James v. Beaufort County Board of Education Joint Supplemental Brief for All Plaintiffs

    is

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A

No. 74-2201

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ELMO V. MYERS, ET AL. ,
I-1 a inti f f s-Appe Ilex s ,

GILMAN PAPER CORPORATION,
Defendant,

c r.d
INTERNYTIGNAI: ASSOC1ATJON OF 
MACHINISTS AND AEROSPACE WORKERS 
ET AL.,

De f c- rid ::i n t s - App< • ’. I a nt

On Anneal i...cia the United States District Court for the 
Southern District, of Georgia

hRILF FOR UNITED PAILJcWORKERS INTERNATIONAL 
UNION AND ITS LOOMS 446, 453 arid 95U,
D E F EN DA NTS- A I'PELL AN T S

BENJAMIN WYLE 
Spr r&k vc r.ylo 
3 East 54th Street

:” New York, Now York 10022
JAMES EDWARD McALEER 

■ 24 E. Oglethorp Avenue
Savannah, Georgia 31401

11. 60TTESMAN,
FRANK RF.TRAMALO, JR * /
ROBERT M. WEINBERG,
B rtdhof f, Cushman, Gotte:

& Cohen
1000 Connecticut A *' C? «l ». f
Washington, R ■ C« 20036
Attorneys for Defendants”
Appellants United Paperw
International Union, anc
Locals 446, 453 and 953

tf

c?if \



No. /5-220.1 - Elrno V. Myers, et al. v. Gilman Paper Corporat.iorx, 
fet al.

CERTIFICATE REQUIRED BY 
FIFTH CIRCUIT LOCAL RULE 13 (a)

•?

TV

2̂
*3

:s

i

The undersigned, counsel of record for the United 
Paperworkers International Union, defendants-appellants in 
this case, certifies that the following listed parties have 
an interest in the outcome of this case. These representa­
tions are made in order that Judges of this Court may evaluate
possible disqualification or recusal, pursuant to Local Rule 
13(a).

tlmo v. Myers, Martha Yvonne Hannah,
Isodore Roberts, Gerald Roberts,
James Jacobs, Oscar Morris,
Roosevelt Dawson, Wilbur Jacobs,
Nathaniel Joseph, Lawrence Brown, Sr.,
Kenneth E. Smith, Jarone Lionel Smith,
William E. Myers, Verdel R. Griffin,
Abraham Samuel, Eddie Lee Smith,
Clifton Butler, Peter J. Sibley,
Theodore R. williams, Carl Jenkins,
Charles E. Jenkins, Jesse Frison,
John W. White, Robert L. Stevens,
Leonard Porcine, Simon Johnson,
Edward Owes, and Inmand Cobb,

Plaintiffs,
All persons encompassed within the 
affected classes" A through E certified 
m  the District Court's decree entered November if t -±g74

Classes Represented 
by Plaintiffs

m
•>



Gilman Paper Corporation; United Paperworkers 
International (AFL-CIO); International 
Brotherhood of Electrical Workers (AFL-CIO); 
Local Unions Numbers 453, 446 and 958, United 
Paperworkers, International (AFL-CIO), Loca3.
741, International Brotherhood of Electrical 
Workers (AFL-CIO); and Local 1128, International 
Association of Machinists and Aerospace Workers 
(AFL-CIO),

Defendants.

Attorney for Defendants- 
/ippellants United Paperworkers 
International Union, and its 
Locals 453, 446 and 958



TABLE OF CONTENTS
Page

STATEMENT OF QUESTIONS PRESENTED ------------------------- 1
STATUTORY PROVISION INVOLVED ----------------------------- 3
STATEMENT OF THE CASE ------------------------------------ 3

A. Proceedings To Date ------------------------------ 3
B. Statement of Facts ------------------------------- 6

ARGUMENT:
I. THE DISTRICT COURT ERRED IN APPROVING 

THOSE PORTIONS OF THE CONSENT DECREE 
WHICH "SUPERSEDE AND REPLACE" UPIU'S 
COLLECTIVE BARGAINING AGREEMENT ----- -----------18
A. A Court May Not Alter A Collective 

Bargaining Agreement Unless It Is 
Found To Violate Title VII or To Be 
Insufficient To Cure the Effects of 
Past Discrimination. Absent Such a 
Finding It May Not Order, Over Union 
Ohient 3ve Modifications Negotiated by a
Small Faction within the Work Force -------- 20

B . The Supplemental Labor Agreements Were 
Not Violative of Title VII, Nor Did 
They Fail To Cure the Company's Past 
Discrimination. The Court Did Not 
Find Otherwise, Yet It Replaced Them 
with Provisions Negotiated by A Faction
of the Work Force ---- ----------------------- 25

C. The Provisions of the Consent Decree 
Relating to Seniority and Other Subjects 
of Collective Bargaining Are Less 
Faithful to Title VII's Objectives
Than Those Contained in the Supplemental
Labor Agreements ----------------------------2 3

D. Some Conclusions and Observations -----------34
II. THE DISTRICT COURT'S BACK PAY RULINGS 

WERE ERRONEOUS IN NUMEROUS RESPECTS
A. The District Court Erred in Assessing 

50% of the Back Pay Liability Against 
the Unions----- ■---------------------------- 37



Page

1« The Court's Finding that, the Unions 
Were "Equally Responsible" with the 
Company for the Injuries Suffered by 
Discriminatees Is Clearly Erroneous ----- 39

2. A Union May Not Be Required To Pay
A Portion of the Back Pay for Injuries 
Resulting from Employer Misconduct 
Unless It Can Be Shown that the 
Injuries Were Made Worse by the Union's 
Conduct --------------------------------4 4

B. Assuming Arguendo that UPIU Is Responsible 
for Some Back Pay, the District Court Erred
in Holding UPIU Monetarily Liable for Injuries 
Which the Court Found Were Caused Solely by 
the Company and Unions Other than UPIU -------- 50

C. The District Court Erred in Declaring
Employees Hired after July 2, 1975, 
"Presumptively Entitled" to Back P a y ---------- 53

CONCLUSION ----------------------------------------------- 61



TABLE OF AUTHORITIES

Albemarle Paper Co. v. Moody,
4"S' LTw : 4880 (1975) ------ -------------------------37,46

Bhd. of Railroad Trainmen v. Howard,
343 U.S. 768 71932) "--- --- -----------------------49

Carey v. Greyhound Bus Co.,
5O O F . 2d 13 72 (5th Cir. 1974) ---------------------45

Central Soya Co.,
142 NLRB 930 (.1963) -------------------------------52

Conley v. Gibson, 355 U.S. 41 (1957) ---------------49
Czosek v. 0 1 Mara, 397 U.S. 25 (1970) --------------2,39,48,49
DeArrovo v. Sindicato de Trabajadores
^ackTng, AFl3ci7/~7~25 F. 2d 28l (1st Cir. 1970) --- 48
Emporium Capwell Co. v. Western Addition
Community Organization, 43 L.W. 4214 (1975) ------ 20,21,22,23_ 24,27,30,34
FranJcs v. Bowman Transportation Co. ,
T95~F.2d 398 (5th Cir. 1974) ---------------------- 42
Gamble v. Birmingham Southern Railway Co.,
No. 74-2105, 10 FEP Cases 1148 (5th Cir. 1975)---- 60
Graham v. Bhd. of Firemen, 338 U.S. 232 (1949) ------40
Griggs v. Duke Power Co., 401 U.S. 424 (1971) ------33
Guerra v. Manchester Terminal Co.,
“498 F . 2d 641 (5th Cir. 1974) ----------------------45
J. J. Hagerty, Inc., 139 NLRB 635 (1962), 
enforced in pertinent part, 321 F.2d 130 
(2nd Cir. 19 63) ----------------------------------- 46

J. Willis & Son Masonry, 191 NLRB 872 (1971) ------ 46
Jinks v. Mays, 464 F.2d 1223 (5th Cir. 1972) ------ 37
Johnson v. Goodyear Tire & Rubber Co.,
~41T1~f72d 1364 T5th CTrT 19 74 T ---------------------37,45,53,58
Local 189 v. United States, 416 F.2d 980 
CSUTCxr. 1969T7 cert, denied, 397 U.S. 919 (1970)-33,58

NLRB v. Bulletin Co., 443 F.2d 863 (3rd Cir. 1971)— 46
NLRB v. Local 138, International Union of
~CperatTng Engineers^ 2"9"3~F.2d 18 7 (2nd Cir. 1961) —  46

Page ,



Page

NLRB v. Local 485, International Union of 
Electrical Workers, 454 F.2d 17 (2nd Cir. 1972) 49
Nedd v. United Mine Workers of Amer.ica,
“400 F. 2d 103 “(3rd Cir . 1968) -------------------------- 48
Pettway v. American Cast Iron Pipe Co.,
"494 F. 2d 211 (5th Cir. 1974)' -------------------------- 37
Savannah Print. Spec. & P.P. Loc. U ._604 v.
~Union~~Carop Corp. , 350 F. Supp. 632 (S.D. Ga. 1972) 44
St. Clair v. Local Union No. 515 of International 
Brotherhood of Teamsters. 422 F.2d 128 (6th Cir. 1969)-48
Steele v. Louisville & Nashville R. Co.,
323 U.S. 192 (1944) -----------------------------------49

Steelworkers v. Warrior and Gulf Co.,
363 U.S. 574 (I9 60) -----------------------------------44

Stevenson v. International Paper Co., No. 73-1758
"(5th Cir. July 16, 1975) ------------------------------18,23,29 ,37,43,45,58
Syres v. Oil Workers International Union,
350 U.S. 892 (1955) ------ ------- ---------------------49

Texlite, Inc., 119 NLRB 1792 (1958) enforced,
266 F. 2d 34 9 (C.A. 5, 1959) ---------------------------52

Thornton v. East Texas Motor Freight,
497 F. 2d 416 (6th Cir. 1974) --------------------------42,49

Tunstall v. Bhd. of Locomotive Firemen,
-3TT“U . S'. 210 (1944 )' = = - - ----------------------------- 48
United States v. Allegheny Ludlum Industries,
8 FEP Cases 198 — ------------- ------------ ---- -■------23

United States v. Bethlehem Steel Corp.,
446 F. 2d 652 (2nd Cir. 1971) ----- 1------------ *------ 42

United States v. Chesapeake and Ohio Railway Co.,
471 F. 2d 58 2 (4th Cir. 19 72)"----- ---------- ---------- 60

United States v. East Texas Motor Freight,
10 FEP Cases 971 (N.D. Tex. 1975) ---------------------42

United States v. Georgia Power Co., 474 F.2d 906 
(5th Cir. 1973) ---- ---------------------------------- 37

United States v. Local 189, 282 F. Supp. 39 
(E.D. La. 1968) ------- :------------------------------- 44

United States v. United States Stee1 Corp.,
371 F. Supp. 1045 (N.B. Ala. 1973T------------------ -23

Vaca v. Sipes, 386 U.S. 171 (1967) -------- -------------2



Waters v. Wisconsin Steel Workers,
427 F.2d 476 (7th Cir. 1970), cert, denied,
400 U.S. 911 (1970) ------------------------------------49

STATUTES INVOLVED
Title VII of the Civil Rights Act of 19G4, as amended:

Section 706(g), 42 U.S.C. §2000e-5(g) -----------------3
National Labor Relations Act:

Section 8(b)(3), 29 U.S.C. §158 (b)(3) ----------------52

MISCELLANEOUS
EEOC, "Affirmative Action and Equal Employment: A Guide­
book for Employers," page 57 (197 4)  4 5
EEOC, "Legislative History of Titles VII and 
XI of the Civil Rights Act of 1964 ," p. 2071------------24,59

v



IN THE UNITED STATES COURT OF APPEAL,S 
FOR THE FIFTH CIRCUIT

NO. 74-2201

ELMO V. MYERS, ET AL.,
Plaintiffs-Appellees,

v..
GILMAN PAPER CORPORATION,

Defendant,
and

INTERNATIONAL ASSOCIATION OF 
MACHINISTS AND AEROSPACE WORKERS,
ET AL.,

Defend a n 1: s - Appellants

On Appeal from the United States District Court For the 
Southern District of Georgia

BRIEF FOR UNITED PAPERWORKERS INTERNATIONAL 
UNION AND ITS LOCALS 446, 453 and 958,
DEFENDANTS-APPELLANTS

STATEMENT OF QUESTIONS PRESENTED
1. Whether, in an action under Title VII of the Civil 

Rights Act of 1964, a district court may approve provisions of 
a "consent decree" negotiated between the plaintiffs and the 
employer, over the objection of the unions which are the 
exclusive bargaining representatives of the employer's 
employees, where:



(a) said provisions are inconsistent with provisions 
in the unions' collective bargaining agreements and will 
"supersede and replace" the collectively bargained provisions; 
and

(b) no party claims, and the court does not find, 
that the collective bargaining agreements are violative of 
Title VII or insufficient to eliminate the present effects 
of the employer's past discrimination.

2. Whether the district court's finding that the unions 
were "equally responsible" with the Company for the injuries 
suffered by discriminatees, on the basis of which it held the 
unions liable for 50% of the back pay due. discriminatees, is 
clearly erroneous.

3. 'Whether the principles annunciated in vaca v. Sipes, 
386 U.S. 171, 196-198 (1967) and Caosck v. O ’Mara, 397 U.S. 
25,29 (1970), apply to the apportionment of monetary liability 
between employers and unions for the injuries suffered by 
discriminatees as a result of Title VII violations.

4. Whether the district court erred in holding UPIU 
monetarily liable for injuries which the court found were 
caused solely by the Company and unions other than UPIU.

5. Whether the district court erred in declaring 
employees who suffered no discrimination "presumptively 
entitled" to backpay.



STATUTORY. PROVISION INVOLVED

Section 706(g) of Title VII, 42 U.S.C. §2000e-5(g),

provides in pertinent part:
"If the court finds that the respondent has .inten­

tionally engaged in or is intentionally engaging m  
an unlawful employment practice charged in the com 
plaint, the court may enjoin the respondent from en 
gaging in such unlawful employment practice, and 
order such affirmative action as may be appropriate, 
which may include, but is not limited to, reinstate­
ment or hiring of employees, with or without back, 
pav (payable by the employer, employment agency, or 
Jabor organization, as the case may be, responsible 
for the unlawful employment practice) , or any other 
ecmitable relief as the court deems appropriate . . .
No order of the court shall require the admission or 
reinstatement of an individual as a member of a union, 
or +-he hiring, reinstatement, or promotion of an 
individual as an employee, or the payment to him of 
any back pay, if such individual was refused admission 
suspended, or expelled, or was refused employment or 
advancement or was suspended or discharged for any 
reason other than discrimination on account of race, 
color, religion, sex, or national ori gin or in viola 
tion of section 704(a)."

f

STATEMENT of the case 

j\ . Proceedi ngs To Date
This action was instituted on September 1, 1972, by 

28 employees of the Gilman Paper Company (hereinafter the 
Company). The complaint, which was brought as a class action, 
alleged that the Company's black employees had suffered 
discrimination in hiring, assignment and advancement oppor­
tunities because of their race. Named as defendants were 
the Company, the local unions which are the bargaining 
representatives of various groups of the Company's employees,

3



and the international unions with which those locals are
affiliated. The complaint sought injunctive relief and back

1_/pay.
Before the case was scheduled for trial, plaintiffs and

the Company negotiated a proposed "consent decree," to which
the unions were not parties, which, amcng other things,
contained provisions relating to seniority, transfers, and
other subjects of collective bargaining, and which declared
that those provisions would "supersede and replace" the pro-

2_/
visions of the collective bargaining agreements. Plaintiffs 
and the Company requested that the court enter that consent 
decree as a final resolution of the plaintiffs' claims

uagainst the Company. The unions opposed entry of the con­
sent decree, arguinc that their existing agreements (called 
"supplemental labor agreements") already complied with Title 
VII, and that the court was without authority to replace 
lawful collective bargaining provisions with other provisions
negotiated between an employer and a minority faction of its

£_/employees.

Notwithstanding the unions' objections, and without 
making any determination as to whether the existing labor 
agreements were in compliance with Title VII, the district

w
court approved the entry of the consent decree. However, 
the court postponed the effective date of those provisions of 
the consent decree which would "supersede and replace"

T~7 R. 14-357
2_/ R. 867, 869-877, 886-887.
3_/ R. 723.
4_/ R. 772-780, 781-800, 821-845.
5_/ R. 862-866, 1018-37.

4



provisions of the collective: bargaining agreements until
6 /

January 1, 1975, a date following the scheduled trial.
The unions moved to amend their complaints to assert

cross-claims against the Company with respect to any back pay
7 /

which might ultimately be awarded against the unions. These
£_/

motions were granted.
The trial was conducted, as scheduled, on December 2-5,
9 / . . .1974. On January 14, 1975 the court issued its decision.

In its decision the court found that there had been Title VII 
violations up to, but not after, the adoption of the supple­
mental labor agreements. Although not finding the supple­
mental labor agreements to be deficient to cure the effects 
of past discrimination, the court directed that the provisions 
of the consent decree which "supersede and replace" the pro­
visions of the labor agreements "shall become effective as

11/scheduled on January 1, 1975". The court declared that
the unions were "equally responsible" with the Company for
the prior discrimination, and thus held that the unions were
"liable for 50% of the economic loss suffered by each individual

12/class member." The court went on to define a class of
employees who were "presumptively entitled" to back pay from 

13/
the unions. The court's order directed supplementary

r/ 10*36/ The* Trial was scheduled to begin on December 2, 
1974. R. 1017.
7 / R. 766, 803, 848, 1010.
Try R. 857, 1128.
9_/ R. 10 
10/ R. 1301-25.
11/ R. 1324.
12/ R. 1322 
13/ R. 1324-25.

5



proceedings to determine which employees were to receive back
14/

pay, and in what amounts.
15/

The unions appealed, and asked the district court to
16/

stay further back, pay proceedings pending appeal. The
17/district court denied those motions.

The unions thereupon moved in this Court for a stay of 
back pay proceedings pending appeal. Plaintiffs countered 
with a motion that the appeals be dismissed, contending that 
the decision below was neither a final order nor an appealable 
interlocutory order.

On June 26, 1975, a panel of this Court (Chief Judge
Brown and Judges Godbold and Gee) granted the unions' motions
for a stay of further back pay proceedings pending appeal, and
directed that the plaintiffs' motion to dismiss the appeal be

18/
"carried with the case."

B. Statement of Facts
Gilman Paper Company (the "Company") operates two 

facilities in St. Mary's, Georgia. One is a plant for manu­
facturing paper bags (hereinafter referred to as the "bag plant" 
All of the employees at the bag plant are in a single bargain­
ing unit represented by Local 958, UPIU. The other facility

14/ R. 1322.
15/ R. 1326, 1330, 1334, 1351.
16/ R. 1347.
17/ R. 1361.
18/ UPIU's argument in support of the appealability of the 
January 14 order is fully set forth in the Memorandum of 
United Paperworkers International Union in Opposition to 
"Motion of Plaintiffs-Appellants to Dismiss the Appeal," to 
which we refer the Court.

6



•̂g q paper mill (hereinafter referred to as the mill ) .
At the mill, 72% of the employees are represented by Locals 
446 and 453 of UPIU, and there are two separate craft units 
whose employees are represented by other unions; 18% of 
the mill's work force is in a machinist unit represented by 
Local 1128 of the International Association of Machinists.
10% of the mill's work force is in an electrician unit repre­
sented by Local 741, International Brotherhood o j . Electrical

19/Workers.
Except as otherwise indicated, the description which 

follows is equally applicable to both the bag plant and the 
mill. We shall use the term "UPIU" to refer collectively to 
UPIU International and its locals representing employees at 
the bag plant, and the mill.

The hiriiig of employees, and their initial assignment
to jobs, is and always has been the exclusive province of the

20/
Company. Prior to the effective date of Title VII (July 2,
1965 ) the Company pursued a conscious policy of assigning
newly-hired black employees only to certain jobs (hereinafter
referred to as "black" jobs), while assigning whites to other

21/
jobs.
19/ R. 1323.
20/ R. 552-553, 578; 607-608, 680; 110, 688; 1226.
Tr. 109-111, 149-152, 161.
21/ R. 1304-05; Tr. 89-90. During that pre-Title VII period 
there was another 3.ocal of UPIU, Local 616, whose jurisdic­
tion consisted mostly of the "black" jobs, and whose member­
ship therefore was predominantly (although not exclusively) 
black. When Title VII became effective, UPIU International 
immediately directed that Local 616 and the other locals be 
merged. The locals, however, did not accomplish such a 
merger until 1970. In large part, the delay was caused by 
the resistance of Local 616's members, who were reluctant 
to surrender the autonomy which they enjoyed as a separate 
(Cont'd)

7



Upon the effective date of Title VII, the Company 
revised its hiring and assignment, policies in order to comply • 
with the new law. From that date forward, it assigned newly- 
hired employees to jobs without regard to their race. As 
a result, the vast majority of blacks hired after the effec­
tive date of Title VII were assigned to jobs which historically 
had been "white" jobs.

While this change in policy thus assured that those 
blacks hired after July 2, 1965 would suffer no discrimina­
tion, the Company did not similarly take steps to enable those 
who had been hired and discriminatorily assigned during the 
pre-Act period to reach their rightful place. Having initially 
assigned those employees on a discriminatory basis, the Company 
also insisted (until adoption of the sur>nleny=>r+-a1 i-i-— - .r(Y--. 
ments in 1972, described infra) upon complete discretion in 
determining whether the discriminatees could transfer to 
better lines of progression. In the words of the Company's 
Assistant Industrial Relations Director, testifying at trial,

21/ (Cont'd) local. (Tr gn..mn\ ji •the UPIU lor-lc; i _ p ,* ", . Du..mg this period,“ ? locals, _all of whom bargained jointly for their
that no ff r3al!a "9 agreement, had an internal agreement
acceptance (T? 48 6S4B7<)eptTd jf .any looal °PPOs,ad

merger of the locals. (R. 1305-06 Tr vin / nf b  3 a
J t ^ s -  J S . - S  s s s

txon' there is no occasion for UPIU to chall^LZ viola- on appeal. cnaiienge the ruling
22_/ R- 1228; Tr. S3-S4, 163-164.

8



prior to 1972 the .decision whether to allow a transfer was
"the prerogative of the Company as a business management
function.”“ / Nothing in UPIU's collective bargaining agree-
ment precluded employees from transferring. But the
Company did not post notices in the plant advising employees
when vacancies existed in other lines of progression.
And when employees discovered the existence of such vacancies
and asked to be transferred to them, the Company usually denied
the requests. The Company felt that, having trained employees
at great expense to do the jobs in one line of progression,
it would lose its "investment" —  the benefit of the employees'
accumulated expertise —  if it permitted them to transfer to

26/
other lines of progression. In consequence, when an experienced
__ n r. f rapcifpr it was "hiorhlv unlikely that the

27/
request would be granted. The Company was determined not
to surrender, in collective bargaining, its unilateral con-

28/
trol over this matter.

UPIU consistently sought to broaden the discriminatees 
job opportunities, albeit with little success in the face of 
the Company's rigid position. Collective bargaining took 
place in 1963, 1965, 1968 and 1970. The record shows:

(i) m  1963, prior to Title VII's enactment, UPIU 
proposed adding a provision to the collective bargaining 
agreement guaranteeing "each employee equal opportunity in all

237 Tr. 109-11, 152-153 
24/ Tr. 164-165.
25/ Tr. 158, 182.
26/ Tr. 159, 200.
27/ Tr. 159.
28/ Tr. 111. 9



aspects of employment, tenure, terms and conditions of
employment in work assignments, promotion and transfers with-

29/
out regard to race, creed, color or national origin." The

3 0/
Company refused to accept this provision. The employees,
including the blacks, voted to accept the Company's last offer
in collective bargaining, rather than strike, although it

3iy
meant that this provision would not be in the agreement.

(ii) In 1965, UPIU renewed its demand for a non­
discrimination clause in the agreement. This time, the 
Company agreed to a clause providing: "The parties signatory
to this agreement shall not discriminate against any employee

32/
because of race, color, sex, religion, or national origin."

(iii) In 1968, UPIU sought a provision which would have 
compelled the Company to fill vacancies in lines of progres­
sion with existing employees, thereby eliminating the Company's 
discretion to fill such vacancies with new hires. Under UPIU's
proposal, a "labor pool" would have been created "which would

33/feed all lines of progression on a plant seniority basis."’
As a vacancy came open in each line of progression, it would
be awcirded to the employee in the labor pool with the greatest

34/
plant seniority desiring it. The Company would not agree
22/ Tr. 476.' “
H)/ Tr. 477.
31 / Tr. 479. As noted above, n. 21, the locals within UPIU 
had an agreement that if the members in any one local voted 
not to accept the Company's offer the offer would be deemed 
rejected.
32./ Tr. 487-488.
33/ Tr. 490-491.
34/ Tr. 491-492.

10



The employees, including the blacks,35/
to this proposal.
voted to accept the Company's last offer although it did not

36/
contain this provision.

(iv) In 1970, UP1U made the quest for transfer rights 
a major issue in collective bargaining. UPIU demanded that 
all vacancies be posted throughout the plant foi bidding; 
that the employee with the greatest plant seniority bidding 
for a vacancy receive it; that transferring employees receive 
"red circle" rates to assure that they would not suffer a pay 
cut upon transferring to a new line of progression; and that 
transferring employees be able to use their plant seniority
to hold a job if confronted, after transfer, with a permanent

37/
layoff in their new unit. Additionally, UPIU demanded
the merger of historically s:black” and "white" lines of

33 / .progression. The Company rejected all of these demands; it
insisted upon retaining its absolute discretion in filling
vacancies, declaring that it would "take its chances' in
litigation if its employees sued under Title VII. UPIU
struck. After four weeks, the Company having indicated no
willingness to yield, on this issue, the employees voted
over the objection of UPIU's staff representatives —  to give

4 0/
up the strike and return to work.
35/ Tr. 493-551.
36/ Tr. 493. See also n. 31, supra.
37/ Tr. 496-501.
38/ Tr. 502.
39/ Tr. 505.
To/ Tr. 503-508, 557. The lead plaintiff in this action, 
Elmo Myers, was among the local union officials advocating 
that the employees return to work. Id.

11



In late August 1972, the Company finally relented.
It offered "supplemental labor agreements" which each of the
unions in the bag plant and the mill immediately accepted,
designed to bring the transfer, seniority and other practices

41/
into compliance with Title VII. These agreements created
an "affected class" consisting of all incumbent black and

42/
female employees. Henceforth, job vacancies were to be
posted throughout the plant, and the most senior employee
(measured by plant seniority) who bid for a vacancy would, if

43/
qualified, receive it. Those affected class employees who
accomplished transfers pursuant to this procedure would
enjoy, i.n their new lines of progression, the use of full
plant seniority for all purposes (permanent and temporary

4/
promotions, demotions, layoffs, recalls, etc.). The
Company agreed that tests would not be used to disqualify
any affected employee from a vacancy to which his plant
seniority entitled him, unless those tests had first been

45/
validated pursuant to federal guidelines. Each affected 
employee who transferred would receive "rate of pay protec­
tion" —  i.e., continuation of his former rate of pay unt.i.1
he progressed in his new line of progression to a job peiying

46/
more than he had been receiving in his former job. The
41/ R~ 150-164, 264-274, ¥797 49’6-o0"6. For purposes of 
specific references in future footnotes, we shall cite to the 
provisions of the supplemental labor agreement in the bag 
plant, to which UPIU Local 958 is a party, R. 150-164. The 
other agreements are substantially the same.
42/ R. 152.
43/ R. 153-157.
44/ R. 153-156.
45/ R. 152-153.
46/ R. 157-159.

12



Company agreed to provide training so that affected employees
47/

could qualify for higher-rated jobs. Some lines of pro­
gression were restructured to afford discriminatees quicker

48/
access to preferred jobs.

In sum and substance, the supplemental labor agreements
contained all of the provisions which courts have deemed
necessary to eliminate the present effects of past discrimina-

49/
tion. Plaintiffs did not contend otherwise in this lawsuit, 
and the district court did not find otherwise.

Within a few days after the supplemental labor agreements
became effective, plaintiffs filed this lawsuit. The original
complaint alleged violations only of the Civil Rights Act of

50/
1G66, 42 U.S.C. §1931. Some weeks later, when plaintiffs

vcu nuLioco Or j. j. cj j i u  to ouc j - x U i u  njjuc ̂ tiic_y l ix cu  dn

51/amended complaint alleging violations of Title VII as well.
While the case was pending at the pre-trial stage, plain­

tiffs and the Company negotiated a proposed consent decree, and
52/tendered it to the district court for approval. The consent decree 

was designed to accomplish a final resolution of the dispute 
between the plaintiffs and the Company, while leaving plaintiffs

47/ R.' 159~
48/ R. 156-157, 162-164.
49/ This is most clearly established by reference to Plaintiffs' 
Pre-Trial Statement of Issues, which asserted illegality only 
for the period "July 2, 1965, through September 1, 1972"
(R. 1066), i.e., from the effective date of the Act until the 
adoption of the supplemental labor agreements. See also 
Plaintiff's Proposed Findings of Fact submitted prior to trial 
(R. 1110-21, see particularly R. 1117-19), and Plaintiffs' 
Proposed Findings of Fact (R. 1220-35, see particularly R. 12 32- 
33) and Plaintiffs' Proposed Conclusions of Law (R. 1236-41) 
filed following the trial.
5JV R. 14-23„
51/ R. 24-34.
52/ R. 723.

13



free to pursue their claims against the unions. The Company 
expressly disclaimed, in the proposed decree, that it had violated 
Title VII in any way ; it explained that it had negotiated the 
decree solely to demonstrate its "good faith" and to avoid the costs

53/
of further litigation.

1'n essence, the proposed consent decree had three features:
1. It contained injunctive relief relating to

those matters under the Company's exclusive control, such
54/

as recruitment and hiring.
2. It stipulated that the Company's liability for 

back pay would be $300,000, to be distributed among the
members of the class, and that the Company's liability
_ 55/for plaintiffs' attorneys fees would be $35,000.

3 . If Cnni' t n ‘i tin *i t re> v>rnr?' A t" -i' • — —- — ... j  U*» w  v 4-iaa.v^iiiJ ^elating tio
matters encompassed by collective bargaining, such as
transfers and seniority, and expressly declared that its
provisions would "supersede and replace" those contained

56/m  the supplemental labor agreements.
The transfer and seniority provisions in the proposed consent 
decree largely copied those contained in the supplemental labor agree­
ments. There were, however, three significant variations, v;hich 
we describe briefly here, and more fully at pp. 30-34 , infra:
53/ R. 8 6 8."'
54/ R. 877-881.
55/ R. 883-884.
56/ R. 869-877, 886-887.

14



1. Whereas the supplemental labor agreements
had extended plant, seniority rights to both blacks
and females, the proposed consent decree extended them

57/only to blacks. —

2. The proposed consent decree contained a rate reten­
tion formula less beneficial to affected class employees

58/
that that contained in the supplemental labor agreements.

3. The proposed consent decree provided that if an
affected class member was the most senior bidder for a
vacancy, but was not qualified to do the job, the job
woiild be kept open indefinitely until he became qualified
to fill it, and in the meantime would be filled by

59/
temporary assignment of other employees.
All of the unions urged the district court not to adopt

the proposed consent decree. They complained that they would
suffer severe practical disadvantages if the Company were allowed

60/
to settle its back pay liability, and they objected to those
aspects of the proposed consent decree which would "supersede
and replace" provisions in their collectively bargained supple-

61/
mental labor agreements. They pointed out that there had been
no finding that the supplemental labor agreements were insufficient
to meet Title VII's objectives; that no one contended that such
an insufficiency7 existed; that they (the unions) were prepared
to prove the sufficiency of the supplemental labor agreements;
57/ R. 869-87 0. ~See also tie decree as finally entered by the court, 
R. 1019-20.
58/ R. 876-877. See also R. 1026-27. The superiority of the 
formula in the supplemental labor agreements is explained infra,
PP•31-32.59/ R. 872. See also. R. 1022.
60/ R. 778-780, 794-300, 826-834.



and that, at the very least, the court could not override the 
agreements without first adjudicating them insufficient. The 
unions argued that absent a holding that the supplemental labor 
agreements were insufficient, court approval of the consent 
decree would constitute an impermissible intrusion upon the 
unions' exclusive bargaining status, for it would substitute 
the product of a bargain struck between the Company and a small 
group of its employees for lawful provisions achieved through 
the negotiations mandated by the National Labor Relations Act, 
i.e., between the Company and the exclusive bargaining representa­

tives of all the employees.
Despite these objections, the court approved the consent 
62/decree. With respect to those portions of the consent decree

which would "supersede and replace" provisions of the collective
bargaining agreements, the district court simply declared that
they were similar to provisions contained in other settlements
and court orders in che paper industry, and thus were appropriate.
The court did not examine the supplemental labor agreements to
see whether they already complied with Title VII, nor did -t
declare that they did not. In deference to the unions' objections,
however, the court directed that these provisions of the consent
decree would not become effective until January 1, 1975, i.e.,

64/
following the trial.
62/ With respect to the back pay portions, the court reasoned 
that the unions were adequately protected because they would be 
permitted to file cross claims against the Company so that,^if 
the court ultimately determined that the Company was primarily 
piatle, the unions would not suffer by reason of the Company s 
settlement with the plaintiffs. II. 865,1036.
63A  R- 864.
64/ R. 1036.

- 16 -

6 3/



At the trial, plaintiffs made no effort to prove that
the supplemental labor agreements were in any way insufficient 
to comply with Title VII, i.e., to eliminate the present effects 
of the Company's pre-Act assignment discrimination. Plaintiffs 
contended only that (1) the Company had discriminated in assign­
ments prior to the effective date of the Act, and (£) the transfer 
and seniority provisions in effect prior to the adoption of the
supplemental labor agreements perpetuated the effects of that ore-

657 '

Act discrimination. In its decision, the court found only 
the violations alleged by plaintiffs. It did not find anything 
wrong with the supplemental labor agreements. Nevertheless, it 
declared that those portions of the consent decree which "supersede
and replace" provisions of the supplemental labor agreements
„ ' 6 6 /•shall become effective as scheduled on January 1, 1975."

With respect to back pay, the court's decision found
that the unions were "equally.responsible" with the Company for
the injuries suffered by discriminatees, and on that basis ruled
that the unions should pay 50% of the back pay to which dis- 

. . 67/
enmmatees were entitled. In the mill, where there were three
unions, the court allocated the "unions' share" of back pay on
the basis of the number of employees represented by each. On this
basis, UPIU was ordered tc pay 72% of the "unions' share" of back
pay to each employee, and the electrical and machinist craft unions

60/
10% and 18% respectively. The court defined the class of
employees hired and initially assigned to historically "black"
65/ See‘ n. 49,
66/ R. 1324 .
67/ R. 1322.
68/ R. 1323-24.

- 17 -



iobs up to September 1, 1972 (although it had found discrimina-
69/

tion only as to those hired before July 2, 19651 The
court's order concluded with a direction that the "next stage"
would be a trial to determine which discriminatees were

70/
entitled to back pay, and in what amounts. That proceeding 
has been stayed by this Court pending resolution of this appeal.

ARGUMENT

I. THE DISTRICT COURT ERRED IN APPROVING 
THOSE PORTIONS OF THE CONSENT DECREE 
WHICH "SUPERSEDE AND REPLACE" UPIU'S 
COLLECTIVE BARGAINING AGREEMENT

In Stevenson v. International Paper Co., No. 73-1758 
(5th Cir., July 16, 1975), this Court declared that "a 'neutral' 
seniority system" should be "modified" by the courts "only to the 
extent necessary to remove the elements perpetuating [past] dis­
crimination and only for a limited period of time" (slip op. at 
6522). The district court's decision in this case is not con­
sistent with the Stevenson mandate. For, as we show herein, the 
court permanently modified the supplemental labor agreements 
although they contained no elements perpetuating past discrimination.

In the midst of this litigation, before any trial was 
had, plaintiffs and the, Company negotiated a proposed "consent 
decree" and asked the court to approve it. The decree contained 
a comprehensive scheme governing seniority, transfers and other 
mandatory subjects of collective bargaining, and declared:

69/ See pp. 56-57 , infra.
70/ R. 1324-25.

- 18 -



Ihe provisions of this decree shall supersede and 
replace any and all conflicting terms and provisions 

current labor agreements between the Company 
defendant unions, and any and all conflicting 

erms and provisions of all supplemental or side agree-
ndthe do? T  rJrrentlY in effect b®tWeen the company erna the Defendant unions, including the supplemental

+-ĥ °5 *9reements. entered into between the company and 
tne defendant unions in August 1972" (R. 886-887).

All three unions vigorously opposed the entry of this consent decree 
They contended that they had already achieved, through collective 
bargaining, a system which fully complied with Title VII and which 
cured the past discrimination, and that it would be improper to 
replace their collectively bargained solution with another worked 
out between the Company and a small group of employees. The 
unions noted that neither plaintiffs nor the Company contended 
that the supplemental labor agreements were insufficient to satisfy 
Title VII, and that the court had not determined that any such 
insufficiency existed. In these circumstances, the unions argued, 
the court was without authority to approve the consent decree, 
and that to do so would improperly denigrate the unions' repre­
sentative status under the National Labor Relations Act, by sub­
stituting terms negotiated by 28 employees for lawful terras
negotiated by the exclusive bargaining representatives of all 1,800 
employees.

Despite the unions' objections, and without ever deter­
mining that the supplemental labor agreements were violative of 
Title VII or insufficient to cure the effects of past discrimina­
tion, the court ultimately approved and implemented the consent 
decree, thereby replacing the collectively bargained provisions 
with those worked out between the Company and a handful of its



employees. As we show herein, the court was without authority to
do so, and its action was an impermissible intrusion upon interests
protected both by the NLRA and Title VII. Accordingly, this Court
should reverse and direct that all provisions of the consent
decree which would "supersede and replace" the supplemental labor

71/
agreements be stricken.

A. A Court May Not Alter A Collective 
Bargaining Agreement Unless It Is 
Found To Violate Title VII or To Be 
Insufficient To Cure the Effects of 
Past Discrimination. Absent Such A Finding 
It May Not Order, Over Union Objective 
Modifications Negotiated by a Small 
Faction within the Work Force __

Title VII expresses a national policy of paramount 
importance, but it does not exist in a vacuum. There are also 
policies which emanate from the National Labor Relations Act, 
among them the principle that terms and conditions of employment 
are to be shaped by the employer and the exclusive bargaining
representative of its employees. In Emporium Capwell Co. v.
Western Addition Community Organization, 43 L.W. 4214 (1975), 
the Supreme Court discussed the manner in which the policies of
these two statutes are to be reconciled and accommodated.
•yj / For purposes of this appeal, we challenge only those portions 
of the consent decree which "supersede and replace" provisions 
of the supplemental labor agreements. The decree also dealt with 
matters outside the scope of the union’s bargaining function, e.g. , 
recruitment and hiring of employees, which are the exclusive respons 
bility of the Company. As the unions have no voice in these matters 
they have no reason to object to their being resolved by the Company 
and plaintiffs through a consent decree.

The decree also settled the Company’s liability to the 
plaintiffs for back pay and attorneys fees. That type of settle­
ment, leaving the unions to defend alone against the major portion 
of the plaintiffs' monetary claims, imposes severe practical dis­
advantages upon unions, and may be inequitable and thus imper­
missible. However, as we think it clear that UPIU is not reasponsi— 
ble for backpay in this case —  see Part II herein —  we have 
elected to focus our appeal solely upon those provisions of the 
consent decree which trespass upon collective bargaining.



The precise issue in Emporium was "whether, in light of 
the national policy against racial discrimination in employment, 
the National Labor Relations Act protects concerted activity bv a 
group of minority employees to bargain with their employer over­
issues of employment discrimination." Id. at 4215 .

The court of appeals had held that black employees were 
entitled to deal directly with their employer in an effort to cure 
racially discriminatory practices, by-passing the union which 
was the exclusive bargaining representative. The court of appeals' 
reasoning, as summarized in the Supreme Court’s opinion was:

"that concerted activity directed against racial 
discrimination enjoys a 'unique status' by virtue 
of the national labor policy against discrimination, 
as expressed in both the NLRA, see United Packinghouse 
Workers Union v. NLRB, 416 F.2d 1126, 70 LRRM 2489, 
cert, denied, 396 U.S. 903, 72 LRRM 2658 (1969), and 
in Title VII of the Civil Rights Act of 1964, 42 
U.E.C. §2000e et seq., and that the Board had not 
adequately taken account of thê  necessity to accommo­
date the exclusive bargaining principle of the NLRA 
to the national policy of protecting action taken in 
opposition to discrimination from employer retaliation. 
The court recognized that protection of the minority 
group concerted activity involved in this case would 
interfere to some extent with the orderly collective­
bargaining process, but it considered the disruptive 
effect on that process to be outweighed where protec­
tion of minority activity is necessary to full and 
immediate realization of the policy against discrimina­
tion." (Icl. at 4217, footnote omitted).
The Supreme Court, in an opinion by Mr. Justice Marshall, 

reversed the court of appeals. The Court began by reiterating 
the well-established "principle of majority rule," which requires 
an emPl°Yer to deal only with the exclusive bargaining representative 
of his employees, and forbids his dealing with any minority faction 
of the employees. Id. at 4238. The Court refused to carve out a 
limited exception" to the exclusive bargaining principle for the 

curing of discrimination, citing two reasons.



separateFirst, the Court thought it "far from clear that 
g rung is necessary to help eliminate discrimination," id. at

4219' ln°eedf the Court saw real threats to the interests inhering 
in Title Vii in allowing minority-faction bargaining:

decision by a handful of employees to 
attempt . . .  to bargain with their emplover * ’ *

T O  T O - ' 3

m a k S ^ h l ^ y ^ g a i L r S i f 8"1"0^-17-practices would be minimal. . . >  f|“ a£ 4219-2S1 ^

Second, the Court saw real injury to the institution of 
collective bargaining, which is the central concern of the NLRA:

cl ?ee" 1!aid here in evaluating resDon-le-t' sclaim that the policy against discrimination 
ai protection for concerted cffnrfc • ! ^ Uxres
bargaining has obvious Spl ca“ o^s for ,

9 P  ai L T ^
below minimized the impact on the Union in thiS U 1 
by noting that it was not working thls case
with the dissidents, and that indeed it^could* ™ ? 68 do so consistent with its dutv r f S  could not
and perhaps its obligations uLer 

righ^to^ITre^orjfcf^ ^  "■**>*«•« ’ substantive
s s n *  “[ g h t r ^ i i i '» «
Title VI? or'have i n S T . T O

vestiaes i <, fn 1 ■ f olscrfiliation and its
[WJhile a union oaMS^aSfSl^J^rqfin3?93^ ^ 9 ' ' 'lishment or continuation
inited front on1®9atlmate M e r e s t  in presenting a"“
seeing its strength dissipated^n^it^stStuiS n0t

S e T O ? tely
22



"Accordingly, we think neither aspect of respondent's 
contention in support of a right to short-circuit orderly, 
established processes for eliminating discrimination in 
employment is well-founded. The policy of industrial 
self-determination as expressed in §7 does not require 
fragmentation of the bargaining unit along racial or 
other lines in order to consist with the national 
labor policy against discrimination. And in the face of 
such fragmentation, whatever its effect on discriminatory 
practices, the bargaining process that the principle of 
exclusive representation is meant to lubricate could not 
endure unhampered." Id. at 4220.
For purposes of the instant case, the most important 

principles established by Emporium are these:
1. "The elimination of discrimination and its vestiges

is an appropriate subiect of bargaining." There are many ways
72/

to correct the present effects of past discrimination. Labor 
and management, through collective bargaining, are mandated to 
find the one most suitable to their particular plant.

2. "Whether [employees' rights to be free of racial 
discrimination] are thought to depend upon Title VII or have an 
independent source in the NLRA, they cannot be pursued at the 
expense of the orderly collective bargaining process contemplated 
by the NLRA."
72/ "For example, while Title VII requires that an existing 
seniority system be modified'only as it applies to those employees 
who were previously subjected to discrimination, only to the extent 
necessary to remove the elements perpetuating that discrimination, 
and only for a limited period of time," Stevenson, supra, slip, 
op,, at 6522, the employer and union may prefer to adopt an "even- 
handed" approach whereunder the entire seniority system is changed 
in a manner which both enables discriminatees to reach their 
"rightful place" and extends the benefits of heightened mobility 
to the remainder of the work force as well. See, e.g., U.J3. v. 
Allegheny Ludlum Industries, 8 FEP Cases 198, 199 (N.D. Ala. 1974); 
U,S. v. United States Steel Corp., 371 F. Supp. 1045, 1057 
(N.D. Ala. 1973). Additionally, there are many matters as to 
which there is more than one permissible solution which would 
comply with Title VII, e.g., allowing permanent transfer oppor­
tunities or requiring discriminatees to register in advance;
(Cont'd)

- 23 -



Emporium, of course, did not involve negotiations in the
context of a pending Title VII action. Obviously, when some of 
the employees become plaintiffs in a Title VII action they acquire 
a status as litigants to discuss with the employer and the union 
the grounds upon which they are willing to settle their lawsuit.
But the lesson of Emporium have application to the courts’ proper 
role in adjudicating Title VII actions. And the circumstances of 
this case point to one such application: a court may not allow
the substitution of a solution for past discrimination negotiated 
between the employer and the plaintiffs for that achieved through 
collective bargaining unless jt first determines that the collectively 
bargained solution either violates Title VII or falls short of 
curing the effects of the past discrimination.

lhis principle effectuates the clearly expressed views 
of the sponsors of Title VII in both branches of Congress. when 
Title VII's opponents in the House charged that Title VII would

73/
"destroy union seniority," the sponsors filed a statement of
"additional views" declaring that "management prerogatives and
union freedoms are to be left undisturbed to the greatest extent
possible. Internal affairs of employers and labor organizations
must not be interfered with except to the limited extent that

74/
correction is required in discrimination practices." In the

72/ (Cont'd) deciding which lines of progression should be 
merged; deciding whether and for how long residency periods 
should be required for training purposes; establishing where and 
for how long job vacancies will be posted.; etc. As to all of 
these matters, the collective bargaining parties have the greatest 
knowledge and expertise relevant to developing the answers best 
suited to the particular work place.
73/ EEOC, "Legislative History of Titles VII and XI of the Civil 
Rights Act of 1964" (hereinafter "Leg. Hist."), p. 2071.
7_4/ Leg. Hist. 2150.

24



Senate, when Senator Hill charged that Title
unions their representation rights under the

75/
Relations Act" the floor managers of Title 
and Case, submitted a "rebuttal" prepared by 
Justice which stated:

VII "would deny to 
National Labor 
VII, Senators Clark 
the Department of

"Nothing in Title VII or anywhere else in this 
bill affects rights and obligations under the 
NLRA. . . No court order issued under Title
VII could affect the status of a labor organization 
under the National Labor Relations Act. . ., or deny
to any un.ion the benefits to which it is entitled 
under those statutes." 76/

B. The Supplemental Labor Agreements Were 
Not Violative of Title VII, Nor Did 
They Fail To Cure the Company's Past 
Discrimination. The Court Did Not Find 
Otherwise, Yet It Replaced Them with 
Provisions Negotiated by A Faction of

When the Company and the plaintiffs proffered the consent 
decree for approval, neither of them contended that the changes 
relating to collective bargaining matters were needed to assure 
compliance with Title VII. No effort was made by either of them to 
show that there were any deficiencies in the supplemental labor 
agreements. Indeed, the provisions of the consent decree are a 
flattering demonstration of the validity of the supplemental labor 
agreements. lor the most part, they track the provisions of these 
agreements faithfully. To the limited extent which they differ, as 
we show in Section C, infra, the consent decree's provisions are a 
step backward from the standpoint of Title VTI's objectives.

7 5/ Leg. Hist. 3244 
76'/ Ibid.

- 25 -



notNot only did the parties tendering the consent decree
assert that the existing agreements were inadequate. they
expressly disclaimed any such assertion mb,.. a-cion. rhe decree provided
<R- 8681 that U  "ShOUla “ *  - “ “ tut. a finding or adjudication 
of any discriminatory act or practice on the part of the Company,
hor does the Company by its consent to the decree admit any 
liability."

The court thus was asked to approve a consent decree
modifyrng the collective bargaining agreements prior to trial,
Prior to any adjudication that the existing -existing agreements were
inadequate under Title vtt -,r,a • , .v-i-i, ano moeed m  the f3rP ^u1 1 -Lcice or express
disclaimers of any such infirmity by the proffering parties

~  -  -  —  -  -  accept this invitauon
to endorse the amendment of v.

taigaimng agreements by
the Company and a faction of the work force Tho uni

e- ine ^uons specifical
asserted that the supplemental labor agreements complied with

riUe VII< an<3 thUS tbfct «•<**• «*•»»•«> '-re unwarranted. Despite 
these objections, the district court approved the consent decree.

The court made no independent finding of inadequacy
indeed, it ignored altogether the supplemental labor agreements.
‘ the C°Urt l0°ked °n^  “ >e Proffered consent decree,

end approved it because it "foliows generally settlements and
decrees in other cases involving similar problems in the same 
industry" ,R. 864), and because "the proposed decree dis­
claims the resolution of any issue adversely affecting the •X erecting Lhe unions"

865). Both these exnlanfl(-'«,i lcnttions are inadequate.
While the consent decree indeed "followroiiows generally"

settlements and decrees in other cases -r, acases, *o do the supplemental
26



labor agreements. Indeed, as we develop in Section C , the supple­
mental labor agreements more closely follow settlements and decrees 
in other cases. Ẑ nd the alternative basis for the Court's holding 
—  that a modification of the seniority and transfer provisions 
negotiated by the union does not "adversely affect" the unions and 
the employees they represent —  is the very rationale which the 
court of appeals had employed in Emporium, and which the Supreme 
Court declared to be fallacious (supra, pp.22-23)

Of course, as the Court recognized in Emporium, a union 
may not interpose its exclusive bargaining right to frustrate the 
correction of discriminatory collective bargaining provisions.
But here, the court approved the consent decree without even 
inquiring whether discriminatory provisions existed, and without 
even an assertion by the plaintiffs or the Company that they did.

The only concession which the district court made was 
that it deferred the effective date of the seniority and transfer 
provisions of the consent decrees until January 1, 1975, a date 
which would follow the scheduled trial of the case. This deferral 
might have cured the problem had the court made its final decision 
turn upon a finding that the supplemental labor agreements were 
inadequate. But that did not prove to be the case.

At the trial, plaintiffs did not contend that the supple­
mental labor agreements violated Title VII, nor that they were 
insufficient to cure the effects of past discrimination. Plain­
tiffs argued only that the effects of past discrimination were 
felt until the supplemental labor agreements were adopted. The 
court's decision on the merits assumed throughout that the 
supplemental labor agreements had brought the seniority and transfe

27



provisions into compliance with Title VII. But despite its 
acceptance of the adequacy of the supplemental labor agreements, 
the court went on to declare that "the provisions of [the consent] 
decree shall become effective as scheduled on January 1, 1975"
(R. 1324) .

The net effect of the court's decision was thus to con­
clude on the one hand that the supplemental labor agreements had 
cured the Title VII problems, while on the other hand simultaneously 
substituting for those agreements provisions which had been negotiated 
by the employer and a minority group of employees which in some 
respects were inconsistent with the collective bargaining provisions.

The court's action was an impermissible intrusion upon 
the collective bargaining process irrespective of the inherent 
"desirability" of the changes in seniority and other collective 
bargaining subjects accomplished by the consent decree. Thus, 
even if the court had believed the decree's provisions a "better" 
way to cure the effects of past discrimination, it was without 
authority to substitute the decree's provisions unless it found 
the labor agreements' approach insufficient to pass muster under 
Title VII. Congress has designated the collective bargaining 
parties, and not the federal courts, to choose which,among alternative 
lawful provisions, they believe best suited to their particular 
circumstances. In any event, the court here did not undertake 
a comparison of the consent decree and the supplemental labor 
agreements, and it did not declare the consent decree's provisions 
"better." Indeed the reality, as we show in the next section, is 
that the consent decree is less faithful to Title VII's objectives 
than were the supplemental labor agreements.

28



c. The Provisions of the Consent Decree 
Relating to Seniority and Other sub­
jects of Collective Bargaining Are 
Less Faithful to Title VII's Objectives 
Than Those Contained in the Supplemental 
Labor Agreements __

In large part, the consent decree merely copies the 
seniority and transfer provisions of the supplemental labor agree­
ments. Thus, it adopts verbatim the agreements' restraints upon 
the use of testing to deter minority advancement; it adopts intact 
the agreements' definition of the uses of plant seniority; and it 
endorses without change the lines of progression constructed by 
the Company and the unions. We assume, arguendo, that the court 
is empowered to incorporate the provisions of the supplemental 
labor agreements into its final decree in this case: while the
parties had accomplished compliance with Title VII before this 
suit was filed, the court might, conclude (it has not done so yet)
that in light of the Company's pre-1272 discriminai -> t'

the cures contained in the supplemental labor agreements should
21/carry the additional force of inclusion in a court order.

But the decree entered below is not the equivalent of 
lending the court's imprimatur to the supplemental labor agree­
ments. For in three important respects, the decree modifies 
the supplemental labor agreements. As we have shown in Fart B, 
the court was without authority to impose those modifications
irrespective of their desirability. As we show below, they are
not desirable; indeed, they are less faithful to Title VII's
objectives than the provisions they replace.
21/ We note, however, that the supplemental labor agreements 
have been in effect for three years. If the experience there­
under reflects that all employees desiring transfers have 
accomplished them and reached their rightful place, this Court's 
admonition that corrective changes are to remain in effect "only 
for a limited period of time," Stevenson, supra, at 6522, may be 
applicable.



1. The first and undoubted^ most important modifica-

r ;  r iates to « * « - — - a SS. The SUPPle.
tl ;  r a9reemet‘tS had deflned « “  *«•<**> cxass to include 
.. ’ result< the right to transfer

-ant seniority and rate retention was available to women
ciS WGil 2S bl Spire n-ji_

' consent decree, however, carefully

r "  ^  *» “ «*-• Because the consent
ecree provisions defining the affected class "supersede

and replace" those in the supplement-1
. , Tabor agreements, the court
took from the women the rights ■ ■ L
had affori k ' 9hts which the supplemental agreements
loC clj -i-O3T(l0cl them  rpV, n

he COmpany a*'ci the unions knew that historic-,! 
women had been discriminator!lv - or llj-rarnatorily assigned by the Company just as
blacks were

^ included women in the "affonfo^ ordpr . C affected class" in
order to cure the effects of that discrimination The
decree removes tha* c....... , °°nSent
for ., „ ..."  ' a“U IeaVeS the without a remedy
tor the company's discriminatory assignments.

It is not hard to see why plaintiffy Plaintiffs negotiated this
change. To the extent that women were also aff a , 
rights the afforded plant seniority9 , they were more liteO,, j.„
transf PStS a9ainSt -aintiffs fortransfer opportunities. By depriving a  
, . Y F ng the women of such rights

plaintiffs enhanced their own ^ '
„ + competitive status. The district
court, by trusting the Diain)iff
seni .* piaintrffs and the Company to shape the
enrorrty provisions over the objections of h

a partv . ”S Ci U,e becamea party to one of the verv
1 against which the Supreme Court warned xn Emporium- ,iii L Lourt— allowing the interests n-

to subordinate the legitimate claims of s n ^ l

8 " »  CaSes 198< 1 ^ . 0 .  Ala 
ecognizmg the importance of not onlv "not only 'responding" t.o,

30



5A

m
i

i '
\/ i 

sff 

1

*
•J

but also "reconciling competition between," the interests of 
blacks and women in curing past discrimination).

2. The consent decree substitutes a rate retention 

provision which is less beneficial to affected class employees than 
that contained in the supplemental labor agreements. Rate reten­
tion is an important element of any cure for discriminatory assign­
ments. Without it, discriminatees may be deterred from 
transferring to more desirable lines of progression by the fact 
that they will have to incur an initial pay cut. Accordingly, the 
adequacy of a rate retention remedy may be critical to the effective­
ness of the whole curative program. The supplemental labor agree­
ments had provided rate retention whenever an employee transferred
to a new line of progression in which the highest job paid more

78/
than "the job from winch he transrerred." The consent decree, 
however, affords rate retention to a transferee only if the highest 
job in his new line of progression pays more than "the highest- 79/
payxng job in the line of progression from which he transferredV 
Thus, if an employee contemplating transfer holds a job paying 
less than the highest job in another line, but if there are jobs 
above him in his present line of progression which pay more than 
the highest job in that other line, he will not get rate reten­
tion under the consent decree, although he would have gotten 
rate retention under the supplemental labor agreements. We do not

78? R. 158, 271, 503.
79/ R. 1026.

- 31 -

1



suggest that the consent decre
80/

’"inimal regUlremSntS °f “ « •  Nevertheless, as the supple­
mental agreements had provided a better solution, there was no
justification for the district°t court s sanctioning a step back­
ward for the affected class.

The Company's interest in securing this change in the
rate retention provision is self-evident, ksci. evident: by narrowing the range
or situations in which rate retention win i ,retention will be due to transferees
the Company has reduced its monetary liability The , • •i j-iduiiity. The plaintiffs'
enthusiasm for the chanqe ic- m  i-m-,- .9 ' “ h rdei to discern. There are only
two possible explanations: either oi^inieitner plaintiffs, because not
experienced collective bargainers, did not appreciate what they

r e r *  °r thSy WilUn9' in —  * »  - a t e r  concessions 
-rom t e Company regarding back pay and attorneys fees, to giye
the Company relief crom . ̂ ~rc‘u tne terms which t-ĥ  ,. . ,~ ndu won m
collective bargaining.

maj°r substantive change accomplished by 
the consent decree is its crp^i i ■ -c

' Creatlon of a guarantee that an affected 
ss member who cannot gualify for a promotional opportunity wUJ

aV! ^  j0t held -  — — V »til he can gualify, '
° 6 " ^  thE meantlme »“ » «  on a temporary basis. ,hi-

provision is of doubtful legality, but even if legal it is at
/ ”1X6d blessing for the affected class.
—-/ course , to the extenlTTh TV— IV,
women from the "affected class’" and^h nJent.decree removed 
the rate retention remedy which thev h ^ reb^ W1thdrew from them 
mental labor agreements, it doe- fan  "‘h e^ oyed under the supple- 
requirements. Our observatiSHTn the ^hoft.of meeting Title VJi’s 
weakening °f the rate retention benefiv is directed to the 
courts have assumed that an ernplovee n f°r biacks* Some
t h a / 1  PreSent line of Progression rate retentionhan those m  another line to which ho 2 ® higher-paying jobs

.these courts have overlooked is S  t h T " 8 transfer.' 4 a t  
j / ^ b h e  employee's present line may be Sf 2 * S ? at superiority of 
/ those above m m  in the line are re]-»tiS«i Value to him, because 
I expect in his lifetime to rca^h p ^ g ^ ^  cannot

32



It is questionable whether Title VII even permits, let
alone requires, an unrestricted preference of this type for

81/
minority employees. Surely the courts have not deemed such a '
provision indispensable to curing the effects of past discrimina­
tion. It is traditional in labor relations to permit a senior 
bidder a reasonable period in which to learn the reqiii rements of 
a new job and demonstrate his proficiency thereon. It is quite 
another thing, however, to award an unqualified employee a life­
time preference to a job he may never prove able to fill. The 
effect of such a rule -- which the consent decree adopts is 
that many jobs may be filled for years, indeed for lifetimes, by 
"temporary" employees, because claimants are unable to qualify.
This rule will adversely affect not only whites, but also other 
affected class members who couid qualify for such jobs, but whose 
permanent access will be blocked. It is untenable, from a labor 
relations standpoint, to allow large numbers of jobs to be filled
81/' in'GrrggjT'v'I D^~e~Pov̂ iF~CoT7 4 01 U.S. 4 24, 430-4 31, 4 36 (1971), 
the Supreme Court declared:

"Congress did not intend by Title VII, however, to 
guarantee a job to every person regardless of qualifica­
tions. In short, the Act does not command that any 
person be hired [promoted] simply because he was formerly 
the subject of discrimination, or because he is a member 
of a minority group. Discriminatory preference for any 
group, minority or majority, is precisely and only 
what Congress has proscribed. . . .

* * v.

"Congress has not commanded that the less qualified 
be preferred over the better qualified simply because 
of minority origins. Far from disparaging job qualifica­
tions as such, Congress has made such qualifications the 
controlling factor, so that race, religion, nationality, 
and sex become irrelevant."

See a]so Local 189 v. United States, 416 F.2d 980, 988-990 (5th 
Cir. 1969), cert, denied, 397 U.S.- 919 (1970).

33



indefinitely on a "temporary" basis awaiting the occurence of an 
event which may never come. Such a situation leaves all employees 
m  a lme of progression uncertain as to their status, and thus 
disables them from making intelligent choices as to whether they 
should transfer to other lines of progression. The court erred 
in imposing this unworkable labor relations innovation dreamed up 
by a minority faction of the employees, when it made no finding 
that the existing procedures were inadequate and it knew that the 
exclusive bargaining representatives opposed the relief.

D• Some Conclusions and Observations
As we have shown, the district court erred in approving 

the consent decree over the unions' objections for three reasons:
1. It installed permanent changes in collective bargain-
J —  wj-unouc ever inquiring whether, let alone

finding that, the existing agreements fell short of satisfy­
ing Title VII" s requirements.

2. it installed such changes without affording 
the respect for collective bargaining which Emporium 
requires, and instead relied upon bargaining between the 
employer and a minority faction which Emporium abjured.

3. The provisions which it installed are less faithful 
to Title VII's objectives than those which they replaced.
While this case presents a narrow and fairly easy applica­

tion of Emporium, the analysis required to decide this case
suggests certain broader conclusions which seem to have general 
applicability:

34



1. Courts must not disturb collective bargaining 
agreements over the objections of parties thereto with­
out first determining that the agreements do not fulfill 
Title VII's requirements. If it is claimed that there 
is a pressing need for immediate relief, which cannot 
abide the ultimate adjudication of the sufficiency of 
existing agreements, such claims should be treated as 
motions for preliminary injunctions and temporary 
relief should be furnished if the plaintiff can demon­
strate a substantial likelihood that the agreements 
ultimately will be found wanting.

2. Even where a court ultimately finds that changes 
are required, it should not unilaterally impose its own 
notion of appropriate changes, nor adopt suggestions 
emanating from minority-faction bargaining, without first 
directing the employer and the exclusive bargaining agent 
to attempt through negotiations to develop the method
of correction which they think best suits the particular
needs and circumstances of their work place. Federal
labor policy dictates that among the range of permissible
cures, that which eventuates from collective bargaining
should be preferred. Of course, the court sits to
monitor the adequacy of the solution generated in
collective bargaining, and if collective bargaining fails
to produce an acceptable solution the court retains the

81/ultimate authority to impose one.
8l/~ Here again, if the need for prompt correction cannot await 
collective bargaining, the court may direct interim relief.

35



In implementing the foregoing principles, the courts 
should be sensitive to the dangers inherent in too readily accept­
ing solutions proffered jointly by plaintiffs and employers. At 
stake is the sensitively calibrated institution of collective 
bargaining, as Emporium recognized. But beyond that, there are 
aspects of self-interest which may render a plaintiff-employer 
solutron something less than an optimum effectuation of Title vil's 
objectives. There are many employers who would welcome the 
opportunity to escape from commitments made in collective bargain­
ing, and who may see the scenario of this case as a tempting 
means to that end. A substantial back pay and attorneys fees 
offer, coupled with the tendering of other special benefits to 
the plaintiffs, may be powerful inducements for plaintiffs to 
jom the employer in proffering a consent decree
collective bargaining provisions negotiated to serve the best
interests oi tlie enti vo Y.rrM-vt U e  work l M « »  including other discrimina-
tees not represented by the plaintiffs.

Whether or not the Court agrees with our observations as
to the ramifications of Emporium for other oases, it is clear that
in this cas.e the court erred in approving provisions which "supersede
and replace" lawful collective bargaining provisions. Accordingly,
this court should reverse and remand with a direction that the
Patriot court strike from its decree those provisions relating
to matters covered in the collective bara-vin-i 82/r\e oargaming agreements.
82/ As noted supra/ p. 29 anTT-!!--n~i--rr
remain free to~o7TsTder whether em /t, S t r i c t  court would 
the collectively bargained

36



II. THE DISTRICT COURT'S BACK PAY RULINGS 
WERE ERRONEOUS IN NUMEROUS RESPECTS

A. The District Court Erred in 
Assessing 50% of the Back Pay 
Liability Against the Unions

Section 706(g) authorizes courts to award back pay 
against the "employer, employment agency, or labor organization, 
as the case may be, responsible for the unlawful ernployment 
practice" (emphasis added). This statutory mandate reflects
an important principle underlying Title VII: that back pay is

83/
compensatory, not punitive. There must be a nexus between
a defendant's behavior and the injuries for which back pay is to 
be assessed against him. "The wages sought must be 'properly 
owing to the plaintiffs'. This requires positive proof that 
plaintiff was ordinarily entitled to the wages in question and, 
being without fault, would have received them in the ordinary 
course of. things but for the inequitable conduct of the party 
from whom the wages are claimed." Jinks v. Mays, 464 F.2d 1223,
1226 (5th Cir. 1972), quoted and followed in United States v.
Georgia Power Co., 474 F.2d 906, 923 (5th Cir. 1973) (emphasis 
added). If both an employer and a union violate Title VII, but 
only the employer's violation inflicts monetary injury upon the 
discriminatees, it would obviously be punitive —  and beyond the 
scope of §706(g) -- to saddle the union with a portion of the back 
pay liability. Cf. Stevenson v. International Paper Co., No. 73-1758 
(5th Cir., July 16, 1975) (slip op. at 6517).

Jl|/ "Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1376 
(5th Gir., 1974); Pettway v. American~~Cast Iron Pipe Co ' 4 94 
F.2d 211, 252-253 TBSTCir. 1 W ;  U n i ^ S ^ t e F v “ *G5ojgia'Power 
Ccn , 574 F.2d 906, 921 (5th Cir. 19737. See also Albemarle 
Paper Co. v. Moody, 43 L.W. 4880, 4885 (1975). ---------

- 37 -

. * • -- ■ r w  r* *



The court below apparently recognized this prinicple; 
its predicate for allocating 50% of the back pay liability to the 
unions was a finding that the unions were "equally responsible" 
with the Company for the injuries suffered by discriminatees 
(R. 1322). We show in Section 1 herein that on the record of this 
case the finding of equal responsibility is clearly erroneous, 
and thus that the 50% allocation cannot stand.

There is, however, an important legal principle, wholly 
overlooked by the district court, which likewise invalidates the 
50% allocation; a principle which recognizes the quite different 
roles played by the employer and the union in the work place.
The employer runs the plant; the union seeks merely to influence 
the way in which he runs it. Because that is so, a union may not 
be responsible for paying employees for their injuries even where 
it has agreed with the employer that the latter may visit such 
injuries. The critical question is whether the union caused 
the employer to commit violations, or merely acquiesced in viola­
tions which the employer would have committed even if there 
had been no union. If the violations would have been committed 
even in the union's absence, its acquiescence may be a violation 
of its representational obligations under Title VII for which 
injunctive relief is warranted, but it cannot be the predicate for 
transferring to the union a portion of the financial responsibilit 
for the injuries inflicted. In such cases, the union's financial 

responsibility is measured by the extent (if any) to which its 
acquiescence has increased the discriminatees' monetary injury.



Cf. Vaca v. Sipes, 386 U.S. 171, 196-196 (1967); Czosek v. O'Hara, 
397 U.S. 25, 29 (1970). We explore this principle fully in 
Section 2 herein.

1. The Court's Finding that the Unions Were
"Equally Responsible" with the Company for 
the Injuries Suffered by Discriminatees 
Is_ Clearly Erroneous______________________

Here, the district court's finding that UPI.U was 
"equally responsible" for the injuries suffered by discriminatees 
is clearly erroneous. The uncontradicted facts recounted at 
pp. 8-11, supra, demonstrate that it was the Company's unilateral 
actions which visited the monetary injuries upon discriminatees.
We briefly recapitulate those facts:

(a) The Company, and the Company alone, was responsible 
for determining where newly hired employees would be assigned, 
and thus is solely responsible for the pattern of pre-Act dis­
criminatory assignments (but for which the transfer and seniority 
practices would have been perfectly lawful).

(b) Having initially assigned employees on a discrimina­
tory basis, the Company also insisted, until 1972,, upon complete 
discretion in determining whether the discriminatees could transfer 
to better lines of progression. Most requests to transfer were 
denied, because the Company felt that, having trained employees
at great expense to do the jobs in one line of progression, it 
would lose its "investment" —  the benefit of the employees' 
accumulated expertise -- if it permitted them to transfer to other 
lines of progression. The Company was determined not to surrender, 
in collective bargaining, its unilateral control over this matter.

39



(c) UPIU consistently sought to broaden the. discrimina- 
tees job opportunities, albeit with little success in the face 
of the Company's rigid position. In each round of negotiations 
UPIU sought transfer rights, but the Company adamantly refused to 
agree. The most dramatic evidence of the depth of the Company's 
intransigence on this issue is furnished by the 3.970 negotiations, 
when UPIU made the quest for transfer rights a major objective in 
collective bargaining. UPIU demanded that all vacancies be posted 
throughout the plant for bidding; that the employee with the great­
est pJant seniority bidding for a vacancy receive it; that trans­
ferring employees receive "red circle" rates to assure that they 
wouxd not suffer a pay cut upon transferring to a new line of 
progression; and that transferring employees be abJ.e to use their 
plant seniority to hold a job 3 f nfj-ov. r. . ■ ,

a permanent layoff jn their new unit. Additionally, UPIU demanded 
the merger ci historically "black” and "white" lines of progression 
The Company rejected all of these demands; it insisted upon 
retaining its absolute discretion in filling vacancies, declaring 
that it would take its chances" in litigation if its employees 
sued under Title VII. UPIU struck for four weeks, yet the 
Company remained firm, and the employees voted to return t:o work 
against the advice of UPlU's staff representatives.

(d) When, in 1972 , the Company finally yielded its 
insistence upon unilateral control, and proffered the supplemental 
labor agreements, the unions accepted them immediately.



As these facts make clear, UPIU was not "equally 
responsible" for the injuries suffered by the discriminatees.
It is apparent that had there been no union at this plant the 
employees would have suffered at least as much, if not more. The 
employees' injuries were inflicted by the Company. UPIU failed until 
1972 to remedy the discriminatees' plight, but its conduct in no way 
worsened it.

The district court reached a contrary result by an analysis 
which lost sight of the realities. The court wholly ignored the 
fact that there would have been no problem but for the Company's 
discriminatory assignments. Its analysis treated the existence of 
segregated jobs as a "given," and focused solely upon the question 
of the relative responsibilities of the Company and union for failing 
to cure the effects of the Company's unilateral disrrimination. Even 
then, the court's analysis was faulty. It reasoned that the fail­
ure of discriminatees to escape to the better jobs "could have 
emanated from at least two causes: (1) refusal of Gilman to
transfer Blacks to all-white jobs; and (2) seniority as implemented 
in the collective bargaining agreements." (R. 1312-13). The 
court then declared that the "job seniority provisions and practices 
were at least a concurrent, if not prevailing, cause of the perpetua­
tion of past discrimination in both the Mill and the Bag Plant. It 
is further clear to the Court that the Unions until 1972 acquiesced 
in the discriminatory practices by Gilman Paper Corporation."
(R. 1313).

What the district court seemingly overlooked is that 
seniority provisions could in no sense account for the failure 
of employees to transfer if the Company was unwilling to permit



transfers in any event. Job seniority can perpetuate the effects
of past discrimination in two ways, bet neither is operative
unless the opportunity to transfer exists: (a) if transfers are
permitted, job seniority may deter discriminatees from taking
advantage of the opportunity to transfer; and (b) if discriminatees
do exercise opportunities to transfer, job seniority may prevent
their reaching their "rightful place" in their new lines of pro- 

84/
gression." But where, as here, the employer adamantly refuses
to allow employees to transfer at all, job seniority is irrelevant
to the financial injuries suffered by employees. Put another way,
even if the collective bargaining agreements had provided that
employees could utilize their full plant seniority in whatever line
of progression they might work, that provision would not have
benefited the discriminatees so long as the Company did not permit
them to transfer. On the tacts of this case, therefore, it is
unmistakably clear that the financial injury resulted from the
no-transfer rule, and not from the collective bargaining agree- 

85/
raents. ~ Accord: Thornton v. East Texas Motor Freight, 497
F.2d 416 (6th Cir. 1974); U^S. v. East Texas Motor Freight, 10

86 A"
FEP Cases 971, 973 (N.D. Tex. 1975).

847 United States v. Bethlehem Steel Corp., 446 F.2d 652, 658 
(2nd Cir. 1971); Pettway, supra, 989 F. 2d at 223-224; Franks v. 
Bowman Transportation Co., 495 F.2d 398, 416 (5th Cir. 1974T-
85/ The district court observed that "it was only after" the adopt­
ion of plant seniority in the supplemental labor agreements that 
employees transferred, and found this to be evidence of a "causal 
relationship" between abandonment of job seniority and employees 
transferring (R. 1313). But this is a non sequitur, for the supple­
mental labor agreements also created, for the first time, the right 
of employees to transfer.
86/ In the two cited cases, as here, the employer had a no-transfer 
rule and the parties had a job seniority system. In each case, 
the court awarded back pay only against the employer, although 
ordering reform of the seniority system coincident with abolition 
(Cont'd)

42



The district court apparently thought it could bridge 
the obvious gap in-its analysis, and hold UP1U "equally responsible" 
for the no-transfer rule, by declaring that "until 1372 [UPIU] 
acquiesced in the discriminatory practices." Even if "acquiescence" 
warranted the imposition of back pay, and we show in the next 
section that it does not, the evidence here indisputably refutes 
acquiescence. UPIU sought transfer rights in 1963 and 1968 and 
it struck for them in 1970. Surely, a union does not become 
"equally responsible" for the employer's Title VII violations 
because it lacks sufficient bargaining power, even after striking, 
to force the employer to comply with the law.

In sum, the facts clearly 
finding of "equal responsibility."

refute the district court's 
Since that war, the sole and

necessary basis for the court's assignment of b0% liability against 
the unions, the ruling falls of its own weight. Cf. Stevenson, 
supra., slip op. at 6517. But beyond this factual consideration
lies an important legal principle which dictates, on the facts of 
this case, that UPIU not shoulder any portion of the back pay. We 
turn now1 to that point.

86/ (Cont d ) o f  the no-transfer rule. In the latter case, the 
denial of back pay was predicated in part upon the fact that the 
plaintiff had settled with the employer and thereby possibly 
released the union as a matter of law. But the court also stated- 
Unit seniority rights providing for bidding, lay off and recall 

do not directly affect compensation. Compensation is dependent 
on the job held, and the past discrimination and the no trans­
fer rule of the companies were directly responsible for keeping 
minorities in lower paying jobs." 1.0 FEP 973.

- 43 -



2. A Union May Not Be Required To Pay 
A Portion of the Back Pay for Injuries 
Resulting from Employer Misconduct 
Unless It Can Be Shown that the 
Injuries Were Made Worse by the Union's 
Conduct.

In determining the allocation of back pay responsibility 
between employer and union,, it is essential to keep in mind the 
quite different roles which they play vis-a-vis the employees.
The employer owns the plant and manages it. Accordingly, the 
employer possesses the unilateral power -- unless surrendered 
in collective bargaining —  to determine where a newly-hired 
employee will be assigned, how he will be paid, whether he 
will be allowed to transfer, what ground-rules will govern his 
opportunities for promotion, etc. In contrast to this direct 
role exercised by the employer, a union's role is reflexive: 
it seeks to influence the resolution of those questions for the 
benefit of the employees. Unless and until a union succeeds in 
getting an employer's agreement on these questions, the employer 
retains the same unilateral power it would possess if the plant
were unorganized. As the Supreme Court recognized in Steelworkers 
v. Warrior and Gulf, Co., 363 U.S. 574, 583 (1960):

"Collective bargaining agreements regulate 
or restrict the exercise of management functions; 
they do not oust management from the performance of 
them; management hires and fires, pays and promotes, 
supervises and plans. All these are part of its 
function . . . ." 8_7/

87/ A dramatic demonstration of the different roles and their 
implications is that an employer has the unilateral power to bring 
a plant's employment practices into compliance with Title VII -- 
disregarding, if necessary, any contrary provisions of its collec­
tive bargaining agreement. See, e.g., Savannah Print. Spec. f< P.P. 
Loc. U. 604 v. Union Camp Corp. , 350 F. Supp. 6 32 (S.D . Ga. 1972 
Uni ted States v. Local 189, 2 82 F. Supp. 3 9 (E.D. La. 1968) .
(Cont'd) 44



Unions may run afoul of Title VII in two ways: (1) they

may cause an employer to discriminate where otherwise it would 
not; or (2) they may acquiesce in an employer's discriminatory 
behavior. While either course may justify a finding that the 
union has violated Title VII, and warrant issuance of appropriate 
injunctive relief against the union, it does not follow that the 
allocation of back pay should be the same in both situations.

In the first category of cases, where the union uses its 
influence to cause the employer to discriminate, it is entirely 
appropriate that the union shoulder some or all of the financial 
responsibility for the injuries suffered by employees. This Court 
has so recognized in four cases: Johnson v. Goodyear Tire and
Rubber Co., 431 F. 2d 1364 (5th Cir. 1974) (where the employer 
was prepared to reform the seniority system to comply with 
Title VII, but the union secured an injunction against the • 
reformation); Guerra v. Manchester Terminal Co., 498 F.2d 641 
(5th Cir. 1974) (where a union compelled a reluctant employer to 
implement a contractual provision removing a minority employee 
from a desirable job); Carey v. Greyhound Bus Co., 500 F.2d 
1372 (5ch Cir. 1974) (where the employer wanted to amend the 
agreement to cure the discriminatory features of the seniority 
system, but the union refused to agree to such an amendment); 
Stevenson v. International Paper Co., supra, slip op. at 6517 
(same).
877 (Cont'd) The EEOC counsels employers to change their employ­
ment practices "unilaterally" in order to comply with Title VII,
"if the union is unwilling to negotiate such changes." EEOC, 
"Affirmative Action and Equal Employment: A Guidebook for Employers,
page 57 (1974). By contrast, because a union does not directly 
control the operation of the work place, it is powerless to cure 
discriminatory conditions without the employer's consent.

45



To hold a union liable for back pay in this category of 
cases is consistent with the development of lav; under the National 
Labor Relations Act -- an important consideration, for as the 
Supreme Court explained in Albemarle Paper Co. v. Moody, 43 l .w . 
4fb;u, 4884 (1975), Title VII's back pay provision "was expressly 
modeled on the back pay provision of the National Labor Relations 
Act." Where a union causes an employer who would not otherwise 
do so to discriminate against an employee because he is not a 
union member, both parties have violated the NLRA. But the NLRB 
and the courts have consistently ruled in such cases that while
a cease and desist order should run against both parties, the

„ . 88/ union is primarily liable" for the payment of back pay.-
Manifestly the instant case is not of this type. The 

Company's testimony made absolutely clear its unwillingness to 
transfer employees for what it deemed good business reasons.
Had there been no union, the discrimination would have occurred 
nonetheless. The worst that can be said of UPIU is that it did not 
succeed in improving the discrimir.atees' lot; the best that can be 
said is that it tried, even if its efforts fell short.

If UPIU was guilty of a Title VII violation at all, 
its violation falls into the second category: where a union has
acquiesced in, but not worsened, the effects which discriminatees 
have suffered. We assume, arguendo, that the finding of the 
court below —  that. UPIU did not do all that it might have on

872 ' (1971) , /  . j/Aagerty \
enforced m  pertinent part, 321 F.2d 130, 136 n. 4 (2nd Cir. 1963) .

46



notbehalf of minority employees to correct those effects —  is 
clearly erroneous. Even so, given the Company's unyielding resis­
tance to the seniority and transfer provisions advanced by UPJ.U 
in 1963, 1968 and 1970, and the Company's insistence upon retaining 
unilateral control over transfers, it is self-evident that if 
this were an unorganized plant the employees would have suffered 
at least as much, if not more. In this case, the union's "sin," 
as found by the district court, is closely akin to a breach of the 
duty of fair representation: a failure adequately to represent
minority employees in challenging discriminatory practices.

The lav? is now well settled that a union which breaches 
its duty of fair representation by not adequately contesting 
employer mistreatment of employees does not thereby become responsible 
for 50% of the monetary injuries suffered by employees. In Vaea 
v. Sipe_s, 386 U.S. 171 (1967), the Court discussed the question of
how financial liability should be apportioned where an employer has 
breached the contract and a union has failed adequately to challenge 
that breach, 386 U.S. at 196-198:

"A more difficult question is, what portion of 
the employee's damages may be charged to the union: 
in particular, may an award against a union include, 
as it did here, damages attributable solely to the 
employer's breach of contract? We think not.
Though the union has violated a statutory duty in 
failing to press the grievance, it is the employer's 
unrelated breach of contract which triggered the 
controversy and which caused this portion of the 
employee’s damages. The employee should have no 
difficulty recovering these damages from the employer, 
who cannot, as we have explained, hide behind the 
Union's wrongful failure to act; in fact, the 
employer may be (and probably should be) joined as 
a defendant in the fair representation suit, as in 
Humphrey v. Moore, supra. It could be a real hardship 
on the union to pay these damages, even if the union 
were given a right of indemnification against the

47



employer. With the employee assured of direct recovery from the employer, we rrect
requiring the union to pay the of the daroaaes.

see no merit in 
employer's share

^•or/'TheK??^:rn;Lng Principle, then, is to appor- tion liability between the emDlover pnri •sccord i nn  ̂ P * cino the union
each. Thus damager^tribuJable^olel^to^he

should toby the union’s k m  ™  ' “  those damages caused 
not be charged to tile emplover633/'lie grievance should 
It the Onion had bfeached dutv CaS?' even

found habIenfof f f
tne damage award was improper." ' (Footnote oSittedf

Similarly, in Czosek y. O^ara^ 397 U.S. 25, 23 (1970), tb 
Court declared:

e

independent o f ^ v V « £ “ ?U r* " V * * * "  tne union £.,n f t S  i ory conduct by. a s“Sequent refusal by the
charge °damaaG£S Cjrlevanccs based on the dis- cnarge, damages against the union for- i - r
exSSrtf"atai t Unrr ° V?rable “ o
added to the dlff/ulty a n d / x p e / e s / f , S " ?  from the* employer »7F 8 9 /  w ollecting

"hlle LheSe de°iSions dealt with remedying breaches of 
t>le ^  °f ^Presentation, they are plainly applicable to 

situations m  which the union's sin is a failure to 
deflect an employer from discriminatory actions. The two legal 
dutres have a common nucleus, for the duty of fair representation 
was first articulated in eases where the charge against the union 
was precisely that now commonly advanced under Title VII:
89/ Accord/ St/ cTaTr w— T"7rr~— r-,;— •---
Brotherhood oFTeamsterQ77A  o ^ ^ ^ - ^ ^ ^ O g ternational
v* Sa.ndicato de Trabaiadores PaHdnn*" rTr ^lr* 1969); De/irro1 290 (1st * 425 F.2d 281, 289^~^
F-2d 103, 106 (3rd Ci?7T968) of America . 400

48



failing adequately to represent blacks, because of their race, in

the negotiation of seniority practices. Steele v. Louisville 
& Nashville R.Co., 323 U.S. 192 (1944); Tunstall v. Bhd. of Locomotive 
Firemen, 323 U.S. 210 (1944); Graham v. Bhd. of Firemen, 338 U.S.
232 (1949); Bhd. of Railroad Trainmen v. Howard, 343 U.S. 768
(1952); Syres v. Oil Workers International Union, 350 U.S. 892 
(1955); Conley v. Gibson, 355 U.S, 41 (19 57) "We held [in Steele 
and Tunstallj that, as the exclusive statutory representative..., 
the Brotherhood could not bargain for the denial of equa.1 employment 
and promotion opportunities to a part of the craft upon grounds 
of race." Graham, supra, 338 U.S. at 238. Two courts have applied 
the rationale underlying the Vaca-Czosek decisions (in one, without 
citing those decisions) in evaluating claims advanced jointly 
under Title VII and the duty of fair representation. Waters v. 
Wisconsin Steel Workers, 427 F.2d 476, 490-491 (7th Cir. 1970), 
cert, denied 400 U.S. 911 (1970); Thornton v. East Texas Motor
Freight, 497 F.2d 416, 424-426 (6th Cir. 1974). Furthermore, 
the Vaca-Czosek allocation principles have been applied under 
the NLRA, NLRB v. Local 485, International Union of Electrical 
Workers, 454 F.2d 17, 22 (2nd Cir. 1972), and as earlier noted 
Title VII*s back pay provision "was expressly modeled" on that
of the NLRA.

It follows that where a union's Title VII violation con­
sists of a failure adequately to deflect an employer from a 
discriminatory course of conduct, and the union has not made the 
plight of the employees worse, the Vaca-Czosek allocation principle 
is directly applicable. Accordingly, the measure of union financial

90/ See also Stevenson, supra, slip op. at 6509.
49



responsibility should be whether, and to what extent, the union's 
actions have "added to the difficulty and expense" experienced by 
the discriminatees.

In this case, there is no evidence that plaintiffs 
suffered any "difficulty and expense" as a result of UPIU's 
actions. Indeed this lawsuit was not filed until after the 
effects of the Company's past discrimination had been cured by 
the adoption of the supplemental labor agreements. The district 
court therefore erred in awarding any back pay against UPIU.

As we have shown, it is wrong, as a matter of lav/, to 
saddle unions with financial responsibility for injuries which 
would have been suffered equally in their absence. Indeed, 
to transfer this financial responsibility from the employer to

has two unrortunate effects z (1) i t confer— a rd^sl ̂
on the employer; and (2) it penalizes the employees for selecting 
the union, for the union's portion of the back pay will come from 
ito members dues (including the dues of the discriminatees)
Of course, where the union is truly responsible for causing the 
monetary injury suffered by discriminatees, it is entirely 
appropriate to make the union pay. But where, as here, the 
union's presence has not increased the discriminatees' injuries 
beyond what they would have been in the union's absence, a back pay 
award against the union is not warranted.

B. Assuming Arguendo that UPIU Is Responsible 
for Some Back Pay, the District Court Erred 
in Holding Ui’j.U Monetarily Liable for Injuries 
Which the Court Found Were Caused Solely by the 
Company and Unions Other than UPIU.

In Part A supra, we showed that the district court 
applied the wrong standard in declaring the unions responsible

50



for 50% of the back pay. We suggested that UPIU could not pro­
perly be held responsible for any portion of the back pay. But 
even if this Court concludes that some back pay may be assessed 
against UPIU, it still must reverse the formula adopted by the 
district court for allocating back pay liability among the unions.

After declaring the "unions' share" of back pay to be 
50%, the court allocated back pay liability among the three unions

£1/in the mill on the basis of the number of employees each represented. 
As 72% of the mill employees worked on jobs in UPIU's bargaining 
unit, UPIU was held responsible for 72% of the "unions' share" 
of back pay due each discriminatee. The effect of this ruling 
is that employees who suffer through inability to enter the craft 
units --- which UPIU did not represent -- would receive a major 
portion of their back pay for those injuries from UPIU.

Section 706(g) authorizes a district court to award "back 
pay (payable by the employer, employment agency or labor organiza­
tion, as the case may be, responsible for the unlawful employment 

92/
practice)." The district court did not find that UPIU was
in any way "responsible" for the discriminatees' inability to
enter the craft units. On the contrary, that inability was
ascribed to provisions in the collective bargaining agreements
91/ As UPIU represented-ail of the" employees in the bag plant, it 
was perforce responsible for 100% of the "unions' share" of back 
pay due bag plant discriminatees.
92/ 42 U.S.C. §2000e-5 (g) (emphasis added).

51



between the Company and the craft unions: "The evidence is
compelling that black employees did not transfer to jobs under
the jurisdiction of those Unions because of the collective

j ---------- 9 3 /

bargaining agreements between those Unions and the Company.
It would have been un unfair labor practice, violative of

the National Labor Relations Act, for UPIU to have attempted to
dictate the terms of the collective bargaining agreements in the
craft units. A union certified as the representative of one
bargaining unit may not negotiate terms and conditions applicable

94/
to another bargaining unit represented by another union.

The district court's order thus is clearly erroneous in 
saddling UPIU with monetary liability for practices in bargaining
units over which UPIU had no control, and for which UPIU was not

95/
"responsible," Sec. 706(g).

93/ R. 1321 (emphasis added). The craft unions made a forceful 
(and we thought persuasive) demonstration at trial that it was 
the Company's unilateral actions, and not their collective bargain­
ing agreements, which caused the exclusion of blacks from the craft 
units. By quoting the district court's holding, we do not mean to 
endorse it as correct. We quote it only to show that even if it 
were correct it in no way suggests that UPIU was responsible for 
that exclusion.
94/ The NLRB and the courts have uniformly held that such conduct 
by a union constitutes bad faith bargaining, violative of Section 
8(b) (3) of the NLRA, 29 U.S.C. §158 (b) (3). See, e.g., Texlite, Inc. 
119 NLRB 1792 (1958), enforced 266 P.2d 343 (C.A. 5, 1959); Central 
Soya Co. , 142 NLRB 930 (.1963). See also, Tr. 133-134 .
95/ The court's order visits a similar injury upon the other 
unions in reverse, for they are held responsible for 28% of the 
back pay deemed owing because discriminatees could not transfer 
between jobs within UPIU's own unit. Perhaps the district court 
assumed that these incongruities balanced each other out; in fact, 
they do not. For example, the craft units contain higher paying 
jobs on the average than those in UPIU's unit. In consequence, 
the monetary injury suffered by an employee who can demonstrate 
improper exclusion from the craft units will likely be greater 
than the monetary injury suffered by an employee excluded from 
other jobs within UPIU’s unit. Thus UPIU's monetary liability may 
well be substantially smaller if it pays for 100% of the "unions' 
share" within ir.s own unit, than if it pays 72% of the "unions' 
share" throughout all units.



Moreover, the court's order puts UPIU in an impossible
defense posture. UPIU will have the burden of rebutting, by
"convincing evidence," the "presumptive entitlement" of class

96/

members to relief for craft exclusion. But UPIU is not in a 
position to prepare and submit such a defense. It is not the 
bargaining representative for the craft units, and it does not 
know what qualifications are required to perform craft jobs, how 
those qualifications can be measured, which discriminatees sought 
craft jobs, why they failed to get them, etc., etc. These disa­
bilities would be disturbing in any case, but in the present case 
where the employer has already settled with the plaintiffs —  they 
are devastating. For UPIU will not even have the solace of
receiving a vigorous co-defense on these issues from the most know 
ledgeable party: the employer.

lor the foregoing reasons, the district court erred as 
a matter of lav/ in its manner of allocating back pay among the 
unions. Assuming its findings would justify any back pay award 
against the unions, assessment against each union is warranted 
only for injuries flowing from the denial of opportunities within 
the bargaining unit it represents.

C, The District Court Erred in Declaring 
Employees Hired after July 2, 1565, 
"Presumptively Entitled." to Back Pay

The d.i strict court declared that all blacks hired up
to September 1, 1972 were "presumptively entitled" to back pay if
their initial assignment was to a job which historically had been
p 7  Johnson v. Goodyear, supra, 491 F.2d at 
494 F.2d at 259. Any uncertainties will be 
Pettway. at 260-261.

1380; Pettway, supra, 
resolved againstUPIU.

- 53



}

a black' job. However, the court made no finding that blacks 
hired after the effective date of the Act (July 2, 1965) 
suffered any discrimination, and the record evidence establishes 
without contradiction that they did not. Accordingly, the court- 
erred in declaring these employees "presumptively entitled" to back

97/

pay.

The record makes crystal clear that blacks hired after 
the effective date of Title VII suffered no discrimination.
—r~‘Qr to that date newly hired black employees were assigned by 
the Company only to "black" jobs. But following that date, the 
Company adopted a new.policy assuring that such discriminatory 
assignments would not continue. Thus blacks hired after the effec­
tive date of the Act were not discriminatorily assigned.

Ihere was no dispute below as to the occurrence of this
change m  policy. Plaintiffs acknowledged it in all their written

98/
submissions to the court below, and indeed at trial counsel for
plaintiffs questioned the Company's Assistant Industrial Relations 
Director as follows:

"Q. Mr. Love, on or about July 2, 1965 —  which
^  the effective date of the Civil Rights Act 
or 1. 64 - did Gilman Paper Company make any
,»5'be, “i011 ,r?Spfct to its Policy of assigning newly hired black employees?

¥  So1 p . " s ? E s s o i n

ber 11 1Q7? Cr n/i\ mi „ worming o.s of Decern-' 1303_04)- The group declared "presumptivelyentitled" to back pay include 
were "initially assigned to a blaciall members of Classes A

job" (R. 1324-25) and B who

98/ See documents cited at p. 13f n, 4 9 supra.
5 4



A. Well, we began assigning them to other areas
other than the ones that we had normally assigned 
them to in the past.

Q. Were the other areas that you now began to assign 
them to, had those areas previously been occupied 
exclusively by white employees?

A. Yes, to the best of my knowledge." (Tr. 93).
Mr. Love further testified, in response to questions from UPIU's 
counsel:

"Q« . . .  So would it be fair to say, Mr. Love, that after
'65 your employment program was nondiscriminatory, 
and that you hired blacks the same as you hired 
whites?

A. I'd certainly like to think so, sir.
0. All right, sir. Now you also —  in your placement of 

those individuals, your placed them without taking 
into consideration their race?

A. As far as placement goes?
Q. Yes, sir.
A. We certainly attempted not to, sir.
Q. All right, sir. So if your hired a black after 

19G5, and placed him in —  if you were hiring a 
black after 1965, you would not have taken into 
consideration his race as to whether or not he 
went into 446, 453, or 616. Is that fair?

A. Yes, sir.
Q. And his placement would have been based on other 

criteria by the company?
A. Yes, sir." (Tr. 163-164).

The record contains no evidence to the contrary.
The statistics on post-Act assignments confirm the non­

discriminatory policy. Of 195 blacks who were hired between July 2, 
1965 and the date of trial, 117 were assigned to formerly "white"

- 55 -

. r -r  -  jam i



jobs, and only 78 to formerly "black" jobs.
The record evidence thus compels a finding that blacks 

hired after the effective date of Title VII were not discriminatorily 
assigned. While the district court's opinion does not contain an 
express finding to that effect, the court assumed the absence of 
post-Aqt discriminatory assignments. Its finding of discriminatory 
assignments related only to the pre-Act period (R. 1304-05):

99/

Prior to July 2, 
of Title VII of the 1965, the effective date
(Title VII)7 

to jobs
Gilman 
in theonly

lines of progression 
not within any line 
lucrative and more d 
the Kraft Division ( 
Division (Bag Plant) 
exception, for white 
added).

Civil Rights Act of 1964 
assigned its black employees 
wood yard and the yard labor 
and to certain other jobs 

of progression. Jobs in more 
esirable lines of progression 
the Mill) and the Kraft Bag m
were
employees

re s e r \re d a 1m AC'f
(emphasis

This finding was reiterated at R. 1309;
"In summary, the evidence shows and the Court 
finds, that prior to the effective date of Title Blacks were  ̂ ' r ... = VIIhired into relatively low paying lines" 
or progression and were prohibited from entering into 
the higher paying lines of progression in both theMill and the Bag Plant (emphasis added)

99/ Tr. 94. These figures include 22 assignments 
"white" jobs at the mill, and 95 at the bag plant, 
ments to formerly "black" jobs at the mill, and 23 
plant. Ibid.

to formerly 
and 55 assign­
at the bag

56



and again at R. 1310-11:
"Plaintiffs have shown the existence of 

racial discrimination in assignment and 
transfer practices existing prior to the 
effective date of Title VII in that no Blacks 
had ever been hired or transferred into higher 
paying, traditionally all-white lines of pro­
gression . . . .“ (emphasis added).

At no point did the district court state that employees hired
after the effective date of the Act were discriminatorily assigned.
If it had made such a statement, it would be clearly erroneous.

Why, then, did the district court declare those hired
between 1965 and 1972 presumptively entitled to back pay? This
declaration apparently resulted from the court's confusion of two
distinct propositions. The court correctly found that the Act
was violated between 19 65 and .19 72 because those who had been
discriminatorily assigned continued to be denied access to their
rightful place:

"All that need be shown is that, prior to the 
effective date of the Act, the Company engaged in 
racial discrimination, and that, after the 
effective date of the Act, the previous discriminatory 
policies were carried forward by the racially neutral 
practices. . ." (R. 1320)

Having thus established that discrimination occurred during the 1965- 
72 period, the court forgot that the only victims of that discrimina- 

’tion were those who had been discriminatorily assigned in the first 
place, i.e., the employees hired and assigned prior to July 2,
1965. Of course, some of the blacks hired after Ouly 2, 1965 

were assigned to formerly "black" jobs, for even on a non-discriminatory 
basis some new hires were assigned to such jobs. But those who 
were assigned to formerly "black" jobs pursuant to a non-discriminator 
assignment policy were not victims of discrimination. •

It is true that those hired between July 2, 1965 and 
September 1, 1972 were not able to transfer, for free mobility was

57

*•<*



not established until the supplemental labor agreements were 
adopted. But as these employees had not been discriminatorily 
assigned, their inability to transfer did not perpetuate the 
effects of any past discrimination. Narrow seniority systems are 
not per se unlawful; they violate Title VII only insofar as 
they create barriers against discriminatees reaching their 
"rightful place," i.e., insofar as they perpetuate the effects of 
the original assignment discrimination. "Once it has been deter­
mined that blacks have been discriminatorily assigned to a particular 
department within a plant, departmental seniority cannot be
utilized to freeze these black employees into a discriminatory 

100/
caste.T A narrow seniority system "should be modified only as
it applies to those employees who were previously subjected to
discrimination," but "should be allowed to apply unabated to all
employees, black and white, against whom the employer did not 

1.0 1 /
discriminate." As Judge Keebe explained in United States v.
Local 189, United Papermakers, 282 F. Supp. 39, 44 (E.D. La.
1968) :

"'Job seniority' is certainly not inherently 
prejudicial to Negroes; there is nothing about 
job seniority systems themselves to make them 
necessarily offensive; nor do we think 'mill 
seniority' necessarily a better system. It is 
not the job seniority system in and of itself, but 
rather the continuous discrimination practiced by 
the defendants within the framework of that system, 
which now requires that the system be abolished

100/ Johnson v. Goodyear, supra, 491 F.2d at 1373 (emphasis added).
101/ Stevenson, supra, slip op. at 6522. See also Watkins v. United 
States, NoT 74-2604 (5th C.ir. , July 16, 1975), slip op7 at 6504”.

58



\

m  this case. Within the framework of a '-job 
seniority' system, Negro employees have been forced into 
the inferior lines of progression and the less desirihfS 
lobs. The defendants claim that active disc?L?naSSS 
against Negroes has now ceased. But the fact that 
Negroes who, under the present liberalized policy hive 
only lecently entered formerly white progression lines 
are forced to compete with white employeXfororo- 

b« is o* 'iob seniority' ̂ continues/in 
of hn f  of- such competition, the discriminatory effect 
fn its 1 ? bistory of the relegation of those Necrroesto other, less desirable lines.” ( e m p h a s l l ^ d l l f ^

In the instant case, since all employees hired after July 2,
1965 were assigned on a nondlscriminatory basin, the continuance
of the then-existing transfer and seniority practices was not a 
violation of their rights.

Once it is recognized that those hired after July 2,
1965 were not discriminated against, the district court's orrlr
in declaring them "presumptively entitled" to K-.ri. .  •

i -w Oetwv pay is clear.
Section 706(g), Title VII's remedial provision, provides in its
last sentence:

or°reinstatement o^an ’SSliiSSf”  t!‘°
r e ° fu ie d ° f  T  ba<*  U  “ n a i ^ a ? ^  6 P a ,“ n tlefused employment or advancement for nm,',' *
other than discrimination on amount'of
i S t l n i o t Z i . “  natiOMl °ri or violation°of

As donators Clark and Case, the floor managers of Title VII 
in the Senate, explained:

admission to mlmbeLhiD^o? payment ^ b a O ' i ' T ' I ' 
anyone who not d i s c r i m p / d ^ a ^ s ^ S  O d i l o n
sentence of

M l /  Leg". Hist. p. 304 4

- 59 -

.



\

This Court, applied this principle in Gamble v. Birmingham 
Southern Railway Co., No. 74-2105, 10 FEP Cases 1148, 1154 (5th 
Cir. 1975):

"The Act does not require a remedy for those not 
discriminated against. U.S. v. Chesapeake & Ohio 
Rv■ Co., 4th Cir. 1972, 471 F.2d 582, 593.
No one has here questioned that those employees 
hired since 1965 have been treated non-discriminatorily 
as to promotions. Therefore, those entitled to back 
pay are the black switchmen hired before 1865."

In Chesapeake & Ohio, which this Court followed in 
Gamble, the Fourth Circuit had stated:

The Act does not require the application of the 
remedy to employees who are not subject to discrimina­
tion^ . . . Specifically, . . .  a remedy need be 
fashioned only for the black . . . laborers who were 
employed before the C&O ceased its discriminatory 
hiring policies." United States v. Chesapeake and 
Ohio Railway Co. , 4 71 F.2d 582 ,“'593 '(Tth ”cIF.T'l“9T2) .
The district court's error in declaring employees 

hired between July 2, 19C5 and September 1, 1972 "presumptively 
entitled" to back pay is not rendered harmless by the fact that 
the court has not yet ruled that each of these employees is 
entitled to back pay. The declaration of "presumptive entitlement" 
has important implications for the resolution of the ultimate 
question of whether back pay will be due. A finding of presumptive 
entitlement shifts the burden to the defendants to rebut, by "con­
vincing evidence," the presumption that an employee should receive 
back pay. Any uncertainties left by the evidence will be resolved 
against the defendants. Johnson v. Goodyear, supra, 491 F.2d at 
1380; Pettway, supra, 494 F.2d at 259. Moreover, it is not al­
together clear that the defendants wil3. be free to rebut the 
presumption by showing that an employee was not discriminated against.

60



The declaration of "presumptive entitlement" normally follows the 
determination that an employee has been discriminated against, and 
its function is to allocate the parties' respective burdens of 
proof on the remaining question of whether (and how much) the 
employee has suffered monetarily by reason of that determination.
It xs thus not certain that the district court would entertain, 
even wxth the biirden of proof improperly shifted to the defen­
dants, contentions that those already declared "presumptively 
entitled to back pay are not discriminatees at all.

It is therefore essential, if this case is to return to 
the dxstrict court for further back pay proceedings, that this 
Court reverse the declaration of presumptive entitlement of employees 
hired after July 2, 1965.

CONCLUSION
For the reasons set forth in Part I of this brief, the 

district court's inclusion in its decree of provisions relating to 
subjects of collective bargaining should be reversed, and the 
district court should be directed to strike those provisions 
from its decree. (As explained at p. 29, supra, the district 
court would remain free to consider whether equity warrants incorpora­
ting the provisions of the supplemental labor agreements themselves 
into its decree).

For the reasons set forth in Part II~A of this brief, the 
district court's holding that UPIU is liable for back pay should 
be reversed with a direction that the back pay claims against 
UPIU be dismissed. Alternatively, this Court should reverse the 
finding of "equal responsibility" as clearly erroneous, and remand

61



\

or a determination of UPIU's back pay liability under the legal 
standards discussed in Part II-A of this brief; the district 
court's assignment of liability to UPIU for craft exclusion 
should be reversed for the reasons set forth in Part II-B of this 
brief; and the declaration that employees hired after July 2, 
1965, are "presumptively entitled" to back pay should be re­
versed for the reasons set forth in Part II-C of this brief.

BENJAMIN WYLE 
Spivak & Wyle 
3 East 54th Street 
New York, New York 10022

JAMES EDWARD McALEER 
24 E. Ogletborp Avenue 
Savannah, Georgia 31401

Respectfully submitted,

MICHAEL H. GOTTESMAN, 
FRANK PETRAMALO, JR.,
ROBERT M . WEINBERG,
Bredhoff, Cushman, Gottesman & Cohen
1000 Connecticut Avenue, n .W. 
Washington, D. C. 20036

Attorneys for Defendants- 
AppeHants United Paperworkers 
International Union, and its 
Locals 446, 453 and 958

July 28, 1975



CERTIFICATE OF SERVICE

I hereby certify that the foregoing brief was served 
upon all counsel of record, by mailing, this 28th day of July,
1978, copies each to:

Fletcher Farrington, Esquire 
208 East Thirty—Fourth Street 
Savannah, Georgia 31401
Guy 0. Farmer, II, Esquire 
Mahoney, Hadlow, Chambers £. Adams 
Post Office Box 4099 
Jacksonville, Florida 32201
J• R- Goldthwaite, Jr., Esquire 
600 Rhodes-Haverty Building 
Atlanta, Georgia "30303
Elihu Leifer, Esquire;
1125 15th Street, N.W .
Washington, D. C.
John Falkenberry, Esquire 
Cooper, Mitch ft Crawford 
409 N 21st Street 
Birmingham, Alabama 35203

1M i t’T'- CT
MICHAEL H. GOTTESMAN 
Bredho.ff , Cushman, Gottesman 
£ Cohen

1000 Connecticut Avenue, N.W. 
Washington, D. C. 20036