Teamsters v. United States – Oral Argument – January 10, 1977

Media for Teamsters v. United States

Audio Transcription for Opinion Announcement – May 31, 1977 in Teamsters v. United States

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Warren E. Burger:

We’ll hear arguments next in 75-636, International Brotherhood of Teamsters against the United States and the related case.

Mr. Shuler you may proceed whenever you are ready.

Robert D. Shuler:

Mr. Chief Justice and may it please the Court.

I represent the company in a consolidated case which involves also petitioner, International Brotherhood of Teamsters.

I wanted to make a preliminary comment.

We have not filed a reply brief in this matter because of the press of time.

Without intending any criticism, we received the brief of the Government on December 21 and its original due date had been September 10, I believe.

If the Court believes that it is desirable, we will submit a reply brief.

This involves a claim against a nationwide trucking company that has terminals, that has 51 terminals throughout the country and it is a claim under Title VII of the Civil Rights Act of 1964 that T.I.M.E.-D.C. and its predecessors have been guilty of discrimination in the assignment of minorities to lower paying jobs than non-minority employees.

Discrimination by refusing transfer and maintaining a seniority system under contract with the International Brotherhood of Teamsters that perpetuates the effect of discrimination.

The Teamsters were also charged with being parties to a contract that locks in the effects of prior discrimination.

This suit was filed in early 1971 and as the amicus brief on behalf of the NAACP group indicates, three Justice Department Attorneys spent a year-and-a-half developing evidence.

They were aided by the Post Office in obtaining copies of compliance reports by T.I.M.E.-D.C..

They received aid from the EEOC in the form of complaints that had been filed with the EEOC and they received aid from the FBI in copying over a thousand documents in the possession of T.I.M.E.-D.C. whose files were willingly opened for the examination by the FBI and the Justice Department.

We are also told in that amicus brief that they were 60 depositions, 150 witnesses in addition to the deponents were interviewed by the Justice Department, Attorneys and that the Justice Department itself copied over a thousand documents.

I mention this only to point out that this case received the full benefit of the plaintiff, the Justice Department in presenting evidence as to a pattern or practice of discrimination and in presenting evidence not only as to liability, but also as to remedy.

Then at the trial there was a consent decree that took care of the issues of back pay which we think is a very significant feature and in regard to that virtually all of the persons who were entitled to back pay accepted the back pay and signed releases.

The other issue taken care of by the consent decree was the issue of future hiring and the company agreed to hire minorities for all of its job classifications at all terminals on a one-to-one ratio with non minorities.

The Consent Decree is specifically left open whether there was in fact discrimination by the company and the identification of discriminatees if any, who were suffering presently from the past effects of discrimination.

At the trial the Justice Department submitted a list in response to the request of the District Court of non — of the discriminitees for whom specific relief was sought and immediately following the trial, the District Court also asked the Justice Department for a list of all of the discriminitees, including class discriminitees for whom relief was sought and such a list was submitted in June of 1972.

It is significant to note that, that list which is shown in the Appendix has the names of each of the individuals who are in the alleged class of the City employees at those terminals were T.I.M.E.-D.C. has road operations.

And beside each of their name there is an indication that the relief sought in virtually all cases.

The relief sought is a transfer to road possession with seniority for competitive status as of the date, the person originally became an employee of the company.

The —

Potter Stewart:

Where — what page is that, the Title VII issue?

Robert D. Shuler:

Your Honor that is in volume one of the Appendix, page 195.

Potter Stewart:

Thank you.

Robert D. Shuler:

The very first person listed there is a man name J F Johnson of Hayward California Terminal.

The relief sought for him is to be offered a vacancy in a line driver job on a basis of his company seniority date.

Mr. Johnson was not a witness at the trial.

Potter Stewart:

So what — then what — it begins on page 191, didn’t it or not?

Robert D. Shuler:

Page 199 — 191 Your Honor is the first list that was submitted at the trial.

Potter Stewart:

Yes.

Robert D. Shuler:

Of persons for whom individual relief was sought.

Potter Stewart:

I see.

Robert D. Shuler:

Apart from class relief.

William J. Brennan, Jr.:

But Jackson is 196, not 195?

Robert D. Shuler:

Well Your Honor the — I was asked about what appeared on page 191 and that was the first list —

William J. Brennan, Jr.:

Yes.

Robert D. Shuler:

— that was submitted at the trial of those for whom individual relief was sought.

The later list at 195 is the list submitted after trial in response to direct request by the District Court of all discriminitees, classes and individuals.

The District Court conducted a trial on all issues of liability and remedy and ordered relief in the way of finding the company guilty of discrimination based upon statistical evidence in the testimony of those who did testify at the trial plus deposition testimony.

The District Court then awarded relief in the remedy stage which was combined with the liability stage to three categories, on Appendixes A, B and C.

The first two consisting of individuals who had testified or had been deposed who were given awards of senior — the right to transfer and awards of seniority as of the effective date of the Civil Rights Act of 1964.

The third category, the so called Appendix C authorized the transfer of all minority City employees to road vacancies based upon taking competitive status seniority with them as of the date they entered the particular road vacancy.

On appeal the Circuit Court of Appeals completely dismantled the decree of the District Court.

The Circuit Court first of all viewed the proceedings below as being a bifurcated trial and replete in the Circuit Court decision are references to the liability stage of the trial and that proof should have been saved to the remedy stage of the trial, as if, there were going to be another trial contemplated by the District Court.

This is definitely not the case.

Everything that was done in that District Court proceeding was in the nature of proving or disproving liability as well as remedy.

The Circuit Court of Appeals then set aside the Appendix A, B and C lists and the relative awards of seniority and indicated inline with previous decisions that all the city employees who were on the Appendix C list were to be and the other list as well to work — to be considered and to be given full competitive seniority upon transfer to the road.

In our view the Circuit Court erred seriously in several respects and the view of the Government is not sound for several respects as well.

First on the issue —

Potter Stewart:

Before you proceed to that, I want to be sure I understand that the Court of Appeals’ order that the seniority be given even though that seniority might have the beginning of employment might have antedated the enactment of the Civil Rights Act of 1964.

Robert D. Shuler:

The — you mean —

Potter Stewart:

Let’s say somebody was hired in 1960.

He was given seniority beginning with 1960?

Robert D. Shuler:

That is correct, his full seniority to antedate the —

Lewis F. Powell, Jr.:

Is that issue still in the case?

Robert D. Shuler:

Yes, I believe it is Your Honor.

We take the — because we take the view that the — even if we assume arguendo a liability that the proper remedy is to reinstate the District Court decision which would limit the amount of seniority —

Potter Stewart:

To the effective date of this act.

Robert D. Shuler:

To the effective date of the act for one class and to later dates for the two other classes on Appendixes B and C.

Do you think (Inaudible)?

Robert D. Shuler:

Yes it did Your Honor.

The — that they — it was exactly as the Government had requested based upon prior decisions and cases such as Bing versus Roadway, the so called qualification date seniority.

Harry A. Blackmun:

So that amounts to what sometimes called bumping?

Robert D. Shuler:

No, it does not amount to bumping, Your Honor, because persons —

Harry A. Blackmun:

There has to be a vac — has to be a vacancy?

Robert D. Shuler:

— has to be a vacancy before a person under the Fifth Circuit view can move in with qualification date.

Harry A. Blackmun:

Right.

Robert D. Shuler:

Seniority.

The thing I do want to set aside is that on the — we believe that liability must be proven in the case such as this not just through statistics.

We believe that your decision in McDonald Douglas indicates that statistics are merely helpful and that the legislative purpose is not for racial balance, but simply non-discriminatory hiring after 1965.

We have pointed throughout our brief to the statistics that were showed by the Government that there were simply so many people and in certain jobs as of March of 1971.

We believe the burden was on the Government to show what happened between 1965 and 1971.

How many openings were there for jobs and how were those filled and were they filled in the discriminatory or a non-discriminatory manner.

That proof was not to put in.

I will not go into all of our counter statistics, but we believe that we showed there were — there was definite decline in business and in job openings from 7200 to 6400 employees from 1967 to 1972.

And yet the utilization of minorities went from 7% in 1967 to 10% in 1971 and today there are 16% minorities on the payrolls of T.I.M.E.-D.C..

And the other evidence of liability was said to be massive by the Circuit Court and to be in support of the statistical evidence.

21 terminals were involved.

It had 11 terminals.

There was no evidence at all by any witness.

At 10 terminals there were depositions of 34 witnesses and they were mostly at four places Atlanta, Nashville, Memphis and the two Los Angeles terminals.

William H. Rehnquist:

Mr. Shuler on this point you are challenging the findings of the District Court as well as of the Court of Appeal (Voice Overlap).

Robert D. Shuler:

That is correct Your Honor.

The —

Harry A. Blackmun:

Then Mr. Shuler you are conceding there is some testimonial evidence and your case was not decided exclusively on statistical evidence?

Robert D. Shuler:

That is correct Your Honor.

We raised the statistical evidence — our point for several reasons.

Robert D. Shuler:

One, we do not believe the Court has made a definitive statement as to whether statistics themselves maybe completely dispositive of the case.

Secondly, we believe the statistics were the major reason for the decision here.

Turning again to the other evidence —

Potter Stewart:

So your point is that that it’s possible to hypothesize a case where there’s just been no new hiring since 1964 and so you’d look at the labor force 1975 and see that was all white, but that wouldn’t be any evidence whatever of a violation of 1964 Act?

Robert D. Shuler:

That is our reason, one of our main reasons for saying that the statistical evidence was deficient in addition to the other things.

There was one man that we indicated, a man named Stenson who had in fact applied in San Francisco and there were no openings after his time of application until the time of the trial.

The time I have reserved for direct comments is up, I am in this proceeding — I am reserving five minutes for rebuttal.

Thank you.

Warren E. Burger:

Very well Mr. Shuler.

Mr. Wells.

L. N. D. Wells, Jr.:

Mr. Chief Justice, if the Court please.

The Teamsters Union has been found to have violated the Title VII of the Civil Rights Act by only the entering into and enforcement of the collective bargaining contract which provided seniority rights to employees represented by the union.

There is no other evidence or nor is there any other contention as to any unlawful act by the Teamsters.

I want to address myself to two matters in this oral argument.

One, is there a violation insofar as Teamsters are concerned of Section 703 (c) which is the provision of the statute which defines a union unlawful activity.

We say there’s not.

Then, I want to address myself to the question of proper remedy if the employer has indeed violation — violate the act.

I want to put it in context.

Unions do not hire people, employers do.

That Federal Law for some time has restricted unions with respect the hiring hauls, etc.

Most of T.I.M.E.-D.C.’s operations are in right to work state where there is just flat prohibition against union doing anything and with respect to hiring or allocation of employees.

So the sole responsibility with respect to hiring and allocation is the employer.

Now, who is this employer?

He has 1800 road drivers over the nation.

He has 2600 city people; dockmen, hustlers, city drivers.

He has 400 of those 2600 are either blacks or Spanish speaking Americans, I call them browns as in this argument.

The 400 — well, now let me backup just a moment as to what was done below.

There was evidence by way of statistics that showed horrible statistics.

Certainly as of the time that the Act was passed and very little improvement up to 1971, but some improvement.

Potter Stewart:

Well, they weren’t horrible so far as the federal law went — putting aside to Section 1981, prior to 1964, were they?

L. N. D. Wells, Jr.:

Prior to 1964, of course, they couldn’t have violated the Act.

Potter Stewart:

And whether they (Voice Overlap) in some people’s opinion, but they were certainly were not illegal, were they?

L. N. D. Wells, Jr.:

And this of course is not a 1981 case and they were not illegal.

They were bad from a moral point of view certainly and they were bad from the point of view of the theory of the statute.

We say, however, that any statistics are to be judged not as of 1964 when the act was passed or 1965 when it became effective, but after 1965 when it became effective and the statistics here are what the situation was in 1971.

Now they don’t mean anything unless you have a baseline against which to judge this.

Now, in addition to the statistics there were some 50 people, individuals claimed to have been discriminated against out of these some 400 of the minority people.

And perhaps a few —

William J. Brennan, Jr.:

And they were on — they were all in the city units, were they?

L. N. D. Wells, Jr.:

Yes they were.

William J. Brennan, Jr.:

Yes.

L. N. D. Wells, Jr.:

Some may have been in the mechanics unit but at least they worked in the City and they didn’t work on the road and there were very few people who did work on the road.

Now —

Potter Stewart:

There were few minority people, if any, who worked on the road is what you —

L. N. D. Wells, Jr.:

That’s correct.

Potter Stewart:

Yes.

L. N. D. Wells, Jr.:

They were two or three but minimal amount.

Potter Stewart:

How many do you say — did you just tell us, had claims of actual discrimination in your view?

L. N. D. Wells, Jr.:

Well, counsel referred to those two pages in the record.

Potter Stewart:

Yes.

L. N. D. Wells, Jr.:

The first was a list of some 20 or 30 people who they claim were individual discriminitees.

The second is a list of every minority person who they claim was a class discriminatee.

And they claim, the Government claims that in as much as there was a pattern and practice of hiring and the job allocation by the employer that that rubbed off on everyone of the 400 some odd blacks and browns —

Potter Stewart:

Yes.

L. N. D. Wells, Jr.:

— and they all were victims of discrimination.

Potter Stewart:

And they were all even in the Government’s view, they were all employees of this employer, weren’t they?

L. N. D. Wells, Jr.:

Yes.

Potter Stewart:

None of them was the — there’s no plaintiffs here who claim discrimination in that they were not hired at all, are they?

L. N. D. Wells, Jr.:

We’re — in this case, at this stage we’re talking about putative transferees and not about (Voice Overlap).

Potter Stewart:

And all of the employees of this dependent employer?

L. N. D. Wells, Jr.:

Now, the area of — the period from 1965 to — on was a period of merger of some of a great number of other freight lines, T.I.M.E.-D.C. was coming from a little one down in Texas to a big one that went nationwide and they were taking on other people’s rights and other people’s employees and so it was not a period of hiring from the outside.

As a matter of fact the number of employees went down when they were merging into this national situation.

So as far as the union would use a matter there were less employees and a larger percent each of minorities during this period.

So unions were certainly not on notice of any gross disparate hiring practice from and after the period of the Act.

Thurgood Marshall:

Do you say that the (Voice Overlap) — higher percentage on the roads?

L. N. D. Wells, Jr.:

A very little higher percentage on the road, very few people came on.

Thurgood Marshall:

But didn’t effect it at all?

L. N. D. Wells, Jr.:

Three or four people Mr. Justice Marshall very, very few, but they weren’t hiring on the road then as far as this record shows —

Thurgood Marshall:

But in all of this period you’re talking about, that number didn’t increase?

L. N. D. Wells, Jr.:

Perhaps two to three but minimally.

But it — the point was they weren’t hiring and that the statute prospectively applies to — requires that hiring and job placement not be discriminatory and their statistics don’t go to that issue.

But I want against that background for the Court to understand what happened below.

The District Court did what we understand is the proper approach although we don’t agree with some of these findings.

He looked at individuals and he found that 30 of them were the victims of discrimination.

He found that four or five others were probably discriminated against, but he couldn’t be real sure of it.

There was enough of an indication that he was going to give them some relief, but less.

He found that six rate of them just flat were not discriminated against.

And he found this to the 3400 others that there is no evidence at all that they’re the victims of discrimination.

Now, he did find that the static — excuse me, that the statistics and the 30 people that he had found out of 6000 who were discriminated against did amount to a pattern and practice and the employer, as Mr. Shuler has indicated had entered into a consent decree which took care of their back pay obligation and which provided for future injunction and provided for hiring on a quota basis, 50-50 and that left for the District Court’s determination who were the victims of the discrimination and what was the remedy and he found as I’ve indicated, there were these 30 some odd men, he gave transfer city to road.

He gave seniority from the effective date of the Act with respect to the smaller group that were possibly discriminated against.

He permitted transfer, but less seniority.

With respect to the large group as to whom there was no evidence of discrimination, he at first issued an order saying you can go to the road along with any White people on a 50-50 basis.

But then he entered an amended order in which he said, in effect, they are — said specifically that these three or four hundred people go to the road ahead of other people.

Now, he did however — we think he erred in that last instance but he did focus —

William J. Brennan, Jr.:

You said ahead of other people, you mean, ahead of any new hiring?

L. N. D. Wells, Jr.:

No, only his amendment Mr. Justice Brennan.

He said ahead of the white city people.

William J. Brennan, Jr.:

I see.

L. N. D. Wells, Jr.:

And we think this was error.

But we get to the Court of Appeals, they jettison this approach of individual discrimination.

L. N. D. Wells, Jr.:

They say that statistics plus the individual findings here amounts to pattern and practice.

And they don’t understand that we have tried damage and — by liability and damage both below somehow, there originates in the Court of Appeals some idea that this is a bifurcated trial which it was not.

If you’ll look at pretrial order, if you look at everything in the District Court, it was just not bifurcated, but the Court of Appeals says a pattern and practice is shown here.

There is a seniority system which perpetuates that pattern and practice.

Everybody who is minority gets the move to the road to a vacancy and gets full carry over seniority provided only that he shows that he’s qualified.

Now, we say that there is error in there.

We say in the first place that —

Byron R. White:

Oh!

On seniority, as of the date a person was transferred to the road, the seniority, he would have effective as of that date would reach back to how far under the Court of Appeals?

L. N. D. Wells, Jr.:

Under the Court of Appeals, if a man became the city man in 1950?

Byron R. White:

Yes.

L. N. D. Wells, Jr.:

He would have 1950 road seniority.

Byron R. White:

I see.

L. N. D. Wells, Jr.:

And while he would go to the next —

Byron R. White:

As effective as of the date he actually — (Voice Overlap) there was a vacancy that —

L. N. D. Wells, Jr.:

He would go — next vacancy on the road, that’s correct, but then when you set that in the context of the contract where —

Byron R. White:

I got it.

L. N. D. Wells, Jr.:

— where runs are up for grabs every six months or every year —

Byron R. White:

Yes.

L. N. D. Wells, Jr.:

— he would go to the top of the road list —

Byron R. White:

Exactly.

L. N. D. Wells, Jr.:

— under the Court of Appeals’ opinion although there is no evidence at all that he was a victim.

Byron R. White:

Well, yes, but — the top — the 30 that the District Court identified as having been discriminated against would be in that position under the District Court’s —

L. N. D. Wells, Jr.:

However the District Court —

Byron R. White:

Although they — that —

L. N. D. Wells, Jr.:

— specially found when they’d applied or when they had found that the —

Byron R. White:

Yes, but the District —

L. N. D. Wells, Jr.:

— the EEOC charge or when they adopted to go to the road and this — the District Court did what was done in the Franks case here.

There was some definition of when the seniority would start and didn’t go clear back to the —

Byron R. White:

Now you went back to —

L. N. D. Wells, Jr.:

— the first time he went in the city.

Byron R. White:

He want back to 65, did he, and —

L. N. D. Wells, Jr.:

Only to 65.

Byron R. White:

For the 30, for the 30.

L. N. D. Wells, Jr.:

Yes sir.

That — well, and he went to specific dates depending on what they showed in most part.

Byron R. White:

No farther back than 60%, that was it?

L. N. D. Wells, Jr.:

That’s correct.

Byron R. White:

And the other — the probable ones back to 71 or something?

L. N. D. Wells, Jr.:

Yes, sir.

That’s correct and this large group and only as —

Byron R. White:

And how about this large group that would go in ahead of others of white cities, what seniority would they have?

L. N. D. Wells, Jr.:

They would have seniority —

Byron R. White:

As of that date?

L. N. D. Wells, Jr.:

— of the date they went into the — as they go into, but of course they block whites from going in, now —

William H. Rehnquist:

Then the Court — the Court of Appeals in effect just said all of them are going to have the same seniority.

L. N. D. Wells, Jr.:

That’s correct.

John Paul Stevens:

Mr. Wells, is that right?

L. N. D. Wells, Jr.:

His principle.

John Paul Stevens:

Isn’t it?

Byron R. White:

The rule would be the same —

L. N. D. Wells, Jr.:

The principle that they indicated was that what the District Court had done in focusing on individuals was error.

That once you find in a pattern and practice case that there has been pattern and practice of discrimination then everybody is a victim.

It has to go back to the District Court to find out when the particular victims were qualified.

Now we say nobody is a victim until he proves that he —

Byron R. White:

Yes, who gets a — under the Court of Appeals’ view, who would get the first crack at the first opening?

L. N. D. Wells, Jr.:

I’m not sure they’re clear about that.

They say they didn’t agree with the A, B and C (Voice Overlap).

Byron R. White:

Well, wouldn’t it — would that depend on (Voice Overlap)

L. N. D. Wells, Jr.:

I have to go back to the District Court to find out.

Byron R. White:

Would that depend on their unit seniority or do you know?

L. N. D. Wells, Jr.:

Well, I’d — the Court of Appeals says the whole works will get all the seniority that they had in the city provided only that they were qualified.

Byron R. White:

I understand that but who gets the — who occupies the first positions that open up?

L. N. D. Wells, Jr.:

Court of Appeals didn’t tell us that.

Now —

John Paul Stevens:

Mr. Wells, before you go on, could you just clarify something for me?

Even under the Court of Appeals’ approach it’s necessary to make individual determination as to qualification as I understand?

L. N. D. Wells, Jr.:

Only that, yes, Your Honor.

John Paul Stevens:

And they maybe different dates of course, it could be different proofs for different —

L. N. D. Wells, Jr.:

Yes.

John Paul Stevens:

Now under the District Court analysis, I want to get the difference between the two as best as I can. What was the test the District Court applied to determine whether or not an individual was a “victim?”

Was it whether they made application or was there some other thing?

L. N. D. Wells, Jr.:

He didn’t talk in terms of his test.

He did not spell that except as you make derive it from what his findings were with respect to each person.

He had evidence that somebody had made an application or that somebody had filed an EEO charge or that somebody had indicated that it was futile to do so because he — his buddy next to him had asked to go on the road and they’ve been told that he couldn’t go on the road.

They had specific evidence like that which he geared to the findings and he did what you would expect the transfer to do.

He stated that —

John Paul Stevens:

Well, let me change the question just a little bit then I don’t mean to interrupt but —

L. N. D. Wells, Jr.:

Sure.

John Paul Stevens:

You disagree with the District — the Court of Appeals’ approach of qualification.

What do you say the correct test of whether an individual should get a get relief is?

L. N. D. Wells, Jr.:

I think that the test is 40 years of experience under the Labor Act which this Court has said is the model on which Title VII was drafted.

I think you — anybody who’s going to show an application or some option to go on the road, some wished to be there who’s going to show it at a time when they’re — he was qualified, who’s going to show that there was a vacancy and when he shows it against the background of —

John Paul Stevens:

Would be correct to summarize by, they should show in addition to qualification either a specific application or specific reason for not applying at a given time?

L. N. D. Wells, Jr.:

Yes indeed as a matter of fact following generally what the Court said in McDonald-Douglas here or what 40 years of experience before the NLRB has indicated.

My lights are flashing here if the Court please and there’s something I really want to get to in my case in chief.

This union didn’t do a thing, but enter into a seniority system which the Government now concedes is a bona fide system.

We take 30-40 pages in our brief showing why its bona fide, how it developed and so on.

And so we have what everybody agrees is a bona fide seniority system and the issue is, is it unlawful to apply a bona fide system here when the employer or if you find that the employer engaged in a pattern and practice.

Now we say — we analyze it two ways.

L. N. D. Wells, Jr.:

We say number one that pre-act, it is not.

Conceivably there maybe problems under 1981, but the legislative history that this Court talked about in Franks made very, very clear that the statute is prospective that they couldn’t have gotten the statute passed unless they had put 703 (h) in the statute and so it maybe unfortunate.

The Congress may have made a bad judgment, but the Congress made a judgment.

That the seniority listing as of July of 19 — of June of 1965 is the way its going to be and what’s going to happen if — is in prospect in — with respect to the application of this law.

So now, I address myself to the period that comes after the effective date of the Act.

This Court in Franks gave the answer there.

Anybody on July 3, 1965, the day after the Act was effective, who wanted to go on the road could go on the road and this seniority system did not stop it.

All he had to do was ask and if he didn’t get it and if he could make the showing that would be required under the criteria that I have adverted to, if he doesn’t get it he has Article 38 in his contract which gives him a grievance and a contract remedy.

If he doesn’t like that, he’s got the remedy which this Court gave in Franks to go on that road anytime.

Now if —

Potter Stewart:

Had to be have — there has to be a vacancy, doesn’t it?

L. N. D. Wells, Jr.:

Well, I can conceive of the situation where there is gross showing that — of a discrimination where there may not even have to be a vacancy.

That would go that far although the Courts generally I think have properly —

William J. Brennan, Jr.:

You mean he could bump someone else?

L. N. D. Wells, Jr.:

No.

It would be hard for me to assume a state of fact, but I can assume a state of fact where he might do that, where the fellow he was bumping out was really profiting from the discrimination, but under Franks as I understand it you have got an equitable problem in terms of you got to take some account of the people who were in those jobs.

William J. Brennan, Jr.:

What seniority would he take with him, none?

L. N. D. Wells, Jr.:

He would take the seniority that he would’ve had had there been no unlawful discrimination.

Now if you applied on January 4, 1965, he would take that at such time as there was a vacancy thereafter within a period of time if there was a vacancy and if there were the other criteria shown.

I’m sorry my time has gotten away from me, I don’t want to reserve sometime for rebuttal for me.

Thank you.

Warren E. Burger:

Very well Mr. Wells.

Mr. Wallace.

Lawrence G. Wallace:

Mr. Chief Justice and may it please the Court.

The Government has filed a single brief on behalf of the United States and the Equal Employment Opportunity Commission in this case and the companion case to be heard next, the Rodriguez cases.

These briefs represent the mature views of both Equal Employment Opportunity Commission, the Department of Justice.

I wish to apologize to the Court and to the parties again that it took as long as it did in light of our other responsibilities to arrive at this position, but we have been able to file a unified brief representing those views.

Now there —

Warren E. Burger:

If Mr. Shuler wishes to file a reply brief we will leave that entirely up to him.

Lawrence G. Wallace:

We have no objection.

Warren E. Burger:

But he — how is that to lead?

Lawrence G. Wallace:

The —

Potter Stewart:

Your parties to this case are not parties to the next companion case?

Lawrence G. Wallace:

That is correct, Your Honor but the Equal Employment Opportunity Commission had filed an amicus brief in the Rodriguez case in the Court of Appeals stating views that in some respects differ a little from the views we’ve now stated in the brief we’ve filed.

Thurgood Marshall:

Filed with us?

Lawrence G. Wallace:

Yes, we have filed one here, a joint, a joint brief in this case.

The Teamsters just have filed a reply brief which is still being printed as I understand it.

It’s been filed and served in January (Voice Overlap).

Thurgood Marshall:

(Voice Overlap) is this the one?

Lawrence G. Wallace:

That is correct.

Now the first thing to be said about the submissions made thus far is that the fact that the overall employment of T.I.M.E.-D.C. was declining in the post act years does not mean that no line drivers were being hired.

To the contrary the record shows that numerous line drivers were being hired during these years.

Byron R. White:

Mr. Wallace, suppose — I suppose if there were 400 parties to the suit or were in the class and it was shown in the evidence that only 200 had been hired or there’d only been 200 vacancies in the period, would all 400 be entitled to some relief?

Lawrence G. Wallace:

Well, under the Dis — the Court of Appeals’ judgment here, when a vacancy occurs it’s to be filled —

Byron R. White:

I understand that.

Lawrence G. Wallace:

— by a member of the class and in that sense all 400 would be entitled to the opportunity to fill each vacancy as it comes along, but only one can fill each vacancy as it arises.

Byron R. White:

Well, I understand, but what if there could only have been 200 acts of discrimination in the relevant period and that’s in short, no more than 200 people could’ve been excluded from a transfer or a hiring when it come to race?

Lawrence G. Wallace:

Well, all members of the class would still be presumptively and entitled to relief under this —

Byron R. White:

Why, why is that?

Lawrence G. Wallace:

Well, I suppose the short answer —

Byron R. White:

I know that’s your position, I have to disagree (Voice Overlap).

Potter Stewart:

(Voice Overlap) holding or what?

Lawrence G. Wallace:

The short answer is that you can’t tell whether the other 200 of the 400 would’ve opted to make the transfer.

Byron R. White:

I know, but there were only 200 vacancy — I’m posting only to the 200 vacancies?

Lawrence G. Wallace:

Yes.

You can’t, but if you had 400 in the class discriminated against, you can’t tell that more than 200 of them would’ve wanted to fill vacancies and our experience in applying the relief given in this Decree is that fewer than half of the eligible people will actually opt to make a transfer when a vacancy arises.

Byron R. White:

Well, I understand that and that would make a lot of sense if you had 400 vacancies, that if there had been 400 possible acts of discrimination in them in a relevant period?

Lawrence G. Wallace:

But you see, they only needed 200 possible acts of discrimination against the class of 400.

Byron R. White:

Why?

Lawrence G. Wallace:

Presumably because 200 of them wouldn’t have transferred anyway.

Byron R. White:

Why?

Lawrence G. Wallace:

Well, that’s the experience that we have.

You can’t tell how many of them would’ve wanted to transfer.

Byron R. White:

I know but you got to give them (Voice Overlap)

Lawrence G. Wallace:

Well, it’s theoretically but they don’t actually all get the relief and they don’t — only all opt for the relief.

William H. Rehnquist:

Well doesn’t that suggest —

Lawrence G. Wallace:

They’re only presumptively entitled.

They’re entitled to a choice when the time comes if indeed it comes during their working time at all.

William H. Rehnquist:

Doesn’t your answer to Justice White’s question suggests at least some arguable difficulty with your definition of a class of 400?

Lawrence G. Wallace:

Well, it’s a difficulty that I think what the Court put behind it in the Franks case in talking about the stages of trial or the class action in this context where pattern and practice was established in Franks and then you go back to see whether individuals who are part of the class discriminated against can be shown not to be entitled to relief because they were not actual victims of discrimination.

If that can be shown that’s a burden of proof that under Franks has shifted to the defendants wants the showing —

William H. Rehnquist:

But weren’t these people here — the people in Franks had all made some either effort to obtain employment or had been discouraged by a refusal to employ, you don’t have that limited a criterion here, do you?

Lawrence G. Wallace:

We do not have a situation where the Court of Appeals has required prior applications from the class discriminated against here for several reasons.

In Franks you were dealing with people from the public at large who were not employees of the discriminating company and you had to have some basis for separating out a class of individuals who were discriminated against.

Otherwise you’d be into a situation of possible allegations of people who would have liked to have a job there, but didn’t think it was worth applying.

Here, you have a pool of persons who were working for the company under a situation in which they knew the company restricted them to certain jobs and excluded them from other more desirable jobs and it would be futile to apply coupled with the fact that the separate lines of Departmental seniority built in a great impediment to risking their livelihood by transferring and going to the bottom of the seniority role.

William H. Rehnquist:

But after 1965 they knew it was a violation of Federal Law for the company to follow that policy, but did follow it?

Lawrence G. Wallace:

Well, they might have known that if they had wanted to take on law enforcement responsibilities of that kind on their own.

These are not individuals who were acting on the advice of counsel and going ahead with what they recognized to be the existing practice of the company.

Byron R. White:

Mr. Wallace, do I understand that the Court of Appeals on remand would have permitted proof by the company that certain people were not discrim — in fact discriminated against?

Lawrence G. Wallace:

That is our understanding of the Court of Appeals’ opinion.

Byron R. White:

So there’s just a question of burden of proof on discrimination, on actual discrimination?

Lawrence G. Wallace:

The — what the Court of Appeals has upheld here is the establishment of a prima facie case of disc — of a pattern and practice of discrimination against the class discrimination, yes.

Byron R. White:

So that once — so the Government doesn’t have to take on the job approving individual discriminations but the company can get out of liability of a certain people by proving they weren’t discriminated.

Lawrence G. Wallace:

That is our position and in this respect the Court of Appeals anticipated this Court’s decision in Franks.

Mr. Wallace —

Lawrence G. Wallace:

But not yet been rendered but if the case was pending in this Court at the time the Court of Appeals acted.

Lewis F. Powell, Jr.:

Mr. Wallace, as I visualize what would happen it would be any number of sort of private litigations depending on how many people applied and you’ve just said the company would have the burden of proving it if it wished to have said that there had been no discrimination.

Would the employee have the burden of proving that he would qualify to a drive over the road or there’s any presumption on that?

Lawrence G. Wallace:

I’m not clear where the burden lies on that under this opinion.

Lawrence G. Wallace:

The Court of Appeals has specified how the qualification date has to be determined.

And —

Byron R. White:

That’s the date of employment, isn’t it?

Lawrence G. Wallace:

The qualification date is the date when the individual would’ve qualified for the job from which he was excluded for the line driver job when he would’ve had the requisite experience and then the next vacancy in the line driver job after that time is the qualification date and that’s the date of seniority that’s carried over, not his date of initial employment.

Byron R. White:

Well, this —

Lawrence G. Wallace:

It could coincide with it —

Byron R. White:

Yes.

Lawrence G. Wallace:

But it does not necessarily —

Lewis F. Powell, Jr.:

This is where I have so much difficulty with visualizing how the decree would be implemented.

There are four local unions, one dealt — one included city drivers another included clerks and another included garage people.

The clerk presumably have some difficulty of showing the qualification date, how would you go about that factor?

Lawrence G. Wallace:

Well —

Lewis F. Powell, Jr.:

You’re the district judge, what would you do?

Lawrence G. Wallace:

The —

Lewis F. Powell, Jr.:

Who would’ve the burden, the clerk or the company?

Lawrence G. Wallace:

I should think that there are some burden on the applicant in this situation to show that he is qualified for the job that he’s now applying for.

It’s only the time when the vacancy arises that there can be disputes of this kind.

Lewis F. Powell, Jr.:

But wouldn’t the burden have to be there, suppose the man comes in and says, I was qualified and on the February 19, 1966.

The company doesn’t have any way to refute that, does it?

Lawrence G. Wallace:

Well, the company has his employment records.

Lewis F. Powell, Jr.:

Yes.

Lawrence G. Wallace:

The qualifications for the line driver jobs, they’re relatively minimal.

There are certain amount of experience driving certain kind of trucks.

Lewis F. Powell, Jr.:

Driving those enormous trucks requires a (Voice Overlap).

Lawrence G. Wallace:

Yes, well, the city drivers have been driving trucks of that kind or should have had opportunities to drive which they will now have if — in many instances line drivers have been recruited or taken from the ranks of the white city drivers.

They’ve been able to get the requisite experience in the course of their work as city drivers to the extent one’s qualification has been delayed through discrimination of that kind and not getting — giving them requisite experience, then an estimate it has to be made of when he would’ve the requisite experience for purposes of computing a seniority carry over date.

All of that is contemplated by the Court of Appeals opinion.

Warren E. Burger:

Where in this record would we find in the evidence that the qualification if there is only a minimal difference, I think you said, between the qualifications for over the road, the line driving and city driving, that is in the city driving presumably 35 miles an hour speed limits, smaller trucks generally and on the road up to 80 miles an hour as we know from practical —

Lawrence G. Wallace:

We have cited in footnote 38 of our brief on page 29, several depositions in the record to that effect of and —

Warren E. Burger:

There is minimal difference?

Lawrence G. Wallace:

— and the accompanying text in our — in the statement of our brief, this is page 29 of our brief in this case.

There was no evidence that the exclusion of minority employees from line driver jobs was due to any valid job requirement.

The only significant requirement for a line driver position was experience driving tractor-trailer equipment.

That is documented with footnote 38, several depositions in the record.

Experience which many of the city drivers either had when they applied for a job at T.I.M.E.-D.C. and there are appendix references there or acquired as a result of the city driving and there is another footnote with appendix references, Mr. Chief Justice.

Thurgood Marshall:

(Inaudible)

Lawrence G. Wallace:

You would still would have to have it and there was a finding here that in some instances —

Thurgood Marshall:

But a Court would not have it?

Lawrence G. Wallace:

It isn’t clerks who have been found excluded from these particular jobs.

There has been other instances of discrimination found in this record, but the main one is keeping the city drivers from becoming line drivers.

There have been other kinds of discriminations in the training of service people in the national terminal, etcetera.

The main one has been excluding the city drivers from the line driver jobs and that is what the attention of the Court of Appeals was focused on.

Potter Stewart:

And what is — is that the class?

Lawrence G. Wallace:

Not — the class includes all persons who’ve been discriminated against in one way or another and it’s whatever discrimination was against the individual that’s to be remedied.

Potter Stewart:

They’re all present employees in the class.

Lawrence G. Wallace:

They’re all present employees —

Potter Stewart:

Quite unlike Franks?

Lawrence G. Wallace:

They were all incumbent employees during the time of the discrimination and once the company hired minority line driver, the first minority line driver at one of these terminals that’s the cutoff date for members of the class, subsequent employees are not members of the class, minority or majority.

Now —

John Paul Stevens:

Mr. Wallace, how many — does the record tell us how many city drivers there were, how many were black and how many were White?

There’s a figure that the union refer to of 2400 a 400 were black, but that’s not city drivers.

Lawrence G. Wallace:

Yes — no that is not city, that’s not city drivers.

We have city drivers, you ask?

John Paul Stevens:

Yes cause that’s what you say as the primary — they are the primary victims of the failure to go for the (Voice Overlap).

Lawrence G. Wallace:

Yes, they’re the primary victims.

We have in the first Appendix to the District Court’s opinion — no, I’m sorry, it’s Appendix B of the District Court’s opinion.

No, I guess I was right the first time, Appendix A, starting at page 68 in the Appendix to the petition for certiorari in this case.

Potter Stewart:

Page what?

Lawrence G. Wallace:

Starting at page 68, is Appendix A and starting at the bottom of page 69, you get by individual terminals that are the main ones involved in this litigation figures of black and white city drivers and Spanish-surnamed ones.

You know, it’s the first one, it happens to be for Hayward California outside of San Francisco where they were 33 white city drivers, three Negro and nine Spanish-surnamed Americans and it goes on.

Lawrence G. Wallace:

There — some of these had a substantial number of Negro city drivers others had very few.

Lewis F. Powell, Jr.:

Did you say that the white city drivers were included in the class?

Lawrence G. Wallace:

The black one?

Lewis F. Powell, Jr.:

The white city drivers included in the class?

Lawrence G. Wallace:

Only in the Memphis terminal where there was evidence that during a certain period white as well as black city drivers were not permitted to transfer to line driver jobs for racially motivated reasons where they were afraid that they wouldn’t be able to deny blacks the transfer white if — right if they gave it to whites so there were white victims of that racial discrimination.

And those whites are members of the class along with one individual white who was discriminated against in other ways at the Denver terminal because of his support of the racial discrimination concerns of the blacks there.

Lewis F. Powell, Jr.:

But the lock — the lock-in transfer system would affect the whites as adversely as it would to blacks, wouldn’t it?

If you could transfer —

Lawrence G. Wallace:

If they were locked in — if they were not permitted to transfer but the — it was only at Memphis that there was a finding that the whites would not permitted to transfer.

The evidence is replete with examples of whites who had transferred from city driver to line driver jobs.

Potter Stewart:

In Franks case where there was no transfer, is that it?

Lawrence G. Wallace:

It’s my understanding, I haven’t prepared that one in detail for the day.

Potter Stewart:

But of course a lot of these as I say they are or all of them are presumably are not, they are not Negro, they, they’re white or brown?

Lawrence G. Wallace:

Spanish-surnamed Americans, yes.

Now, I do want to say that the record shows numerous instances of post 1965 hiring of line drivers because some confusion has been raised about that here and because of the size of the record, the relevant portions of it have not been reprinted in the three volume appendix on file with the Court.

But —

Lewis F. Powell, Jr.:

Mr. Wallace, excuse me, is it the Government’s position that individual employer prior to 1965 are includable in the class?

Lawrence G. Wallace:

That is not only our position, it’s the position of all eight of the Courts of Appeals that have ruled on this issue and it was a matter that was before Congress in 1972, when they were aware of it and reenacted the law with amendments that in no way repudiated that and we think showed their approval of it.

Potter Stewart:

Well, they’re employed, they were employed prior to 1965, so presumably they were not discriminated against in their employment, by hypothesis?

Lawrence G. Wallace:

They were dis — they were confined to the jobs that were made available for them.

Potter Stewart:

It’s the Government’s position that those who were prevented from transferring prior to 1965 are covered?

Lawrence G. Wallace:

Well, if they were prevented after 1965 as well.

Potter Stewart:

No, before.

Lawrence G. Wallace:

No, not that they were — no, they’re not covered by the act unless there was an act of discrimination against them after 1965.

Potter Stewart:

After 1965.

Lawrence G. Wallace:

That is correct.

Potter Stewart:

And there was no discrimination there which will hire them by definition?

Lawrence G. Wallace:

But the seniority goes back, that’s what I meant that if —

Warren E. Burger:

We’ll resume their at 1 o’clock.

Mr. Wallace, you may continue.

Lawrence G. Wallace:

Thank you, Mr. Chief Justice.

If the Court please, I think many of the bits in pieces of the case that we have been discussing will fall into place if I proceed now to explain what I see is the basic difference between the parties and that is, as to what we, and the Courts below consider to be the post act violation committed by both petitioners with respect to all members of this class and that adheres in the application of the seniority provisions to transfers by these members of the class, so that they would be locked in if they attempted to move into these jobs, these more desirable jobs in which they would be — they have been excluded, they would be locked in to a situation where they would be forever behind, not only their contemporaries but persons who rightfully with be much junior to them in terms of service to the company in bidding for jobs and in layoff rights and indeed would have to in many instances put there economic survival on the line because of the possibility of layoff and the need to forfeit all of the rights that they had accrued through their employment in the company.

This view of the use of job seniority systems to apply to persons who have been discriminatorily restricted and excluded from these jobs, constituting a violation of Title VII is one of the oldest doctrines in the application of Title VII recognized as I started to say before lunch by eight Courts of Appeals and without any to the contrary, and in the re enactment in 1972 by Congress.

It dates back nine years to the decision on January 4, 1968 in Quarles against Philip Morris Company decided by Circuit Judge Butzner sitting by designation in the District Court in Virginia.

And then was adopted in two Court of Appeals’ decisions subsequent to that in 1968.

The first of which was the Fifth Circuit decision in Local 189 of the Papermakers and the unions in the present case who are the principle parties of interest because all monetary liability has already been taken out of this case by the consent to query, the issue now is seniority carryover.

The —

Byron R. White:

— did everyone in agreement that the District Court and the Court of Appeals held that the union had violated the act?

Lawrence G. Wallace:

That is correct, every — as far as I know, everyone is in agreement and that’s why the union is petitioning.

Byron R. White:

And how do you all agree the union — how do you all agree that the Courts said union violated the act?

Lawrence G. Wallace:

Through — being a party to the application of this seniority system to keep these people in a permanently disadvantage seniority status which would perpetuate the prior discrimination.

Warren E. Burger:

You mean not by virtue of the making of the contract, the collective bargaining contract initially or the practices?

Lawrence G. Wallace:

By the —

Warren E. Burger:

(Voice Overlap)

Lawrence G. Wallace:

— by adhering to and enforcing the contract.

Warren E. Burger:

Anything illegal about the contract?

Lawrence G. Wallace:

Only its application to perpetuate discrimination.

Other than that the contract is — we don’t challenge the legality of the contract, except as it is applied to perpetuate discrimination against the class that was found to be the victim of discrimination.

Byron R. White:

But the union isn’t party to the initial discrimination, I gather?

Lawrence G. Wallace:

In some instances, it may have been.

Byron R. White:

Well, was it ever?

Lawrence G. Wallace:

I don’t have specific findings on that.

Here, that isn’t the legal issue as it was viewed by the courts below.

The union is the party to perpetuation of the discrimination through the application of this seniority system.

This is wholly a part from discrimination in hire.

Warren E. Burger:

It doesn’t seem to me not compatible with what you answered first and what you answered second to Mr. Justice White?

Lawrence G. Wallace:

The holding against the union is that it has perpetuated the discriminations through the application of the seniority system.

It’s not a holding that the union has discriminated in hire. The union doesn’t hire people, we recognize that.

The union argued that but that has only to do with the holding in the case. That is my answer.

John Paul Stevens:

Mr. Wallace, can I ask you a question about that? Your theory is that the seniority, separate seniority for city and over the road drivers, the third, the black drivers should giving up their city jobs with seniority and taking over the road jobs.

John Paul Stevens:

Did it not equally deter white city drivers?

Lawrence G. Wallace:

In some instances, it did, and —

John Paul Stevens:

If there were more white city drivers —

Lawrence G. Wallace:

But then in other instances white city drivers did move into the line drivers.

John Paul Stevens:

Aren’t they the ones who got the jobs rather than the blacks?

Lawrence G. Wallace:

In many instances, they did and sometimes they were hired off to streets.

John Paul Stevens:

Well, then how was that deterrent discriminatory in its impact on the black drivers?

Lawrence G. Wallace:

Well, because if it is continuing nature.

At the time a white would move, he would have built up relatively little seniority as a city driver, would not be giving up this much but there was this continuing impediment while the black city driver build up many years of seniority all of which would have to be forfeited and he didn’t have the opportunity to move when the first vacancy arose.

John Paul Stevens:

I see, your theory is that the seniority in the city positions generally speaking was much greater for the black and for the white and therefore hit a higher cost to pay —

Lawrence G. Wallace:

Well, those whites who wanted to move to line drive jobs, and have done so relatively early, it’s typical that those jobs are taken relatively early in a man’s career when he is willing to go on the road and before he has established his family, etcetera, it is a way of life.

John Paul Stevens:

Does the evidence show the — what the average seniority of the white transferring from city to road was as compared to the relative seniority of the blacks?

Lawrence G. Wallace:

There are seniority rosters in the record which is not reproduced in the appendix.

I was trying to refer to before the line (Voice Overlap).

John Paul Stevens:

But that’s critical really to your position, that’s critical to your whole position?

Lawrence G. Wallace:

Not really.

John Paul Stevens:

Well, if they had equal seniority what would the (Voice Overlap)

Lawrence G. Wallace:

Because the findings are that there was a prima facie showing of discrimination by locking in blacks who did not — who wanted to transfer whereas whites were not locked in.

If they built up seniority as a city drivers, it was because they chose to not because they were discriminated against.

Except in the one instance at Memphis.

William J. Brennan, Jr.:

Was it your point that a black couldn’t move over even if he were willing to forfeit all of his accumulated (Voice Overlap).

Lawrence G. Wallace:

That is correct.

William J. Brennan, Jr.:

Whereas a white who is willing to forfeit his or surrender his (Voice Overlap).

Lawrence G. Wallace:

And in many instances did, so it was a free choice on the part of the non-minority people.

Harry A. Blackmun:

Mr. Wallace, I want to be sure.

Do I understand you correctly to say that the issue of monetary liability on the part of the union is out of the case?

Lawrence G. Wallace:

Yes, all of that, it was covered by the consent decree with a maximum award of $1500 to any individual and some of them receiving considerably less, but these people are interested in its job opportunities, not financial windfalls and that the issue here is —

Harry A. Blackmun:

Which could be obtained by injunctive relief?

Lawrence G. Wallace:

That is correct and that is the contested issue here.

Byron R. White:

Mr. Wallace, you would — wouldn’t you say that the — if the union violated the act, as you said it did, it would have been liable and could have been made liable for back pay also?

Lawrence G. Wallace:

Well, that’s another question that isn’t in the case now and there are instances in which unions are liable for back pay, have been held liable in other cases because of their role in perpetuating a discriminatory system that — and it’s just not the issue here.

The unions here —

William J. Brennan, Jr.:

I wish you’d say again Mr. Wallace, what is that do — the — what’s the violation of the act to which union is guilty?

Lawrence G. Wallace:

That’s exactly what I’m trying to get to.

It’s the same as what the employer has been found guilty of.

Applying this job, seniority system in a manner that perpetuates the discrimination of previously excluding these minority people from the more desirable jobs so that when they now take the job, if they’re willing to take it all, it will be at the price of being permanently and forever subordinated to more junior people in the company who are not discriminatorily excluded from the job and in every bid that they have to make for a job from the board for the rest of their career, that discrimination will be perpetuated and its affects on their livelihood.

William J. Brennan, Jr.:

And where — where the black is now slotted in terms of what he has in a way of seniority standing is a consequence of an agreement between the employer, the discriminating party and —

Lawrence G. Wallace:

And the union —

William J. Brennan, Jr.:

And the union.

Lawrence G. Wallace:

The collective agreements. (Voice Overlap)

William J. Brennan, Jr.:

And that makes the union also a discriminating party, is that —

Lawrence G. Wallace:

In perpetuating this discrimination, that is correct, that is the holding and that is I say has been the uniform holding of eight Courts of Appeals since Quarles decision nine years ago and I want to go very briefly through this chronology for the Court because the union in this case is saying that the Quarles line of decision should be distinguished as not involving a bona fide seniority system, is involving seniority systems that were used only for the purposes of discrimination and then they refer in their reply brief to a brief filed this weekend by the AFL CIO, not in this case, but in United Air Lines against Evans.

The brief that has not been distributed yet which asks this Court to repudiate the whole Quarles line of cases on the premise that if the Court can’t find that they’re distinguishable from the kind of case we have involved here.

But the first point is in Quarles and in many of the subsequent cases, the courts recognized that the job seniority or departmental seniority systems served legitimate purposes were not adopted solely for the purpose of discrimination.

And I want to just very quickly, in Quarles itself refer the Court to 279 F. Supplement, pages 513 and 519, in which those findings were specified in Quarles itself.

Nonetheless, the Court held that despite its legitimate aspects because it also had this function of perpetuating discrimination, it could not be applied so as to accomplish that result, but the Court was very careful in Quarles not to set aside the departmental seniority system in its entirety.

It preserved the system insofar as it could be applied without having this effect of perpetuating discrimination.

William H. Rehnquist:

Can you summarize briefly what the reasoning of these Quarles line of cases as why the act requires this result with respect to the union?

Lawrence G. Wallace:

I can indeed, that was the next thing I was about to do.

In Local 189 of the United Paperworkers, which is the first Court of Appeals decision on the subject, the Fifth Circuit and this is to me the key decision for reasons I’ll explain in a moment.

The Fifth Circuit endorsed Quarles and adopted it in that Court of Appeals.

There are several points that were made here partly quoting the Quarles decision.

First, it was pointed out that the references in the legislative history, the preservation of seniority systems.

This was all before the 1972 Amendment, were to employment seniority in general and none of the excerpts in that history referred specifically to departmental seniority or something that was to be preserved and the proviso to Section 703 (h) expressly states that the seniority system must be bona fide and the rationale of these cases is that to the extent that application of the system perpetuates discriminatory effects on individuals who were discriminated against.

To that extent, the application is not bona fide within the meaning of this.

And —

William H. Rehnquist:

But doesn’t bona fide denote a state of mind rather than a consequence?

Lawrence G. Wallace:

That too was addressed in this case.

There was a specific portion of the case devoted to the contention that it was not adopted with the intent to discriminate, that is roman numeral V of the opinion, beginning on page 995 in 416 F.2d.

They found unpersuasive, the argument, that whatever its operational effects, job seniority is immune under the statute because not imposed with the intent to discriminate and that was largely on the basis of the kind of rationale later used by this Court in Griggs against Duke Power in talking about facially neutral or even neutral intent criteria that nonetheless have a discriminatory effect as being part of what the act prohibits.

Lawrence G. Wallace:

There are two things that the Court pointed out here.

One is that every time a Negro worker hired under the old segregated system bids against a white worker in his job slot, the old ratio classification reasserts itself and the Negro suffers anew for his employer’s previous bias and the other point is quoting the Quarles decision, the Court of Appeals pointed out that the act does not condone present differences that are the result of intention to discriminate before the effective date of the act and the result doesn’t mean that the seniority system itself had to be intended to discriminate and although such a provision could’ve been included in the Act if Congress so intended.

Now, later in 1968, the Seventh Circuit adopted the same rationale, the same holding, the same seniority carryover, in Bowe against Colgate, Palmolive.

In all of these cases involved carryover of pre-act seniority, including all the ones I’m about to talk about.

Then a petition for certiorari was filed in Local 189 of the United Paperworkers case in which this was the principal issue raised and I looked at our brief in opposition that we filed at that time, I mean January 1970, and we did not deny the importance of the issue, instead we were able to point out that there were now three Court of Appeals decisions unanimously holding this because the one contrary, District Court opinion, which had been rendered in North Carolina, in Griggs against Duke Power Company, had been reversed by Judge Borman’s opinion for the Fourth Circuit.

This was all before Griggs came to this Court in another issue and we argued that those decisions were clearly correct in their interpretation of Title VII as applying in this manner and this Court denied certiorari in volumes 397 of the U.S. reports.

The following term, Griggs came up on the testing issue, the other issue it didn’t even come to this Court on this issue and was later decided.

Then in the course of the 1972 reenactment, the legislative history of which is recounted in some detail, in this Court’s opinion, in Franks against Bowman Transportation Company, these cases were referred to in both the Senate Committee Report and the House Committee Report.

And the principle that they embodied was described in some detail.

I now turn to a lengthy footnote on pages 764 and 765 of this Court’s opinion in Franks, 424 U.S.

The principle that they embodied was stated in some detail as follows; first, there was a quote from the Senate Committee Report stating that employment discrimination as viewed today as a complex and pervasive phenomenon, experts familiar with the subject now generally describe the problem in terms of systems and effects rather than simple intentional wrongs and the literature on the subject is replete with discussions, for example, the mechanics of seniority and lines of progression, perpetuation of the present defect of pre-act discriminatory practices through various institutional devices and testing invalidation requirements.

Now, the literature is replete with that, we cited some of that literature in our brief, three prominent law review articles on the subject are cited in our brief.

I won’t bother with the reference to them now.

One of them was the 1967 note in the Harvard Law Review which is the seminal one on this issue.

Then the rightful place principle was articulated in the conference report, it’s true that this first excerpt from the Senate Committee Report, a company that build was changed with respect to the changes being made in the enforcement mechanisms for Title VII but the substantive provisions of Title VII were not changed from the way they were reported out at that time in any significant respect.

The basic thrust of the legislative history of the 1972 reenactment is that Congress was satisfied with the substantive standards being applied under Title VII, but fell a need to enforce the remedies and the difference was whether that should be through cease and desist power or enabling the EEOC to sue in Court.

I take it that the Government’s objectives could be obtain against the union if the union were a party to the suit only for the purposes of a remedy.

I mean in the sense that the seniority provisions don’t really get in anybody’s way until and unless there’s a transfer and if the company never transfers, the seniority system, isn’t at fault.

You really have the problem with the union only because it’s a party to a collective bargaining contract.

Lawrence G. Wallace:

Well, sir —

So, why do you have to say that they violated the Act?

Lawrence G. Wallace:

I’m not sure that we have to but that is — because I’m explaining, that is the basic way of interpreting the statute for the past nine years.

But it doesn’t make the whole lot of sense, Mr. Wallace.

It stated that the union violated the Act when the seniority system doesn’t hurt anybody, it’s the discrimination.

Lawrence G. Wallace:

But you see, it’s the perpetuation of the discrimination, that’s a violation.

I know but that —

Lawrence G. Wallace:

Otherwise you have to find some other post – act violation and the courts have applied this pre-act seniority, all of these cases.

You say, you must in order to have a remedy against the union, to keep it from enforcing the collective bargaining contract, you have to find that it violated the Act.

Lawrence G. Wallace:

You have to find a post-act violation of the Act — of course by either.

By the company?

Lawrence G. Wallace:

It has to be —

You have to find it by both?

Lawrence G. Wallace:

All the company is doing is adhering to the collective agreement and union is the party to.

I understand but must you find a post-act violation by the union?

Lawrence G. Wallace:

I find it hard to see how the union escapes from —

I’m not saying they should escape from from having to modify the collective bargaining contract.

Lawrence G. Wallace:

Right.

So, if you say the company’s adherence to the agreement is a violation you don’t have to find that the union’s adherence to the agreement is a violation for Title VII purposes, because I don’t see the logical distinction.

But the seniority problem, that perpetuation doesn’t even take place until there’s been a transfer in to the road job.

Lawrence G. Wallace:

Well, it’s the impediment to transfer, it’s the thing that suppresses people.

I know but it hasn’t suppressed anything if the company just never hired, will never take a transfer from a Negro and suppress anybody.

Lawrence G. Wallace:

Well, of course that is a present violation, if the company won’t do it, if you got that situation, you don’t need the contract, the contract is just an additional violation.

Warren E. Burger:

Are you really arguing here that the union was ineffective in representing the interest of the members in the connection with the seniority.

Lawrence G. Wallace:

It’s not an argument about an effectiveness of representation, it’s an argument that in applying this.

Warren E. Burger:

What should the union have done that it did not do, or what did they do to (Voice Overlap).

Lawrence G. Wallace:

It should move on to the application of the seniority provision so as to cease perpetuating the discriminatory effect on the class that has been discriminated against.

Warren E. Burger:

Well, isn’t that a matter of effective representation of a particular —

Lawrence G. Wallace:

They should have used less efforts to do that and to the extent it didn’t, that was the violation, that was the violation held in Local 189 which was a case against the union.

What I need to say on the rest of this is that the rightful place principle then recognized in this legislative history had its origins not in the context in which this Court approved it in Franks against Bowman Transportation but in this context, it was always recognized in these early cases and throughout the history of litigation under this Act as a principle to be applied in carrying over seniority of incumbent employees when they transfer in and the difficult question in all of the literature and all of the cases was whether it could also be applied in the context of Franks against Bowman, whether you could have what was referred to in Local 189 itself as fictional seniority for someone who didn’t ever work for the company, whether that would be consistent with the legislative history of the Act.

It was always agreed in all of these cases and in literature that the seniority actually earned in a company could be carry over and that was the origin of the rightful place doctrine, that language was first used in that way in the note in 1967, Harvard Law Review and by the Fifth Circuit in Local 189 and when Congress said in 1972, in any area, this was a company — the conference report, in any area where the new law does not address itself or in areas where a specific contrary intention is not indicated, it was assumed that the present case law is developed by the courts would continue to govern the applicability in construction of Title VII.

It’s hard to know what they possibly could have been referring to other than this line of cases which was the most prominent line of appellate cases at that time and was discussed in the three leading articles on the subject at that time were cited through this.

Do they support more than the fact that you’re just warded in having a remedy against the union?

Lawrence G. Wallace:

They hold that the union was violating the Act.

Well, isn’t it true, Mr. Wallace that in some at least of those cases, if not of all of them, there were two elements that are not present here.

First, evidence that the union itself had been rationally motivated, discriminatorily motivated, and secondly that the system was one that held people in inferior subordinate jobs and interfered with promotion unlike this case where these are parallel jobs.

Some people just like people who grew in Liverpool, half a century ago, some of them want to go to sea and some of them didn’t.

If you went to see, you got more pay but you had a different kind of a life.

This is not a kind of a promotion, these are side by side jobs, a lot of the people as you told us, only half of them if given the opportunity would transfer.

So this is different from those cases in that respect and isn’t it different also on the respect that there is absolutely no evidence and no possibility of finding here of any racially motivated discrimination on the union.

Lawrence G. Wallace:

Well, many of these cases do involve the trucking industry and precisely what’s involved here and we’ve cited all these cases from all these Court of Appeals, I’m not going to have time to go into them now but the findings in this case are very clear, they’re in the District Court’s opinion that the line driver job was by far the more desirable job, it was the higher paying job, it was —

Because of a lot of overtime.

Lawrence G. Wallace:

It was more desirable because they didn’t have to load and unload their trucks the way the city drivers did.

But the city drivers can come home at night.

Lawrence G. Wallace:

That’s right.

Some people might find one more desirable, some may find another more desirable.

Whites had their choice and blacks did not and that is the essence of the discrimination that occurred here and if the union perpetuated and this whole series of cases has agreed.

Mr. Wallace would you help me on one more thing, I know your light is on.

But say you have a black who was a dockman for ten years, something like that, a non-driving job then a city driver for a year at which time he becomes qualified then because of the discrimination, he doesn’t get the line driving job for several years.

Now the rightful place, it seems to me, — quite clearly say he should get seniority to the time, back to the date when he was qualified.

Why should he get seniority all the way back to the date of his first employment?

Why doesn’t that produce a disparity as compared with white workers?

Do you understand my question or not?

Lawrence G. Wallace:

Well, he gets seniority from the time that he was qualified for a vacancy which existed —

No, I thought he got — if you do not enforce this city driver versus line driver seniority, he gets company’s seniority from the time he was an employee, doesn’t he, under the decree of the Court, the decree that the Court of Appeals ordered?

Lawrence G. Wallace:

The decree —

I thought they lifted this rule as applied to him entirely, am I wrong, did I read it wrong?

Lawrence G. Wallace:

The decree specifies as the qualification date for seniority, the date of the first vacancy after the person became qualified as an employee of the company for the job from which he was excluded.

So he does not get a complete transfer of his company’s seniority then?

Lawrence G. Wallace:

No, only insofar as it goes back to that.

He might.

Lawrence G. Wallace:

He might.

It might be the same thing.

Well, I understand, if he was qualified from the outset, yes.

Lawrence G. Wallace:

In our view, whether a white subsequently transferring in the same way should be able to carry over that seniority would be a subject for collective bargaining now.

There would be no need for the Court here to answer that one way or the other.

Whites who had already transferred over could, if the District Court find it equitable to do so, be awarded carryover seniority so as to be able to compete with the transferring minority city drivers, we took that position in the Ninth Circuit and have a whole freight case and that relief was given on remand over the objection of the Equal Employment Opportunity Commission and they say it’s not relief against discrimination but it is part of the equity power of the Court in seeing to it that you don’t get racial disparities as a result of the relief that’s needed in these cases.

And we think that that’s a proper exercise of the equitable discretion and then formulating a decree to this case hasn’t reached that stage yet.

Thank you.

Warren E. Burger:

Are you going to share the rebuttal time?

Lawrence G. Wallace:

Yes, Your Honor.

Warren E. Burger:

We enlarge your —

Lawrence G. Wallace:

I’m going to use five minutes of Mr. Wells will use five minutes.

Warren E. Burger:

We will enlarge each of you by three minutes to balance out the time over whatever you had remaining.

Lawrence G. Wallace:

Thank you, Your Honor.

We were just told that we have not reached the stage of the proceeding where certain types of proofs are relevant.

We believe that the Government has not faced this issue as to whether we have reached that stage in proceeding, whether there will be proofs put in on the issue of remedy.

There has been no explanation by the Solicitor General’s Office as to how the Government can proceed at trial on the basis that all the issues of liability and remedy are being tried and now when the Circuit Court comes out with the decision that says remedy has to be delayed to a later time that now the Solicitor General says, we have only tried liability, now we’re going to go back some later time to try a remedy.

We don’t think that is the fact here and we don’t think that has been addressed by the Government.

The Government has also assumed certain things that we do not believe are true in this case.

There has been an assumption that there is a large pool of white and black city drivers from which road applicants can be obtained.

There is a long list of additional requirements in the Appendix, volume three, from pages 841 to 894 that show the additional qualifications that a road driver must have before he can go on the road.

I would also point out to you that at the trial, we showed through the experience at our Memphis Terminal that when we did transfer city drivers to the road that we had much more extensive damage and accidents attributable on a percentage basis to the city drivers than to those road drivers who had been initially hired on the basis of their prior road experience.

So it is not safe to say, to conclude that city drivers automatically give you a good pool over road drivers.

Thurgood Marshall:

Why do you say white city drivers?

Lawrence G. Wallace:

I beg your pardon, Your Honor?

Thurgood Marshall:

Why do you take white city drivers?

Lawrence G. Wallace:

Your Honor —

Thurgood Marshall:

I assume there have been no more no less (Inaudible)

Lawrence G. Wallace:

Your Honor, the —

Thurgood Marshall:

Am I right?

Lawrence G. Wallace:

There have been some white city drivers who have transferred to the road.

But the experience we had at Memphis involved as many, if not more white drivers than minority drivers.

The experience of both of them was bad as when —

Thurgood Marshall:

Why then penalize the Negro driver in California, what the white driver in Memphis did?

Lawrence G. Wallace:

Well, I bring up the Memphis experience simply to say that it is not safe to assume that city drivers make good road drivers.

And in Memphis, both white and minority city drivers were transferred to the road and both the white and the minority city drivers were not good road drivers.

They had percentage wise a far higher accident ratio than white and minority road drivers who came in with prior road training.

So I am simply commenting on an assumption that we think is not valid here.

In addition, there was a statement that a minority could not transfer from the city to the road even if he wanted to give up his competitive status seniority, that is not so.

At anytime, a minority or a non minority employee in the city can, if he wants to, transfer from the city to the road for competitive seniority status, he will have to go to the bottom of the road board.

Lawrence G. Wallace:

He keeps his benefit seniority when he goes to the road but it is not true to say that there is a no transfer policy, I believe it has been pointed out here that TIME. DC. is maybe one of the few of the larger trucking companies that does not have no transfer policy.

And the record shows uniformly that with one or two exceptions, transfers were allowed from city to road.

The Government also assumes that fewer than half of the people involved here will transfer.

There is no evidence to support that.

This should have been put in at the trial and we believe the Justice Department attempted to put in as much evidence as it could as to who the people were that had suffered discrimination.

We’ve already tried that issue and we should not have to go back and try that issue and to try remedy all over again.

Is there in the record any figures about how many vacancies there were from 1965 to date or from the date the Act went into effect up till date in terms of various terminals or not?

Lawrence G. Wallace:

Your Honor, we argued that the Government had not proven that and we thought that they should have put that into the record.

There may have been some scattered, limited evidence to that affect, I do not believe that they came forward and said, here is your list of employees in 1971, here is the number of openings you had from 1965 to 1971 and here is the racial identification of the people you put in those openings.

We say they failed in not putting in that type of evidence.

The Government has not —

So then your answer to my question is no?

Lawrence G. Wallace:

Yes, it is a qualified no, Your Honor because with a record as long as this one was, I am sure that there maybe one or two terminals, there was some information as to that type put in.

I do not recall specifically that there was.

Well, do you think it makes some difference, whether there is or not —

Lawrence G. Wallace:

Yes, I do think it makes a difference.

We believe that the Government has not addressed several critical issues.

We have argued that we believe McDonnell Douglas should apply in determining liability and remedy and the scope of those proofs in individual class and pattern or practice cases and there has been nothing suggested in the brief of the Government or in the oral argument today why McDonnell Douglas should not so apply.

As I mentioned before, there has been nothing stated here in response to our statement that all the proofs were put in for liability and remedy at the trial stage.

There has been no response by the Government to our argument that the discretion granted to a District Court in matters like this has to be very broad to exercise proper equitable discretion.

Franks and the Forton case tell us that.

We believe in the circumstances that it was a reasonable decision by the District Court, even if we assume there was discrimination to award the relief that the District Court did for categories A, B and C particularly in light of the fact that there was a partial consent decree that not only settled back pay awards for this same class but also affirmatively offered future hiring on what is a very substantial ratio, a one to one basis.

Also the Government has not addressed the conflict between the circuits as to qualification date and what that means and we believe that the failure to address these things should result at the very least, in affirmation of the order of the District Court or a finding that the company is not guilty of discrimination.

Thank you.

Warren E. Burger:

Mr. Wells.

L. N. D. Wells, Jr.:

Mr. Chief Justice and if the Court please.

Counsel has addressed himself to a Quarles line of cases.

Quarles holds 279 F. Supp 517, a department seniority system that has its genesis in racial discrimination is not a bona fide seniority system.

This system does not have its genesis there.

The whole Quarles line is based on findings of union connivance with an employer or with separate black and white unions or with the line of progression seniorities, none of which apply here.

L. N. D. Wells, Jr.:

Now, Mr. Justice Stevens inquired as to what the Court of Appeals had done, I’m at page six of the appendix to the petition for certiorari.

Just a moment, I am at wrong page.

I’m at page 34 of that document.

All those on app. A, app. B and app. C, that is the entire list of minorities, are entitled to be given an opportunity to bid on future vacancies in the specified job classifications to which they are allowed to transfer by the District Court’s order on the basis of their seniority and if they qualify for those jobs to be permitted to exercise their full seniority in such jobs for all purposes, including bidding and layoff.

Now I’m happy to hear a counsel abandon that position today and tell us if when we get back downstairs and retry that which we’ve already tried, that he’s going to let us try other issues. But he is not the Court of Appeals.

This is what the Court of Appeals did.

One other matter ought to be indicated.

That is that our contract does not prohibit an employee from transferring, I’m now on page seven of that same document and this is the Court of Appeals, the second paragraph on page 7, nothing in the union contracts prohibits an employee from transferring between separate bargaining units at a given terminal but he loses his pre-transfer accumulated seniority for bid and layoff.

Now if I understood what Mr. Wallace had to say, it was that the distinguishing feature between white and black city drivers is that black could not transfer.

If that’s right, it’s this man, it’s the employer that says I cannot transfer.

We don’t stop them from transfer.

That shows that it is the discrimination in transfer by the employer that perpetuates their own, not the seniority system.

Any black that is discriminated against, with respect to that transfer or refusal of transfer by the employer, has his right under the statute to — and under your Frank’s decision to be made whole.

Actually he has more than that, he has a contract right under Article 38 of the contract if he wants to follow that.

Warren E. Burger:

Does this record show, Mr. Wells, individual complaints by a Negro driver, city drivers that they had applied for transfer and were met by this block?

L. N. D. Wells, Jr.:

There are some who say they opted to go on the road who testified that these options were indicated pre-1965, at a point when it was not unlawful under this statute.

Thurgood Marshall:

Mr. Wells, let’s be realistic.

If one of the Negro city drivers is hired by this company and put on the line drive and given the seniority that this opinion says, do you show me that the union will not object to that?

L. N. D. Wells, Jr.:

I do, Your Honor and for long —

Thurgood Marshall:

Well, what do you argue, going back on your own contract?

L. N. D. Wells, Jr.:

Long prior to the —

Thurgood Marshall:

Are you going back — your contract says seniority, doesn’t it?

L. N. D. Wells, Jr.:

I misunderstood your question, Your Honor.

Thurgood Marshall:

Your union contract says seniority on the line.

L. N. D. Wells, Jr.:

Our union contract Mr. Justice Marshall says that seniority begins from the date of coming in to the bargaining unit.

The bargaining agent for the road driver has no right to bargain under the NLRA for somebody who is outside the bargaining unit.

Thurgood Marshall:

I didn’t say that.

L. N. D. Wells, Jr.:

So his seniority starts white, black, brown or whatever when he comes in that unit.

Thurgood Marshall:

I said, if he comes in with seniority back to when he first applied, would the white man that is thereby interfered with, comes to his union which is your union, what would you say, too bad?

L. N. D. Wells, Jr.:

I would say that this black man coming and showing that he was discriminated against because of his race in entry into that unit, should unlawfully discriminated against.

L. N. D. Wells, Jr.:

The union will support him–

Thurgood Marshall:

Which union?

L. N. D. Wells, Jr.:

Any Teamster Union.

Thurgood Marshall:

What?

L. N. D. Wells, Jr.:

Any Teamster Union.

Thurgood Marshall:

He’s in one, he’s in the local, isn’t he?

L. N. D. Wells, Jr.:

Pardon?

Thurgood Marshall:

Isn’t he in the city local?

L. N. D. Wells, Jr.:

Some place in Los Angeles, there are separate locals, in Dallas it’s the same local and it varies but any Teamster Union will support white or black in getting his seniority from the date he comes to work in that unit.

Thurgood Marshall:

Over the white man.

L. N. D. Wells, Jr.:

He will come and he will get his seniority as “X” date as to when he applied or when a job was open for him and when he was discriminated against and until there comes a time, if I may answer, if Your Honor please.

Until there comes a time of a posting at the next six months or 12 month interval, he neither will displace the other but at the next posting under the contract, whoever has the higher seniority at that point will be the fellow that gets the option on the job.

Thurgood Marshall:

So the Negro won’t get it?

L. N. D. Wells, Jr.:

It depends on when he was discriminated against.

If he was discriminated against before the white came to work, he will.

If he was not, he will not.

Thurgood Marshall:

Well, that’s not in your contract.

L. N. D. Wells, Jr.:

Yes sir, that’s exactly the contract.

Thurgood Marshall:

Where is that in the contract?

L. N. D. Wells, Jr.:

The — Article 38 of the contract.

Thurgood Marshall:

But, when, if you’ll understand my question.

L. N. D. Wells, Jr.:

Oh, I’m sorry sir.

Thurgood Marshall:

Where in the contract did you see about somebody who were discriminated against because of race.

L. N. D. Wells, Jr.:

In article 38, may I find it, I believe it is in the third volume, Mr. Previant(ph) is looking for it now but there is a specific —

Thurgood Marshall:

We’ll find it, go ahead, go ahead, we will find it.

L. N. D. Wells, Jr.:

Here we are on page 816.

The employer and the union agree not to discriminate against any individual with respect to hiring compensation, terms or conditions, etcetera. Now you have to read that —

Thurgood Marshall:

Well, I do not see anything there about seniority as waived.

L. N. D. Wells, Jr.:

Alright.

You have to read that, if Your Honor please, in connection with the seniority provision and in connection with the grievance provision and you have to look at Ralph Dickson’s testimony in this record with respect to what happened when any employee claims that his seniority has been denied and the contract remedy that is available to him.

L. N. D. Wells, Jr.:

I assure you it’s there.

Thurgood Marshall:

I’d rather take your word for it.

L. N. D. Wells, Jr.:

Thank you Your Honor.

Mr. Wells, before you sit down, may I ask you a question that was suggested to me by my Brother White.

Do you suppose that even if the Courts were wrong here in holding that the union had in anyway violated the Title VII, of the 1964 Act and that you’re correct, that there was no violation on the part of your client that nonetheless the court as a court of equity might have power to amend the collective bargaining agreement to the extent necessary to make it possible to remedy the violation on the part of the employer and to give those entitled to it their rightful place?

L. N. D. Wells, Jr.:

We don’t say that a collective bargaining contract is written in stone.

We do say that it’s basic, it follows from a basic national policy under the Labor Act, unions give up some wages and other condition sometime to get seniority and certainly a transfer can weigh equities but you’re not even close to that in this case.

Where we are here is as Mr. Justice White’s question may have suggested that we are kind of like a — or should be like a rule, 19 defendant in to help the Court.

Perhaps it’s of the remedy?

L. N. D. Wells, Jr.:

To figure out what’s a proper remedy under the contract to —

The court was a remedy.

L. N. D. Wells, Jr.:

Yes.

And might it not be true that even though you’re wholly guiltless of any violation of Title VII or any other Federal law in this respect that an equity court might not be warranted in varying the collective bargaining agreement to the extent necessary to give relief against the violation by the employer?

L. N. D. Wells, Jr.:

I will concede there may be such cases.

I will not concede that this is such a case.

Well, let’s assume that — I take it, you prefer the District Court’s resolution of this case?

L. N. D. Wells, Jr.:

Well, I think the District Court — well, I certainly prefer it, yes, Your Honor.

Well, let’s assume that there’s no question of what there has been a continued pattern of discrimination by the employer and that there is a question of working out of a suitable remedy such as giving some person some retroactive seniority when he transfers to the road.

Now, to the extent that that requires some modification of the seniority provisions of the contract, if any, you wouldn’t say that the Court couldn’t do that even though the union didn’t violate the contract.

L. N. D. Wells, Jr.:

I would not, however I hasten to say here that Your Honor’s decision in Franks made very clear that that’s wholly unnecessary that within the four corners of the contract and within the —

Well, no one would blow a home on the side of the contract unnecessarily, I take it.

If you don’t need it, if you don’t need to take it with the contract, you would not.

But what if you did have to?

L. N. D. Wells, Jr.:

If you have to, obviously a transfer has powers.

Thank you Your Honors, thank you.

Warren E. Burger:

Do you have a —

Lawrence G. Wallace:

May I make a brief comment with respect to that.

As a matter of fact, these contracts have been reformed in many instances through consent decrees and through agreements with the office of Federal contract compliance of the Department of Labor and literally tens of thousands and probably hundreds of thousands of employees have been covered by final decrees litigated in consent as well as by these agreements with the office of Federal contract compliance that are all premised on the theory of the Quarles line of cases that I have been talking about, the most prominent of them covering 50,000 workers in the nine largest steel producers was entered as a consent decree in the Allegheny-Ludlum Steel case, United States against Allegheny-Ludlum Steel in which the United Steel Workers Union was one of the party’s defendant that entered into the consent decree.

Mr. Wallace, now that you have gotten on your feet, do you agree you misread the Court of Appeals opinion as — having in mind the language your opponent (Voice Overlap).

Lawrence G. Wallace:

Not at all, we’ve specified in our brief exactly what we think the relief — (Voice Overlap).

You don’t think full seniority means full seniority in other words, is it?

Lawrence G. Wallace:

Well, there are ambiguities in that opinion, we have stated what we consider to be the proper interpretation of it, looking at the section called qualification date as referring back and modifying the rest of it.

It seems to me they’ve spelled out very carefully in a subsequent decision of the Fifth Circuit which is referred to in our brief, specifies that in even greater detail.

As does the Rodriguez decision which this Court cross references to and then there’s a subsequent decision which we referred to in our brief that specifies it in even more detail where we discussed qualification date in our brief.

Warren E. Burger:

Thank you Mr. Wallace.

Thank you gentlemen.

The case is submitted.