Alexander v. Riga Brief for the United States as Amicus Curiae Supporting Appellants Urging Reversal

    Bupxmxz OXrntrt of tty lntt?& States
October T erm, 1976 

No. 75-651
T eamsters L ocal Union  657,

Petitioner,
vs.

Jesse R odriguez, et al.,
Respondents.

No. 75-715
S outhern Conference of T eamsters,

Petitioners,
vs.

J esse R odriguez, et al.,
Respondents.

No. 75-718
E ast T exas M otor F reight System , I nc .,

Petitioner,
vs.

Jesse R odriguez, et al.,
Respondents.

ON WRITS OF CERTIORARI TO THE 
UNITED states  c o u r t  of appe als  for  t h e  f if t h  CIRCUIT

In th e

MOTION FOR LEAVE TO FILE AND BRIEF AMICUS 
CURIAE OF THE NAACP LEGAL DEFENSE 

AND EDUCATIONAL FUND, INC.

Jack Greenberg 
0 . P eter S herwood 
B arry L. Goldstein 
E ric Schnapper 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Amicus Curiae



I N D E X

ARGUMENT---- PAGE

The Writs Should Be Dismissed as Improvidently 
Granted ...... .................. -................. ..............................  2

I. The Company Petition.......... ................... ..........  3

1. Reliance on “Mere Statistics” ....... ....... .....  3

2. Class A ction ....................... ............................  8

3. The City-Road No Transfer Rule ............. . 10

4. The Inter-Terminal No Transfer Rule .... 11

5. The Individual Claims ................... ............  13

II. The Union Petitions ............ ..... .......................  16

C onclusion  _________ ______ ____ - .............. ................... -............  18

A p p e n d ix .................. ................................ ........ -...... ..........  la

T able  op A u t h o r it ie s

Cases:

Brotherhood of Locomotive Firemen v. Bangor &
Aroostook R.R., 389 U.S. 327 (1967) „ ...................— 18

Franks v. Bowman Transportation Co., 47 L.Ed.2d 
444 (1976) ............. ............. - .... ....... ........ -......... .........  13

International Brotherhood of Teamsters v. United 
States, No. 76-636 ...... ...... ..... ...... ----------------- -----....  17

McCarthy v. Bruner, 323 U.S. 673 (1944) ................... 7
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) 15

Phillips v. New York, 362 U.S. 456 (1964) ..................  18



11

PAGE

United States v. Central Motor Lines, Inc., 4 EPD
TT 7624 (W.D.N.C. 1971) _______________ _____ 11

United States v. East Texas Motor Freight System,
Inc., 10 EPD I) 10, 345 (N.D.Tex. 1975) __ _____ passim

United States v. Terminal Transport Co., 11 EPD
« 10,704 (N.D.Ga. 1976) ............................ ..... .............  11

United States v. Trucking Employers, Inc., No. 74-453 
(D.D.C.) ............. .......... ....................... ...... ....... ............  6

Watkins v. Scott Paper Co., 530 F.2d 1159 (5th Cir. 
1976) .............. ..................... ............................ .................  13

Other Authorities:

Federal Rules of Civil Procedure,
Rule 60(b)(6) ....... ..... .......... ............... ................ . 9

United States Census of Population, 1970 ................... 13



I n  THE

&upran? (Enurt ni tiff Imti'in States
O ctober T erm , 1976

No. 75-651
T eamsters L ocal I 'xtox 657,

vs.
Petitioner,

J esse R o drigu ez , et al.,
Respondents.

No. 75-715
S o u t h e r n  C o n fe re n ce  of T e a m ste r s ,

Petitioners,
vs.

J esse R odriguez, et al.,
Respondents.

No. 75-718
E ast T exas M otor F reight S ystem , I n c .,

Petitioner,
vs.

J esse R odriguez, et al.,
Respondents.

on  w r it s  o f  c e r t io r a r i  to t h e

UNITED STATES COURT OF APPEALS FOE THE FIFTH CIRCUIT

MOTION F0M LEAVE TO 
FILE BRIEF AS AMICUS CURIAE

N.A.A.C.P. Legal Defense and Educational Fund, Inc., 
hereby moves to for leave to file the attached brief as 
amicus curiae.



2

The N.A.A.C.P. Legal Defense and Educational Fund, 
Inc., is a non-profit corporation incorporated under the 
laws of the State o f New York. It was formed to assist 
Negroes to secure their constitutional rights by the prose­
cution of lawsuits. Its charter declares that its purposes 
include rendering legal services gratuitously to Negroes 
suffering injustice by reason of racial discrimination. For 
many years attorneys of the Legal Defense Fund have 
represented parties in employment discrimination litigation 
before this Court and the lower courts. The Legal Defense 
Fund believes that its experience in employment discrimi­
nation litigation may be of assistance to the Court. The 
proposed brief is submitted in support of respondent 
though advancing reasons somewhat different than those 
relied on by the courts below.

W herefore, the N.A.A.C.P. Legal Defense and Educa­
tional Fund, Inc., respectfully prays that this motion be 
granted, and that the attached brief be filed.

Respectfully submitted,

Jack Greenberg 
0 . P eter Sherwood 
B arry L. Goldstein 
E ric Schnapper 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Amicus Curiae



In the

gutpramp tour! of %  Mnittft Zlatas
October T erm, 1976

No. 75-651

T eamsters L ocal U nion 657,
Petitioner,

vs.

Jesse R odriguez, et al.,
Respondents.

No. 75-715

Southern Conference of T eamsters,
Petitioners,

vs.

Jesse R odriguez, et al.,
Respondents.

No. 75-718
E ast T exas M otor F reight System , I nc .,

Petitioner,
vs.

Jesse R odriguez, et al.,
Respondents.

on  w r it s  of certiorari to t h e

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF AMICUS CURIAE OF THE 
N.A.A.C.P. LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC.



2

ARGUMENT

The 'Writs Should Be Dismissed as Improvidently 
Granted.

The issues actually presented by these cases are sub­
stantially different than those which were raised in the 
petitions for certiorari. In June, 1972, petitioner East 
Texas Motor Freight (hereinafter ETM F), together with 
the International Brotherhood of Teamsters, was sued by 
the United States. The government’s complaint, as the 
complaint in this action, alleged systematic discrimination 
against blacks and Mexican-Americans, and sought broad 
monetary and injunctive relief. In April, 1975, an extended 
trial was held in United States v. East Texas Motor Freight 
System, Inc. (hereinafter US v. ETM F ) ;  on May 28, 1975, 
the District Court upheld the government’s claim of dis­
crimination and awarded to minority employees at present 
or former road terminals injunctive relief more stringent 
than that awarded in this case.1 10 EPD f[10,345. The 
parties in US v. ETMF have appealed only certain por­
tions of the relief, and do not there contest the finding 
of discrimination.2 The company in the instant case ex­

1 Under the Fifth Circuit decision in this ease, a city driver who 
transfers to the road will have carry over seniority dating from 
the point at which he had three years of truck driving experience. 
505 F.2d 40, 63, n. 29, 62. Under US v. ETMF, transferring em­
ployees will have two more years of seniority, dating from the 
point at which they had one year of experience.

2 The company did not appeal. The union appeal raises three
questions: whether the union locals were necessary parties,
whether the locals and Southern Conference were alone respon­
sible for the seniority system, and whether the seniority relief 
ordered by the district court should have been based on a more 
individualized analysis of the employment history of each mi­
nority worker. No. 75-3332, 5th Cir.



3

pressly relies on US v. ETMF for its own purposes,3 4 * but 
otherwise ignores developments therein.

The evidence which petitioners assert is required to 
support the decision below, which they object is absent 
from the record in this case, is to a substantial degree 
present and uncontested in US v. ETM F} As to certain 
issues and class members, the instant case has been ren­
dered partially moot by US v. ETM F} These circum­
stances were known to petitioners prior to the grant of 
certiorari, and were not disclosed to the Court. In addition, 
of the questions originally presented by the petitions, 
some have, for all practical purposes, been abandoned, 
and others are not supported by the record in this case. 
In light of these considerations, amicus believes that cer­
tiorari was improvidently granted and that the writs should 
be dismissed.

I. The Company Petition6

1. Reliance on “ Mere Statistics”

The only question presented by the company’s petition 
which is pressed in recognizable form in its brief is 
“ [w]hether the Court of Appeals properly relied on un­
differentiated statistical evidence in entering a finding of 
liability in favor of the Plaintiff class.” 7 The company 
asserts that the sole evidence of discrimination was the 
mere fact that, of several hundred road drivers employed

3 Company Brief, p. 34.
4 Amicus has lodged with the Court a copy of the relevant por­

tions in the record in TJS v. ETMF. That document, headed “ Ex­
hibit of Amiens Curiae, N.A.A.C.P. Legal Defense and Educa­
tional Fund, Inc.” , is referred to hereafter as EA.

6 See p. 6, infra.
6 No. 75-718.
7 Company Petition, pp. 3, 26-31; Company Brief, pp. 2, 37-54.



4

by defendant prior to 1970, none was black or Mexiean- 
American. Such evidence, the company argues, was insuffi­
cient to constitute a prima facie ease of discrimination 
against minority drivers.8 The company’s petition present­
ed a frontal attack on the use of statistics, and suggested 
certiorari was appropriate to consider in broad terms 
the efficacy and reliability of such evidence.9 In its brief, 
however, the company largely restricts its discussion to 
the relevance of such evidence to minority employees at 
city terminals,10 and does not vigorously contest its proba­
tive value for road terminals.11

At the trial in US v. ETMF, Mr. George Smith, ETMF’s 
personnel director from 1952 to 1967, testified candidly 
as to the policy of the company regarding the hiring of 
non-white road drivers:

Q. (By Mr. Gadzichowski) What was the policy of 
the company at that time?

A. The company, so far as road drivers was con­
cerned, did not want to employ minorities as road 
drivers.

Q. When you speak of minorities, do you mean 
Blacks and Spanish surnamed Americans?

A. I do.

8 Company Brief, p. 42.
9 Company Petition, p. 30:

“ In light of the growing reliance on statistical evidence 
to prove liability in civil rights eases and the explosion of 
complex, complicated class actions in this area, the Court 
should grant the Petition herein and articulate the burden 
of proof required by a class action Plaintiff, both in terms 
of the quantity and quality of statistical evidence necessary 
to produce an inference of discrimination and the additional 
evidence required to support that inference sufficiently to 
establish a prima facie case.”

10 Company Brief, pp. 40-49.
11 See Company Brief, p. 46, n,15.



5

Q. Were you aware of that policy that the company 
had?

A. I was.
Q. Was there any question in your mind that that 

was the policy?
A. There was not.
Q. And did the policy continue during your tenure 

at East Texas Motor Freight?
A. It did.
Q. Was it still in existence at the time you left? ■
A. It was.12

The government offered a 1966 memorandum to Smith from 
ETMF’s Atlanta office describing a black driver and con­
cluding, “ So the long and short of it is that if and when 
we must hire colored boys, this one would be a good one 
. . .” 13 At least until 1963 this policy of discrimination was 
implemented by an ETMF application form which required 
the prospective employee to state his race in the following 
box :14

X I__________ ::____ :-----i— —— :-----------1— -----------
LINEAGE

Che \ o  W u cC
English-!ri*h-French-H«rbrew-Germ«n. Etc.

Black employees testified that they were expressly told 
road driver jobs, both permanent and casual, were for 
whites only.15

12 EA 38.
18 EA 276.
14 EA 234, 236, 244, 245, 282-288.
16 EA 75-78, 80, 127-128.



6

On the basis of this and other testimony, the District 
Court in US v. ETM FU concluded:

The evidence showed that discrimination occurred 
against Blacks and Spanish-surnamed Americans who 
applied for or attempted to transfer to over-the-road 
jobs with ETMF and its acquired companies. When 
they sought to transfer, their seniority for bidding, 
layoff and recall purposes was lost. As a result of 
losing these rights, there has been little desire to 
transfer to over-the-road jobs. The seniority system 
of the Unions is a barrier to the movement of minor­
ities from city or other bargaining unit jobs to over- 
the-road jobs. It effectively locks Blacks and Spanish- 
surnamed Americans into their jobs and means that 
seniority for minority employees [must be] built up in 
other than over-the-road bargaining units.

Neither defendant in that action appealed from this finding 
of discrimination.16 17 The injunctive relief ordered by the 
District Court in US v. ETMF  covers at least 76 of the 199 
class members in this action,18 and 59 of them have already 
entered into a cash settlement with the company.19

16 10 EPD 1(10,345, p. 5416 (N.D. Tex. 1975); EA 293.
17 See n.2, supra.
18 It includes certain city drivers at the El Paso, Dallas, San 

Angelo, Longview, San Antonio and Houston terminals. See EA 
296-312. Although a large number of trucking companies have 
in the past had policies forbidding transfers from city to road 
driver positions, most of them agreed in 1974, pursuant to a con­
sent decree in United States v. Trucking Employers, Inc., No. 
74-453 (D.D.C.), to permit minority city drivers to transfer to 
the road. The validity of such policies is thus of less import than 
suggested by the petitions.

19 EA 299-303. The liability of the International to the 79 cov­
ered employees is the subject of a pending appeal in US v. ETMF.



7

In short, petitioners are asking the Court to issue a far 
reaching decision as to -the probative value of “mere sta­
tistics” under Title VII in a case which there is known to 
be massive non-statistical evidence of racial discrimination 
as well as an uncontested judicial finding of discrimination. 
Regardless of whether, in the narrowest of senses, the rec­
ord could be said to present a question about the eviden­
tiary significance of such statistics, the underlying contro­
versy obviously does not. M cCarthy  v. Bruner, 323 U.S. 
673 (1944). This is manifestly not an appropriate case in 
which to decide such matters; had the Court known of the 
above-described facts at the time when the certiorari peti­
tions were under consideration, it is unlikely that certiorari 
would have been granted on this issue.20

20 The Company’s Petition presented a related question no 
longer vigorously pursued, at least in its original form : “Whether 
the Court of Appeals, consistent with due process, may ignore a 
pre-trial stipulation, and sua sponte make a finding of liability 
without affording the Defendant an opportunity to present evi­
dence to the District Court.” The petition dwelt at length on the 
fundamental unfairness of being held liable -without having an 
opportunity to produce evidence in opposition to the claim of 
class-wide discrimination. Company Petition, pp. 10-21.

In its brief, however, the Company no longer presses this con­
tention. No specific suggestions are made as to what evidence the 
Company would have introduced had it “known” the question of 
class-wide discrimination was at issue in the district court. This 
is not surprising in light of the evidence in US v. ETMF. The 
Stipulation referred to in the question presented is now relied on 
solely insofar as it bears on whether the court of appeals erred 
in approving the case as a class action. Company Brief, pp. 14, 
25. Although the company asserts that it “concentrated” its de­
fense on the qualifications of the named plaintiffs, Company Brief, 
p. 25, the record establishes that this was not the case. App. 141- 
193. The company now concedes that the Fifth Circuit decision 
affords it an opportunity, at the second stage of this bifurcated 
proceeding, to introduce evidence that, because of a lack of in­
terest or qualification, any individual class member was not in­
jured by the policy of hiring only white road drivers and is thus 
not entitled to relief. Company Brief, pp. 52-53.



8

2. Class Action

The question presented by the original petition was 
“ whether absent a class action hearing or an equivalent 
opportunity to present evidence on the question of the ap­
propriateness of the class the Court of Appeals may certify 
the litigation as a class action and enter a finding of liability 
in favor of the Plaintiff class.” 21 (Emphasis added) On its 
face, this question indicated that the only relief to be 
sought, were certiorari granted, would be a decision afford­
ing petitioner an opportunity to present such evidence.

In its brief, however, the company, rather than seeking 
a remand for an evidentiary hearing, now urges that this 
Court reinstate the district court’s denial of class action 
treatment.22 The company advances nine legal arguments 
as to why this case is not an appropriate class action.23 
The company also offers four reasons why the scope of 
the class should be narrowed.24 * These, however, are not the

21 Company Petition, p. 3.
22 Company Brief, pp. 13-36.
23 (1) That plaintiffs abandoned the class aspect by inaction. 

Company Brief, p. 15, n, 3, 28. (2) That plaintiffs stipulated it 
was not to be a class action. Id., p. 16. (3) That plaintiffs violated 
their responsibility under Rule 23 to move for a class action deter­
mination. Id., pp. 14, 16, 18-21. (4) That the case was not in fact 
tried as a class action. Id., pp. 25, 29, 37. (5) That the district 
court acted within its discretion. Id., pp. 15, 23. (6) That plain­
tiffs failed to adduce evidence to support a class action. Id., pp. 14, 
16-18. (7) That the court of appeals erred in stating the propriety 
of a class action was uncontested. Id., p. 30. (8) That all Title 
Y II suits are not appropriate class actions. Id., pp. 31-32. (9) 
That a class should not be certified after a decision on the merits. 
Id., p. 27.

24 (1) That there may be different types of discrimination at 
each terminal. Id., p. 33. (2) That city drivers at road terminals 
are covered by 77$ v. ETMF. Id., p. 34. (3) That the interests of 
city drivers at road terminals conflict with those of city drivers at 
city terminals. Id., pp. 34-35. (4) That most applicants for driving 
jobs only want to work in the town where they apply. Id., pp.
35-36.



9

questions regarding which certiorari was sought and 
granted.

The company’s 67 page brief contains a single sentence 
pro forma objection to the alleged denial of an opportunity 
to present argument and evidence.25 In fact, however, the 
company in the Fifth Circuit did brief extensively the ques­
tion of or whether this case was a proper class action.26 Le­
gal argument was also presented on the propriety of a class 
action in the Company’s Petition for Rehearing and Sug­
gestion for Rehearing En Banc,27 and that Petition ottered 
no intimation that the company had in any way been pre­
vented from advancing legal argument in its brief or peti­
tion in the Fifth Circuit. The company has yet to offer 
any indication as to what evidence it would have wanted 
to introduce as to the propriety of a class action, why it 
would have been relevant, or even whether it has or would 
seek to introduce such evidence on remand. If, by any 
chance, the company has relevant evidence and can demon­
strate on remand that the earlier proceedings provided no 
adequate notice that the evidence was called for, the com­
pany may introduce it and seek appropriate modification 
of the class action order under Rule 60(b)(6), Federal 
Rules of Civil Procedure.

26 Company Brief, p. 29.
26 Brief of Appellee-Defendant. Bast Texas Motor Freight System, 

Inc., No. 73-2801, pp. 11-18; EA 313-321.
27 Pp. 12-15; BA 322-326. Many of the arguments advanced in 

this Court in opposition to class action treatment were not advanced 
below, despite ample opportunity to do so. The Company’s real 
grievance seems to be not that it had no such opportunity, but 
that it failed to put the opportunity to good use.



10

3. The City-Road No Transfer Rule

The company argues that its rule prohibiting employees 
from transferring from jobs as city drivers to positions as 
road drivers was adopted in order to “maintain” the higher 
standards adopted two decades ago for road drivers be­
cause of a serious accident problem.28 The rule is of vital 
importance to minority drivers, since it prevents them 
from moving from the lower paid city driver jobs, to which 
they were confined on the basis of race until at least 1974, 
into the more lucrative road jobs.29 What relevance this 
contention has to the questions presented is not apparent.

In any event, this explanation has no basis in fact. On its 
face it is unpersuasive, for higher age, experience or other 
standards for road drivers could be preserved merely by 
providing that a city driver could transfer to the road 
only if he met the higher standards. The Appendix page 
cited by the company in support of this explanation con­
tains neither reference to differences in standards nor testi­
mony with regard to ETMF’s safety record in the 1950’s ; 
rather, the rule is there explained as a way to maintain 
continuity of relationships between city drivers and their 
customers, an argument long ago abandoned. App. 167. 
The previous page of the testimony offers as the primary 
reason for the rule a paternalistic desire to protect the 
“best interest” of city employees who might be foolishly 
tempted by the higher wages of road jobs to give up their

28 Company Brief, p. 7; Company Petition, p. 7.
29 In US v. ETMF, the company stipulated average earnings at 

5 typical terminals were as follows:
Classification 1970 1971 1972
Road Driver $12,368 $15,333 $18,100
City Employee 9,348 11,339 12,952

(City driver, etc.)
It further stipulated that average road driver out of pocket 
expenses in 1972 were about $50.00 a week. EA 289-291.



11

city seniority and neglect their “ family responsibilities” . 
App. 166.

The actual reason for the rule was candidly disclosed in 
US v. ETMF by the former company official who was 
ETMF’s personnel director when the rule was adopted:

Q. Do you know why that No Transfer Policy was 
put forth and implemented?

A. Yes, to prevent Blacks who are in the city opera­
tion transfering to the road operation.

Q. Is there a specific city operation that Blacks were 
seeking to transfer from the city to the road?

A. St. Louis, among others.30

Although the Southern Conference urges that all drivers 
“prefer” the “ traditional” 31 separation of city and road 
jobs, with a loss of seniority for any transferring employee, 
that is not so. Teamster contracts road and city rosters 
are merged in the northeast and for certain midwest com­
panies, and transfers without seniority loss are authorized 
in several states.32

4. The Inter-Terminal No Transfer Rule

The Company expressly recognized in its petition that, 
if there were a past policy of not hiring minority road 
drivers, the prohibition against transfers between terminals 
would have an impermissible “ lock in” effect if “minority 
drivers were hired in city-driver-only terminals in dispro­

80 BA 47. There is substantial evidence that whites were in fact 
allowed to transfer to the road after adoption of the no-transfer 
rule. See BA 85, 98-100, 104, 156, 163, 228, 233-274.

31 Southern Conference Petition, 8-9.
82 See, e.g., United States v. Central Motor Lines, Inc., 4 BPD 

If 7624, p. 5441 (W.D.N.C. 1971); United States v. Terminal Trans­
port Co., 11 BPD |[ 10,704, p. 6940, n. 9 (N.D. Ga. 1976).



12

portionate numbers.” 33 The company advises the Court 
that “ There is no evidence in the record to support such an 
assertion.” 34 The Southern Conference alleges that the 
number of minority city drivers at each terminal “ generally 
reflected the racial-national origin make-up of the respec­
tive communities in which the terminals are located.35 Both 
of these assertions are refuted by the record in this case.

Of the black drivers in Texas, 91.58% (87 of 95) work at 
city only terminals, as do 66.46% of Mexican Americans 
(68 of' 104). Only 36.95% of white drivers work at city 
only terminals (211 of 571).36 This is precisely the dis­
proportionate concentration of minority drivers at city only 
terminals that the company properly recognized would re­
quire abandonment of the prohibition against inter-termi­
nal transfers.

Neither is it the case, as suggested by the Southern Con­
ference, that minority city drivers are evenly distributed 
among the 20 terminals with city drivers. On the contrary, 
87.36% of all black city drivers work at just 2 terminals, 
Houston and San Antonio; 86.53% of all Mexican-American 
drivers work at Houston, San Antonio or El Paso. There 
are 13 city terminals with no minority city drivers, com­
pared to 138 white city drivers. Minority employees con­
stitute 76.65% of all city drivers at Houston, San Antonio, 
and El Paso, and only 7.26% of the city drivers at the 
remaining 17 terminals. As a practical matter, city driver 
was a non-white job in those three terminals, and a white 
job everywhere else. Nor can this pattern be explained by 
variations in the population; at the 13 terminals with no

33 Company Brief, p. 40, n. 10; Company Petition, pp. 18, 27.
34 Company Brief, p. 40, n. 10.
35 Southern Conference Brief, p. 8.
36 See p. la, infra.



13

minority drivers, blacks and Mexican-Americans constitute 
24.76% of the population. See p. la, infra.

The company suggests that its failure to hire virtually 
any minority road drivers may be the result of an absence 
of minority truck drivers in Texas. Census data reveals, 
however, that 39.62% of all truck drivers in the state are 
black or Mexican-American,37 compared to 26.06% of all 
ETMF truck drivers and 1.64% of ETMF road drivers. 
In the 18 cities, other than Houston, San Antonio, and El 
Paso, where only 7.26% of ETMF’s drivers were non-white, 
39.40% of the drivers in the area were non-white. In the 
13 cities where none of ETMF’s drivers were black or 
Mexican-American, 32.19% of the area drivers were black 
or Mexican-American. See, p. 2a, infra.

5. The Individual Claims

The company has briefed at length the question of 
whether it was guilty of discrimination against the indi­
vidual plaintiffs.38 It argues that each of the plaintiffs was 
unable to meet either the age, weight or driving record 
requirements,39 and that one of them had been involved in 
on-the-job accidents.40 The question of whether the court of 
appeals erred in its treatment of the individual claims has 
not the slightest relationship to any of the questions pre­
sented by the petition.

As this Court recognized in Franks v. Bowman Trans­
portation Co., 47 L.Ed.2d 444, 446, n. 32 (1976),41 a 
company cannot ground its refusal to hire a black appli­

37 United States Census of Population, 1970, vol. 45, Texas, 
Tables 171, 179, pp. 1583, 1819-21.

38 Company Brief, pp. 55-66.
39 Id., pp. 63; see also 21-22, n. 6.
40 Id., p. 8.
41 See, e.g., Watkins v. Scott Paper Co., 530 F.2d 1159, 1177-78 

(5th Cir. 1976) and case's cited.



14

cant on his failure to meet a standard or requirement which 
has not been uniformly applied to whites. The record in 
US v. ETMF  reveals literally hundreds of instances in 
which whites were hired as road drivers who did not meet 
the age, weight, education or experience requirements 
nominally adhered to by the company.42 In 1966 the com­
pany personnel director wrote a memorandum which 
stated:

With respect to job specifications, it is recommended 
that they be kept flexible as in the past. Our hiring 
limits have always been taken as guidelines, not so 
specific “yes” or “no” criteria. Since we place a great 
deal of emphasis on the individual being considered 
for any position, we will wish to remain flexible enough 
to deviate from our “guidelines” of policy for an out­
standing applicant, who may not be the “ policy” age 
or possess the “policy” experience, etc. This practice 
could be a difficult one to defend, if we were ever called 
upon to justify non-hiring of a negro over a white for 
a given job. We must handle future non-selection of 
negro applicants over whites for the same job on a 
basis other than not meeting specific standards, in 
view of the fact that we have deviated from our “ stan­
dards” to hire others for the same job.43

The director testified at trial in US v. ETMF that the stan­
dards were only informal “guidelines” , and that they were 
often disregarded.44 On the basis of this evidence the Dis­
trict Court in US v. ETMF  held:

ETMF did not strictly comply with stated company 
hiring standards through the years when hiring drivers

42 BA 149-219, 227-232, 268-274.
43 EA 279.
44 BA 39, 56-60.



15

for over-the-road jobs. Deviations may be found from 
every standard regarding age, education, safety record, 
and driving experience, although some driving experi­
ence was generally required.45

Although the company objects that plaintiffs are unqual­
ified because they lack 3 years of road driving experience, 
in 1972 it offered to waive that requirement for any of its 
hundreds of city drivers at road terminals who wished to 
transfer to the road.46 Clearly these allegedly “ stringent” 47 
standards were used, inter alia, as a pretext to reject quali­
fied blacks and Mexican-Americans; they should be given 
no credence by this Court. McDonnell Douglas Corp. v. 
Green, 411 TT.S. 792, 804 (1973).

The company further suggests that the individual plain­
tiffs would have been treated no differently had they been 
qualified whites, since the San Antonio terminal employs 
only city drivers and cannot hire for other terminals.48 
The company director of safety, however, testified in US 
v. ETMF that the officials at one terminal would inform 
applicants of vacancies at other terminals.49 The record 
in that case reflected instances in which applicants at one 
terminal were referred to another and in which applica­
tions were forwarded from one terminal to another.50 Man­
ifestly none of this would have been done for a minority 
driver, at San Antonio or elsewhere, who indicated an in­

4510 EPD 10,345, p. 5416 (N.D. Tex. 1975); EA 293.
46 Compare Company Brief, p. 8, with App. 73.
47 Company Brief, pp. 6-7; Company Petition, p. 7.
48 Company Brief, pp. 53-59.
49 EA 147-148.
60 EA 183 (Victor Beeves), 220-26 (James White), 228 (Robert 

Mckinley, Roger Amstutz), 229 (Martin Treece, Donald Taylor), 
230 (James White), 232 (Donald White).



16

terest in road jobs which were only available at another 
terminal.

Although in this action the company vigorously objects 
to permitting the named plaintiffs to transfer to road jobs 
at another terminal, the consent decree signed by the com­
pany two years ago in US v. ETMF permits such transfers 
to all minority city drivers in Texas who sought to transfer 
between 1965 and 1974, regardless of whether they have 
road experience. App. 108, 432. Since each of the named 
plaintiffs applied for such a transfer in 1970, each of them 
is literally covered by both the consent decree and the 
injunctive relief ordered in US v. ETMF. Thus the com­
pany agreed in US v. ETMF to the very relief for the 
named plaintiffs which it here opposes.61

II. The Union Petitions

Although the Southern Conference petition presented 4 
questions, the Conference has elected to pursue only two of 
them.62 The abandoned questions dealt with the sufficiency 
of the evidence of discrimination, and thus bore on the 
propriety of the injunctive relief ordered by the court of 
appeals.63 The two questions which the Conference has 
elected to pursue deal solely with whether the finding of 
union liability was proper in view of various factual cir­
cumstances emphasized by that petitioner.64 The Confer- * 52 * 54 * * * *

61 Counsel for amicus have been unable to ascertain with 
certainty why this transfer has not occurred.

52 See Southern Conference Brief, pp. 2-3, n. 2.
63 The Conference “ defers” on those questions to the arguments 

of the company, discussed supra.
54 The Conference argues that the seniority lock-in provisions of

its collective bargaining agreement never had any effect because
minority employees were also locked in by the company’s no
transfer rule. It could, of course, be argued with equal cogency
that the company rule never had any effect because of the union



17

■enee urges that these circumstances compel that conclusion 
that company alone should bear monetary responsibility for 
the injury suffered by the plaintiff class.* 65

The Local Union complains that, on the particular facts 
of this case, it should not be held liable. It stresses that, 
under the delegations of authority within the Teamsters, 
it is the International and Conference which negotiate the 
actual contracts and that they alone should be liable. The 
International, in US v. ETMF and in International Broth­
erhood of Teamsters v. United States, No. 76-636, advances 
the opposite contention, urging that the locals alone are 
liable because they are the entities which approve the con­
tracts.

Whatever the merits of these conflicting contentions, the 
sole consequence of the Fifth Circuit’s finding of liability 
against the Conference and Local is to authorize the district 
court to apportion some part of the total back pay liability

rule. Whichever may be the “real” cause of the inability of 
minority drivers to transfer, once that rule is enjoined the other 
rule would become operative and have to be enjoined as well.

The Conference also objects to monetary liability on the ground 
that the Teamsters actively support placing minority victims of 
discrimination in their “rightful place” . Conference Brief, pp. 33- 
34. The record in this case reveals not a single instance in which 
union officials took action to prevent or remedy ETMF’s flagrant 
policy of discrimination; the record in US v. ETMF, reveals a 
refusal to do so. EA 87-88, 113-119.

65 The Conference Brief discusses at length whether the injunc­
tive relief ordered below was excessive, an issue unrelated to the 
original questions presented. Conference Brief, pp. 23-36. The 
Conference suggests that minority city drivers who were the 
victims of discrimination be given carry over seniority only from 
the date on which they applied for road jobs. The record in US v. 
ETMF, however, shows, as the Conference well knows, that the 
company refused to permit and actively discouraged applications 
by non-whites for road jobs, and that minority drivers were 
detered from applying by the well known ETMF policy of dis­
crimination. EA 99a, 100a, 100b, 104a, 104b, 107, 107a, 143-5.



18

to them. A  careful reading of the opinion below, however, 
reveals that the court of appeals expressly recognized the 
“broad discretion” of the district court in allocating back 
pay liability among the defendants. All of the arguments 
made here by the Local and Conference can be made in the 
district court and, if sound, might lead that court to fix 
the unions’ financial responsibility at a nominal amount, or 
even place the entire responsibility on the company. Since 
such a decision would afford the Local and Conference all 
the relief they seek here, it is apparent that the questions 
presented by the union briefs are interlocutory in nature 
and that the grant of certiorari was premature. Brother­
hood of Locomotive Firemen v. Bangor & Aroostook R.R., 
389 U.S. 327 (1967).

CONCLUSION

The questions actually raised by this case are not those 
suggested by the petitions. To a significant extent the 
petitioners have abandoned the questions originally pre­
sented, and now seek to litigate issues not raised by the 
petitions and as to which certiorari was not and would not 
have been granted. Certain pivotal arguments of the peti­
tioners are without foundation in the record itself. Phillips 
v. New Fork, 362 U.S. 456 (1964). Many of the factual as­
sertions and defenses advanced by the petitioners, though 
plausible within the narrow confines of the record, are 
manifestly insubstantial in view of the evidence and find­
ings in TJ8 v. ETMF. In view of the fact that counsel for 
the company and Southern Conference were counsel in 
US v. ETMF, they should have disclosed the circumstances 
of that case in their petitions and briefs.

At best the Court is invited to write a difficult and far 
reaching opinion about a hypothetical case which would ex­



19

ist if  tlie facts were not as they are now known to be. The 
invitation should be declined, and the writs of certiorari 
should be dismissed as improvidently granted.

Respectfully submitted,

Jack Greenberg 
0 . P eter Sherwood 
B arry L. Goldstein 
E ric S chnapper 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Amicus Curiae



la

APPENDIX

ETMF Drivers

Terminal 
Abilene: City 
Amarillo: City 
Atlanta*: City 
Austin: City 
Beaumont: City 
Brownwood: City 
Dallas: Road 

City
El Paso: Road 

City
Fort Worth: City 
Henderson: City 
Houston: City 
Longview: Road 

City
Lubbock: City 
Lufkin: City 
Marshall: City 
Odessa: City 
Pecos: Road 
San Angelo: Road 

City
San Antonio: City 
Texarkana: City 

Road
Tyler: City

February 29, 1972

White Black
Drivers Drivers

11 0
5 0
2 0
8 0

29 3
5 0

59 0
107 5
52** 0
0 1

35 0
2 1

47 73
32 0
28 1
8 0

11 0
7 0

15 0
15 0
33 0
18 1
6 10
9 0
6 0

21 0

Mexican City
American Minority
Drivers Population

0 15.65%
0 11.79%
0 •—
0 27.50%
0 33.69%
0 11.69%
0 32.93%

11
3 60.41%

22
0 28.53%
0 28.08%

37 37.85%
0 19.95%
0
0 23.34%
0 30.43%
0 34.96%
0 19.52%
0 52.25%
0 24.22%
0

31 59.76%
0 28.85%
0
0 23.71%

* Population under 10,000, census data on minority population 
not published.

«  This appears to include 2 Indians.
Source: App. 322, 353-415; United States Census of Population, 
1970, vol. 45, Texas, Tables 40, 91, 97, 108, 112.



2a

Appendix

Truck Drivers

At Places W ith ETMF Terminals 

By Race
M exican

T otal B lack A m erican
P ercen t

M in ority
T erm inal D rivers D rivers D rivers D rivers

Abilene 627 18 39 9.09%
Amarillo 1,161 74 68 12.23%
Atlanta* — — — -—
Austin 906 259 250 56.18%
Beaumont 865 550 17 65.54%
Brownwood** 276 7 8 5.43%
Dallas 6,381 2,674 485 47.50%
El Paso 1,795 60 1,361 79.16%
Ft. Worth 2,648 871 177 39.57%
Henderson** 230 99 ### 43.04%
Houston 9,480 5,126 979 64.89%
Longview** 690 165 13 25.80%
Lubbock 981 76 176 25.69%
Lufkin** 445 154 6 35.95%
Marshall** 328 129 39.33%
Odessa 811 44 117 19.85%
Pecos** 358 5 329 92.73%
San Angelo 400 24 80 26.00%
San Antonio 4,002 493 2,463 74.86%
Texarkana 556 124 0 22.30%
Tyler 365 60 0 16.43%

* Population under 
not published.

10,000, census data on minority population

** Data for these cities includes some transportation equipment 
operatives other than truck drivers.

*** No Mexiean-Ameriean data published.
Source: United States Census of Population, 1970, vol. 
Tables 86, 93, 99, 105, 110, 115.

45, Texas,



MEILEN PRESS JNC.-— N. Y. C  219