East Texas Motor Freight System, Inc. v. Rodriguez – Oral Argument – January 10, 1977

Media for East Texas Motor Freight System, Inc. v. Rodriguez

Audio Transcription for Opinion Announcement – May 31, 1977 in East Texas Motor Freight System, Inc. v. Rodriguez

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Warren E. Burger:

We’ll here you arguments next in 705-651, Teamsters Union against Rodriguez and the related cases.

Mr. Hotvedt.

Richard C. Hotvedt:

Mr. Chief Justice, and may it please the Court.

We speak for East Texas Motor Freight, which was charged with violating the Civil Rights Act, for refusing to transfer three Mexican-Americans from city driving jobs they held in San Antonio to road jobs in some other city.

Plaintiffs originally sought class relief as well.

But as we shall discuss later, the trial and record really developed as a suit by three individuals.

The defendants were acquitted securing a dismissal after trial of all charges.

The Fifth Circuit reversed, deciding that it could determine from its level that the matter warranted class treatment.

It set the classes and remanded for remedies.

I should say it found liability to them as well and remanded for remedies.

We seek reversal of that Fifth Circuit decision, restoration of the District Court judgment or at least a remand for a proper class determination by the District Court.

In the event the District Court should certify a class for some trial on liability, we seek guidance on the use of racial statistics as an evidentiary device.

A brief statement of our special facts is in order because of the regrettable tendency of the appellate court to treat all Title VII and trucking industry cases alike.

We think we have unique facts in this case, which we should like to tell, not only to secure justice for ourselves, but also to put some rational bounds on the generalizations that have come to dominate Title VII litigation.

The company is a common carrier with many terminals stretching across the country.

At some of those terminals, it has both city drivers and road drivers.

At other terminals, it only has city jobs available.

Mr. Rodriguez, Mr. Herrera and Mr. Perez were city drivers in San Antonio who applied for transfer to a road job in 1970.

When their applications were not considered, they attacked the transfer denial as a violation, arguing that the company’s localized hiring practice and rule against city to road transfer, as well as the contract seniority system were facially neutral policies that locked them in to lesser jobs.

Potter Stewart:

Now, did — did San Antonio have road drivers?

Richard C. Hotvedt:

It did not, Your Honor.

There is evidence that upon the acquisition of a predecessor company with — that company had one driver domiciled at that point because of the way its system fit, but that ceased to be the practice and that was unexceptional in this record as far as all parties were concerned.

Potter Stewart:

What was the nearest terminal that had over-the-road drivers?

Richard C. Hotvedt:

I think it was about 240 miles away elsewhere in Texas.

But I — I’m at a loss to know in which direction.

I think it was to the north of (Inaudible).

The key fact here is that when plaintiffs originally applied for jobs, they did so in a place where there were no road jobs.

They asked for and got the only job that the company had to offer in San Antonio.

And we think that these facts distinguished this case, from Franks against Bowman and the similar seniority cases with which this Court is familiar.

Plaintiffs complained of civil rights violations as to themselves and a class of Mexican-Americans and Blacks.

Richard C. Hotvedt:

All defendants opposed the claim for class relief in their answers.

Potter Stewart:

There was no claim of any discrimination in their original hiring.

And, well, if you’re right that these were — if they were hired on their first application, they couldn’t have been.

Richard C. Hotvedt:

And not only that, Your Honor, but at the trial, plaintiffs stipulated that they had not been discriminated against when they were hired at San Antonio.

Plaintiffs did not move for a class certification.

No court-managed pretrial conference occurred.

On the morning of the trial, the parties reached case-narrowing stipulations, the most important of which was, and I quote, “The only issue presently before the Court pertaining to the company is whether its failure to consider plaintiffs’ application violated Title VII and Section 1981.

So, the trial went on.

The ruling rejecting any class status came in the post-trial findings.

During trial, a colloquy among court and counsel showed opposition to and doubt about whether this was being tried as a class action.

In the Fifth Circuit, the District Court’s findings of non-discrimination as to the named plaintiffs and lack of personal qualifications were reversed.

We ask for restoration of Judge Woods’ judgment, to be sure.

William H. Rehnquist:

Let me ask you a question, if I may, Mr. Hotvedt, about the class action aspect of the case in the District Court.

The plaintiffs did in their complaint ask for a class certification, did they not?

Richard C. Hotvedt:

Yes, sir.

William H. Rehnquist:

Is it your position here, not only that there should have been no class certification on the merits, but that they were under some sort of obligation to file a separate motion during the trial?

Richard C. Hotvedt:

We emphasize the second point, Your Honor.

That is, the — and — and it is precisely the first point of argument we have here.

The fundamental error of the Fifth Circuit in our opinion was its disbelief that the plaintiffs had abandoned or waived the class action aspects of it.

William H. Rehnquist:

Well, now, the — those are two separate points, I would think.

One is, after you requested a class certification, your complaint to simply omit filing a motion prior to trial under the — I think that would stand on quite a different footing than if in a stipulation in an open court, you say, we no longer seek class certification.

Richard C. Hotvedt:

Well, Your Honor, it’s our view that the — that the burden for moving under Rule 23 to clear up the confusion in cases of this kind, should very well be placed upon plaintiffs whose responsibility it is to fulfill the internal elements of the rule as well.

We point out that in this record, we had the cumulative development of no movement for class certification by the plaintiff, the stipulation I have referred to and then the form of a trial which concentrated upon the individual issues.

And we think that for these reasons, the reasoning of the District Court judge was correct.

And more important from our standpoint, we had reason to rely upon it being tried as an individual action, and we think it was error for the Court of Appeals to disbelieve that it was tried as an individual action.

Thurgood Marshall:

But you still — I understood the original statement this Court of Appeals could have said, that we will remand it for consideration.

Richard C. Hotvedt:

Indeed.

Even if —

Thurgood Marshall:

And they would — they did —

Richard C. Hotvedt:

They didn’t —

Thurgood Marshall:

Was it argued in the Court of Appeals?

Richard C. Hotvedt:

We did not.

And it’s interesting to note that even the plaintiffs, when they approached the briefing to the Court of Appeals said and I quote, “The class action question has never been considered by the lower court.”

When the Court of Appeals came to the determination that the plaintiffs had not abandoned the class issue, looking at the state of confusion in the colloquy in the record and the — the different views on this point, the wise thing to do, the correct thing to do would have been to remand for a fresh determination on that point.

In fact, for the first determination on that point.

Thurgood Marshall:

But in those — I mean you’re not limited to that.

The — the Court of Appeals could have said that it is old.

Richard C. Hotvedt:

Well, is that — for the reasons, I ask — answer to Justice Rehnquist.

John Paul Stevens:

In — in what respect would you have tried the case differently, had you not relied on the stipulation?

Richard C. Hotvedt:

If we had been assaulted frontally —

John Paul Stevens:

Yes.

Richard C. Hotvedt:

— with a — with a pattern and practice type of case or with a broad class type of case, one brings to bear the kind of statistical and — and expert evidence, it goes to the depth and breadth of one’s trial preparation and — and the extent to which one goes in handling the argument, Your Honor.

But my point is not that this record is ready to demonstrate, we could have satisfied such a case.

My point is, we deserve the fresh chance to counter such an approach.

We — one of the points that the Fifth Circuit made in — in saying that it’s of little mind that Rule 23 is being decided at this level rather than at the District Court level, was that, one should take a liberal approach to the interpretation of Title VII or of Rule 23 in Title VII cases.

That expression about liberality in the interpretation of Rule 23 is all right as far as it goes.

But I think it arose, at first, in the context of Title VII, when defendant employers in the early 1960s or mid 1960s were saying, “No classes should arise in Title VII cases.”

And so, the dictum arose that — that these are inherent class cases or these relief is inherently class relief.

But that’s what it is, a generalization or a dictum.

What we’re faced with today arising from at least this Court of Appeals is the notion that Rule 23 in Title VII cases contains within it some mandate for an automatic result in favor of the plaintiffs on the class issue.

And that’s the extreme we call into question.

We think it was also especially erroneous for the Court of Appeals to have set the classes at its level rather than remanding to the District Court.

In the light of what it then knew to be the fact, the development of a major consent decree reached following a 707 action brought by the Justice Department against our client, East Texas Motor Freight.

And before the case was argued in the Fifth Circuit, before it decided, it knew that massive relief had been granted, monetary, seniority, alteration of qualification rules, et cetera.

It arrived on the seen at the time the Court of Appeals was in a position to look at the issues extant in the Rodriguez case and offered yet another reason against the background of the confusion I referred to earlier.

For the Court of Appeals to have sent it back to where it belonged for the proper determination of a class issue for the informed judgment of the District Court in developing a record on that point.

Warren E. Burger:

And then what would you do after the Court made the determination of the class?

Would you then move to reopen and offer some additional proof?

Richard C. Hotvedt:

We certainly would, but it would much depend on the shape of the class, Your Honor.

For example, the consent decree has overlapping reaches down into the group that arises in San Antonio.

Richard C. Hotvedt:

We may very well have arguments that the class should be so narrow to one terminal or just a few terminals or to just a limited number of persons in the light of what justice was secured under the auspices of Judge Sarah Hughes in — in Dallas when we reached the consent decree.

We would further find that in its application internally of Rule 23, the Fifth Circuit erred by its somewhat cavalier approach to how you go about satisfying the internal elements.

I won’t dwell on that.

We briefed it extensively.

We would simply state that we think it unfair for the Court of Appeals to say that there is no serious challenge that the internal elements of Rule 23 (a) have been satisfied.

That hasn’t even been the focus yet.

We think that plaintiffs, even in a Title VII case, should be put to the test of those rules and if we get a class action determination, we’re prepared to challenge commonality, typicality.

Indeed, adequacy of representation has not been aired.

And it’s interesting that we have here, for example, the implications of severe questions about commonality and typicality and adequacy of representation arising from within facts where you have people of different kinds of ethnic discrimination being claimed with Mexican-Americans borrowing statistics from Blacks with people from San Antonio with no road jobs being represented by counsel with aspirations to speak for people at domicile terminals.

The implications of need for such an airing of those issues are pretty clear, we think, on the remand.

We turn now to the proof of liability issue.

We think that the Court of Appeals erred in establishing the components of a prima facie case in class actions under Title VII by the sweeping assumption that statistical differences between work force and population, standing alone, are sufficient to make a prima facie case.

Preliminary here, we would note the Government position which arrives in recent weeks and where we note that it — it urges a remand for a new trial on the issue of liability, saying that the Fifth Circuit erred by determining liability to a class and they concede that this could have been premature and prejudicial to the defendant employer with no fair change to contest liability on a class scale.

It’s a welcome concession.

We think it carries within it the logical implication that we were similarly disadvantaged on the class issue, but we — we’re prepared to receive at any terms.

As the proof of discrimination, based on statistics alone are, at least, sufficient to shift the burden of proof.

We recognize that proof of discrimination seldom comes in quotable form.

One has to search for circumstantial evidence, expressions, remarks, conduct, inconsistent behavior and indeed statistics.

But what we are seeing now is the statement that a raw numerical disparity over a broad geographical area between population statistics and the employer’s workforce constitutes that element of proof which will shift the burden, from the plaintiff to the defendant, and in a court, such as the Fifth Circuit, put the employer in a hole from which it is very difficult to extricate himself.

We think it especially ironic that this reliance on such undifferentiated statistics should arise under a statute which contains the congressional caution of Section 703 (j).

We’re not suggesting that that section prohibits the use of statistics at all, but when the Congress goes to the trouble of suggesting that one should not create special favor for a particular ethnic or racial type because of a statistical imbalance, one thinks then that the development of evidentiary rules under the statute should very well take place in a careful manner.

And we ask, what is the logical reach of — or what is the inference to be drawn from a statistical imbalance on a broad scale?

Potter Stewart:

703 (j) in your —

Richard C. Hotvedt:

The (Voice Overlap) —

Potter Stewart:

— reprinted here somewhere?

Richard C. Hotvedt:

In the joint appendix, Your Honor, on the penultimate and — and final page.

The — we have this case arising from within San Antonio, Texas where we have three individual plaintiffs, Mexican-Americans, who would borrow for purpose of burden-shifting proof, Black and Mexican-American statistics from the system at places where those jobs existed.

But what logical inference is there, particularly in the context of the earlier stipulation that they had not been discriminated against the time of hire, that these people suffered hiring discrimination.

We say not.

We think it’s time for the development within the plaintiffs’ case, of a requirement for congruity between the statistics they used, and the available labor market and skills and ages of the workers, and whether these people, as plaintiffs, and as members of plaintiff class were reasonably within the zone who — of those who could have been impacted by the adverse hiring decision.

Richard C. Hotvedt:

Messrs. Rodriguez, Herrera, and Perez and similar city drivers like themselves at San Antonio or at other terminals that were not places where one domicile drivers.

Certainly, not on this record is there any basis for concluding that they were reasonably

Byron R. White:

What —

Richard C. Hotvedt:

— within that zone.

Byron R. White:

What the closest terminal that domicile drivers, over-the-road drivers?

Richard C. Hotvedt:

About 240 miles away, Your Honor.

And I would point out, that the Fifth Circuit somehow sensing, in the latter stages of its opinion, that it — that the element of discrimination in hire is somehow an element of the — the guidance it’s secured from this Court earlier, tried to supply that on a bare record by presuming labor mobility in South or West Texas for Mexican-Americans with a reference to its own, out of context or different context development in the Johnson against Goodyear case.

And that’s all there is, for the Fifth Circuit making up at the appellate level, argument proves evidence et cetera on labor mobility which might supply the element of discrimination and hire for these people.

My time has expired.

I’ve reserved four minutes for rebuttal.

Thank you.

Warren E. Burger:

Mr. Penshorn.

Edward W. Penshorn:

Mr. Chief Justice, and may it please the Court.

In the Rodriguez case, the individual plaintiffs named not only their employer, East Texas, as the defendant, but joined the Southern Conference of Teamsters and its — their own Local Union 657, which is located in San Antonio, the trial court held that Local 657 had not violated either Title VII of the Civil Rights Act or Section 1981 with respect to these three individual members of that local.

The Fifth Circuit reversed as to the union’s and specifically 657 with this language, that their role in establishing separate seniority rosters that fail to make allowance for minority city drivers who have been discriminatorily relegated to city driver jobs.

I understand that language to mean that Local 657 has been held by the Fifth Circuit to have violated both, Section 1981 of Title 42, and Title VII, for failing to establish some type contractual right to transfer with what is commonly called “company seniority”.

With that in mind, I would like to call the Court’s attention to some of the pertinent facts, that I believe, are relevant to the position of Local 657, with regard to remedying or doing what the Honorable Fifth Circuit said it should have done.

Thurgood Marshall:

Mr. Penshorn, can you first give the jurisdiction —

Edward W. Penshorn:

Yes, sir.

Thurgood Marshall:

— of the local?

Edward W. Penshorn:

The jurisdiction, the geographical jurisdiction, Your Honor, of Local 657 is bounded on the south by the Mexican border.

It runs north approximately 250 miles to Austin, Texas and west some distance.

So, I would say, approximately 200 miles.

Does that answer Your Honor’s question?

Thurgood Marshall:

No, sir.

Does that — does that include the city drivers and the road drivers?

Edward W. Penshorn:

As Mr. Hotvedt pointed out, Local 657 has no representation jurisdiction of any road drivers employed by East Texas because none was domiciled within the jurisdiction of this particular local union.

So the answer —

Thurgood Marshall:

That means that whole area.

That whole area, they were not within that area.

Potter Stewart:

So the employees you represented were all city drivers or other city employees.

Edward W. Penshorn:

Yes, sir.

That is correct.

That is exactly correct.

And another very important fact about this particular local union is that it is and always has been, an integrated local union.

Thurgood Marshall:

One other point.

Who represents the line draft that’s in that same geographic area?

Edward W. Penshorn:

It depends, Your Honor, upon where they’re domiciled.

If they were domiciled in San Angelo, which is within another local jurisdiction, that local would.

Dallas local which had some, I believe, at the relevant time, will be represented by that local union in Dallas.

But there were —

Potter Stewart:

Not as domicile within your geographical jurisdiction.

Edward W. Penshorn:

No, sir.

Potter Stewart:

Some drive through it and the — the local to which they belong would depend upon where they’re domiciled.

Edward W. Penshorn:

Exactly, Your Honor.

Local 657 put into evidence to this record a statistical summary of the racial breakdown of all the employees of East Texas Motor Freight for the period from 1952 to, I believe, 1971.

If my memory serves me correct, that statistical summary showed that Mexican-Americans and Negro employees where in the majority in the employment of East Texas within this jurisdiction from the period 1952 until 1972.

In further anticipation of what we thought would be the plaintiffs’ attempts to show some specific conduct by Local 657 amounting to violation of these two statutes, we also compile and there is in this record, a statistical breakdown of the general membership of Local 657 which reflects that since 1965, the majority of the general membership have been Mexican-Americans and Negroes.

A third statistical summary that was introduced by Local 657 pertained to the racial composition of this particular bargaining unit.

And by that, I mean, the bargaining unit consisting, and covered by — by not — National Master Freight Agreement and the Southern Conference Supplement.

That statistical summary also showed that since 1965, the majority of the employees within the jurisdiction, representation jurisdiction of Local 657, working for this employer were also Mexican-Americans and Negroes, certainly negating any contention that would end the jurisdiction of Local 657, there was any hiring discrimination by this employer with which this local defendant could have participated.

Now, then, the — in the briefs before the Court, we’d call the Court’s attention to the bargaining procedures which were followed in the negotiation of the National Master Freight Agreement and also the Southern Conference Supplement to which Local 657 is a party by reason of having given powers of attorney to National and Regional Negotiating Committees.

There is also evidence in this record that at no time from the period of 1952 to the date of the trial had any member of this Local Union ever complain in a meeting called for the purpose of presenting contractual demands to the employer that there was racial discrimination in these contracts.

There is also evidence in this record that at no time since 1952 had any minority member of this union in the proper meetings call for the purpose of obtaining contractual demands ever made a complaint that these contracts locked them in.

And at that so-called lock in was racially discriminatorily.

William H. Rehnquist:

You’re not suggesting that the absence of such statements in a union meeting would be dispositive of this claim, right?

Edward W. Penshorn:

No, sir.

I’m saying, Your — Your Honor, that basically, what I’m saying is that my position is that the plaintiffs in this case must prove more.

They must prove some conduct by Local 657 other than a mere existence of separate contracts of road or city drivers to hold this local union liable.

That is my position.

Edward W. Penshorn:

Does — does that answer your question, Your Honor?

I think that there is also a stipulation in this record that insofar as Local 657 is concerned, that no white city driver has ever transferred from a city driver’s job within the jurisdiction of Local 657, to a road driver’s job and carried with him his company’s seniority for any purpose.

In fact, if my memory serves me right, I don’t recall there being any evidence of a city driver transferring to a road job.

The Court has long ago, recognized that national bargaining units are recommended and promoted by Congress by reason of the National Labor Relations Act and as I have already stated, Local 657 entered into this contract and was into this negotiating unit and was bound by its decision as a bargaining unit.

Thank you, Your Honor.

Warren E. Burger:

Very well, Mr. Penshorn.

Mr. Baab.

William Baab:

Mr. Chief Justice, may it please the Court.

First of all, I’d like to point out as the Court may be aware, there’s an important factual distinction between this case and the one that preceded it.

That is, the employer’s absolute no-transfer rule at the San Antonio terminal which absolutely prohibited the possibility of city drivers transferring to road jobs under any circumstances.

As we pointed out on our brief herein, accordingly, where there can be no-transfer — transfer, seniority rules which operate only on transfer, in fact never operate.

So indeed at the San Antonio terminal, they had no causal effect and are not an active consideration in regard to alleged violation of Title VII.

Potter Stewart:

Well, the company had a no-transfer rule on every terminal, doesn’t it?

William Baab:

It lifted its no-transfer rule, as I understand it, at road domicile terminals for a short period of time in 1972.

Potter Stewart:

Right.

Yes.

William Baab:

I would like — although it’s been discussed in the preceding case, again briefly, we address the issue of union liability concerning these seniority rules which are the same, of course, as there was any time you could see.

Initially, I’d like to say that Mr. Justice White, I think, is correct, in his questions about the position of the union as a Rule 19 defendant.

We think that would be our proper position in these cases.

That is so, because we regard our seniority systems as bonafide, not having the genesis in racial discrimination and because we would then be present for the accordance of relief.

But I do want to state that we regard this Court’s opinion in Franks, as being very clear that in as much as our systems are bonafide, they do not and cannot be read to bar rightful place relief and in clarification of what was said to and by Mr. Wells, I’m authorized to state that this union supported at the time of this trial and this case in Rodriguez and (Inaudible) before that in sense, a proposition of rightful place relief in these kinds of cases.

Byron R. White:

What do you understand to be the predicate for the Court of Appeals holding that the union violated the — the Act here?

William Baab:

Well, without putting it precisely, it states that because the seniority rules do not automatically grant to those who are alleged to be discriminatees, full carryover seniority, we quote, “Locked them in” and that under the Quarles line of cases violates Title VII.

Byron R. White:

But nobody has ever been transferred except for the — if — if the company discriminates.

William Baab:

But that — that is the point.

That’s the company’s discrimination.

If that happens and that’s what ought to be addressed.

The question of the seniority rules and their applicability is one of relief.

Byron R. White:

But there’s no special — that’s all there was in this case also.

That there’s no — no finding that the seniority system itself was discriminatory.

William Baab:

And there could be none.

Byron R. White:

Yes.

William Baab:

Everybody admits it’s neutral both in its origin and on its face.

Really, the whole lock-in theory, at least, as it applies to these cases, is one of relief.

Potter Stewart:

And then — I want to be sure what I understand.

You, too, have made by way of a concession when you began.

You can see that you could been in here, the so-called Rule 19 defendant —

William Baab:

Yes.

Yes, we do.

Potter Stewart:

— for the purpose of according adequate relief to the plaintiffs.

William Baab:

Adequate relief based on, they found employer discrimination in a (Voice Overlap) —

Potter Stewart:

And assuming employer discrimination where —

William Baab:

Yes.

Potter Stewart:

— that will be found.

William Baab:

Yes.

Potter Stewart:

What could you have as a Rule 19 defendant then, ordered to do or not to do?

William Baab:

To honor the Court’s award, like the place relief to those discriminating against (Voice Overlap) —

Potter Stewart:

Oh, what do you — what do you envision its rightful place relief in this context?

William Baab:

On a very general basis, as applied to this case, job bidding and layoff and recall, seniority and road jobs, that the discriminatee would have had but for discrimination against him.

Now, that involves consideration of various elements which would include either an application or approving reason why no application would be made.

Potter Stewart:

On a ceratin — at a certain date or —

William Baab:

Yes.

Potter Stewart:

— at a certain — at a certain time.

And then his seniority in the —

William Baab:

Yes.

Potter Stewart:

— over-the-road local would date from that time.

William Baab:

From — from that time.

I would like to point out is —

(Voice Overlap) qualification.

William Baab:

Qualification and vacancy.

Potter Stewart:

He was qualified.

There was a vacancy and he did —

William Baab:

That’s correct.

Potter Stewart:

— or — or shows that he absolutely would have made an application —

William Baab:

Yes.

Potter Stewart:

— had it not been for racial discrimination.

William Baab:

Yes.

Byron R. White:

But of course he — if the Court — if the Court have to disagree with you and say, “Well, that — there isn’t such a type of proof requirement,” you would still say that you still would be of — you still would be a — a — an object for the remedy, and you would still have to comply with them?

William Baab:

Yes, we would.

Byron R. White:

With or without a finding that you violated the Act?

William Baab:

Yes.

And we are bound by the rightful place theory —

Byron R. White:

But you wouldn’t have to say that the —

William Baab:

— as the Courts made it final.

Byron R. White:

— you wouldn’t say you would — that without a violation of the Act having been properly found that you could be liable for back pay.

William Baab:

Exactly not.

Well, even if — even if one were found concerning hiring or a transfer, we still think we’re not liable.

Byron R. White:

Well, I know, but the Court of Appeals in — and I think, didn’t the Court of Appeals say that the District Court was going to have to work out some allocation and liability for back pay —

William Baab:

Yes.

Byron R. White:

— between the union and the company?

William Baab:

They did say that, and — but of course, that was based on the Court of Appeals.

Byron R. White:

Knowing your concession would go to — go to back pay.

William Baab:

The only rightful place, seniority relief, which is our real purpose.

And incidentally, I — there’s been some discussion about what unions could have done concerning relief, which is — and Mr. Justice Marshall had addressed that.

This contract, of course, awards road or city seniority upon entry into that particular bargaining unit.

Of course, the contract in Franks awarded seniority only upon date of employment for the individuals involved.

That contract was not considered to bar the rightful place relief that this Court gave.

In fact, quite the contrary, so with ours.

If but for discrimination, this individual would have been in the road unit, there’s nothing in our contract that would bar or undercut the award of rightful place seniority.

Really, again it’s just a problem of relief, you know.

William Baab:

And — but I want to point out in any, if I may, the impossibility of the union’s position in doing what respondents here, and the Government in other cases, has suggested that we must, that is without proof, without determination of discrimination unilaterally award to minority city drivers, full carryover seniority and road jobs.

That is what respondents say, they want here as relief.

This case, as Mr. Hotvedt, pointed out, was tried primarily on an — on an individual basis.

In proof, concerning the three, named individuals, the trial court found they had not properly applied for, had not been qualified for and had not been discriminatorily denied road jobs.

There was no other evidence offered at trial as to any other individual, number one, applying for or even wanting a road job as to any other individual in a class of some 200 people, the class they wanted, the Texas-wide class even being qualified for a right — road job and scant evidence as to vacancy.

This Court recognized the McDonald versus Santa Fe Trail that indeed the union’s Title VII obligation extends to members and represent employees of all races were we unilaterally to award road seniority to minority city people under those circumstances, rights, would absolutely have a claim of reversed discrimination against us.

We have to wait until either the individuals alleged discrimination and seek and use the grievance procedure to prove it to get the rightful place that way or go to court or if we can have a factual a factual situation, whereas, we do from time to time work out an agreement and affect the award that way.

But the Solicitor General himself has agreed in his brief in the Jersey Central case that to prefer any minority individual simply because it has membership in a class rather than based on a showing of individual discrimination would be to affect reversed discrimination.

That’s what’s prohibited.

We don’t want to affect reversed discrimination.

Nevertheless, we strongly adhere to the proposition of rightful place relief.

Thank you.

William H. Rehnquist:

Mr. Baab, do you — do you read the Court of Appeals’ opinion to find that it’s clearly erroneous the District Court’s disposition of those three individual cases that you mentioned?

William Baab:

They use the word “clearly erroneous”, a careful reading of the — of his reasons for doing so, I think, indicate that can’t be supported.

But they do use the word as for saying, “The finding was clearly erroneous,” but they really find that there was — well the employer said, “discrimination in the air”, that there appeared to be a pattern in practice of discrimination although not against any single identifiable person than to get that background while the findings against the individuals must have been erroneous, so go back and see if they were.

Byron R. White:

Mr. Baab —

William Baab:

Yes, sir?

Byron R. White:

— what if the — what if we agreed with you on a — on the class action matter that the Court of Appeals should not have itself designated to class?

And I — I take it from your brief, that you — you think that before a class could be designated that there — that there has to be some hearings.

William Baab:

Well, I guess that’s Mr. Hotvedt’s brief action — it — it didn’t brief the question, but (Voice Overlap) I think there should be.

Byron R. White:

Well, what do — what do think that — isn’t the — if we — if we agreed that the Court of Appeals shouldn’t have done that, do we stop there and send it all back?

William Baab:

I would think not upon this record.

I personally think the case was tried as an individual action.

No proof was offered concerning the class, except that there was a group of 200 minority city drivers.

They were shown no adverse impact on interview by virtue of the alleged actions.

(Voice Overlap) if —

William Baab:

Reinstate —

(Inaudible) that the Court of Appeals erred in the class issue, that we should then reverse and reinstate the judgment of the Court of Appeals?

William Baab:

That would be my opinion —

(Voice Overlap)

William Baab:

— because there’s no basis for finding then that the trial court’s findings as to the — as to no discrimination was clearly erroneous or its factual findings on which that was based.

Byron R. White:

Because of — with respect to these three people.

The — the claim of discrimination of these three people was fully tried.

Byron R. White:

Yes.

William Baab:

Then in the trial court.

Thank you.

Warren E. Burger:

Ms. Martinez.

Vilma S. Martinez:

Mr. Chief Justice, and may it please the Court.

This case involves a number of legal and factual questions, some are technical or complex.

The petitioners strenuously argue these complicated points and try to obscure the basic nature of this case in approaching the difficult questions.

Warren E. Burger:

Ms. Martinez, may I suggest that you lower the lectern so that you’ll get the microphone if you’ll lower the — then you will be closer to the microphone.

Vilma S. Martinez:

I didn’t know this is possible, Your Honor.

Warren E. Burger:

It’s very flexible here.

Vilma S. Martinez:

Is that better?

Warren E. Burger:

Yes.

It’s better.

Vilma S. Martinez:

Thank you.

In approaching these difficult questions however, I would urge the Court, not to lose sight of two simple facts.

The first one is that the record shows that East Texas Motor Freight is a blatantly discriminatory employer and the East Texas Motor Freight is joined by the union petitioners in seeking to perpetuate the effects of their traditional and nationwide commitment to employment discrimination.

Petitioner’s arguments boil down to a salvo of complicated legal reasons for denying through their Mexican-American and Black employees and members, what this Court said in Albemarle Paper Company and Franks v. Bowman was due them, complete relief, from petitioner’s employment discrimination.

In my argument, I wish to focus on the three of the reasons advanced by petitioners.

One, that this was not a proper transaction.

Second that we did not prove a prima facie class case, and third, that the no-transfer rule and seniority system of petitioners did not violate the law.

Because the petitioners have understated the extent of employment, discrimination shown on the record, I would briefly highlight that evidence.

East Texas Motor Freight had never employed a Mexican-American or a Black road driver in the Southern Conference in Texas until Mr. Rodriguez filed his EEOC charge in 1970.

East Texas stipulated in the Government suit that as late as June 1972, the company had no Black road drivers anywhere, and only eight, Mexican-American road drivers among its approximately 180 road driver —

Warren E. Burger:

Well, are you’re —

Vilma S. Martinez:

— workforce.

Warren E. Burger:

— speaking of the — are you speaking of this Local 657 here —

Vilma S. Martinez:

I’m speaking of the —

Warren E. Burger:

— or both?

Vilma S. Martinez:

— the Southern Conference, yes.

Warren E. Burger:

— or both?

Vilma S. Martinez:

— Only as it relates to the States of Texas, we saw the class that would cover the employees in the — in fact we saw the class covering applicants and employees in the State of Texas, the class was narrowed by the Fifth Circuit to city driver, Black and Mexican-American city drivers.

Warren E. Burger:

That makes quite a lot of difference in light of the argument you were just embarking on does it not?

Vilma S. Martinez:

Well, I think the statistic —

Warren E. Burger:

How is it relevant?

What some other local or some other area did or did not do by way of employing minorities, and that you’ve — you’ve lost me on that point.

Vilma S. Martinez:

I’m sorry.

I think it’s — the statistic is very relevant because we’re talking about the same company, East Texas Motor Freight and its employment pattern in the State of Texas.

We’re are also talking about the union defendant, so we have here two union defendants, the Southern Conference and all of its members within the State of Texas, and also, the Local Union which our three, named plaintiffs, were a member of.

I wanted to point out that of the eight Mexican-American road drivers that East Texas Motor Freight had in 1972, it had itself, hired only three of them, the rest that had acquired through (Inaudible)

The terminal by terminal statewide and Southern Conference employment figures make it crystal clear that race was a constant and pervasive factor in staffing ETMF’s truck driver jobs.

In El Paso, for example, all city drivers were minorities but road driver jobs were reserved for Whites.

In Forth Worth, with no road driver domiciled, all 35 city drivers were Anglo.

In Pecos, with no city drivers, all 16 road drivers were Anglo and superimposed on these statistics, were two policies which operated to lock in all of the minority city drivers into the city positions.

These were, of course, ETMF’s no-transfer rule, which prohibited transfer from city to road position and further which prohibited transfer between terminals.

Potter Stewart:

Now, that’s a company rule?

Vilma S. Martinez:

Yes, there’s a company rule, Your Honor.

Potter Stewart:

The union had no part of that rule though?

Vilma S. Martinez:

They did not.

However, their role came in through the collect —

Potter Stewart:

I understand you’re going to do the other two points now?

Vilma S. Martinez:

Yes.

Potter Stewart:

All right.(Voice overlap)

Vilma S. Martinez:

But the — my other point is that the other one is the petitioner’s seniority system under the union contracts —

Thurgood Marshall:

Where is that on this?

Is it true that these three, named parties on San Antonio and in San Antonio, it’s impossible to transfer from city to road?

Vilma S. Martinez:

That is precisely the thrust of our complaint.

Thurgood Marshall:

And now, why is that discriminatory on the basis of race, color or national origin?

Vilma S. Martinez:

Because, Your Honor, in —

Thurgood Marshall:

If there’s nobody.

Vilma S. Martinez:

Pardon me?

Thurgood Marshall:

It says nobody.

Vilma S. Martinez:

Yes, I understand that.

However, the impact of that facially neutral rule is on minorities —

Thurgood Marshall:

Why?

Vilma S. Martinez:

Because Whites could always get the road driver jobs at other terminals.

In fact, all 180 road driver jobs were held by White males, that might —

Potter Stewart:

Not one, but not a none in San Antonio.

Vilma S. Martinez:

Not a one —

Potter Stewart:

Because there were no jobs.

Vilma S. Martinez:

There were no jobs in San Antonio.

However, our three, named plaintiffs were willing to move.

They further were willing, at an early point, to give up their seniority to move but the system operated to lock them into the city driver positions in San Antonio terminal.

Potter Stewart:

And how is that?

How did it lock them in?

Vilma S. Martinez:

It locked them in because the company said, “You may not transfer between terminals.”

Potter Stewart:

Whatever, that’s the company, not the union.

Vilma S. Martinez:

And then the —

Potter Stewart:

That’s not the —

Vilma S. Martinez:

— union said.

Potter Stewart:

— collective bargaining (Inaudible)

Vilma S. Martinez:

And then the union said, “But if you do transfer, you may not carry over your unit seniority which you have earned only in the city driver unit.”

Needless to say that would be a substantial –B

Potter Stewart:

ut the ‘if’ —

Vilma S. Martinez:

— impediment.

Potter Stewart:

— the ‘if’ never came — it never came into operation.

If there were no transfers for anybody from city to over-the-road drivers, then the seniority provisions never had any effect.

Vilma S. Martinez:

But in striking down, hopefully that —

Potter Stewart:

That would have had effect only if there had been transfers, and there were no transfers in this company, is that correct?

Vilma S. Martinez:

Yes, and that rule was challenged and not only the no-transfer rule but the subsequent in followup impact of the now-operative collective bargaining agreement if there is a successful challenge to the company’s no-transfer rule.

There is, furthermore, additional proof of discrimination in this record.

Contrary to the assertions of East Texas Motor Freight that it applies equally and especially neutral driving standards, ETMF has often treated its minority and Anglo employees differently by not requiring all Anglo drivers to meet those standards.

In analyzing the —

Potter Stewart:

How do you define Anglo?

As –as anybody who’s not a Spanish surname and not a Negro?

Vilma S. Martinez:

Is an Anglo.

Yes, that’s how we define —

Potter Stewart:

Would an American-Indian be an Anglo?

Vilma S. Martinez:

Probably not.

That would be another minority.

Potter Stewart:

So it’s a —

Vilma S. Martinez:

A non-minority.

Potter Stewart:

You do it by a process of exclusion about this.

Then what’s left are Anglos?

Vilma S. Martinez:

Yes.

Potter Stewart:

Even though they might be Polish?

Vilma S. Martinez:

Well, commonly in the South West, one does use the term Anglo which is —

Or Irish (Inaudible)

Vilma S. Martinez:

Even, yes.

There are some inaccuracies that have built up over the years but we all recognize each other.

Don’t we?

Vilma S. Martinez:

In analyzing the applications of 52 road drivers who were either employed as new road drivers that transferred from the city to the road by East Texas Motor Freight between 1970 and 1972, twelve did not meet a stated requirement for the road position which was a high school diploma or its equivalency.

The names of these individuals are found at page 181 of the appendix.

Further, a high company official testified that East Texas relies very heavily on referrals by incumbent employees as the source of applicants.

The incumbents, of course, are Anglo.

Thurgood Marshall:

While you’re on there, how many Anglo or Negroes’ applications were denied?

Vilma S. Martinez:

We did not get into in this record, at the class of applicants and that’s why the Fifth Circuit said —

Thurgood Marshall:

Well, I thought this is what the case was all about, that people had applied and been denied?

Vilma S. Martinez:

No, it’s about the inability of minority city road — city drivers existing employees —

Thurgood Marshall:

Was the —

Vilma S. Martinez:

— to transfer and carry —

Thurgood Marshall:

— or what —

Vilma S. Martinez:

— over the seniority.

Thurgood Marshall:

What’s city employee applied and was not given a job?

Vilma S. Martinez:

Our three, named plaintiffs.

Thurgood Marshall:

Is that — did they apply?

Vilma S. Martinez:

They applied?

They applied, they requested — they applied orally since 1965 and then they applied in writing in 1970.

Thurgood Marshall:

And how many are these?

Vilma S. Martinez:

That is all that we have in the record in terms of applications.

Thurgood Marshall:

Well, what was your idea of the class would be, those who applied?

Vilma S. Martinez:

No.

We contend that in facts such as these.

Thurgood Marshall:

You — you mean that your class applies to everybody, who happens to be a Negro or a Mexican.

Vilma S. Martinez:

City driver.

Thurgood Marshall:

Regardless or whether they wanted to or were qualified to or had any idea of doing it?

Vilma S. Martinez:

Mr. Justice Marshall, we contend that in the initial stage of establishing a prima facie case, establishing a class action.

All we need to do is identify certainly in this pattern, on these statistics and with these policies —

Thurgood Marshall:

I am now asking you, what is your idea of who the class consists of?

Vilma S. Martinez:

Yes, my idea of the class consists of — of employees, Mexican-American and Black employees who are city drivers.

We leave it to the later stage —

Thurgood Marshall:

And that — that’s it.

Vilma S. Martinez:

— the remedy stage —

Thurgood Marshall:

All of them are in the class?

Vilma S. Martinez:

Are in the class.

Thurgood Marshall:

Are in the class.

Vilma S. Martinez:

Whether they qualify for relief, of course, is a different —

Thurgood Marshall:

No.

Vilma S. Martinez:

— matter.

Thurgood Marshall:

And whether they wanted or not.

Vilma S. Martinez:

That’s right, but certainly all of them who wanted to transfer were affected by the policies —

Thurgood Marshall:

What —

Vilma S. Martinez:

— which we attack — (Voice Overlap)

Thurgood Marshall:

What is the size —

Vilma S. Martinez:

— in the clause.

Thurgood Marshall:

— of that class?

Vilma S. Martinez:

Approximately 200 city drivers in the State of Texas.

Potter Stewart:

Who wanted to transfer?

Vilma S. Martinez:

No, that has not yet been established.

Potter Stewart:

Generally a class is a — if I can think by allowing that is it consist of people who have — who have a grievance of some kind.

And people who never wanted to transfer as Mr. Justice Marshall said, weren’t qualified, never thought of it, never wanted to, would have no grievance whatsoever, would they?

Vilma S. Martinez:

Well, we haven’t yet —

Potter Stewart:

So, how could a class include all the city employees, even though it was described by my brother, Marshall?

Vilma S. Martinez:

Because certainly they were all affected by —

Potter Stewart:

How?

Vilma S. Martinez:

— the policies.

Potter Stewart:

How?

If they’d never have any idea of wanting to transfer, how possibly were they affected by that policy?

Vilma S. Martinez:

It’s hard at this first stage proceeding, Your Honor, to identify those class members who in fact wanted to transfer —

Potter Stewart:

Well, generally, definition of a class, is a group of people who have one thing in common, at least, and that is that they have a common grievance of some kind?

Vilma S. Martinez:

Well, the common grievance here, certainly, was the — the system involved here.

The collective bargaining agreement, the no-transfer rule and the statistics which showed that road driving jobs were for Anglo males.

Warren E. Burger:

Well, but what if it has — has been suggested and I think (Voice Overlap)

Vilma S. Martinez:

And the no-transfer —

Warren E. Burger:

— you have not yet answered — you have not yet answered.

What if these people didn’t want to leave San Antonio?

They liked San Antonio, they liked city driving because they could return to their homes every night.

Are they properly members of any class of people with a grievance?

Vilma S. Martinez:

Well, as I have said to, Mr. Justice Marshall, certainly our three, named plaintiffs indicate that they were willing to move at the — at an early stage in their application.

They were willing to give up their seniority, but it would be very difficult in this factual context with the company having a no-transfer rule, to look for applications because of the no-transfer rule.

Warren E. Burger:

Then are you talking about these three people being with the class?

Vilma S. Martinez:

They are members of the class.

There are, conceivably, other members in the class who were similarly situated and in fact they were — there were other people who testified at trial.

The subpoena of Gomez, for example, also said —

Thurgood Marshall:

How about those —

Vilma S. Martinez:

— that he had wanted to apply.

Thurgood Marshall:

— that just didn’t want to leave the Canal in San Antonio or didn’t want to leave Alamo?

Vilma S. Martinez:

They — in that they — they were properly not be coming forward at the remedy stage where we will be attempting to identify those people who did in fact want to transfer to these —

Potter Stewart:

But the — but the time —

Vilma S. Martinez:

— these jobs.

Potter Stewart:

— to get the remedy, you’ve passed liability and you have found that the company you hope to — will have proof that that stated a company has violated the act with respect to every single member of the class.

Now, that — that isn’t — that won’t quite be true will it, if there were — if some of the city drivers never wanted to transfer and will get very angry if somebody suggested if they would — if would transfer.

Vilma S. Martinez:

Well, the answer could well be at that — what we would do then is to say the class will consist of people who in fact wanted to transfer.

Potter Stewart:

Well, now — now we’re getting the (Voice Overlap)

Vilma S. Martinez:

— who wanted to transfer even though they might not have actually applied because of these hurdles.

Potter Stewart:

But — but — so — so let’s say — let’s ask again, what is the class?

Mr. Justice Marshall asked what your class was.

Now — now have you changed, just — just the city drivers who want to transfer?

Vilma S. Martinez:

Who wanted and or now want to transfer?

Potter Stewart:

So that’s the class?

Vilma S. Martinez:

That’s our class.

Byron R. White:

May I — may I ask you a question, Ms. Martinez?

Potter Stewart:

Yes, Sir.

Byron R. White:

With respect to the three, named defendants in view of the — of the findings of named plaintiffs, I should have said, with respect to the findings of the District Court, as to their absence of qualifications, each of them had been engaged in or involved in a number of accidents involving injuries to people.

Is it still the opposition that they had demonstrated the qualification for over-the-road jobs?

Vilma S. Martinez:

Yes, it is, Your Honor, for two reasons.

Number one, as the Fifth Circuit pointed out the same standards that have been used to evaluate the qualifications of Anglos were not used in evaluating the qualifications of the named plaintiffs.

Byron R. White:

Does the record show that people, Anglos had been employed after having been engaged in as many as three acts, almost involving seven individuals?

Vilma S. Martinez:

I think the record is not complete, could not — is not complete in that respect but certainly it does show that the same standards were not being used by this company and further the record shows that the company had stipulated that it itself had never even considered the applications of these individual plaintiffs and that, of course, is the meaning of that stipulation that Mr. Hotvedt relies on to say that we gave up, the class action on the eve of trial.

That stipulation went to, what was the standard to be used by the Court to determine if there had been discrimination against the individual plaintiffs.

We contended that the discrimination consisted of not considering their applications.

Further, by a separate stipulation, the company stipulated, it’s true we have not considered their applications.

The record which the company then came in with was a record which they compiled after the charge, these EEOC charges had been filed and they used that record to say, now we — you know, looking it over, we contend they are not qualified.

William H. Rehnquist:

Was the reason that company didn’t consider the applications because of its no-transfer rule?

Vilma S. Martinez:

I — we contend that the reason was certainly the no-transfer rule but also the fact that road driver jobs were limited to Anglo males.

Again, in remembering what was —

Potter Stewart:

But they were also limited to original hire in over-the-road jobs, weren’t they?

It’s to be —

Vilma S. Martinez:

In over-the-road —

Potter Stewart:

— given a —

Vilma S. Martinez:

— jobs

Potter Stewart:

— no-transfer rule?

Vilma S. Martinez:

Precisely, and of course we were hired here at plaintiffs work —

Potter Stewart:

You were hired at —

Vilma S. Martinez:

— due to city jobs —

Potter Stewart:

— San Antonio.

Vilma S. Martinez:

— into city jobs.

Potter Stewart:

To city jobs that the only jobs (Voice Overlap)

Vilma S. Martinez:

We were complaining about the inability to go into the road jobs and again understanding what was in this record.

I think it’s important to see what sorts of responses the plaintiffs were getting when they indicated very early a desire for the more lucrative and desirable road jobs to oral request for transfers.

The plaintiffs received noncommittal responses from company and union officials that they would look into it, that the no-transfer rule precluded such a transfer.

One of them even said that road jobs were not for Mexican-Americans, that the equipment was too expensive for Mexican-Americans to be driving it.

When the plaintiff Perez learned from East Texas Motor Freights new terminal manager that there were road openings in San Angelo, he sought the assistant of the union president in getting that job.

The response of the union president was to go to the manager’s superior and ask that superior to tell the new manger to quit giving out this type of information.

And then the response to the filing of the EEOC charges was to invite the plaintiffs to file written applications which they themselves stipulated, they then ignored and were not even forwarded to the Dallas office which does the main hiring.

Potter Stewart:

Ms. Martinez, does the record tell us whether the three, named plaintiffs would have taken over-the-road jobs if — and — and given up their seniority?

Vilma S. Martinez:

Yes, it does and at least one them testified that he would have given up his seniority.

Another one, Mr. Herrera, testified that earlier, yes, he would given up his seniority but now that he was older, he saw that as far more of an impediment.

Potter Stewart:

I — I should refine the question a little bit.

Does the record show whether the named plaintiffs so advised the company, or did they just ask for a transfer with both seniority?

Vilma S. Martinez:

No, I think the record is clear that they did so advise company officials and the union — (Voice Overlap)

Potter Stewart:

That they’re willing to surrender seniority if they could get the road job?

Vilma S. Martinez:

— and the union official as well.

Since the filing of the EEOC charges and the complaint in the suit, all three, named plaintiffs had been discharged — have been discharged.

At the time the complaint was filed, Mr. Rodriguez had worked for East Texas Motor Freight six years, Mr. Perez, twelve, Mr. Herrera, six.

Again, I would like to argue that this was a proper class action and the Firth Circuit so held.

Their work, as Justice Rehnquist pointed out, allegations in the complaint, in the pretrial order in the colloquy at — with plaintiffs’ counsel at the trial.

Further, the nature of the plaintiffs claims themselves, bespeak a need for a class action look at the nature of the discrimination being complained about.

William H. Rehnquist:

But of course that — that goes, Ms. Martinez, only the fact that the plaintiffs preserved their right to have the District Court make the determination.

It — it doesn’t go further and say that the District Court should have determined it in — in their favor?

Would you not agree with that?

Vilma S. Martinez:

The initial —

William H. Rehnquist:

But that the factors you’d just mentioned?

Vilma S. Martinez:

Initially, that argues that but the record, you know, doesn’t end there.

There is in the record, a substantial evidence which showed how these systems operate, what the statistics were?

What the experience of the plaintiffs were in trying to get the road driver jobs et cetera.

We contend that that was sufficient to show that there was a proper class action which did comply with all of the requirements of Rule 23 (a) and 23 (b)(2).

Potter Stewart:

Ms. Martinez, it occurs to me that neither of the two issues that Judge Wisdom identifies that the beginning of his opinion is really raised by these plaintiffs because used — the first issue was to challenge the requirement that they resign their jobs in order to get a road drive job and you say that they indicated they’re willing to that, so the — that rule wasn’t an obstacle.

And the second was they lose — lose seniority and you said, they’re willing to do that too?

Vilma S. Martinez:

Some were —

Potter Stewart:

So, these people don’t raise the issues the Court discusses?

Vilma S. Martinez:

Some — (Voice Overlap)

Potter Stewart:

But that — what’s wrong with that — what’s wrong with my understanding of it?

Vilma S. Martinez:

Some were and some were not willing to —

Potter Stewart:

Of these three.

Vilma S. Martinez:

Of the —

Potter Stewart:

I’m talking about the three, named plaintiffs?

Vilma S. Martinez:

Of the individual named plaintiffs.

Potter Stewart:

Oh, I see.

So, some were willing that to — to resign and others were not, is that it?

Vilma S. Martinez:

That is right, but —

Potter Stewart:

Would — would you identify them so — so I know which they were (Inaudible)

Vilma S. Martinez:

I — I can’t remember.

I think it was, Mr. Perez who had said that he would be willing to resign.

Mr. Herrera indicated that he might have earlier, but now he, you know — it was too late and he needed the seniority that he had as a city driver in San Antonio.

Potter Stewart:

And I thought you told me that they — all three had advised the company that they were willing to resign?

Vilma S. Martinez:

Initially, you understand they’ve been making these applications orally in the 1960’s (Voice Overlap) and inviting that —

Potter Stewart:

But as to the question that’s exactly, what was the application?

Was it, I want to transfer with seniority or I’m willing to resign and take the new job if they’ll give it to me?

Vilma S. Martinez:

The application as I recall it was that they were willing to resign with — without seniority.

Potter Stewart:

If that’s their case, they don’t raise this basic issue that Judge Wisdom spends so much time talking about?

It — maybe I missed something here.

I don’t know.

Vilma S. Martinez:

They made that offer but the company said to them that they still couldn’t transfer and they did not accept their application.

As I mentioned earlier, the company took these letters which are set out at pages 324 through 326 of the appendix and basically filed them away.

Potter Stewart:

Well, what it seems to me is, you have a — the simple case of out and out discrimination against three people rather than a class case involving the validities of these rules if I understand the facts here.

Vilma S. Martinez:

I think we have both, Your Honor, and of course I don’t — I think we have both.

Mr. Herrera certainly indicated that at the time of trial, he indicated that he was not willing to give up his seniority.

He was earlier, but not at the time of trial.

So that certainly he raises it and of course we only need one person to bring a class action, and we don’t have to have that person prevail necessarily as, Your Honor knows, to proceed with a proper class action

William H. Rehnquist:

But you are also subject to the rule, aren’t you, that no person can represent a class of which he’s not a member, which we have stated in our opinions.

That is, that the named plaintiff has to have all the characteristics of the class which he purports to represent.

Vilma S. Martinez:

Well, I think we have that.

It was our named plaintiff, Mr. Herrara.

William H. Rehnquist:

Well, then but should there have been a division on the classes if one of them was willingly to give up his over-the — his San Antonio seniority and one wasn’t?

Vilma S. Martinez:

Well, Your Honor, it would seem to me that if we find that that system is discriminatory, and we contend that it is, and in fact, the Fifth Circuit so held.

Why should we penalize people, who many years ago, when they were first trying to transfer to those jobs, weren’t able to.

William H. Rehnquist:

Well, it might be discriminatory in either aspect but in — as Justice Stevens points out there are — three are some difference, I think in the question that’s raised by someone who says, I want to — I want to be employed now, I’m a city driver in San Antonio and I’m not willing to give up anything I’ve got and then second man who says, I want to be employed now.

William H. Rehnquist:

I’m a city driver in San Antonio.

I’m willing to give up all prior benefits if you’ll just put me on in San Angelo.

Vilma S. Martinez:

Of course, the bottom line problem here, Your Honor, is that none of them was permitted to transfer because of the no-transfer rule.

They just, basically, let them file these applications and then did not consider them.

William H. Rehnquist:

Well, if none of — if none of them wished to give up anything that they had, you’ve got a different argument as to the merits though, than if someone says, I’ll give up everything I have if you’ll just take me on anew.

Vilma S. Martinez:

I think it also is worth noting that the letters which I’ve described to you is, in our appendix, were written by the company for the plaintiffs and they were just making every effort they possibly could, to get those jobs which they so badly wanted.

Even with those concessions, the company refused their application.

Thurgood Marshall:

Ms. Martinez?

Vilma S. Martinez:

Sir?

Thurgood Marshall:

What do you say to this suggestion of sending it back to the Trial Court to zero in and focus on whether or not this is a proper class action and what is the class?

What do you say to that suggestion?

Vilma S. Martinez:

Well, I think that the Fifth Circuit certainly had before it an adequate record on which it made its findings.

There is always the possibility of remand, of course, for determination of — of the size of the class.

Thurgood Marshall:

What do you say to that stipulation that the only thing before the Court is these three people?

Vilma S. Martinez:

As I’ve said earlier, Your Honor, that stipulation was meant to define what was the standard to be used by the Court in determining whether or not there was discrimination against the named plaintiffs.

In other words, was the failure to consider their applications discriminatory?

That was the clear thrust of the stipulation.

Thurgood Marshall:

Then why did you —

Vilma S. Martinez:

It did not address the class section issue.

Thurgood Marshall:

But they use the word “only”.

The stipulation used the word “only” and I think that’s what they’re relying on.

Vilma S. Martinez:

It — I think the — the other possibility for that would be that at that time they were proceeding only as to the individual plaintiffs.

However, I think that the record shows that in fact, it was tried as a class action.

As you know, it’s quite — well, it’s quite common to proceed in a bifurcated proceeding where you establish the class first —

Thurgood Marshall:

I think it’s quite common to make a motion to have a class action and have the Court rule on it, up or down.

Vilma S. Martinez:

Mr. Justice Marshall, that is true.

Warren E. Burger:

We’ll resume — we’ll resume and you’ll answer that the first thing tomorrow morning.

Vilma S. Martinez:

Thank you.