E.E.O.C. v. International Longshoremen's Ass'n

• Citation: 511 F.2d 273
• Decision Date: 11 April 1975
• Docket Number: No. 74--1053,74--1053
• Parties: 10 Fair Empl.Prac.Cas. 545, 9 Empl. Prac. Dec. P 10,061 EQUAL EMPLOYMENT OPPORTUNITY COMMISSIONER, Plaintiff-Appellant, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 273

511 F.2d 273

10 Fair Empl.Prac.Cas. 545, 9 Empl. Prac.

Dec. P 10,061

EQUAL EMPLOYMENT OPPORTUNITY COMMISSIONER, Plaintiff-Appellant, v. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION et al., Defendants-Appellees.

No. 74--1053.

United States Court of Appeals, Fifth Circuit.

April 11, 1975.

William A. Carey, Gen. Counsel, Joseph T. Eddins, Assoc. Gen. Counsel, Charles L. Reischel, Beatrice Rosenberg, Richard S. Cohen, Asst. Gen. Counsels, Washington, D.C., for plaintiff-appellant.

Warner F. Brock, Chris Dixie, Houston, Tex., D. J. Lerma, Brownsville, Tex., Michael Crawford, Arthur J. Mandell, Herman Wright, Houston, Tex., L. Dewitt Hale, Corpus Christi, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before THORNBERRY, GOLDBERG and GODBOLD, Circuit Judges.

GOLDBERG, Circuit Judge:

This suit poses for us, in the year 1975, the question of the legality of maintaining segregated black and white unions. Workers in these unions perform the same basic functions, for the same bosses, in the same ports but do so out of different locals. Defendants claim that this division is no more than an amenity for those who wish to associate with 'their own'. We believe that the effect, if not the intention, is far more invidious, in that it denies equal opportunities to workers and potential workers, and is thus in violation of 42 U.S.C. § 2000e et seq.

The defendants in this suit are the International Longshoremen's Association, the South Atlantic and Gulf Coast District of the Association and 37 local unions within the State of Texas which are chartered by the Association. Save for one of the locals, all, whether black or white, are opposed to a merger with their 'sister' unions within each pert. ¹

All of the locals involved in this suit were chartered before the passage of Title VII, the Civil Rights Act of 1964. ² The unions have had what was admittedly a progressive interracial arrangement when the unions were first chartered. In most of the ports the work was divided on a 50%--50% basis between the black and white locals. There were no wage differentials between those in the white and those in the black locals. The defendants contend, and the plaintiff, the Equal Employment Opportunity Commission, does not dispute, that the union committee, which bargains with the shippers for the labor agreements which control the Texas ports, is made up equally of black and white members. Finally, while in some of the ports the mean take home pay for a white longshoreman is higher than that for a black longshoreman, this is at least in part a function of the fact that black locals have chosen in their own discretion to confer seniority and therefore job eligibility on more men by employing laxer standards.

Nonetheless, the United States in 1969 brought suit, ³ claiming that what was progressive many years ago has become, because of the march of law, illegal now.

I FACTS

The Government's suit claimed that the pattern of union organization violated 42 U.S.C. § 2000e--2(c)(2), which says that it will be an unlawful employment practice for any labor organization:

(T)o limit, segregate, or classify its membership or applicants for membership or to classify or fail to refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities . . . or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual's race, color, religion, sex or national origin.

The plaintiff asked the district court to hold that segregated unions are, per se, a violation of the statute and therefore to order that the paired local unions be merged. The defendants essentially argued that no economic deprivation resulted from the existence of separate locals and therefore that their organizational structure did not violate the law.

In his opinion, United States v. Int'l Longshoremen's Ass'n, S.D.Tex.1971, 334 F.Supp. 976, the district judge found that the maintenance of completely separate unions would, in fact, tend to deprive individuals of employment on the basis of their race. Judge Garza decided that while the 50%--50% rule had the superficial look of equality, in fact it had discriminatory potential:

If in any port there are one hundred Whites available to work on the waterfront as longshoremen and two hundred Negroes, and the work is divided fifty-fifty it is obvious that the one hundred Whites will work more hours than the Negroes. . . .

It is not the racial composition of the community that should control, but the number of Blacks and Whites that make themselves available for longshore work that counts.

334 F.Supp. at 979. However, he declined to find that segregated unions in themselves were in violation of the Civil Rights Act of 1964 and stated that he thought he could shape a decree short of merger which would remedy the economic deprivation. He held the formulation of a decree in abeyance, however, and certified to this Court, under 28 U.S.C. § 1292(b), the question of whether the segregated locals had to be merged. ⁴

For reasons known only to it, or perhaps for no reason at all, the plaintiff did not take an appeal but decided instead to enter into negotiations with the unions, still, apparently, maintaining its 'merge or no deal' approach throughout. This approach did not result in a resolution of the issues, and on November 6, 1972, a year after Judge Garza entered his first order, the Government made a motion for entry of judgment. In its Memorandum in Support of Plaintiff's Motion for Entry of Judgment, the Government said: 'We believe that an Order should be entered requiring merger in the manner suggested by our Proposed Decree, and also requiring the other elements of relief contained in that proposal.' A year after this motion on October 1, 1973, the district court entered an Interlocutory Decree which held that the defendants were not required to merge and that 'therefore such relief is hereby denied;' and proceeded to hold that the violations of Title VII of the Civil Rights Act of 1964 'can be fully corrected by the abolishment of separate hiring halls and the establishment of a common hiring hall' and by the establishment of

common seniority classifications. The Equal Employment Opportunity Commission appeals from this Interlocutory Order.

II JURISDICTION

A panel of this Court denied appellee's motion to dismiss the appeal on February 12, 1974. We agree with that panel's action and believe that the appeal is correctly before this Court. ⁵ The jurisdictional posture of this case is a peculiar one. The district court's order is definitely interlocutory in nature. It orders the parties to confer in establishing common seniority systems and hiring halls and to submit a plan back to the district court so that it can entertain objections. The order goes on to state that the district court is retaining jurisdiction in the matter with 'full power and authority to issue any additional Orders necessary to insure equal employment opportunities . . ..' In so ordering, however, the judge denied the plaintiff's motion for a permanent injunction merging the locals.

28 U.S.C. § 1292(a)(1) provides in relevant part that the courts of appeals shall have jurisdiction of appeals from 'interlocutory orders of the district courts of the United States, . . . granting(,) . . . refusing or dissolving injunctions . . ..' In a number of cases we have upheld the appealability of denials of preliminary injunctions. See, e.g., Mercury Motor Express, Inc. v. Brinke, 5 Cir. 1973, 475 F.2d 1086; Southeastern Promotions, Ltd. v. City of Mobile, 5 Cir. 1972, 457 F.2d 340; Smith v. Grady, 5 Cir. 1969, 411 F.2d 181; Dilworth v. Riner, 5 Cir. 1965, 343 F.2d 226; Bd. of Pub. Instr. v. Braxton, 5 Cir. 1964, 326 F.2d 616.

The only jurisdictional question in the present case is whether § 1292(a)(1) applies to give us jurisdiction of denials of permanent injunctions. We conclude that it does. In Ferrara v. Louisiana, 5 Cir. 1971,443 F.2d 344, while recognizing our lack of jurisdiction we said '. . . (W)e concede that the denial of a preliminary or permanent injunction is appealable, . . .' and go on to decide the case by noting 'But the critical fact is that plaintiffs in the proceedings on defendants' motions to dismiss merely opposed those motions and did not ask for a preliminary injunction, much less a permanent one.' 443 F.2d at 345, 346. Though dicta, Ferrara's language traces the correct path.

First, we note that in granting the jurisdiction to hear an appeal from the denial of an injunction, the statute draws no distinction based upon the type of injunction which a party has requested. Second, to the extent that jurisdiction over only certain interlocutory orders--those involving injunctions--has been granted in furtherance of the general policy against piecemeal appeals, see Andrews v. United States, 1963, 373 U.S. 334, 83 S.Ct. 1236, 10 L.Ed.2d 383, that purpose is as well, or better served, in the adjudication of motion for a permanent rather than a preliminary injunction. In many cases issues will be finally resolved by the grant or denial of a permanent injunction, while no such resolution will stem from a decision on a motion for a preliminary injunction. This will be the case when, as in the present situation, the question of the appropriate remedy is itself a matter of law. Finally, the factor which singles but injunctions as those matters which will be appealable from an interlocutory

order, the potential for irrecompensible injury, Di Bella v. United States, 1962, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614; Baltimore Contractors, Inc. v. Bodinger, 1955, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233, is just as likely to be present when an injunction is denied or granted for a time period extending beyond the final order in the trial. These considerations...