Union Re­
presentation, and its Finding that no 
Collective Bargaining Contract Provi­
sion Need Be Changed, There is no Basis 
for the District Court's Conclusions
Finding Union Liability 11

2. The District Court Erred in Failing 
to Give Res Judicata, Collateral 
Estoppel, or Stare Decisis Effect 
to its Prior Decision Rendered in
Quarles v. Philip Morris 14

3. The District Court Erred in Adopting
Plaintiffs' Proposed Back Pay Ipjunc- 
tive Relief Guidelines, and Did Not 
Have Jurisdiction to Subsequently 
Vacate its Order Adopting Those Guide­
lines 10

CONCLUSION 19



AUTHORITIES CITED 
(Cases)

Page
Quarles v„ Philip Morris, Inc., 279 F.
Supp. 505 (E.D.VAo, 1968) 7
Vessella v. U.S. 405 F. 2d 599, 600
(CA 4, 1969) 14
Mungin v. Florida East Coast Railway Company,
318 F. Supp. 720, 732 (M.D. Fla., 1970) cert, 
denied, 404 U.S. 897 16
Richardson v. Fargo, 61 F.R.D. 641 (E.D. Pa.,
1974) 16
Eisen v. Carlisle and Jacquelin, 417 U.S.
156, 177 (1974) 16
Hansberry v. Lee, 311 U.S. 32, 41-42 (1940) 16
Landman v. Royster, 354 F. Supp. 1302, 1314
(D.C. Va., 1973) 16
Moran v. Mitchell, 354 F. Supp. 86 (D„C. Va.,
1973) 16
Jamerson v. Lennox, 356 F. Supp. 1164 (D.C. Pa.,
1973) 16
New York State Labor Relations Board v.
Holland Laundry, 294 N.Y. 480, 63 N.E.
2d 68 (1945) 16
Miller v. U.S. 114 F. 2d 267, 269 (CA 7, 1940) 17
Patterson, et al v. American Tobacco Co.,
et al., Nos. 75-1259 -- 1263 17
Liberty Mutual Insurance Company v. Wetzel,

U.S. , 96 S. Ct. , 47 L t Ed.
2d 435 (decided March 23, 1976) 18

(Other Authorities)
Restatement of Judgments, Sec. 86 (1942) 16



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.

BRIEF ON BEHALF OF APPELLANT 
LOCAL UNION NO. 203 OF TOBACCO 
WORKERS' INTERNATIONAL UNION

Statement of Issues

1. Where the District Court has found discrimination in 
the Company's hiring and assignment practices solely because of 
the Company’s failure to state to potential job applicants the 
long-standing non-discrimination policy, can the Local Union's 
liability be predicated thereon for the same reason, notwithstan­
ding the District Court's findings that:

(a) There is no evidence of Union arbitrary action 
or bad faith conduct toward class members in the handling of 
class member grievances;

(b) There is no evidence of Union arbitrary action
or bad faith conduct toward class members in the collective bar­
gaining process with the Company;

(c) collective bargaining contract seniority, trans­
fer, and promotional provisions need not be changed; and



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(d) there has been no breach of the Union statutory 
duty of fair representation?

2• Was the District Court's finding that the plaintiff 
class was ignorant of the long-standing non-discrimination policy 
proper and supported by substaiatial evidence?

3« ihe District Court err in failing to give res
jjidicatâ , collateral estoppel, or stare decisis effect to this 
Court's prior decision rendered in Quarles v. Philip Morris?

4. Did the District Court err in adopting plaintiffs’ 
proposed back pay and injunctive relief guidelines?



-3

STATEMENT OF THE CASE

District■. Court* s Orders and Defendants8 Appeals Therefrom.
On July 7, 1976, the District Court entered its judgment order and 

memorandum (Jt. App., 112 et seq.) giving judgment to the plaintiffs 

against the defendants. Defendant Local Union No. 203 filed its no­
tice of appeal therefrom on August 6, 1975 (Jt. App., 140), as did 
defendant Tobacco Workers' International Union (Jt. App., 141). On 

September 2, 1976, the District Court entered an order adopting plain­
tiffs' back pay and injunctive relief guidelines (which were attached 

thereto) (Jt. App., 142 et seq.), and both defendant Unions filed amended 

notices of appeal therefrom on October 1, 1976 (Jt. App., 153-154). The 

defendant Company also filed a timely notice of appeal from the District 

Court's said September 2, 1976 order on September 29, 1976 (Jt. App., 8). 

On September 27, 1976, plaintiffs filed their motion with the District 

Court for supplemental findings of fact and conclusions of law to support 

plaintiffs" back pay and injunctive relief guidelines which the District 
Court had already adopted in its September 2, 1976 order (Jt. App., 8).
On October 6, 1976, the defendant Unions filed their opposition with the 
District Court to the plaintiffs' said motion, on the grounds that the 
said motion was untimely and the defendants had perfected their appeals 

(Jt. App., 8). The defendant Company filed its memorandum in opposition 
to the plaintiffs' said motion on October 5, 1976 (Jt. App., 8).



-4

On October 5, 1976, the defendant Company also filed its oppo­
sition with the District Court to plaintiffs® motion for award of inter­
im attorney^ fees, and the defendant Unions filed their opposition to said 

motion on October 6, 1976 (Jt. App., 8). On November 17, 1976, the 
District Court entered an order vacating its said September 2, 1976, order 

which had adopted plaintiffs* back pay and injunctive relief guidelines 

(Jt. App., 159). Two days prior thereto, on November 15, 1976, the Dis­
trict Court entered an order awarding attorneys* fees to the plaintiffs 

(Jt. App., 157). On or about November 29, 1976, the defendant Company 

transmitted to counsel for the plaintiffs the Company's check in the 

amount of $50,000 as payment of the attorneys* fees pursuant to the 

Court's said November 15, 1976, order. This payment was accepted by 
plaintiffs' counsel. On or about November 17, 1976, the District Court's 

order dated October 12, 1976, was filed with the District Court clerk, 

and copies were mailed to counsel for the parties on November 17, 1976.
The District Court's said October 12, 1976, order, which was not filed 

with the District Court clerk until on or about November 17, 1976, stayed 
the District Court's said September 2, 1976, order adopting plaintiffs* 

back pay and injunctive relief guidelines, as well as all other proceed­

ings in the District Court during the pendency of the appeal (Jt. App.,

9, 189).
Although the District Court stated that it had had second thoughts 

about the plaintiffs' guidelines for back pay and injunctive relief pre­
viously adopted and thereafter vacated by the District Court pending the



- 5 -

appeal, the District Court stated to counsel for the parties in open 

court that this did not necessarily mean the District Court would make 

changes to the said guidelines (Jt. App. , 181). On thisame date 
in open court, November 3, 1976, the District Court advised counsel 

for the parties that it would stay the case (Jt. App., 181). On or 

about October 29, 1976, plaintiffs filed with this Court their motion 

to dismiss the appeal as being premature, defendants thereafter filed 

their respective oppositions thereto, and as of the writing of this 

brief the Court has not ruled on plaintiffs® said motion. In their 
opposition to plaintiffs' said motion to dismiss the appeal, among 

ether things defendant Unions advised this Court that the defendant Com­
pany had already partially complied with a portion of the back pay and 

injunctive relief guidelines subsequent to the District Court's adop­
tion thereof, and prior to the District Court's order vacating its order 
adopting said guidelines (cf. the September 28, 1976 District Court 
docket entry, Jt. App., 8).

The District Court's Definition of the Class. For purposes of 

the trial below, the District Court had certified the class as consist­

ing of the named plaintiffs and all females and black males, whether 

currently employed or no longer employed for any reason, who were em­

ployees of the defendant Company's Green Leaf Stemmery on or after 

July 2, 1965 (Jt. App., 116).

The Substantive Issues at Trial. On April 17, 1975, an agree­

ment between the Equal Employment Opportunity Commission and the defen­
dant Company was filed with the District Court clerk in Civil Action



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No. 181-73-R, in settlement of the Commission1s suit which had been 

brought against the Company only, alleging Title VII discrimination 

by the Company against black and female employees and prospective 

employees because of their race and sex. In the settlement agreement, 

the Company expressly denied any discrimination on its part (Jt. App., 209) 

On March 17, 1975, counsel for the defendant Company and the plaintiffs 
(but not Union counsel) entered into an agreement limiting the issues of 

the trial below (Jt. App., 90). The issues thus framed for trial by plain 

tiffs and the Company were as follows:
(a) Whether the members of the class were hired into the Stem- 

mery rather than into permanent employment as a result of racial or sexual 

discriminati on;
(b) whether the transfer, promotion, seniority, initial job 

assignment and wage rate policies discriminated against class members on 

the basis of race or sex, except in the selection of supervisory and 

craft personnel; and
(c) if discrimination were found, the appropriate injunctive re­

lief, back pay, costs, expenses, and attorneys' fees would be determined. 

Further, all claims for affirmative relief sought on the basis of alleged 

discriminatory working or disciplinary conditions were withdrawn, and the 

maternity leave issue was expressly reserved. The District Court so 

found (Jt. App., 118).
The District Court's Ruling With Respect to the Quarles Decision.

The District Court ruled that its prior decision in Quarles, v. Phxlrp



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Morr^iSj— Inc., 279 P. Supp. 505 (E.D.VA., 1968), was not dispositive of 

the race discrimination claims asserted at trial. The District Court 

conceded that in Quarles the class did include Green Leaf Stemmery em­

ployees (Jt. App., 121), but the District Court ruled that in Quarles 

the failure to enter an order directing all class members to be noti­

fied of the action so that they could champion their own interests 
violated due process standards, so that the Stemmery employees were not 

parties in any meaningful sense in the Quarles action, and were not 
bound by that decree (Jt. App., 125-126). The District Court made this 
ruling notwithstanding the fact that in Quarles, then District Court 

Judge Butzner found no evidence of discrimination in the Stemmery in 
initial or additional job assignments, pay, transfer and promotion 

policies, or selection of employees for craft, skilled and supervisory 
positions. Counsel for the plaintiffs in Quarles were the same as 
counsel for the plaintiffs in the case at bar.

The District Court*s Finding of Local Union Liability. The Dis­

trict Court conceded that the defendants produced evidence indicating 

that blacks are more willing to accept employment at the Seasonal faci­

lity (Stemmery), and that the permanent departments have a substantial 
proportion of black workers (Jt. App., 129). However, the District 

Court apparently found Company and Union liability based on the testi­

mony of one single witness who testified for plaintiffs in part that 

"if you want to get hired, you know, being black, your best chance would 

be to go through the Stemmery and then transfer to permanent employment 
later" (Jt. App., 132). The District Court further conceded that it



8-

could not find the Company's 'fexcessive assignment of blacks to the Stem- 

mery was purposefully undertaken by the Company to covertly continue its 

historical system of segregated departments" (Jt. App., 133). However, 
the District Court found that the Company, even though it assigns new 

hires without regard to their race, "has unfortunately done nothing to 
dispel the belief, founded on its past acts of discrimination, and held 
by a substantial number of black applicants. that it still assigns to de­

partments new hires on the basis of race. Such a belief has translated 
itself into a set of circumstances that has continued to place blacks 

at a disadvantage when seeking employment at Philip Morris" (Jt. App., 133) 

The District Court thereafter concluded that "all those class members that 
were not so informed when they were hired into the Stemmery, and that be­

lieved that their race substantially limited their initial employment to 

the Stemmery are entitled to recover for their losses" (Jt. App., 134).

The District Court then further concluded that "it is the duty 

and the burden of the defendants to inform all potential applicants for 

the various openings of said openings as they develop and that these 

openings would be filled without regard to sex or race. Those appli­

cants in the class that were not so informed and that would have applied 
for any such openings if informed, are entitled to recover" (Jt. App., 135) 

Referring to its rationale as "theories" (Jt. App., 136), the District 
Court then held the Local Union liable along with the Company under the 
District Court's said theories. The District Court stated that the Local 
Union had to "share the responsibility for informing its members that



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all jobs are open in all departments without regard to race or sex so 

as to mollify members" present understandings as based on past history. 
Its failure to perform this function makes it jointly liable with the 

Company to those plaintiffs entitled to recover" (Jt. App., 136). The 
District Court further made the following additional findings with res­

pect to Union liability:
(a) 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);

(b) there is no evidence of Union arbitrary action or bad 

faith condudt toward class members in the collective bargaining pro­

cess with the Company (Jt. App., 136);

(c) collective bargaining contract seniority, transfer, and 

promotional provisions need not be changed (Jt. App., 135); and

(d) there has been no breach of the Union statutory duty of 

fair representation (Jt. App., 136).
In its written motion to dismiss filed prior to trial (Jt. App., 

43), the Local Union in part relied upon the District Court's prior de­

cision in Quarles, and the Local Union at trial also moved to dismiss 
the complaint as against it because there was no evidence to show a 
breach of the Local Union's duty to fairly represent the members of the 

plaintiff class (Jt. App., 961-962).
The District Court's Finding of International Union Liability. 

Noting that the International Union was not served with notice of the 
EEOC charges, nor approached by the EEOC in conciliation negotiation



-10

(Jt. App., 119), the District Court found International Union liability 

because "the International was an active advisor to the Local, and sat 
in on most of the Local's negotiations with the Company for collective 

bargaining agreements" (Jt. App., 139). The District Court so ruled not­
withstanding its finding that the employees involved were represented 

by the Local Union only (Jt. App., 114-115), and that counsel for the 
parties had so stipulated in stipulations numbers 8, 52 and 53, to the 

express effect that the collective bargaining agreements involved were 

entered into and negotiated by and between the Company and the Local 

Union only (Jt. App., 96, 108). In its written motion to dismiss filed 

prior to trial (Jt. App., 45), the International Union relied in part 

upon the District Court's prior decision in Quarles , and at trial the 

International Union relied upon the said stipulations of the parties 
(Jt. App., 962-964).

The District Court's Theory That the Plaintiff Class Was Ignorant 
of the Long-Standing, Non-Discrimination Employment Policy. The District 

Court adhered to its liability theory that the plaintiff class was igno­
rant of the long-standing, non-discrimination employment policy, not­
withstanding the stipulation of counsel for the parties that since 1963 
"the bargaining committee of Local 203 has included both white and black 

employees" (Jt. App., 97).



- 11-

Argument

A detailed statement of the case, with appropriate subdi­
visions and numerous citations to the record, has been made here­
inabove. Accordingly, citations to the record and repetition 
of the facts hereinafter will be kept to a minimum.

1. In View Qf The District Court's Uncontroverted Find­
ing Of Fair Union Representation, And Its Finding That No Col­
lective Bargaining Contract Provisions Need Be Changed, There 
Is No Basis For The District Court's Conclusions Finding Union 
Liability .

The uncontroverted findings of the District Court are that 
there is no evidence of Union arbitrary action or bad faith con­
duct toward class members in the handling of class member griev­
ances; there is no evidence of Union arbitrary action or bad faith 
conduct toward class members in the collective bargaining process 
with the Company; there has been no breach of the Union statutory 
duty of fair representation; and collective bargaining contract 
seniority, transfer, and promotional provisions need not be changed. 
Further, counsel for the parties stipulated before trial that 
since 1963 the Local Union's collective bargaining committee has 
included both white and black employees. Accordingly, since it 
is further uncontroverted, and the District Court so found, thht 
for years prior to the institution of this law suit, and there­
after, there has been a non-discrimination employment policy, it 
is simply inconceivable that the plaintiffs' were ignorant thereof. 
Indeed, the miniscule portion of testimony from the one witness



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of plaintiffs upon whom the District Court relied indicates that 
witness knew there was no employment discrimination with respect 
to transfers from the Stemmery into other departments of the Com­
pany offering permanent employment. And the Company's statistics 
at trial showed clearly that a substantial number of black em­
ployees hold permanent jobs in these other departments.

The District Court found that the Local Union bargained 
fairly on behalf of the plaintiffs, handled their grievances 
fairly, and consummated collective bargaining agreements, the 
provisions of which need not be changed. In short, the Local 
Union fairly represented the plaintiffs and the members of the 
plaintiff class, and, it is submitted, there is nothing more that 
a Local Union can do. The District Court found that "it is the 
initial assignment policies (of the Company) that taint the system 
(Jt. App„, 135). Union liability is predicated by the District 
Court upon its conceded "theory," improperly theorized from the 
miniscule portion of testimony of a single witness that somehow, 
under the uncontroverted facts as stated, plaintiffs were ignorant 
of the long-standing, non-discrimination employment policy appli­
cable to them. The District Court recognized that seasonal Stem­
mery employees "are adjudged to be poor workers on the whole and 
must prove themselves in a permanent capacity before they are 
given the rights and benefits of permanent workers" (Jt. App.,
135). The uncontroverted testimony of Union witness Mergler was 
that prior to the merger in 1963 of the black and white Locals, 
it was the black membership of Local 209 that wanted to restrict 
the transfer rights of seasonal Stemmery employees (Jt. App., 87S) 
Mergler further testified, and he was not contradicted, that the 
Local Union had to protect the jobs of the less skilled seasonal



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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).

The testimony of the sole witness of the plaintiffs relied 
upon by the District Court indicates that the plaintiffs recog­
nized the fact that the less skilled workers would have a better 
chance of initial employment in the Stemmery, and that the permanent 
jobs were available upon transfer by the seasonal workers having 
the requisite skills. All of the membership in Local Union No.
203, black and white, was aware of the real economic threat to 
the job security of the seasonal workers as well as the permanent 
workers through loss of productivity (Jt. App., 883, 886).

The District Court’s theory of ignorance on the plaintiff 
class concerning the long-standing, non-discrimination in employ­
ment policy, is simply not supported by the evidence. Further, 
having found that the problem lies with the Company's hiring 
practices over which the Local Union has no control, there is no 
basis to predicate Union liability thereon. Indeed, the Court's 
theory of liability was never advanced by the plaintiffs them­
selves. Plaintiffs claimed that there were wilful discrimina­
tory practices, whereas the District Court found that there was 

no discriminatory design, but merely a failure of the defendants to 
tell the plaintiffs that the rules of employment were indeed fair. 
This novel and theoretical approach by the District Court, of 
course, denied the defendants the opportunity during trial to 
specifically address themselves to such a Iheory. To sustain the



14-

District Court's theory of liability is to deny the defendants 
due process of law, a fair trial. This constitutional question 
need not be reached, however, because the District Court’s theory 
of liability is not "amply supported by the record" and is not 
binding on this Court under F.R.C.P. 52. Vessella v . U.S., 405 
F. 2d 599, 600 (CA 4, 1969).

2. The District Court Erred In Failing To Give Res Judicata, 
Collateral Estoppel, Or Stare Decisis Effect To Its Prior Decision 
Rendered In Quarles v. Philip Morris.

The District Court certified the class in this case as con­
sisting of the named plaintiffs and all females and black males, 
whether currently employed or no longer employed for any reason, 
who were employees of the Company's Green Leaf Stemmery on or after 
July 2, 1965 (Jt. App., 116). On January 4, 1968, the Honorable 
John D. Butzner, Jr., Judge, handed down his decision in the case 
of Quarles,et al. v. Philip Morris, Inc., et al., 279 F. Supp. 505 
(E.D. Va., 1968). The class in that action was defined by the com­
plaint as "Negroes seeking equal employment opportunity" from 
Philip Morris. Judge Butzner found that the members of the class 
contended they were aggrieved by Philip Morris' failure and re­
fusal "to hire, promote to supervisory positions, pay, advance 
and transfer Negro employees on the same basis as white employees,” 
at page 507. Thus with the exception of white females employed 
in the Stemmery since July 2, 1965, all Stemmery employees whom 
the plaintiffs now purport to represent employed before the date 
of Judge Butzner's decision were within the class in the Quarles 
case. In his opinion, Judge Butzner stated at page 507:

"Upon the mertis of the case the Court holds:
I. The company has not engaged in discriminatory



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hiring practices since January 1, 1966, and consequently, 
the plaintiffs are not entitled to relief on this issue;

II. The company has not discriminated on racial 
grounds with respect to employment and promotion of super­
visory personnel;

III. The company has discriminated on the grounds
of race with respect to the pay of two employees, Ephriam 
Briggs and Mrs. Lillie J. Oatney; the plaintiffs have 
failed to establish discrimination against Negroes as a 
class with respect to pay;

IV. The defendants have discriminated against 
Douglas R. Quarles and the class consisting of Negro 
employees who were hired in the prefabrication depart­
ment before January 1, 1966, with respect to advance­
ment, transfer, and seniority. The plaintiffs are en­
titled to relief correcting this discrimination."

It is clear from Judge Butzner's opinion, then, that he 
found no evidence of discrimination in the Stemmery in initial 
or additional job assignments, pay, transfer and promotion poli­
cies, or selection of employees for craft, skilled and super­
visory positions, all discriminatory acts alleged in section VI 
of the complaint (Jt. App., 13). Consequently, since the same 
class was, in part, before the Court in the Quarles case, the 
findings of non-discrimination are res judicata on those members 
of the present putative class who were also members of the Quarles 
class. In the Quarles case, as the District Court in the case at 
bar recognized (Jt. App., 121), both Quarles and Briggs, the 
named plaintiffs in that case, were former Stemmery employees.
In this respect, their status was no different than that of the 
named plaintiffs in this case who, though initially hired into 
the Stemmery, had transferred out of it long before the suit was 
ever started. The same counsel who represented the plaintiffs 
in Quarles represent the plaintiffs in the case at bar. Quarles
was certified as a class action for equitable relief only pur-



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suant to Rule 23 (b)(2) of the Federal Rules. There is no pro­
vision in the Rules requiring notice in such an action. Cf.
Mungin v. Florida East Coast Railway Company, 318 F. Supp. 720,
732 (M.D. Fla., 1970); cert. denied, 404 U.S. 897. See also, 
Richardson v. Fargo, 61 F.R.D. 641 (E.D. Pa., 1974); Eisen v. 
Carlisle and Jacquelin, 417 U.S. 156, 177 (1974).

Since Judge Butzner’s opinion was dated January 4, 1968, the 
earliest time the Company's non-discriminatory policies toward 
black Stemmery employees could have changed (but in fact have not 
changed) is the day after his decision was handed down. The Dis­
trict Court recognized that those policies have never changed, and 
certainly the issues of racial discrimination, or lack of it, in 
the Stemmery prior to January 5, 1968, can not now be relitigated 
in this action.

The findings and conclusions in Quarle s should bind the black 
members of the class on grounds of res judicata, collateral estop­
pel, and stare decisis. Hansberry v. Lee, 311 U.S. 32, 41-42 
(1940); Restatement of Judgments, Sec. 86 (1942); Landman v . 
Royster, 354 F. Supp. 1302, 1314 (D.C. Va., 1973); Moran v ■
Mitchell, 354 F. Supp. 86 (D.C„ Va., 1973); Jamerson v. Lennox,
356 F. Supp. 1164 (D.C. Pa., 1973); New York State Labor Relations 
Board v. Holland Laundry, 294 N.Y. 480, 63 N.E. 2d 68 (1945). 
Accordingly, the District Court erred in not giving binding effect 
to its prior decision in Quarles as required.

3. The District Court Erred In Adopting Plaintiffs' Pro­
posed Back Pay Injunctive Relief Guidelines, And Did Not Have 
Jurisdiction To Subsequently Vacate Its Order Adopting Those 
Guidelines.

The District Court's order of September 2, 1976, erroneously



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adopted plaintiffs’ proposed guidelines for back pay and injunc­
tive relief without making the required supplemental findings of 
fact and conclusions of law to support those guidelines. Timely 
notices of appeal were filed by the defendants prior to the making 
of those supplemental findings of fact and conclusions of law. 
Indeed, no supplemental findings of fact and conclusions of law 
have ever been made by the District Court, since the District 
Court attempted to vacate its original order adopting the guide­
lines. However, the District Court did not have jurisdiction 
to vacate its order adopting the guidelines, since the defendants 

had already perfected timely notices of appeal. Cf. Miller v. U.S., 
114 F. 2d 267, 269 (CA 7, 1940), holding that "the District Court 
has no authority to vacate a judgment by it entered in an action 
at law after an appeal from said judgment has been taken."

If it be argued that remand to the District Court is appro­
priate as a practical matter for the District Court to reconsider 
the guidelines, it must be remembered that the District Court 
stated in open Court on November 3, 1976 (Jt. App., 181), that 
it would not necessarily change the guidelines. Accordingly, 
since the defendant Company complied with a portion of the guide­
lines as required thereunder prior to the time the District Court 
attempted to vacate them, and since the Company paid to plaintiffs' 
counsel $50,000.00 of interim attorney fees pursuant to the Dis­
trict Court's order therefor (notwithstanding this Court's March 
27, 1975 order entered in Patterson, et al. v. American Tobacco 
Co. et al., Nos. 75-1259 —  1263, staying an award of interim 
attorney fees pending appeal), a substantial portion of the affir­
mative relief prayed for by the plaintiffs has been granted. There



- 18-

has been more than a mere finding of liability, and the record 
before this Court is now ripe for review within the meaning of 
Liberty Mutual Insurance Company v. Wetzel, U.S. ,96
S. Ct. , 47 L. Ed. 2d 435 (decided March 23, 1976).



- 19-

Conclusion

The District Court should have dismissed the complaint as 
to Union liability because:

1. The evidence showed that the Union at all material 
times and in all material respects fairly represented the plain­
tiffs and the class they represent;

2. The record at trial does not support the District Court's 
theory that the plaintiffs and the class they represent were ig­
norant of the long-standing, non-discrimination employment policy 
applicable to them, which the District Court further theorized 
resulted from the defendant Company’s hiring practices over which 
there was no Union control (counsel for plaintiffs and the Company 
themselves agreed to limit trial issues primarily to hiring prac­
tices, and Union counsel's agreement was not needed for this 
reason; nor was the Union sued by the EEOC as was the Company);

3. The District Court erred in refusing to give the required 
res judicata, collateral estoppel, or stare decisis effect to its 
prior decision in the Quarles case with respect to the racial 
discrimination claims in the case at bar; and

4. The District Court erred in adopting plaintiffs' pro­
posed guidelines for back pay and injunctive relief, and had no 
jurisdiction to thereafter vacate the same once the defendants 
had perfected timely appeals.

Respectfully submitted,
LOCAL 203, TOBACCO WORKERS' INTER-



Jay J. Levit 
STALLARD & LEVIT 
2120 Cen. Natl. Bank Bldg. 
Richmond, Virginia 23219
James F. Carroll, Esq.
1120 Connecticut Ave., N.W. 
Suite 940
Washington, D.C. 20036
Counsel for Local 203, Tobacco 
Workers' International Union



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CERTIFICATE

In accordance with Rule 25 of the Rules of the U. S. Court 
of Appeals, Fourth Circuit, I hereby certify that I have this 
15th day of December, 1976, filed the required copies of the 
Brief of Appellant, Local Union No. 203 in the Clerk's office, 
and have served the required copies of the said brief on Lewis 
T. Booker, Esq., Company counsel, 707 E. Main Street, P. 0. Box 
1535, Richmond, Virginia 23212; and Henry L. Marsh, III, Esq., 
Plaintiffs’ counsel, 214 E. Clay Street, P. 0. Box 27363, Rich­
mond, Virginia 23261.