Freeman v. Motor Convoy, Inc. Brief for the Union Defendants-Appellees

    I n  T h e

MnxUh (Emtrt at Apprals
F or t h e  E l ev e n t h  Circuit

No. 81-7644

Me lv in  F r eem a n  and  D ouglas Spe n c e r ,
Plaintiffs-Appellants,

v.
Motor Convoy , I n c .,

Defendant-Appellee,

and
I n ter n a tio n a l  Brotherhood  of T eam sters , 
C h a u ffeu r s , W a re h o u sem en , and  H elpers 

of A m e r ic a ; and > ">cal U n io n  N o. 528,
Defendants-Appellees.

On Appeal From The United States District Court 
For The Northern District of Georgia 

(Atlanta Division)

BRIEF FOR THE UNION DEFENDANTS-APPELLEES

F rederick C. McLam 
246 Sycamore Street, Suite 240 
Decatur, Georgia 30030 

Attorney for Teamsters 
Local Union No. 528

Robert M. Baptiste 
Roland P. Wilder, J r.

25 Louisiana Avenue. N.W. 
Washington, D.C. 20001 

Attorneys for
the International Union

W i l s o m  - EPES P r i n t i n g  C o . .  In c . - 7 8 9 - 0 0 9 6  - W a s h i n g t o n , D . C .  2 0 0 0 1



CERTIFICATE OF INTERESTED PERSONS

In accordance with Local Rule 22, Rules of the Elev­
enth Circuit, counsel for the defendant-appellee unions 
hereby certify that, to the best of their knowledge and 
belief, the attorneys, persons, associations of persons, 
firms, partnerships and corporations identified in the 
Certification of October 26, 1981 filed by counsel for the 
plaintiffs-appellants constitute a complete list of per­
sons and entities having an interest in the outcome of 
this case, except that Teamsters Local 612 in Birming­
ham, Alabama, affiliated with the International Brother­
hood of Teamsters, also should be named.

Dated this 2nd day of December, 1981, in Washing­
ton, D.C.

FREDERICK C. McLAM 
Attorney for Teamsters

Roland P. W ilder, J r.
Attorney for the International

Local 528, Appellee Brotherhood of Teamsters, Appellee

(i)



XI

STATEMENT REGARDING PREFERENCE 

This is a non-preference appeal.

STATEMENT REGARDING REQUEST 
FOR ORAL ARGUMENT

The need for oral argument turns on the relationship 
of record evidence to the broad, legal issues raised in 
this appeal. The Court may find that it has questions 
to ask of counsel because the record is lengthy and the 
Court has not previously dealt with the cai’-haul indus­
try in the context of a Title VII case. We believe that 
oral argument would be helpful. Also, several issues 
could be affected by future decisions of the Supreme 
Court or this Court in cases now pending. The paiffies 
should have an opportunity to be heard on such matters.



TABLE OF CONTENTS

Certificate of Interested Persons..................................... i

Statement Regarding Preference.... .................  ii

Statement Regarding Request for Oral Argum ent.......  ii

Table of Contents and C itations_____ _____ *--------- iii, iv

Counterstatement of Issues Presented ..... ............ ......... 1

Counterstatement of the C ase.......... .............. - ______  2

A. The Proceedings Below __ ______________  2
B. Statement of F ac ts ............. ...... ............... .........  4
C. The Decision Below...... ................ ......................  15

Summary of Argument______________________    17

Statement of Jurisdiction...... ............................     21

Argument and Citations of Authorities..... .................... 21

I. The Seniority Provisions of the Central-Southern 
Truckaway, Yard and Garage Supplements to 
the Master Car-Haul Agreement Are Bona Fide
and Protected By § 703 (h) _____ ____ ________  21

II. Bona Fide Seniority Systems Cannot Be 
Attacked Under § 1981 of the Reconstruction
Era Civil Rights Acts _____ ____ __________  31

III. Intentional Discrimination Must Be Shown To 
Make Out Any Claim Under § 1981 That Is 
Based On the Operation of a Seniority System.. 33

IV. The Plaintiffs’ Remaining § 1981 and Class Ac­
tion Contentions Are Without M erit............. .....  35

Conclusion ............. ............................................................  43

Certificate of Service

Page

(iii)



Cases:
TABLE OF AUTHORITIES

Page
Aeronautical Indus. Dist. Lodge 727 v. Campbell,

337 U.S. 521 (1949) ................... ........... ........... .
Alexander v. Gardner-Denver Co., 415 U.S. 36

(1974) ............... ......... .......... .............. ...... ..........
Barber v. Owens-Coming Fiberglass Corp., 27

[CCH] EPD IT 32,141 (N.D. Ga. 1981) _______
Bolden v. Pennsylvania State Police, 578 F.2d 912

(3d Cir. 1978) ...... ...... ......... ............. ..... ....... 31, 32,
Brown v. Neeb, 644 F.2d 551 (6th Cir. 1981) .... .

* California Brewers Ass’n v. Bryant, 444 U.S. 598,
rehearing denied, 445 U.S. 973 (1980) ........—19, 28,

Chance v. Board of Examiners, 534 F.2d 993, 
modified on other grounds, 534 F.2d 1007 (2d 
Cir. 1976), cert, denied, 431 U.S. 965 (1977) ......

Commonwealth of Pennsylvania v. Local 542, Oper­
ating Engineers, 469 F. Supp. 329 (E.D. Pa.
1978)............................. ..........................................  34,

Cutliff v. Greyhound Lines, Inc., 558 F.2d 803 (5th
Cir. 1977) ____________ ______ ___ _______

Davis v. County of Los Angeles, 566 F.2d 1334 
(9th Cir. 1977), vacated as moot and remanded,
440 U.S. 625 (1979) ............... .................... ...... .

De Arroyo v. Sindicato Trabaj adores Packing­
house, 425 F.2d 281 (1st Cir.), cert, denied,
400 U.S. 877 (1970) _____ _______ ________ _ 41,

*East Texas Motor Freight System, Inc. v. Rod­
riguez, 431 U.S. 395 (1977) ______ ________ __

Falcon v. General Telephone Co., 626 F.2d 369, 
(5th Cir. 1980), vacated on other grounds and
remanded, 68 L.Ed.2d 234 (1981) _____ _____

Franks v. Bowman Transp. Co., 424 U.S. 747
(1976) .............. ...... .............. ...................... ......18,27,

Franks v. Bowman Transp. Co., 495 F.2d 398 
(5th Cir. 1974), rev’d in part, 424 U.S. 747
(1976) _____________ _______ ________ ___

Freeman v. Motor Convoy, 13 [CCH] EPD]J 11,518 
(N.D. Ga. 1976) ....... ........................... ......... .......

29

32

37

33
33

29

31

36

38

34

42

21

43

37

37

2

* Cases chiefly relied upon are marked by an asterisk.



V

Freeman v. Motor Convoy, Inc., 409 F. Supp. 1100
(N.D. Ga. 1976) ............. ....... .................... ........  2,22

Freeman v. Motor Convoy, Inc., 20 [CCH] EPD
1130,090 (N.D. Ga. 1979) ............ ................. ...3,23,24

Furr v. Trans World Airlines, Inc., 461 F. Supp.
58 (S.D. Ohio 1978)_____ _____ ___________  30

General Building Contractors Ass’n v. Pennsyl­
vania, 648 F.2d 923 (3d Cir.), cert, granted, 50 
U.S.L.W. 3292 (U.S., Oct. 19, 1981) (No. 81-
280)_______ _______ __ ______ ___ ________  34

Gisonde v. Mobil Chemical Co., 17 [CCH] EPD
If 8542 (N.D. Ga. 1978).................... .............. . 37

Goodlett v. Rhodes Furniture Co., 27 [CCH] EPD
1132,142 (N.D. Ga. 1981) ______________ __  37

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ..24, 33, 34 
* International Brotherhood of Teamsters v. United

States, 431, U.S. 324 (1977)___ 3,17,19, 21, 24, 25, 26,
27, 28, 33, 35, 36, 40

IUE v. Robbins & Myers, Inc., 429 U.S. 229
(1976) ____ _____ _____ ____ _______ __ ____  41

*James v. Stockham Valves & Fitting Co., 559 F.2d 
310 (5th Cir. 1977), cert, denied, 434 U.S. 1034
(1978) ____ _________ ____ _____ _________ ..17,24,25

Johnson v. Georgia Express, Inc., 417 F.2d 1122
(5th Cir. 1969) ............. ....... .................... ...... . 40

Johnson v. Goodyear Tire & Rubber Co., 491 F.2d
1364 (5th Cir. 1974) .......... ....... ........ ............. . 37, 40

*Johnson v. Railway Express Agency, Inc., 421 U.S.
454 (1975) ...... ......................... ..... .... ...20, 31, 32, 38, 39

*Johnson v. Ryder Truck Lines, Inc., 10 [CCH]
EPD 1fl0,535 (W.D. N.C. 1975), aff’d, on this 
issue, 555 F.2d 1181 (4th Cir. 1977), on re­
hearing, 575 F.2d 471 (4th Cir. 1978), cert, de­
nied, 440 U.S. 979 (1979) ........ .............. ..22,31,32,36

Kelly v. Atlantic Richfield Co., 468 F. Supp. 712 
(E.D. Tex. 1979)

TABLE OF AUTHORITIES—Continued
Page

* Cases chiefly relied upon are marked by an asterisk.

30



TABLE OF AUTHORITIES—Continued
Page

Local 1251, UAW v. Robertshaw Controls Co., 405
F.2d 29 (2d Cir. 1968)........................................

Local 1424, Machinists Union v. NLRB, 362 U.S.
411 (1960) ........... .............................. ..................

Lynch v. Pan American World Airways, Inc., 475
F.2d 764 (5th Cir. 1973) ...... ...... ............. .........

*McWilliams v. Escambia County School Board,
27 [CCH] EPD 1f 32,175 (5th Cir. 1981) .......20,34,

Mohasco Corp. v. Silver, 447 U.S. 807 (1980).......
Murray v. OCAW Local 8-472, 88 L.R.R.M. 2119

(I). Conn. 1974) ____ ___ ____ _____________
Occidental Life Ins. Co. v. EEOC, 432 U.S. 355

(1977) ............................... ................. ...................  20,
Patterson v. American Tobacco Co., 634 F.2d 744 

(4th Cir. 1980), cert, granted, 49 U.S.L.W. 3923
(U.S., June 16, 1981) (No. 80-1199) ______ 18,26,

*Pettway v. American Cast Iron Pipe Co., 576 F.2d 
1157 (5th Cir. 1978), cert, denied, 439 U.S. 1115
(1979) ................. ............................. ...... .....19, 22,31,

Roberts v. H. W. Ivey Constr. Co., 408 F. Supp.
622 (N.D. Ga. 1975) ___________ ______ ____

Singleton v. Wulff, 428 U.S. 106 (1976) ............. .
*Southbridge Plastics Div., W. R. Grace & Co. v. 

Local 759, Rubber Workers, 565 F.2d 913 (5th
Cir. 1978) _______ _____ _____ ___ ___ ______

Terrell v. United States Pipe & Foundry Co., 644
F.2d 1112 (5th Cir. 1981)............................... 19, 31,

*Trans World Airlines v. Hardison, 432 U.S. 63
(1977) __   18,24,

*UAW v. Hoosier Cardinal Corp., 383 U.S. 696
(1966) ......     38,

*United Airlines, Inc. v. Evans, 431 U.S. 553
(1977) ...............         19,

United Parcel Service v. Mitchell, 67 L.Ed.2d 732
(1981) ___________      20,39,

*United States v. East Texas Motor Freight, Inc.,
564 F.2d 179 (5th Cir. 1977) ............ ..................

29

41

40

38
41

30

39

29

32

37
35

34

34

27

39

28

41

31

Cases chiefly relied upon are marked by an asterisk.



United States v. Trucking Management, Inc., 26
[CCH] EPD IT 32,027 (D.C. Cir. 1981) .............  31

*Washington v. Davis, 426 U.S. 229 (1976) ....... . 34, 35
Waters v. Wisconsin Steel Works, 502 F.2d 1309 

(7th Cir. 1974), cert, denied, 425 U.S. 997
(1976) ....................................................................  31

* Williams v. DeKalb County, 582 F.2d 2 (5th Cir.
1978) ...... ............... ..... ..... ................... -..... ..........  19, 34

Williams v. Western Electric Co., 618 F.2d 1110
(5th Cir. 1980) ........ ......... ....... ........ ..... ............  38

Whatley v. Department of Education, No. 79-2164
(5th Cir.) ...... ........ ........ ................ ....... .............  37

Yates v. Mobile County Personnel Board, 27 [CCH]
EPD IT 13,171 (5th Cir. 1981) .......... ..................  36

Youakim v. Miller, 425 U.S. 231 (1976)________ 35

Statutes:
Civil Rights Act of 1964, As Amended:

§ 703(h), 42 U.S.C. § 2000e-2(h) ______ _passim
§ 706(g), 42 U.S.C. § 20003-5 (g) ................  33

28 U.S.C. § 1291 ............... ......... ......... .....................  21
42 U.S.C. § 1981...... .............. ................. ....... .......... passim
Georgia Code Annotated

§ 3-704 .......................... ........................... 37, 38, 40, 41
Florida Statutes Annotated

§95.11(4) (c) ............. .................. ............. . 38
§ 95.11 (3) (f) ........... ............. ............... ...........  38

Federal Rules of Civil Procedure
Rule 19(a) ..... ......... ..... ...................................  41
Rule 53 (e)(2) ................ ........ .........................  25
Rule 58 ................................................ ....... . 3

Miscellaneous:
110 Cong. Rec. 7206 (1964)  _____ __________  27
110 Cong. Rec. 12723 (1964) ................ ......... ......  27

VH

TABLE OF AUTHORITIES—Continued
Page

* Cases chiefly relied upon are marked by an asterisk.



In T he

llmftii (Emit of Amalfi
F or the E leventh Circuit

No. 81-7644

Melvin F reeman and Douglas Spencer,
Plaintiffs-Appellants,

v.

Motor Convoy, Inc.,
Defendant-Appellee,

and

International Brotherhood of Teamsters, 
Chauffeurs, Warehousemen, and H elpers 

of America; and Local U nion No. 528, 
Defendants-Appellees.

On Appeal From The United States District Court 
For The Northern District of Georgia 

(Atlanta Division)

BRIEF FOR THE UNION DEFENDANTS-APPELLEES

COUNTERSTATEMENT OF ISSUES PRESENTED

1. Did the district court correctly hold that a seniority 
system, in effect for many years in a multi-employer 
collective bargaining agreement, was entitled to the pro­
tections of § 703(h), where the plaintiffs and class mem­
bers became subject to the agreement after Title VIFs 
effective date, but where the road department from which 
they were allegedly excluded had been covered by the 
agreement for twenty years prior to Title VII?



2

2. Did the district court correctly hold that a bona 
fide seniority system cannot be attacked under 42 U.S.C. 
§ 1981?

3. Did the district court abuse its discretion in ex­
cluding applicants for employment from the certified 
class?

4. Was the district court correct in requiring proof 
of an intent to discriminate in order to make out claims 
brought pursuant to 42 U.S.C. § 1981?

5. Did the district court err in rejecting discrimina­
tion claims asserted by employees who declined to trans­
fer into road jobs without full terminal seniority, where:

a. the claimants’ inability to carry over competi­
tive status seniority was attributable to the opera­
tion of a bona fide seniority system; and

b. it is contended now that the claims asserted 
are actually “hiring” claims preserved by a twenty- 
year Georgia statute of limitations?

COUNTERSTATEMENT OF THE CASE 

A. The Proceedings Below

The United States District Court for the Northern 
District of Georgia, Honorable Richard C. Freeman pre­
siding, handed down its original judgment and order, 
with an accompanying opinion, on December 11, 1975 
(409 F. Supp. 1100; PA Exc. 90; R. 917).1 The district 
court’s judgment and order was supplemented on Feb­
ruary 11, 1976 (13 [CCH] EPD fl 11,518; PA Exc. 130; 
R. 983). Timely notices of appeal were filed by all de­

1 References to the Excerpts From The Record filed by the 
plaintiffs-appellants will be designated “PA Exc.” Record references 
will be designated “R.”



3

fendants; 2 however, the case was remanded to the dis­
trict court on the plaintiffs’ motion by the court of ap­
peals’ Order of August 24, 1977. Thereafter, on Sep­
tember 26, 1978, the district court vacated its injunctive 
orders against all defendants (PA Exc. 151; R. 1126) 
on the basis of an intervening Supreme Court decision. 
International Brotherhood of Teamsters v. United States, 
431 U.S. 324 (1977) (hereinafter “Teamsters”) .

Following inconclusive proceedings in the district 
court, which indicated that supplementation of the record 
was necessary, the court issued a further memorandum 
and order on June 29, 1979 (20 [CCH] EPD '([30,090; 
PA Exc. 153; R. 1239). Five issues were submitted to 
a special master for hearing and initial determination. 
The master’s report was rendered on August 6, 1980 
(PA Exc. 166; R. 1439). It was accepted by the dis­
trict court on December 31, 1980, as set forth in the 
court’s order of that date (PA Exc. 212; R. 1492). On 
June 30, 1981, the district court denied the plaintiffs’ 
motion for reconsideration, but it assessed an award of 
attorney’s fees in their favor (PA Exc. 234; R. 1621). 
The court declined to order allocation of its fee award 
on August 5, 1981 (PA Exc. 248; R. 1659).

Final judgment in accordance with Rule 58, F.R.C.P. 
was entered on August 6, 1981 (PA Exc. 249; R. 1660). 
A timely notice of appeal was filed by the plaintiffs; the 
defendant employer then filed a timely cross-appeal (PA 
Br., at 3 n .l ) .

2 On June 21 and November 23, 1976, respectively, the district 
court entered orders dealing with certain remedial issues that no 
longer appear to be present in this case (PA Exc. 137, 142; R. 1011, 
1046).



4

B. Statement Of Facts
1. N ature o f the Employer’s Operation 

And Hourly Rated Jobs

The defendant employer, Motor Convoy, Inc., is an 
interstate carrier of motor vehicles, with its principal 
office in Atlanta, Georgia (I Tr. 13);3 Of the employer’s 
various facilities, members of the class certified in this 
case are employed only at Atlanta, Georgia and Birming­
ham, Alabama (P Exh. 18). Motor Convoy’s business 
consists entirely of transporting new vehicles from the 
manufacturer or importer to distribution points, where 
they are marketed to the public. At trial, approximately 
75 percent of its business was derived from the Ford 
Motor Co. ( I l l  Tr. 83). The basic equipment used 
by Motor Convoy is an auto rack, holding six to eight 
new vehicles, which is hauled by a diesel-powered tractor 
(III Tr. 81, 84).

The hourly rated jobs at the employer’s terminal facili­
ties fall generally into three categories: drivers, yard em­
ployees and shop or garage employees. Motor Convoy 
does not have a driveaway operation (II M Tr. 18a). 
Truckaway drivers are responsible for operating equip­
ment and loading units; checking and noting damages; 
keeping daily logs and expense records; and following 
Government regulations as well as procedures established 
by Ford Motor Co. (Ill Tr. 84-88; P Exh. 21, H3B). The 
duties of employees in the Yard Department include the 
checking and signing for new units from Ford, driving

lS The exhibits introduced into evidence at the trial and the Special 
Master Proceeding will be referred to as follows: Plaintiffs (P 
Exh. & PM Exh.) ; Motor Convoy (DMC Exh. & DMCM Exh.) ; 
Unions (U Exh. & UM Exh.). The transcript made at the trial will 
be referred to as Tr., while that made before the Special Master 
will be referred to as M Tr. The appropriate volume number, 
assigned on a chronological basis, and the page number will accom­
pany each reference to the transcript.



5

the units from Ford to the employer’s facility, moving 
the units to bay areas from which drivers pick them up 
for loading, and assisting drivers in checking and in­
specting units received by truck or railroad (III Tr. 88- 
89; PExh. 21, fl 3A).

Shop employees work in the Garage servicing tractors 
and auto racks. Their duties include welding, mechanical 
work on engines (both gasoline and diesel), greasing ve­
hicles, changing tires, steam cleaning and general clean­
up work. Significant job skills are required in order to 
be a welder or mechanic. All of the employer’s welders 
and mechanics, other than plaintiff Freeman, had prior 
experience and were fully qualified at hire (III Tr. 92, 
103). Other jobs in the Garage require less skill. Clean­
ing duties are performed by porters, while tire chang­
ing, greasing and gassing of equipment are performed 
by helpers or apprentice mechanics.

On March 10, 1975, within the geographic area cov­
ered by the class certification, Motor Convoy employed 
204 road drivers, of whom 5 were black (2 at Atlanta 
and 3 at Birmingham) ; 24 yard employees, of whom 2 
were black (1 each at Atlanta and Birmingham) ; and 
40 shop employees, of whom 10 were black and located 
at the Atlanta facility (P. Exh. 18). All of the black 
drivers were hired into, or transferred to, the Road 
Department between 1971 and 1975. Four to seven 
other black drivers were either hired or offered employ­
ment during this period; however, they were not em­
ployed by Motor Convoy in 1975 (I Tr. 16). No road 
jobs were available in 1969 or 1970 (P. Exh. 23, '115; 
P. Exh. 14, at 65). The plaintiffs and class members are 
black employees hired into shop or yard positions at 
Atlanta and Birmingham, mostly during the 1950’s and 
early 1960’s.



6

2. Collective Bargaining In  The 
Car-Haul Industry

Car-haul bargaining on a multi-employer, multi­
union basis began in 1948, when local unions in the 
Southern and Central Conferences negotiated an agree­
ment with their employer counterparts. This agreement 
was designated a “National Agreement,” even though 
it did not purport to cover local unions and employers 
located in other sections of the United States (III Tr. 
44-45). Sectional bargaining in the industry continued 
exclusively until 1967, when the first National Master 
Automobile Transporters Agreement was concluded. The 
National Agreement provided uniformity with regard to 
certain conditions of employment, but left to sectional 
bargaining all terms and conditions of employment as 
to which uniformity was considered unnecessary or in­
feasible (III Tr. 45-46). From 1958, it has been recog­
nized that uniform seniority arrangements in the Car- 
Haul industry were not feasible (III Tr. 64-65).

Motor Convoy and Teamsters Local 528 are parties 
to the National Master Automobile Transporters Agree­
ment and the Central and Southern Conference Areas 
Supplemental Agreement (I Tr. 13). Local 528, as the 
successor to Teamsters Local 728,4 has been the exclusive 
bargaining representative for the employer’s drivers since 
December, 1965, and for its shop and yard employees in 
Atlanta since late 1969 (II Tr. 174-75). The employer’s 
Birmingham employees are represented by Teamsters 
Local 612. The International Union holds no representa­
tional rights among the employer’s employees (III Tr.

4 Motor Convoy’s Atlanta drivers were first organized by Team­
sters Local 728 in 1945 or 1946 (II Tr. 174). They were represented 
by Local 728 until Local 528 was established in December, 1965, 
and awarded jurisdiction over employees outside the freight 
industry.



7

58-59). Nor is it a signatory to current or past collec­
tive bargaining agreements between Motor Convoy and 
the unions representing its employees (P Exhs. 19, 37; 
PM Exh. 17).

The National Master Agreement was negotiated for 
Locals 528 and 612 by the National Automobile Trans­
porters Union Committee (P. Exhs. 19, at 59; 37, at 
49; PM Exh. 17, at 81). The Conference Area Supple­
mental Agreements were negotiated by the Central and 
Southern Truckaway Negotiating, Local Negotiating and 
Garage Negotiating Committees (P Exhs. 19, at 100, 
135, 137, 157 & 168; 37, at 85, 122, 144 & 156; PM Exh. 
17, at 150, 175 & 187). The Committees obtained their 
negotiating authority under powers of attorney by which 
local unions, the exclusive bargaining agents of em­
ployees, authorize the Committees to act on their behalf 
(III Tr. 59-60). The Committees are composed almost 
entirely of local union officials selected by delegates rep­
resenting all local unions having members working in 
the Car-Haul industry (III Tr. 41-44, 65-66). The 
Committee Chairmanships held by F. E. Fitzsimmons, 
the International Union’s General President, are merely 
titular (III Tr. 49, 56).

The Car-Haul Agreement is negotiated at three-year 
intervals. Proposals are developed and negotiations are 
undertaken on the union side in the same manner for 
each negotiation. The union proposals for the National 
Master and Supplemental Agreements are formulated by 
the National and Supplemental Union Negotiating Com­
mittees, respectively (III Tr. 57). In drafting such pro­
posals, the Committee members reviewed suggested con­
tract changes submitted by each local union having mem­
bers working in the Car-Haul industry (III Tr. 57, 74). 
After the initial proposals for the Master and Supple­
mental Agreements were drafted, they were reviewed by



8

delegates from each local union and approved for pres­
entation to the employers (III Tr. 57). Bargaining then 
commenced with an exchange of initial proposals. Ne­
gotiations for the National Master and Supplemental 
Agreements are conducted separately.

Upon reaching tentative agreement with the employers 
on the National and all Supplemental Agreements, the 
proposed agreements are submitted to a ratification vote 
by the membership working in the Car-Haul industry 
for approval or disapproval (III Tr. 58, 61-62). The 
National and all Supplemental Agreements are ratified 
by the membership. Under the International Constitu­
tion, “if a majority of the votes cast by local union mem­
bers voting approve such contract, it shall become bind­
ing and effective upon all local unions involved and their 
members.” (P Exh. 32, Art. XVI, § 4 (a ) )

3. Seniority

Until 1976, seniority was dealt with substantively in 
the National Master Automobile Transporters Agree­
ment only in regard to the merger, acquisition or pur­
chase of carriers (P Exhs. 19 & 37, Art, 5, § 1(1)), the 
opening or closing of branches, terminals, divisions or 
operations (id. § 2), and the means by which employees 
laid off at one terminal can obtain work at another 
terminal where additional help is needed (id. § 3). Other­
wise, the 1970 and 1973 National Master Agreements 
dealt with seniority in general terms:

“Terminal seniority shall prevail to the extent to 
which it is set forth in writing in this Agreement 
and in each of the Supplemental Agreements hereto, 
including Local Riders . .. .” [Id., § 1.]

The extent to which seniority is applied and accrued, 
as well as the method of such application, at covered 
terminals is set forth in the Central and Southern Con­



9

ference Areas Supplemental Agreements covering Truck- 
away, Local and Garage operations (P Exhs, 19 & 37). 
Seniority provisions applicable to Garage employees at 
the time of trial were set forth in Part V of the Sup­
plemental Agreement. Article 81, § 1 of the 1973-76 
Agreement (P Exh. 37) provides as follows:

“ (a) Company garage seniority shall be determined 
by the time and date each employee’s payroll earn­
ings begin, as of his last hire-in date.
“ (b) Garage employees shall not bump into any 
other division nor shall any employee from another 
division exercise seniority in the garage.
“ (c) Classification seniority shall commence at the 
time and date each employee’s payroll earnings be­
gin in such classification . . . .”

Competitive seniority rights could not be carried over 
upon transfer between the employer’s Road, Yard and 
Garage Departments under the 1970 and 1973 agree­
ments. No employee at Atlanta had ever transferred 
while retaining his accrued company seniority, except 
for fringe benefits and vacations,5 until 1976 (I Tr. 14- 
15, 17). Employees on layoff, however, were permitted 
to return to work in a department other than the one 
from which they were laid off, while retaining their 
seniority standing and recall rights to their former jobs. 
Upon being recalled, the employee had to decide whether 
to return to his former job, or remain in his new depart­
ment. If he elected to remain in his new department, 
his seniority dated from the time he began therein and 
he forfeited all rights in his old department (I Tr. 14- 
15). Intervenor Spencer moved to a road job with Local 
528’s assistance under this procedure (I Tr. 99-100; II

8 At Motor Convoy’s Birmingham terminal, however, a local 
rider permitted yard employees to exercise their seniority in the 
office and clerical department (III Tr. 188).



10

Tr. 197-99). Likewise, class members W. Samuels and 
M. A. Foy obtained road jobs at Birmingham in this 
fashion, although Mr. Samuels was not on layoff at the 
time (III Tr. 108).

In 1976, article 26 of the Master Agreement, relating 
to nondiscrimination in employment, was significantly 
amended by addition of the following language:

“In those terminals where classification seniority 
applies, the parties agree that in filling vacancies 
with qualified employees which occur subsequent to 
the execution of this Agreement, the principle of 
carry-over terminal seniority shall be recognized. In 
the event that the Employer and the Local Union 
fail to formulate a Rider which provides for the 
filling of vacancies consistent with the foregoing pro­
vision, the Joint Area Committees shall have such 
authority.” [PM Exh. 17, at 71.]

Following the ratification process, in which the Car- 
Haul Agreement was first rejected by covered employees, 
renegotiated and then ratified (II M Tr. 55a), guide­
lines for implementation of carryover seniority (art. 
26) were formulated at the National level. These guide­
lines set forth five seniority arrangements, and stated 
that employers and Local Unions “utilizing or practic­
ing” such arrangements “come within the intent” of 
article 26 (DMCM 25). Three of the arrangements— 
carryover for purposes of layoff and recall only, slotting, 
and year and a day—have no application to the instant 
case. The remaining two arrangements were full termi­
nal seniority transferability and annual bid.

The underlying purpose of article 26 and the im­
plementing guidelines was to allow employees to move 
from one classification covered by the contract to an­
other using their total terminal seniority, and thereby 
to enhance job flexibility for the benefit of employees



11

(III M Tr. 25-27). The guidelines were distributed to 
the Supplemental Negotiating Committees. At a meet­
ing in Scottsboro, Arizona the Central-Southern Com­
mittee selected the first option (full terminal seniority 
transferability) as a minimum standard to be imposed 
on local unions and employers that failed to adopt sen­
iority carryover arrangements affording at least as much 
flexibility as the guideline arrangements (II M Tr. 60a, 
63a, 67a-70a, 76a; III M Tr. 27-32). Option No. 1 was 
not adopted as a uniform standard to be applied through­
out the Central-Southern Conference Areas. Other ar­
rangements were also acceptable, including the other four 
options developed by the National Committee.

4. Organization Of The Atlanta  
Shop And Yard

As noted, Motor Convoy’s Atlanta drivers have been 
represented for purposes of collective bargaining since 
World War II. Its shop and yard employees, however, 
remained unorganized until 1969. In October of that 
year, Local 528 obtained a majority showing of interest 
from shop employees and demanded recognition. On the 
basis of authorization cards signed by employees in the 
shop, Motor Convoy recognized Local 528 as their rep­
resentative on October 13, 1969 (I Tr. 14; II Tr. 175). 
Then the employer and local union entered into a rider 
agreement for the period October 13, 1969 through May 
31, 1970 which, inter alia, applied the seniority pro­
visions of the Supplemental Agreements to the shop (P 
Exh. 7).

Two weeks later, Local 528 was recognized as the 
representative of yard employees after demonstrating its 
majority support (IV Tr. 10). Thereupon, the classifica­
tion seniority provisions of the Central-Southern Sup­
plemental Agreements were made applicable to yard em­



12

ployees (I Tr. 14). At the Atlanta terminal, there­
fore, separate seniority rosters for the Road, Yard and 
Shop Departments were maintained during the 1970-73 
and 1973-76 National Agreements. Although the agree­
ments did not prohibit inter-departmental transfers, and 
the employer did not maintain a “no transfer rule” 
(III Tr. 116, 132, 136), competitive status seniority could 
not be transferred between departments (I Tr. 17).

5. The Agreement In  E ffect A t The 
Employer’s Birmingham Terminal

Shop, yard and road employees at Motor Convoy’s 
Birmingham, Alabama facility have been organized and 
represented for collective bargaining purposes by Team­
sters Local 612 for many years. Even before July 2, 
1965, Title VII’s effective date, they were covered by a 
multi-employer agreement that was negotiated by Team­
sters local unions and employers within the Central and 
Southern Conference Areas. Until 1976, as at Atlanta, 
separate seniority lists were maintained, and transferees 
could not carry over seniority credit between depart­
ments. As the special master found, upon transferring 
to road jobs, black and white employees alike began at the 
bottom of the road seniority list (PA Exc. 172-73; R. 
1445-46). 6

6. Transfers Under The Court’s Decree And Imple­
mentation Of The Seniority Carryover Provisions 
Of The 1976 Agreement

After the district court handed down its decree in 
1976, black shop employees transferred to road and yard 
jobs at the employer’s Atlanta facility. They carried their 
full terminal seniority for competitive uses in their new 
departments. Prior black transferees to road jobs at 
both Birmingham and Atlanta were also credited with 
their full terminal seniority. The class members’ seniority



13

rights remained intact, even after the court’s decree was 
vacated, under the 1976 collective bargaining agreement. 
As noted, article 26 of that agreement adopted the prin­
ciple of seniority carryover between departments upon 
transfer.'6

In mid-1977, Motor Convoy and Local 528 commenced 
negotiations over an arrangment to implement article 
26 of the Master Agreement (II M Tr. 26a; III M Tr. 
43). Local 528 proposed a seniority transfer plan some­
what similar to that in existence at Complete Auto 
Transit, which is Motor Convoy’s principal competitor 
(II M Tr. 29a). The plan consisted of three basic com­
ponents: an annual bid, layoff and recall on a terminal­
wide basis, and a right to bid permanent vacancies with 
carryover seniority (III M. Tr. 39). This proposal was 
formulated with the approval of a majority of Local 
528’s Motor Convoy membership (III M. Tr. 41).

The company, however, rejected the proposal because 
it believed that the plan would not suit its operations. Ac­
cordingly, during the Fall of 1977, the parties reached 
agreement on a plan to be implemented when the Til- 
ford Yard controversy was finally resolved (DMCM Exh. 
25; II M Tr. 57a). There were two elements of the plan: 
first, on a one-time basis, all jobs at the Atlanta-Hapeville 
terminal (except skilled mechanical positions) would be 
bid terminal-wide, and, second, permanent vacancies 
would thereafter be bid on a terminal seniority basis. In 
each case, successful bidders would use their terminal 
seniority in their new department. The one-time bid was 6

6 The seniority transferability provisions of the 1976-79 Master 
Agreement were not implemented by Motor Convoy and Local 528 
until September, 1978, after the Tilford Yard controversy had been 
resolved (DMCM Exh. 8; UM Exh. 1; II M Tr. 56a-57a). That 
controversy involved the seniority rights of employees assigned to 
a railhead facility maintained by the employer which was scheduled 
to be closed. It is not relevant to the issues involved in this appeal.



14

qualified by the requirement that no employee would be 
displaced if he could not qualify in another position to 
which his terminal seniority entitled him (DMCM Exh. 
25).

The seniority transfer plan adopted by Motor Convoy 
and Local 528 was based on the guidelines developed by 
the National Committee (DMCM Exh. 25). In particu­
lar, the one-time bid was simply the annual bid provided 
for in Option 4 of the guidelines, while the bid vacancy 
element of the parties’ plan was identical to the full 
terminal seniority transferability approach outlined in 
Option 1 of the guidelines (II M Tr. 45a; III M Tr. 33; 
DMCM Exh. 25). The essential elements of the plan 
were outlined in unsigned memoranda. The plan was not 
submitted to the Joint Area Grievance Committee for 
approval for three related reasons: (1) It conformed to 
the guidelines; (2) it was consistent with the intent of 
article 26; and (3) it established employment condi­
tions at least equal to, and perhaps better than, the 
agreement itself (III M Tr. 31, 34-35).

On September 15, 1978, Motor Convoy addressed a 
notice to all affected employees, advising them that during 
the period September 15-23, 1978, they could bid driver, 
yard or helper classifications on the basis of their term­
inal seniority (DMCM Exh. 3). Attached to the notice 
were bid forms which employees could use to express their 
bid preferences. With two exceptions,7 implementation of

7 Class members Elijah Brooks and Hugh Brooks both selected 
the yard as their first bid choice (PM Exhs. 5, 7), as did six very 
senior drivers (PM Exh. 4). These former drivers were placed at 
the top of the yard seniority raster ahead of the most senior yard 
employee (A. C. Smith), both black employees, a Tilford transferee 
(W. McDowell), and a former whit© shop employee (A. M. Massey). 
Two white yardmen—R. J. Johnston and K. L. Lankford—trans­
ferred to road jobs. As a result of these changes, Elijah Brooks 
now ranks ninth in seniority instead of third, while Hugh Brooks 
ranks seventh instead of sixth in yard seniority (PM Exhs. 4, 11, 
12).



15
the 1976 Agreement plainly benefited class members. The 
plaintiffs’ challenge to the way seniority carryover was 
implemented at Atlanta was rejected because the parties’ 
conduct did not have a discriminatory impact and no 
discriminatory intent or purpose was apparent (PA Exc. 
178-81, 217; R. 1452-54, 1497).

C. The Decision Below
The district court first held that the plaintiffs’ statis­

tical evidence established “a prima facie case of past 
discrimination in hiring and job assignment” against the 
class (PA Exc. 112; R. 939).8 This showing, the court 
said, had not been rebutted by the defendants. Based on 
this conclusion, the court held that the classification 
seniority provisions of the 1970 and 1973 collective bar­
gaining agreements locked black employees into inferior- 
jobs, and thus perpetuated initial assignment discrimin­
ation. The unions and the employer were held jointly 
and severally liable for the continuing discriminatory ef­
fects of the seniority system (PA Exc. 112; R. 939). An 
extensive injunction was issued.9

Following the court of appeals’ remand, the injunction 
was vacated because the Supreme Court’s intervening

8 The class was defined to include all black employees in the 
Southern Conference^ since July 2, 1965, including those terminated 
by Motor Convoy after August 16, 1969, but excluding office and 
supervisory personnel (PA Exc. 74; R. 604). The district court 
further held, however, that applicants for employment were not 
included in the class (PA Exc. 80, 106-09; R. 623, 933-36).

9 The injunction provided for, inter alia, transfer with seniority 
carryover between the Garage, Shop and Yard Departments a t the 
employer’s Atlanta terminal; transfer with seniority carryover 
to the Road Department at other Southern Conference terminals; 
promotion between classifications within departments with carry­
over seniority; and training, recruitment, hiring and reporting 
provisions. (PA Exc. 116-24; R. 942-50). The transfer rights of 
the injunction were conditioned upon the existence of a “vacancy” 
which the' court redefined on February 11, 1976, to include positions 
subject to the recall rights of employees. (PA Exc. 134; R, 987).



16

decision in Teamsters had “substantially undermined’’ 
the premise underlying its initial decision (PA Exc. 151). 
Subsequently, on June 29, 1979, the district court ex­
amined its 1976 order in light of Teamsters and reached 
three principal conclusions: (1) It adhered to its earlier 
decision that the employer had engaged in an unlawful 
pattern or practice of discrimination against black em­
ployees (PA Exc. 158; R. 1244). (2) As to the unions, 
whose liability turned entirely on the alleged illegality of 
the seniority system, the court found that the system was 
facially neutral; that most employees who were dis­
couraged from transferring were white; and that the 
system was commonly employed in the industry (PA Exc. 
156; R. 1241). The fourth factor relating to “bona fides” 
under § 703 (h)—whether the system had its genesis in 
racial discrimination—could not be resolved without 
further hearing (PM Exc. 157; R. 1242). (3) Outstand­
ing issues relating to the seniority system’s bona fides, 
the entitlement of individual discriminatees to relief, 
and the need for general remedial injunctive relief were 
to be referred to a special master. (PA Exc. 162 164- 
R. 1248, 1316).

After a hearing, the special master rendered his Au­
gust 6, 1981 report (PA Exc. 166; R. 1439), which the 
district court adopted. The seniority system was held to 
be bona fide and lawful, since no evidence was presented 
to suggest that it was conceived, negotiated or admin­
istered with an intent to discriminate (PA Exc. 215-17; 
R. 1495-97). The court rejected the plaintiffs’ theory 
that the seniority system could not qualify for § 703(h)’s 
protection because Atlanta shop and yard employees were 
not organized until after Title VII’s effective date. Even 
assuming the theory’s legal efficacy, it has no application 
to this case. Because the plaintiffs and class members 
were placed under the provisions of agreements that ante­



17

dated Title VII, the 1969 negotiations merely continued 
a pre-act seniority system (PA Exc. 236; R. 1423). The 
system’s bona tides also barred I 1981 claims asserted by 
the plaintiffs (PA Exc. 237-38; R. 1424-25). The court 
further upheld the parties’ implementation of the 1976 
agreement’s seniority carryover provisions because 
neither intentional discrimination nor any discriminatory 
impact was shown (PA Exc. 217; R. 1497). Accordingly, 
the unions were absolved of liability.

In agreement with the special master, the court held 
that three individuals had proven themselves to be victims 
of the employer’s discrimination and entitled to relief. 
The remaining individual claims were rejected on a va­
riety of grounds, including their unwillingness to transfer 
without carryover seniority, waiver of claims, and in­
ability to perform specific tasks due to physical or skill 
deficiencies (PA Exc. 221-27; R. 1501-07). Finally, the 
court concluded that general injunctive relief was un­
necessary (PA Exc. 238-39; R. 1625-26).

SUMMARY OF ARGUMENT

1. A neutral seniority system, if not negotiated or 
maintained with an intent to discriminate, is “bona fide” 
and protected by § 703(h) of the Civil Rights Act of 
1964, 42 U.S.C. § 20003-2 (h), notwithstanding any ten­
dency to perpetuate past assignment discrimination. 
Teamsters v. United States, supra, 431 U.S. 324. The 
lower court found that the seniority system in the col­
lective bargaining agreement in question, popularly 
know as the “Car-Haul Agreement,” met the criteria for 
bona tides set forth in James v. Stockkam Valves & 
Fitting Co., 559 F.2d 310, 351 (5th Cir. 1977), cert, 
denied, 434 U.S. 1034 (1978). This unchallenged find­
ing is conclusive on the issue of the system’s bona tides.



18

For “absent a discriminatory purpose, the operation of a 
seniority system cannot be an unlawful employment 
practice even if the system has some discriminatory con­
sequences.” Trans World Airlines, Inc. v. Hardison, 432 
U.S. 63, 82 (1977).

2. In a controversial decision, now before the Supreme 
Court for review, the Fourth Circuit Court of Appeals 
held that § 703(h)’s protection extends “only to those 
[seniority] systems in existence at the time of Title VII’s 
effective date.” Patterson v. American Tobacco Co., 634 
F.2d 744, 749 (4th Cir. 1980), cert, granted, 49 U.S.L.W. 
3293 (U.S., June 16, 1981) (No. 80-1199). This ration­
ale has no application to the instant case, however. Al­
though class members employed at Atlanta were not 
organized until 1969, they were then placed under a 
multi-employer agreement, whose yard and garage senior­
ity provisions were effective well before July 2, 1965. 
Moreover, Motor Convoy’s Road Department, from which 
the plaintiffs claim they were excluded, had been covered 
since 1946 by the truckaway portion of the Car-Haul 
Agreement. It is the truckaway seniority arrangement, 
which did not permit seniority to be carried into the 
Road Department, that had supposed discriminatory con­
sequences. Thus, the agreement would be bona fide under 
Patterson.

Additionally, we urge this court not to follow Patterson. 
The Supreme Court has thrice held that § 703(h) is 
“a definitional provision” which, together with all other 
provisions of § 703, “delineates which employment prac­
tices are illegal . . . and which are not.” E.g., Franks v. 
Bowman Transp. Co., 424 U.S. 747, 758 (1976). Consid­
ering § 703(h)’s definitional nature, it is significant that 
the provision does not distinguish between seniority sys­
tems entered before or after July 2, 1965, see United



19

Airlines, Inc. v. Evans, 431 U.S. 553 (1977), just as it 
does not “prefer any particular variety of seniority sys­
tem over any other.” California Breivers Ass’n. v. Bryant, 
444 U.S. 598, 608, reh’g. denied, 445 U.S. 973 (1980). 
Denial of prospective effect to § 703(h) would conflict 
with Congress’ intention to afford employers and unions 
“significant freedom . . .  to create differing seniority sys­
tems.” Id. at 608.

3. A bona fide seniority system protected by § 703(h) 
cannot be attacked as discriminatory under 42 U.S.C. 
§ 1981. Pettivay v. American Cast Iron Pipe Co., 576 
F.2d 1157, 1191 n.37 (5th Cir. 1978). Although §703 
(h) does not restrict the authority of the federal courts 
under § 706 (g) or 42 U.S.C. § 1981 to remedy a discrim­
inatory employment practice, there is no judicial author­
ity holding that bona fide seniority systems violate § 1981.

4. The plaintiffs urge on this appeal at least one to­
tally irrelevant legal issue. That is, whether an intent 
to discriminate must be shown to make out a § 1981 
claim, or whether a showing of impact discrimination 
alone is sufficient. E.g., Williams v. DeKalb County, 582 
F.2d 2 (5th Cir. 1978). However this controversy is 
finally resolved, it obviously has no pertinence to this 
instant case in which the only neutral employment policy 
said to have discriminatory consequences is a bona fide 
seniority system. Discriminatory impact, if attributable 
to the operation of a seniority system protected by § 703 
(h), violates neither Title VII nor § 1981. Teamsters v. 
United States, supra, 431 U.S. at 324; Terrell v. United 
States Pipe & Foundry Co., 644 F.2d 1112, 1118 (5th 
Cir. 1981).

5. The existence of an applicant class, whose members 
are entitled to assert hiring claims dating to 1952, would 
threaten the seniority standing of almost every current 
employee at Motor Convoy’s Atlanta terminal. Accord­



20

ingly, the unions must respond to the plaintiffs’ statute 
of limitations and class action contentions. Whether or 
not Georgia’s twenty-year statute of limitations applies 
to § 1981 employment claims, it should be noted, the em­
ployment status of the plaintiffs and class members will 
not be affected. Post-1976 changes in the collective bar­
gaining agreement already have afforded them all of the 
“rightful place relief” a court of equity could award re­
gardless of the length of the applicable limitations period 
for equitable relief.

Since there is no federal statute of limitations govern­
ing § 1981 actions, the timeliness of such suits is gov­
erned, as a matter of federal law, by the most appropri­
ate state statute of limitations. Johnson v. Railway Ex­
press Agency, Inc., 421 U.S. 454, 462 (1975). Yet it is 
established that state limitations should not be adopted 
where they conflict with applicable federal policies, and 
that considerations dealing with the selection of the ap­
propriate limitation period are matters of federal law. 
United Parcel Service v. Mitchell, 67 L.Ed.2d 732 (1981) ; 
Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 367 
(1977). The emphasis on prompt assertion and resolu­
tion of claims in federal labor and anti-discrimination 
legislation, together with strong equitable considerations, 
suggest that a twenty-year limitation for equitable relief, 
other than back wages, is inappropriate. Georgia’s two- 
year limitations period (Ga. Code Ann. § 3-704) should 
govern all relief, whether for injunction or back wages, 
sought in § 1981 employment cases. See McWilliams v. 
Escambia County School Board, 27 [CCH] EPD 32,175 
(5th Cir. 1981).

6. Various pragmatic considerations, such as the dura­
tion of the litigation, the absence of vacancies in 1969 
and 1970, and the declining employment at Motor Convoy 
since 1965, counsel against reopening the applicant class



21

issue at this late date. In addition, the class representa­
tives’ claims were not based on hiring discrimination and 
were ultimately rejected. Thus, it is difficult to see how 
they can be part of the applicant class they seek to rep­
resent. East Texas Motor Freight System, Inc. v. Rod­
riguez, 431 U.S. 395 (1977). The apparent antagonism 
between the interests of employees and applicants, in 
terms of their relative seniority standing if the appli­
cants’ claims succeed, also requires affirmance of the 
lower court’s decision to confine the class to current 
employees.

STATEMENT OF JURISDICTION 

This Court has jurisdiction under 28 U.S.C. § 1291.

ARGUMENT
I.

THE SENIORITY PROVISIONS OF THE CENTRAL- 
SOUTHERN TRUCKAWAY, YARD AND GARAGE 
SUPPLEMENTS TO THE MASTER CAR-HAUL 
AGREEMENT ARE BONA FIDE AND PROTECTED 
BY § 703(h)
A. The Seniority System Was Not Established Or Main­

tained With An Intent To Discriminate

In Teamsters v. United States, supra, 431 U.S. 324, 
the Supreme Court held that a seniority system, if not 
negotiated or maintained with an intent to discriminate, 
is “bona fide” and protected by § 703(h) of the Civil 
Rights Act of 1964, 42 U.S.C. § 2000e-2(h), notwith­
standing any tendency to perpetuate past hiring and as­
signment discrimination. “Section 703(h) on its face 
immunizes all bona fide seniority systems, and does not 
distinguish between the perpetuation of pre- and post-act 
discrimination.” Id. at 348 n.30. Thus, a seniority sys­
tem providing for the accrual of competitive seniority on 
a job or departmental basis qualifies for § 703(h)’s pro­



22

tection, even though discriminatorily assigned minority 
employees might be deterred from transferring by loss of 
their accrued job or departmental seniority. A union 
does not violate Title VII or § 1981 by agreeing to, or 
maintaining, a bona fide seniority system. Id. at 356; 
Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 
1189 (5th Cir. 1978), cert, denied, 439 U.S. 1115 (1979) ; 
Johnson V. Ryder Truck Lines, Inc., 555 F.2d 1181 
(1977), on reh’g, 575 F.2d 471 (4th Cir. 1978), cert, 
denied, 440 U.S. 979 (1979).

At least for purposes of § 703(h), there are no func­
tional differences between the 1970 and 1973 Car-Haul 
Agreements and the freight industry agreements that 
were before the Court in Teamsters. Before 1976, the 
Central and Southern Car-Haul Supplement provided 
for the accrual of competitive status seniority by job 
classification unless modified by a local rider agreement. 
Employees could not carry over their terminal seniority 
when transferring between the Yard, Garage and Road 
Departments. The record is devoid of any evidence that 
the unions participated in any discriminatory hiring, 
transfer, training or promotion decision by the employer 
(I Tr. 89-90, 112; II Tr. 134). Consequently, as noted 
by the Court in 1976, the unions’ liability turned on their 
alleged responsibility “for the continuing discriminatory 
effects of the seniority system . . . .” 409 F. Supp. at 
1116.

The court’s 1976 orders were vacated because their 
underlying premise—seniority perpetuation of past dis­
crimination—had been “substantially undermined” by the 
Teamsters decision of the Supreme Court. Orders of 
September 27, 1978, If 2, PA Exc. 151; R. 1126. In a 
later order, the court elaborated on its reasons for va­
cating the 1976 orders. It concluded that “a union can­
not be liable under Title VII if the only basis for liability



23

arises from a seniority system contained in a bona fide 
collective bargaining agreement . . . Order of June 
29, 1979, PA Exc. 153, 20 [CCH] EPD U 30,090, at 
11,493 (R. 1139). This “consequence stands as a bar to 
any reinstatement of the unions’ liability in our case.” 
Ibid. The court went on to state that, on the basis of the 
then current record, three of the four criteria for “bona 
fides” relied on by the Supreme Court in Teamsters were 
established in the instant case.10 Yet it noted that “the 
plaintiffs are prepared to argue that the collective bar­
gaining agreements entered into in 1969, when the shop 
and yard employees were organized, in fact had their 
genesis in discrimination.” Ibid.

The Court was dubious of the plaintiffs’ argument, 
advanced in their March 19, 1979 Brief In Support Of 
Entry Of Judgment Following Remand, at 2-3, that the 
1969 Garage and Yard Agreements were not bona fide 
because they were entered into after July 2, 1965, the 
effective date of Title VII. It said (PA Exc. 157; R. 
1243) :

“The plaintiffs’ chances of proving that the 1969 
collective bargaining agreements were entered into 
with the intent to discriminate would seem, at best, 
doubtful. Nothing presently in the record supports 
their contention, beyond the probably fortuitous cir­
cumstance that the agreements were made after 
Title VII was enacted. The defendants argue that 
the seniority system was adopted in the Motor 
Convoy shop and yard because it is a common ar­
rangement employed in most or all other collective

m “ (1) [T]hat the seniority system was facially neutral, and 
applied to all employees of all races and ethnic groups; (2) that 
the bulk of employees who were discouraged from, transferring to 
better-paying jobs were white; [and] (3) that the loss-of--seniority 
rule was commonly employed in the industry . . . .” (Order of 
June 29, 1979, supra at 11,493; PA Exc. 156; R. 1242.)



24

bargaining agreements in the industry.” [Id. at 
11,493.]

Nevertheless, the plaintiffs were permitted to conduct 
discovery “on the question of the origin and purpose of 
the 1969 collective bargaining agreements,” so they would 
have “the opportunity to prove otherwise.” Ibid. Fol­
lowing the discovery period, the plaintiffs indicated they 
would not claim that the National Agreement, its Central- 
Southern Supplements, or the October 1969 rider agree­
ments placing yard and shop employees under the clas­
sification seniority system of the Supplemental Agree­
ments, had their genesis in racial discrimination. In 
their view, a correct reading of Teamsters together with 
Griggs v. Duke Power Co., 401 U.S. 424 (1971), re­
quires that § 703(h)’s protection be denied to seniority 
systems entered into after the effective date of Title 
VII in circumstances where the system perpetuates past 
discrimination. Apparently, evidence that the system had 
its genesis in racial discrimination, or that the contract­
ing parties intended to discriminate, is unnecessary un­
der the plaintiffs’ theory of why the seniority system in 
the Car-Haul Agreements is not bona fide. No such evi­
dence was presented at the special master hearing (PA 
Exc. 174, 216; R. 1447, 1496).

The plaintiffs’ view conflicts with that of the Supreme 
Court, for “absent a discriminatory purpose, the opera­
tion of a seniority system cannot be an unlawful em­
ployment practice even if the system has some discrimi­
natory consequences.” Trans World Airlines, Inc. v. 
Hardison, 432 U.S. 63, 82 (1977). And, it is plainly 
inconsistent with the Fifth Circuit Court of Appeals’ 
conclusion that “purposeful discrimination in connection 
with the establishment or continuation of a seniority sys­
tem is integral to a determination that the system is or 
is not bona fide.” James v. Stockham Valves & Fitting



25

Go, 559 F.2d 310, 351 (5th Cir. 1977), cert, denied, 434 
U.S. 1034 (1978). Nor can the plaintiffs’ approach be 
reconciled with the express language of § 703(h) which 
“does not distinguish between the perpetuation of pre- 
and post-Act discrimination.” Teamsters v. United States, 
supra, 431 U.S. at 348 n.30.

On this basis, the special master “concluded that the 
same factors should be examined in determining the 
bona tides of a system negotiated after the Act as are 
applied to pre-Act systems continued via post-Act ne­
gotiations” (PA Exc. 174; R. 1447). After evaluating 
the evidence taken at the 1975 trial and the 1980 hearing, 
the special master concluded that the car-haul seniority 
system did not have its genesis in racial discrimination. 
It was not entered into or administered with an intent 
to discriminate. The district court accepted the master’s 
findings under Rule 53(e) (2), F.R.C.P. (PA Exc. 216- 
17; R. 1496-97). These findings are not challenged on 
this appeal (PA Br., at 1, 15-18).

In these circumstances, extended consideration of the 
Stockham Valve criteria is not warranted. Suffice it to 
say, the master’s analysis was meticulous. Stating that 
“the record of the 1975 trial and the 1980 hearing are 
completely devoid of any evidence of racial discrimina­
tion on the part of the Union” (PA Exc. 177; R. 1450), 
the special master found:

“The record of the 1975 trial reveals that Local 
528 and its predecessor had approximately 8,000 
members of whom 40 percent were black; its meet­
ings were integrated; it ran a free educational pro­
gram from 1962 to 1966 for black and white em­
ployees to improve their employment possibilities; 
it had contracts with some 300 employers in Georgia; 
and there were blacks who were officers and or­
ganizers in Local 528 and in the Southern Confer­



26

ence. (Ill T. Tr. 8-13.) It is also noted that M. 
Freeman, named plaintiff herein, was a union stew­
ard for a time. (I T. Tr. 57, 59.) It also appears 
from the records of the 1975 trial and the 1980 
hearing that grievances of black employees have 
been processed, both sucessfully and unsuccessfully, 
by the Union with no evidence that any were handled 
in a racially discriminatory manner. It is con­
cluded that the seniority system was bona fide and 
the failure to negotiate a road-shop transfer was 
not discriminatory and does not render the system 
improper or unlawful.” [Ibid.\

These indicia of the union’s good-faith, nondiscrimi- 
natory purpose do not stand alone. Indeed, the Car-Haul 
Agreement itself contained an equal employment oppor­
tunity clause (P. Exh. 37, art. 26, at 50). Cf. Teamsters 
V. United States, swpra, 431 U.S. at 347 n.29. The record 
is replete with evidence that nondiscriminatory business 
reasons weighed against seniority carryover between shop 
and road jobs (III Tr. 110, 113-15). And, it is by no 
means clear that such a seniority arrangement was de­
sired by employees (PA Exc. 176; R. 1449). The point 
is that the car-haul seniority system was no more con­
ceived or implemented with an intent to discriminate 
than was the system found bona fide and protected by 
§ 703(h) in Teamsters.

B. Patterson  W as W rongly Decided And Is Distinguish­
able In Any Event

As support for the proposition that § 703(h) does 
not apply to seniority systems negotiated after July 2, 
1965, the plaintiffs rely exclusively on Patterson v. Amer­
ican Tobacco Co., 634 F.2d 744 (4th Cir. 1980), cert, 
granted, 49 U.S.L.W. 3923 (U.S., June 16, 1981) (No. 
80-199). Their reliance is misplaced. Although Patter­
son stands for the proposition that § 703 (h) ’s qualified



27

immunity runs “only to those systems in existence at 
the time of Title VIPs effective date” (id. at 749), its 
reasoning is questionable. More importantly, the instant 
case presents a different factual situation that, as the 
court below held (PA Exe. 236; R. 1423), renders Pat­
terson inapposite.

In Patterson, the Fourth Circuit Court of Appeals 
viewed § 703(h) as a “grandfather” clause which sup­
posedly tolerates continued discrimination in order to 
preserve seniority rights that had vested before Title 
VII’s effective date. With deference, we must insist that 
this reading of § 703(h) and the Supreme Court’s de­
cision in Teamsters is erroneous. Congress intended to 
tolerate no employment discrimination based on race, 
color, religion, sex or national origin by covered em­
ployers and unions after the effective date of Title VII. 
Neutral seniority systems were not considered discrimi­
natory. “Any differences in treatment based on estab­
lished seniority rights would not be based on race and 
would not be forbidden by the title.” 110 Cong. Rec. 
7206-07 (1964). Section 703(h) was designed to clarify 
Congress’ understanding that differences in treatment 
attributable to the operation of a bona fide seniority 
system were not unlawfully discriminatory. 110 Cong. 
Rec. 12723 (1964) (remarks of Senator Humphrey).

On three occasions, the Supreme Court has held that 
1 703(h) is “a definitional provision” which, together 
with all other provisions of § 703, “delineates which em­
ployment practices are illegal . . . and which are not.” 
Franks v. Bowman Transp. Co., 424 U.S. 747, 758 
(1976) ; Trans World Airlines V. Hardison, supra, 432 
U.S. at 82. See also Teamsters v. United States, supra, 
431 U.S. at 346-47. There is no indication that Con­
gress considered the existence of seniority systems and 
seniority rights inimical to the realization of equal em­



28

ployment opportunity. Rather, the legislative history dis­
closes only the broadest possible agreement that rights 
accrued under bona fide seniority systems should not be 
disturbed. Title VII’s sponsors repeatedly stated that 
the bill’s general prohibitions against discrimination were 
not intended to invalidate bona fide seniority systems; 
§ 703(h) was added to assure that this congressional 
intention could not be misunderstood. Teamsters V. 
United States, supra, 431 U.S. at 352.

Accordingly, § 703(h) is neither a “grandfather” 
clause nor an “exemption,” for it did not remove sen­
iority systems from the sweep of statutory commands 
that otherwise would have invalidated them. More ac­
curately, § 703(h) confirmed the inapplicability of Title 
VIPs general prohibitions to bona fide seniority systems. 
Considering § 703(h)’s definitional nature, it is signifi­
cant that the provision does not distinguish between sen­
iority systems entered into before and after July 2, 1965, 
see United Airlines, Inc. v. Evans, 431 U.S. 553 (1977), 
just as it does not “prefer any particular variety of 
seniority system over any other.” California Brewers 
Ass’n v. Bryant, 444 U.S. 598, 608, reh’g denied, 
445 U.S. 973 (1980). Certainly, Congress would not 
make the fundamental legislative choice ascribed to it 
by the Patterson decision—i.e., to deny prospective effect 
to § 703 (h) —'without stating its intention in statutory 
language, or at least in the legislative history of Title 
VII.

In fact, the congressional purpose underlying § 703(h) 
is at odds with the notion that Congress meant to con­
demn neutral seniority systems entered into without any 
intent to discriminate after the effective date of Title 
VII.

“Congress passed the Civil Rights Act of 1964
against the backdrop of this Nation’s long-standing



29

labor policy of leaving to the chosen representatives 
of employers and employees the freedom through 
collective bargaining to establish conditions of em­
ployment applicable to a particular business or in­
dustrial environment. It does not behoove a court to 
second-guess either that process or its products.” 
[California Brewers Ass’n v. Bryant, supra, 444 
U.S. at 608. (Citations omitted.) ]

The Supreme Court went on to state, “Significant free­
dom must be afforded employers and unions to create 
differing seniority systems.” Ibid. The per se, mechanis­
tic rule espoused in Patterson cannot be reconciled with 
Bryant’s statement of § 703 (h) ’s statutory purpose. It 
should be rejected here.

From a pragmatic labor relations standpoint, more­
over, the idea of distinguishing between post-Act collec­
tive bargaining agreements for § 703(h) purposes, based 
on whether they continue an old seniority system without 
change or contain newly negotiated variations, is most 
unconvincing. Unless continued by a post-Act agreement, 
pre-Act seniority rights will be lost. See Aeronautical 
Indus. Dist. Lodge 727 v. Campbell, 337 U.S. 521 (1949). 
Thus, pre-Act seniority rights are not vested in a legal 
sense. Cf. Local 1251, UAW  v. Robertshaw Controls 
Co., 405 F.2d 29 (2d Cir. 1965). There is no indication 
that Congress meant to accord them more protection 
than that afforded seniority rights which came into being 
after July 2, 1965 under neutral seniority systems en­
tered into without any intention to discriminate. We 
respectfully submit that the Fourth Circuit in Patterson 
relied upon a distinction without a difference.

Even if a valid claim of perpetuation of post-Act dis­
crimination could be asserted, and we think it clear that 
such claims are foreclosed by § 703(h), the plaintiffs’ 
theory does not fit this case. The defendant employer’s



30

drivers have been organized since 1946 (II Tr. 174); 
they began working under the Central-Southern Sup­
plement relating to truckaway operations in 1948 (III 
Tr. 44-45). The seniority provisions of that pre-Act 
agreement, under which new hires and transferees be­
gan to accrue competitive status seniority upon entering 
the Road Department, are bona fide according to the 
special master’s findings. Local 528 was not obligated 
to override these lawful seniority provisions so that 
black shop employees, who were formerly unorganized 
and outside the bargaining unit, could exercise hire-date 
seniority in the Road Department. E.g., Kelly v. Atlantic 
Richfield Co., 468 F. Supp. 712 (E.D. Tex. 1979) ; Furr 
v. Tram World Airlines, Inc., 461 F. Supp. 58 (S.D. Ohio 
1978); see also Murray v. OCAW Local 8-U72, 88 
L.R.R.M. 2119 (D. Conn. 1974).

The facts of the instant case serve to distinguish it 
from Patterson. Here, the inability of the plaintiffs and 
class members to enter the Road Department with com­
petitive seniority credit for past Garage service was 
based on the classification seniority provisions covering 
truckaway operations. These provisions had been in ef­
fect for nearly twenty years before Title VII became ef­
fective. The plaintiffs’ claim is that the defendants did 
not change this practice in 1969 when the Garage and 
Yard were organized (PA Exc. 177-78; R. 1450-51). In 
short, the plaintiffs are complaining about the alleged 
discriminatory impact of a pre-Act seniority system. The 
“largely fortuitous circumstance” that the Garage and 
Yard agreements were negotiated after July 2, 1965 is 
irrelevant to their claim of having been discriminatorily 
excluded from the Road Department.



31

II.

BONA FIDE SENIORITY SYSTEMS CANNOT BE 
ATTACKED UNDER § 1981 OF THE RECONSTRUC­
TION ERA CIVIL RIGHTS ACTS

The district court correctly ruled that a seniority 
system, held to be bona fide and protected under § 703(h), 
cannot be attached under 42 U.S.C. § 1981. As the 
plaintiffs concede (PA Br., at 18-19), this issue is fore­
closed by the Fifth Circuit Court of Appeals’ decision in 
Pettway v. American Cast Iron Pipe Co., supra, 576 
F.2d at 1191 n.37. There, the court of appeals adopted 
the reasoning of Johnson v. Ryder Truck Lines, Inc,, 
supra, 575 F.2d 471, in which the Fourth Circuit Court 
of Appeals held that § 703(h)’s immunity is fully ap­
plicable to claims asserted under § 1981. This view was 
adhered to in Terrell v. United States Pipe & Foundry 
Co., 644 F.2d 1112, 1118 (5th Cir. 1981).11

The plaintiffs advance essentially two arguments why 
Pettway and Terrell should not be followed. First, they 
contend that Johnson v. Railway Express Agency, Inc., 
421 U.S. 454 (1975), in which the Supreme Court held 
that statutes of limitations applicable to § 1981 claims are 
not tolled by EEOC charges, indicates that separate and 
independent standards of what constitutes illegal discrim­
ination should prevail under Title VII and § 1981. Sec­
ond, it is urged that a conflict between the Circuits exists, 
inasmuch as Bolden V. Pennsylvania State Police, 578

11 See also Chance v. Board of Examiners, 534 F.2d 993, modi­
fied on other grounds, 534 F.2d 1007 (2d Cir. 1976), cert, denied, 
431 U.S. 965 (1977) ; Waters v. Wisconsin Steel Works, 502 F.2d 
1309 (7th Cir. 1974), cert, denied, 425 U.S. 997 (1976). Similarly, 
the courts have rejected attacks by the Government on bona fide 
seniority systems under Exec. Order No:. 11246. United States v. 
Trucking Management, Inc., 26 [CCH] EPD U 32,027 (D.C. Cir. 
1981) ; United States v. East Texas Motor Freight, Inc., 564 F 2d 
179 (5th Cir. 1977).



32

F.2d 912 (3d Cir. 1978), supposedly holds that § 703(h) 
has no bearing on § 1981 claims. Neither argument is 
persuasive.

Contrary to the plaintiffs’ arguments, Pettway does 
not conflict with the Supreme Court’s conclusion in John­
son “that Congress clearly has retained § 1981 as a 
remedy against private employment discrimination sep­
arate from and independent of . . . Title VII . . . .” 421 
U.S. at 466. Like Congress,12 this Court considered the 
two statutes in a procedural and remedial context. Id. 
at 460. Other than to mention that Title VII and Sec­
tion 1981 are “co-extensive” and that they “augment 
each other and are not mutually exclusive,” 421 U.S. 
at 459, Johnson did not consider substantive prohibitions 
against particular acts of discrimination. Earlier the 
Court observed that “legislative enactments in this area 
have long evinced a general intent to accord parallel or 
overlapping remedies against discrimination.” Alexander 
v. Gardner-Denver Co., 415 U.S. at 47 (footnote omitted). 
Nowhere has the Supreme Court suggested that, as be­
tween Title VII and Section 1981, “Congress intended to 
create conflicting and contradictory standards for deter­
mining what constitutes illegal discrimination.” John*• 
son v. Ryder Truck Lines, Inc., supra, 575 F.2d at 475.

The Third Circuit Court of Appeals’ decision in Bolden 
did not hold that bona fide seniority systems were subject 
to attack under § 1981. In that case, an intervenor at-

12 Little more can be gleaned from the legislative history of 
Title VII’s 1972 amendments than “a congressional intent to allow 
an individual to pursue independently his rights under both Title 
VII and other applicable state and federal statutes.” Alexander v 
Gardner-Denver Co., 415 U.S. 36, 48 (1974) (footnote omitted). 
Congress was concerned^ that the short statutes of limitations, com­
plex procedural prerequisites and coverage limitations in Title VII 
required the preservation of multiple remedies. Johnson v. Railway 
Express Agency, Inc., supra, 421 U.S. at 460, 471.



33

tempted to obtain, pendente lite, modification of a con­
sent decree’s remedial provisions, to which it had agreed, 
on the ground of precedential evolution. Noting that 
the intervenor shouldered a particularly heavy bur­
den, the Third Circuit denied relief. Due to the pro­
cedural context of the case, the issue was cast in terms of 
remedy and not violation: Whether Teamsters and its 
progeny “have made illegal the elimination of seniority as 
a criterion for promotion. 578 F.2d at 920. The court of 
appeals indicated that it could not impute to Congress an 
“intention to circumscribe the remedial powers of the 
federal courts under §§ 1981, 1983, 1985 and 1988.” Id. 
at 921. It also emphasized the “distinction, when relief 
is sought under Title VII, between violations of § 703(h) 
and remedies under § 706(g).” Ibid. Clearly, Bolden did 
not reach the violation issue involved in the instant 
case. Brown v. Neeb, 644 F.2d 551, 564 (6th Cir. 1981).

III.

INTENTIONAL DISCRIMINATION MUST BE 
SHOWN TO MAKE OUT ANY CLAIM UNDER § 1981 
THAT1 IS BASED ON THE OPERATION OF A 
SENIORITY SYSTEM

Not satisfied with their frontal assault on a bona fide 
seniority system under 42 U.S.C. § 1981, the plaintiffs 
pursue their attack by indirection, apparently hoping to 
catch this court on the horns of dilemma. In Teamsters, 
the Supreme Court held that a bona fide seniority system 
was lawful under Title VII, even though the system’s 
operation may result in discriminatory consequences with­
in the rationale of Griggs v. Duke Power Co., supra, 401 
U.S. 430. To obtain relief in these circumstances, Title 
VII plaintiffs must demonstrate intentional or purpose­
ful discrimination. Teamsters v. United States, supra,



34

431 U.S. at 336. See also Terrell v. United States Pipe 
& Foundry Co., supra, 644 F.2d 1112; Southbridge 
Plastics Div., W.R. Grace & Co. v. Local 759, Rubber 
Workers, 565 F.2d 913 (5th Cir 1978).

Now seeking to avoid these established principles, the 
plaintiffs attempt to bring this case within an area of dis­
crimination law that has not been finally settled. That 
is, whether § 1981 requires proof of discriminatory intent, 
cf. Washington v. Davis, 426 U.S. 229 (1976) (purpose­
ful discrimination required to establish violation of four­
teenth amendment), or whether satisfaction of an impact 
discrimination standard, cf. Griggs v. Duke Power Co., 
supra, 401 U.S. 424 (Title VII), is sufficient to satisfy 
§ 1981’s burden of proof. Compare Williams v. DeKalb 
County, 582 F.2d 2 (5th Cir. 1978) with Davis V. County 
of Los Angeles, 566 F.2d 1334 (9th Cir. 1977), vacated 
as moot and remanded, 440 U.S. 625 (1979).

As the plaintiffs acknowledge, the law governing this 
case is that “the named plaintiff and the class must make 
a showing of purposeful discrimination before casting 
the burden on the defendant to rebut the charge” under 
§ 1981. Williams v. DeKalb County, supra, 582 F.2d at 
2. See also McWilliams v. Escambia County School Board, 
27 [CCH] EPD If 32,175, at 22,390 (5th Cir. 1981) (in­
dividual disparate treatment case). They also point out 
that the issue is currently before the Supreme Court in 
General Building Contractors Ass’n v. Pennsylvania, 648 
F.2d 923 (3d Cir.), cert, granted, 50 U.S.L.W. 3292 
(U.S., Oct. 19, 1981) (No. 81-280), and urge “that the 
correct rule of law is that § 1981 claims may be estab­
lished by disparate impact alone” (PA Br., at 21). Ac­
cord, Commonwealth of Pennsylvania v. Local 54-2, Op­
erating Engineers, 469 F. Supp. 329, 399-401 (E.D. Pa. 
1978).



35

What the plaintiffs fail to acknowledge is that this legal 
controversy has nothing to do with the instant case. 
Neither Washington v. Davis nor any of the § 1981 cases 
cited above involved the alleged discriminatory operation 
of a “seniority system.” It makes no difference in the 
instant case—where the only neutral employment policy 
in issue is the seniority system—whether the Supreme 
Court accepts Title VIPs impact discrimination standard, 
or the intentional discrimination standard applicable to 
fourteenth amendment cases, as the appropriate burden 
of proof under § 1981. The law is already clear that, 
absent intentional discrimination, neutral seniority sys­
tems are lawful under Title VII. Teamsters V. United 
States, supra, 431 U.S. 324. Uniform appellate precedent 
holds they are lawful under § 1981 as well (see pp. 32- 
33, supra) .

Assuming this issue was properly raised in the lower 
court (see Singleton v. Wulff, 428 U.S. 106, 120-21 
(1976) ; Youakim v. Miller, 425 U.S. 231, 234 (1976)), 
it deservedly was given short shrift (PA Exc. 208). In 
rejecting the plaintiffs’ § 1981 arguments as a ground 
for reconsideration, the district court said simply, “The 
Fifth Circuit has held, however, that the immunity cre­
ated by section 703(h) extends not only to Title VII ac­
tions, but also bars section 1981 claims” (PA Exc. 238; 
R. 1625, citation omitted). This conclusion is correct and 
should be affirmed.

IV.

THE PLAINTIFFS’ REMAINING § 1981 AND CLASS 
ACTION CONTENTIONS ARE WITHOUT MERIT

Considered separately, the plaintiffs’ argument relating 
to the applicable statute of limitations under § 1981, as 
well as their class action contentions, hold slight interest 
for the defendant unions. This is because both of these



36

arguments relate to the defendant employer’s hiring prac­
tices. If there is one thing firmly established in this rec­
ord, beyond all others, it is the fact that the unions had 
no role or involvement in the hiring process (II Tr. 
134). The unions are not responsible for any hiring 
discrimination found (PA Exc. 156; R. 1242). Con­
sidered together, however, the plaintiffs’ arguments 
hold out the chilling prospect of an applicant class, hav­
ing claims dating from 1952, whose members are attempt­
ing to qualify for remedial seniority relief dating to their 
original applications.13 The seniority standing of almost 
every current Motor Convoy employee, minority and non­
minority alike, could be adversely affected. Accordingly, 
we must respond to the plaintiffs’ arguments.

A. The Appropriate Limitations Period For Back Pay 
And Other Forms Of Equitable Relief Based On 
Hiring Claims Under § 1981 Is Two Years

Although we do not understand why the issue is pre­
sented on this appeal,14 the appropriate limitations period

13 Under Title VII, of course;, remedial seniority relief for appli­
cants is available;, Johnson V. Ryder Truck Lines, Inc., 10 [GCH] 
EPD f[ 10,535 (W.D.N.C. 1975), aff’d on this issue, 555 F.2d 1181 
(4th Cir. 1977), but hiring claims are limited to those maturing 
not more than 180 days before the earliest filed charge, Yates v. 
Mobile County Personnel Board, 27 [CCH] EPD |f 32,171, a t 22,368 
(5th Cir. 1981). Here, the plaintiffs originally argued for an appli­
cant class dating from July 2, 1965 (PA Exc. 67; R. 597). But 
it is conceivable that, absent laches, the definition could be based 
on the 20-year statute of limitations if their arguments are ac­
cepted. See Commonwealth of Pennsylvania v. Local 5i2, Operating 
Engineers, supra, 469 F. Supp. a t 329.

14 True, the special master found that certain class members 
would have declined transfer to available vacancies before 1976 
because the bona fide seniority system did not then allow for carry­
over seniority (PA Exc. 181-88; R. 1454-80). Thus, they were 
denied relief since they had not carried their burden of showing 
themselves to be actual victims of discrimination (PA Exc. 221-22; 
R. 1501-02). Teamsters V. United States, supra, 431 U.S. at 357-73. 
Even if these class members are considered victims of hiring dis-



37

for equitable relief based on § 1981 claims arising in 
Georgia is apparently an open question (PA Br., at 21, 
citing Whatley v. Department of Education, No. 79- 
2164). On several occasions, including the instant case 
(PA Exc. 127; R. 953), the lower court has concluded 
that under Ga. Code Ann. § 3-704 a twenty-year statute 
of limitations is applicable to § 1981 claims for equitable 
relief, while a two-year limitation governs claims for 
back wages and monetary relief. See authorities cited 
in note 14 supra; Gisonde v. Mobil Chemical Co., 17 
[CCH] EPD H8542 (N.D. Ga. 1978). Even that court, 
however, has recently expressed doubt regarding this 
issue. Goodlettv. Rhodes Furniture Co., 27 [CCH] EPD 
H32,142 (N.D. Ga, 1981). Neither this court nor its 
predecessor has authoritatively spoken.16

crimination occurring years ago, however, their back pay claims 
would still be barred under Ga. Code Ann. § 3-704 (PA Exc. 127, 
220; R. 953, 1500). Barber v. Owens-Coming Fiberglass Corp., 27 
[CCH] EPD I] 32,141 (N.D. Ga. 1981) ; Roberts v. H.W. Ivey 
Constr. Co., 408 F. Supp. 622 (N.D. Ga. 1975). See also Johnson 
V. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1379 n.49 (5th Cir. 
1974).

In terms of equitable remedies, other than back pay and monetary 
relief, the plaintiffs and all class members were afforded opportuni­
ties to transfer under the district court’s 1976 decree and again 
in 1978, when the seniority carryover provisions of the 1976 collec­
tive bargaining agreement were implemented. All employed class 
members desirous and physically capable of transferring have 
done so. They now hold hire-date seniority in their transferee 
departments. Moreover, their transfer and seniority rights were 
preserved by the labor agreement after the court’s decree was 
vacated (e.g., PA Exc. 233; R. 1513, n.2). Even the seniority relief 
awarded to Sam Freeman (PA Exc. 228, 233; R. 1508, 1513 n.4) 
for a two-year discriminatory layoff wras unnecessary (PM 17, art. 
37, § 1, a t 77). The point is that the plaintiffs and class members 
already have received all of the rightful place relief a court of 
equity could award them regardless of the length of the applicable 
limitations period for equitable relief.

15 In Franks V. Bowman Transp. Co., 495 F.2d 398, 405 (5th Cir. 
1974), reversed in part, 424 U.S. 747 (1976), this court intimated 
that different limitations periods for equitable and monetary claims 
under § 3-704 might be applied to § 1981 suits. The force of this



38

For purposes of hiring claims asserted in employment 
discrimination actions brought pursuant to § 1981, we 
submit that Ga. Code Ann. § 3-704’s two-year limitations 
period should be adopted for both equitable and monetary 
relief. This approach finds support in McWilliams v. 
Escambia County School Board, supra, 27 [CCH] EPD 
H 32,175, where the Fifth Circuit Court of Appeals held that 
the two-year period prescribed by Fla. Stat. Ann. § 95.11 
(4) (c) was applicable “to § 1981 employment discrimi­
nation cases regardless of whether the plaintiff requested 
legal or equitable relief.” Id. at 22,388. Significantly, 
the applicable statutory provision appeared “on its face 
to be limited to actions merely for the recovery of back 
pay,” and another provision of the Florida statute 
(§ 95.11(3) ( f ) ) prescribed a different limitation period 
“for ‘an action founded on a statutory liability.’ ” Ibid. 
See also Williams v. Western Electric Co., 618 F.2d 
1110, 1111 (5th Cir. 1980) ; Cutliff v. Greyhound Lines, 
Inc., 558 F.2d 803, 804-05 (5th Cir. 1977).

This court’s authority to adopt § 3-704’s two-year limi­
tation period for employment discrimination claims 
brought pursuant to 42 U.S.C. § 1981 cannot be doubted. 
The applicable principles can be easily stated. Since 
there is no federal statute of limitations governing § 1981 
actions, the timeliness of such suits is controlled, as a 
matter of federal law, by the most appropriate state 
statute of limitations. Johnson v. Railway Express 
Agency, Inc., supra, 421 U.S. at 462; UAW  v. Hoosier 
Cardinal Corp., 383 U.S. 696, 704-05 (1976). A federal 
court’s first task in selecting the appropriate state limi-

precedent in the context of § 1981 hiring claims is doubtful, since 
remedial seniority relief for applicants was denied. Id. a t 417-18. 
After the latter holding was reversed by the Supreme Court, there 
is no indication that the limitation period became a material con­
sideration in formulating an equitable remedy for rejected appli­
cants.



39

tations period is to characterize the lawsuit. “ [T]he 
characterization of this action . . .  is ultimately a ques­
tion of federal law.” Id. at 706. While the courts may 
in the first instance look to the state law characteriza­
tion, that characterization should be rejected if it is “un­
reasonable or otherwise inconsistent with national labor 
policy.” Ibid.

In Johnson v. Railway Express Agency, Inc., supra, 
421 U.S. at 465, the Supreme Court said:

“Although state law is our primary guide in this 
area, it is not, to be sure, our exclusive guide. As 
the Court noted in Auto Workers v. Hoosier Corp.
. . . considerations of state law may be displaced 
where their application would be inconsistent with 
the federal policy underlying the cause of action 
under consideration.”

Later, in Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 
367 (1977), the Court held:

“But the Court has not mechanically applied a 
state statute of limitations simply because a limita­
tions period is absent from the federal statute. State 
legislatures do not devise their limitations periods 
with national interest in mind, and it is the duty of 
the federal courts to assure that the importation of 
state law will not frustrate or interfere with the im­
plementation of national policies . . . State limitations 
periods will not be borrowed if their application 
would be inconsistent with the underlying policies 
of the federal statute.”

It is firmly established, therefore, that state limitations 
should not be adopted where they conflict with applicable 
federal policies, and that considerations dealing with se­
lection of the appropriate limitations period are matters 
of federal law. United Parcel Service v. Mitchell, 67 
L.Ed.2d 732 (1981). Notwithstanding how the Georgia



40

courts might view the case, this court is entitled, as a 
matter of federal law, to conclude that § 3-704’s two-year 
limitation governs all relief sought on the basis of a 
§ 1981 employment claim. After all, there is no genuine 
distinction between back wage and other forms of equi­
table relief, such as a hiring order and remedial senior­
ity, that are awarded as elements of the same statutory 
equitable remedy. Lynch v. Pan American World Air­
ways, Inc., 475 F.2d 764, 765 (5th Cir. 1973) ; Johnson
V. Georgia Highway Express, Inc., 417 F.2d 1122, 1125 
(5th Cir. 1969).

We see no reason, compelling or otherwise, why differ­
ent limitations periods should govern integral parts of 
the same statutory remedy. Uniformity in application 
of the various forms of relief is plainly necessary. Cf. 
Johnson v. Goodyear Tire & Rubber Co., supra, 491 F.2d 
at 1378-79. Strong equitable considerations support this 
view. As shown by this case, hiring discrimination is a 
wrong committed by employers, not by employees or their 
representatives. Adoption of a longer limitations period 
for equitable relief in the nature of hiring or seniority 
remedies than for back wage claims serve to penalize 
innocent employees for their employer’s wrongdoing. 
This is because the heavy impact of seniority remedies 
is felt, not by employers, but by employees whose liveli­
hoods depend on their seniority standing. Teamsters v. 
United States, supra, 431 U.S. at 375.

No situation in which the impact of a hiring remedy 
is directed against innocent employees, while their wrong­
doing employer escapes back wage liability, can be toler­
ated by a court of equity. The potential impact on 
employees is particularly severe in the instant case. The 
limitations period which the plaintiffs seek to apply ex­
tends back to February 9, 1952, twenty years prior to 
the commencement of this action, and would allow hiring



41

claims accruing during the past thirty years to be as­
serted. Such ancient claims, if successfully made, would 
affect adversely the seniority standing of almost every 
current employee at Motor Convoy’s Atlanta facility.

With their emphasis on prompt assertion and resolu­
tion of claims arising at the workplace, it is apparent 
that federal labor and anti-discrimination policies do not 
support application of a twenty-year statute of limita­
tions to § 1981 hiring claims. See generally, United 
Parcel Service v. Mitchell, supra, 67 L.Ed.2d 732; Mo- 
hasco Corp. v. Silver, 447 U.S. 807 (1980) ; IUE v. Rob­
bins & Myers, Inc., 429 U.S. 229 (1976) ; Local H24, 
Machinists Union v. NLRB, 362 U.S. 411 (1960). In­
deed, there is a preference for a shorter statute of limi­
tations where the question is close, as here, and no mani­
fest injustice will result. See De Arroyo v. Sindicato 
Trabajadores Packinghouse, 425 F.2d 281, 287 (1st Cir.), 
cert, denied, 400 U.S. 877 (1970). Therefore, Ga. Code 
Ann. § 3-704’s two-year limitation should govern the 
availability of all forms of relief sought in § 1981 em­
ployment cases.

B. The District Court’s Decision To Confine the Class 
to Current Employees Should Not Be Disturbed

The class action issue raised by the plaintiffs—whether 
the district court erred in excluding applicants from the 
class—may not be of fundamental concern to the unions. 
This depends on whether any applicant class is to be 
restricted to claimants who applied for road employment 
within 180 days prior to the filing of the first EEOC 
charge on February 12, 1969. See note 13 supra and 
authorities cited therein. Yet this litigation already has 
lasted nearly nine years, and the unions are troubled by 
the prospect of being embroiled, as Rule 19(a) parties, 
in a future proceeding during which applicant hiring 
claims are to be adjudicated. The duration of the liti­



42

gation, the relative staleness of available hiring claims, 
the absence of vacancies in 1969 and 1970 (P. Exh. 23, 
|[5), and the sharply declining employment at Motor 
Convoy since 1965 (I Tr. 16; III Tr. 81), all suggest the 
inadvisability of reopening the applicant class issue at 
this late date.

Beyond these pragmatic considerations, the unions 
wish to draw the court’s attention to just two points. 
First, the claims asserted by the plaintiffs and class mem­
bers were not based on hiring discrimination. There was 
no showing below that any black employee applied or was 
qualified for a driving job in the Road Department at 
hire. Nor did the district court treat the class members’ 
claims in the context of alleged hiring discrimination (I 
Tr. 76-78). Accordingly, it is difficult to see how the 
class representatives could be part of an applicant class 
and “ ‘possess the same interest and suffer the same in­
jury’ as the class members.” East Texas Motor Freight, 
Inc. v. Rodriguez, 431 U.S. 395, 403 (1977). This is 
particularly true where, as here, the class representa­
tives’ claims were ultimately rejected (PA Exc. 223-25; 
R. 1503-04), and thus they suffered no injury from hir­
ing or any other form of racial discrimination. Id. at 
403-04.

Secondly, the interests of employees, “insofar as these 
interests may be affected by awarding retroactive senior­
ity to job applicants, may be deemed adverse or antago­
nistic to the interests of a putative class of job appli­
cants” (PA Exc. 108; R. 935, footnote omitted). Tffie 
nature of the conflict was described above (see pp. 40- 
41,supra) and need not be repeated. Here, it is sufficient 
to note that antagonistic interests are important con­
siderations in ruling on class certification applications, 
East Texas Motor Freight System,, Inc. v. Rodriguez, 
supra, 431 U.S. at 405, and this issue was not raised in



43

Falcon V. General Telephone Co., 626 F.2d 369 (5th Cir. 
1980), vacated on other grounds and remanded, 68 L.Ed. 
2d 234 (1981). The clash of interests to which we refer 
is real. As demonstrated by the controversy caused by 
the 1978 implementation of seniority carryover in the 
Atlanta Yard (PA Exc. 179-80; R. 1452-53), it cannot 
be brushed aside by simply stating that both groups 
“would be granted only their ‘rightful place’ relief.” 
(PA Br., a t 15).

CONCLUSION

For the reasons stated above, the judgment of the 
district court should be affirmed.

Respectfully submitted,

F rederick C. McLam 
246 Sycamore Street, Suite 240 
Decatur, Georgia 30030 

Attorney for Teamsters 
Local Union No. 528

Robert M. Baptiste 
Roland P. Wilder, J r .

25 Louisiana Avenue, N.W. 
Washington, D.C. 20001 

Attorneys for
the International Union

Dated: December 2,1981



C E R T IFIC A T E  OF SERV ICE

I HEREBY CERTIFY that I have served two copies 
of the foregoing BRIEF FOR THE UNION DEFEND- 
ANTS-APPELLEES upon counsel for the Plaintiffs- 
Appellants and Defendant-Appellee by depositing copies 
thereof in an envelope in the United States mail, postage 
prepaid, this 2d day of December, 1981, addressed to:

John R. Myer, Esquire 
1515 Healey Building 
57 Forsyth Street, N.W.
Atlanta, Georgia 30303

Alexander E. Wilson, III, Esquire 
Jones, Bird & Howell 
75 Poplar Street, N.W.
Atlanta, Georgia 30303

,/s/ Roland P. Wilder, Jr. 
Roland P. Wilder, J r.