Myers v. Gilman Paper Company Supplemental Brief of Plaintiffs-Appellees

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 75-2201

ELMO V. MYERS, et al.f
Plaintiffs—  Appellees,
- v -

GILMAN PAPER COMPANY,
Defendant,
and

INTERNATIONAL ASSOCIATION OF MACHINISTS AND 
AEROSPACE WORKERS, et al..

Defendants - Appellants.

On Appeal From the United States District Court for the 
Southern District of Georgia

SUPPLEMENTAL BRIEF OF PLAINTIFFS - APPELLEES

A. BLENN TAYLOR 
Taylor, Bishop & Lee 
P. O. Box 1596 
Brunswick, Georgia 31520

FLETCHER FARRINGTON 
GEORGE P. SHINGLER

Hill, Jones & Farrington 
208 East 34th Street 
Savannah, Georgia 31401

JACK GREENBERG 
O. PETER SHERWOOD

10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiffs - Appellees



UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

IN THE

No. 75-2201

ELMO V. MYERS, et al.,
Plaintiffs - Appellees,

- v -

GILMAN PAPER COMPANY,
Defendant,
and

INTERNATIONAL ASSOCIATION OF MACHINISTS 
AND AEROSPACE WORKERS, et al..

Defendants - Appellees

Plaintiffs-appellees submit this supplemental brief 
addressed to the effect of this Court's recent decisions in 
Sagers v. Yellow Freight Systems, Inc., 529 F.2d 721 (5th 
Cir. 1976) and Watkins v. Scott Paper Co., 530 F.2d 1159
(5th Cir. 1976) on the decision below. These two cases



I.
WATKINS REAFFIRMS THE LAW REGARDING 
THE DISTRICT COURT'S DUTY AT THE 
TIME IT CONSIDERED THE JOINT APPLI­
CATION TO APPROVE THE CONSENT DECREE

In Watkins, supra, this Court addressed the duty which 
Title VII, 42 U.S.C. §2000e, imposes on the district court 
when presented with employment practices which in the past 
operated to exclude blacks because of their race and which 
have been the subject of recent voluntary, though not 
entirely effective, efforts to undo the present effects of 
past discrimination. There, this Court held that even if 
the company had properly executed its obligations under the 
Office of Contract Compliance sponsored memorandum of under­
standing and the subsequently negotiated contract changes 
between company and union, the district court had the duty 
to order additional seniority and line of progression 
changes which would facilitate the rapid advancement of the 
victims of past discrimination to their rightful place. Id. 
at p. 1177. It is the duty of the employer to go as far as 
he can to undo the effects of discrimination limited only 
by business necessity. .Id. at p. 1168. Business necessity

confirm the correctness of several of the issues decided by
the district court which the unions challenge here.

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is limited to those cases where the employer "has no other 
choice." Id. at p. 1183.

Here, Gilman and the unions took certain voluntary
steps to undo the effects of past discrimination. See
plaintiffs-appellees' brief at pp. 15-17. The negotiated
August 1972 supplemental agreement afforded certain rights
to a defined affected class of black and female employees.

1/
As noted in plaintiffs-appellees' brief, the question be­
fore the district court at the time it considered the joint 
application for approval of the Consent Decree was not 
what has been done but whether what has been done is 
enough to rapidly eradicate, consistent with business
necessity, the effects of past discrimination. Thus, the

2 /
duty of the district court is not, as the UPIU urges, to 
defer to efforts directed at voluntary compliance.
Rather, the district court is required to make an 
independent determination as to whether or not Gilman 
and the unions had done everything possible to rapidly 
eradicate discrimination. See Watkins, supra, 530 F.2d at

1/ See pp. 36-37.
2/ See UPIU Reply Br. at 16.

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1168. Watkins confirms that the district court's decision to
approve the Consent Decree providing for freezing was a
proper exercise of its discretion since it facilitates the
rapid advancement of the black members of the affected class
to their rightful place. See Watkins, supra, 530 F.2d at
1177. Given the failure of the unions to present any business
necessity for denying the additional relief ordered here, the
district court's approval of the Consent Decree and subsequent
reaffirmation of the affirmative remedies contained therein
in its order of January 14, 1975 was a proper exercise of its

2/discretion and should be affirmed. See Sagers, supra, 529 
F.2d at 730.

II.
THIS COURT'S DECISION IN SAGERS 
DISPOSES OF THE IBEW'S CLAIM OF 
FREEDOM FROM BACK PAY LIABILITY

In this Court the International Brotherhood of Electrical 
Workers (IBEW) argue, as did the international Brotherhood of 
Teamsters (Teamsters) in Sagers v. Yellow Freight Systems,
Inc., supra, that it was not a party to and had no knowledge 
of the unlawfully discriminatory provisions of the IBEW Local

3/ Congress conferred upon the district courts wide discretion 
to use their equitable powers to fashion the most complete 
relief possible. See Albemarle Paper Co. v. Moody, 422 U.S. 
405, 421 (1975). Those remedial powers conferred under 
section 706 (g) of Title VII are broader than the remedial 
powers conferred upon the NLRB under Section 10 (c) of the 
National Labor Relations Act, 29 U.S.C. §169(c). See Franks
v. Bowman Transportation Co.. ___U.S.___, 47 L.Ed 2d 444,464
(1976) .

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741 contracts with Gilman. It placed heavy reliance on Herrera
v. Yellow Freight Systems, Inc., 505 F.2d 66 (5th Cir. 1974),

4/
arguing that that decision was "squarely contrary" to the
district court's decision here. It argued further that Local
741 is not the agent of the International and, therefore, it
could not be held responsible for any wrong doing on the part
of its local. It relied on a line of decisions involving
breaches of collective bargaining agreements to support this 

5/argument.
In our brief, plaintiffs-appellees demonstrated that the 

district court properly held the IBEW liable for back pay based 
on IBEW's active participation in the negotiation and subse­
quent ratification of the unlawfully discriminatory contracts 
of its Local 741 after receiving actual notice of the alleged 
unlawfulness of the contract.

This Court's decision in Sagers v. Yellow Freight Systems, 
Inc., supra, reaffirms the correctness of the district court's 
decision. As that decision indicates, Herrerra v. Yellow 
Freight Systems, Inc., supra, provides no support for IBEW's 
position. See Sagers, supra, 529 F.2d at 737.

Title VII imposes the same duties on IBEW that it does on 
Local 741. That duty is non-delegable. IBEW's liability in 
in this case stems not from any agency relationship between it

4/ See IBEW brief at p.20 and IBEW reply brief at p.7.
5/ See IBEW brief at pp.21-29.

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and Local 741 but from its own participation in the negotiation 
and approval of contracts which have a discriminatory effect.
Even if plaintiffs-appellees had not established that IBEW had 

actual notice of the unlawful effects of the facially neutral 
contracts which it approved, Sagers makes clear that IBEW never­
theless was under an obligation to inquire into the discrimina-

6/tory effect of its Local's contracts. See Sagers, supra, 529 
F.2d at 737, n.32.

Unlike the breach of contract cases on which IBEW relies, 
the violations giving rise to its liability arises from the 
contract provisions themselves. It does not arise from the 
wrong doing of members of its local union which violates the

6/ This court is well aware of the entrenched practice of 
systematic exclusion of blacks from industrial craft jobs 
generally, e.g. See Pettway v. American Cast Iron Pipe 
Co., 494 F.2d 211 (5th Cir. 1974); United States v.
Georgia Power Co., 474 F.2d 906 (5th Cir. 1973); Swint v.
Pullman Standard Co., _____F.2d_____, (5th Cir. 1976) and
in the southern paper mills in particular. See Watkins v. 
Scott Paper Co., supra; U.S. v. Local 189; 416 F.2d 980 
(5th Cir. 1969); Long v. Georgia Kraft Co., 450 F.2d 557 
(5th Cir. 1971); and Stevenson v. International Paper Co.
516 F.2d 103 (5th Cir. 1975). The court may take judicial 
notice of this fact. Cf. Clark v. Universal Builders Inc.,
501 F.2d 324, 334-35 (7th Cir. 1974), Cert, denied _____U.S.
_____, 95 S. Ct. 659 (1974).

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provisions of the collective bargaining agreement. Hence, the 
existence or non-existence of an agency relationship between 
the IBEW and its local union is of no moment. IBEW has a duty 
to inquire into the possible unlawful effects of local 
contracts it helps to negotiate. It has a duty to seek to
negotiate local contracts that will eradicate the effects of

8/
past discrimination. And it has a duty to refuse to approve 
any local contract which has a discriminatory effect. In fail­
ing to do so, as here, it violated Title VII and is liable for 
back pay. The district court properly so found.

Respectfully submitted,

7/

FLETCHER FARRINGTON 
GEORGE SHINGLER

208 E. Thirty-Fourth Street 
Savannah, Georgia 31401

JACK GREENBERG 
O. PETER SHERWOOD 10 Columbus Circle 

New York, New York 10019
ATTORNEYS FOR PLAINTIFFS - APPELLEES

7/ A collective bargaining agreement is, after all, a contract. 
Analyses of its violation lends itself more readily to contract 
law principles. The rights sought to be vindicated here do not 
permit contract law principles to play as salient a role. See 
Watkins, supra, 530 F.2d at 1172.
8/ This it belatedly sought to do in 1972.

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CERTIFICATE OF SERVICE

I hereby certify that I have served one copy of the 
foregoing SUPPLEMENTAL BRIEF OF PLAINTIFFS-APPELLEES upon 
all counsel of record by United States mail, postage pre­
paid, on this 4th day of September, 1976.

0. PETER SHERWOOD

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