Long v. Georgia Kraft Company

• Decision Date: 28 January 1972
• Docket Number: No. 71-1476.,71-1476.
• Citation: 455 F.2d 331
• Parties: Linell LONG et al., Plaintiffs-Appellants, v. GEORGIA KRAFT COMPANY et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

455 F.2d 331 (1972)

Linell LONG et al., Plaintiffs-Appellants, v. GEORGIA KRAFT COMPANY et al., Defendants-Appellees.

No. 71-1476.

United States Court of Appeals, Fifth Circuit.

January 28, 1972.

Howard Moore, Jr., Peter E. Rindskopf, Atlanta, Ga., William L. Robinson, Lowell Johnston, Jack Greenberg, New York City, for plaintiffs-appellants; George Cooper, Paul Sherman, New York City, of counsel.

Oscar M. Smith, Rome, Ga., Dean E. Denlinger, Smith & Schnacke, Dayton, Ohio, for Georgia Kraft.

J. R. Goldthwaite, Jr., Atlanta, Ga., Benjamin Wyle, New York City, for Union.

George Anderson, Rome, Ga., for Local 804.

Warren Woods, Washington, D. C., for United Papermakers, etc.

Bobby Lee Cook, A. Cecil Palmour, Cook & Palmour, Summerville, Ga., for Local 654.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

WISDOM, Circuit Judge:

In this appeal we recognize the right of members of an all-black local union to protective transitional arrangements when their local is merged with a formerly all-white local, but we hold that such measures are inappropriate in this case.

For many years, International Brotherhood of Pulp, Sulphite, and Paper Mill Workers, AFL-CIO maintained segregated locals at the Krannert Division paper mill of the Georgia Kraft Company in Rome, Georgia.¹ Local 804, with approximately 190 members at the time of the commencement of this suit, was all-white; Local 805, with approximately 80 members, was all-black. During 1969, negotiating teams from the two locals, faced with the requirements of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., began working toward merger of the locals. The teams representing the two locals agreed on the terms of a merger only to have the agreement rejected by the members of the two locals.

On March 10, 1970, the Equal Employment Opportunity Commission found reasonable cause to believe that the maintenance of the segregated locals violated Title VII, and merger talks began once again. The negotiating teams reached agreement in May of 1970. The agreement provided for merger of the two locals on June 1, 1970, under the following terms:

The newly combined locals will operate under Local 804\'s present by-laws except for the following stipulations:

1. Members of Local 805 will select one of their members to fill the newly created office of 1st Vice-President for the remainder of 1970.

2. The outgoing 1st Vice-President will be appointed to the Local\'s Executive Board for the year 1971.

3. The Woodyard and Service Crew will have the right to select their Shop Stewards for their Department. The President of the Local shall have the right to appoint any additional Shop Stewards he deems necessary.

Although the members of Local 804 ratified the merger agreement, the members of Local 805 rejected it.

On August 28, 1970, the President of the International notified the two locals that merger would be accomplished by action of the International because the locals had been unable to agree on the terms of a merger. The International proposed to revoke Local 805's charter and to assign its membership, contract rights, and property to Local 804. Georgia Kraft was notified that this merger would become effective on October 1, 1970, and the Local 804 was to receive the dues check-offs for all former members of Local 805 as the new bargaining representative of the black members.

Counsel for Local 805 wrote a letter to officials of the International demanding certain concessions in return for Local 805's approval of the merger.² When his requests were not granted by the International, the members of Local 805 sought and were granted a temporary injunction stopping the merger. The members of Local 805 asked the district court to impose certain terms and conditions on the merger including: 1) the creation of a new office and the filling of that and other merged-Local 804 offices with former Local 805 members for an interim period, 2) interim representation of former Local 805 members on existing Local 804 committees, 3) the right of predominately black woodyard and service crews to select their own shop stewards (shop stewards are usually appointed by the Local President), and 4) insulation of the members and funds of former-Local 805 from any liability for any award of attorney's fees.³

The district court denied the requests for protective transitional measures. 328 F.Supp. 681, 695. The motion for injunctive relief, however, was granted to the extent that Local 804 was forbidden, after merger, from using the funds of Local 805 to pay attorney's fees assessed against Local 804 in the suit or to pay for costs and attorney's fees incurred by Local 804 in defending the suit. Local 804 was required to use funds on hand before the merger to satisfy the expenses. As to expenses in excess of amounts Local 804 had on hand prior to the merger, Local 804 was permitted to utilize funds collected through normal dues collection procedures from all members of the merged locals. During February 1971 the locals merged.

The black members of Local 805, appellants in this Court, ask us to reverse the decision of the district court and order the protective transitional measures. The appellants rely on two well recognized and frequently utilized doctrines in the equal employment area. First, Title VII, by its terms, allows the courts to order "such affirmative action as may be appropriate" to insure full compliance with the equal employment opportunity provisions. 42 U.S.C. § 2000e-5(g). Second, this Court has repeatedly held that when it is necessary to insure full compliance with Title VII a district court is "empowered to eliminate the present effects of past discrimination". Local 53 of Int'l Assoc. of Heat and Frost Insulators & Asbestos Workers v. Vogler, 5 Cir. 1968, 407 F.2d 1047, 1052-1053. See also Local 189, United Papermakers & Paperworkers, A.F.L.-C.I.O., C.L.C. v. United States, 5 Cir. 1969, 416 F.2d 980; United States v. Jacksonville Terminal Co., 5 Cir. 1971, 451 F.2d 418; United States by Mitchell v. Hayes Int'l Corp., 5 Cir. 1969, 415 F.2d 1038; Quarles v. Philip Morris, Inc., E.D.Va.1968, 279 F.Supp. 505.⁴

This appeal presents the question of how to "eliminate the present effects of past discrimination" in the context of the merger of two formerly segregated local unions. The appellants point out that, because of the long history of segregation in the unions and in the company, blacks have been unable to make the personal contacts and gain the prestige and respect necessary to win election to union offices. These "present effects of past discrimination" will, they argue, prevent the black members of the merged union from assuming, even to a small extent, the leadership role they enjoyed in the segregated Local 805.

The appellants urge us to follow Judge Heebe's opinion in Hicks v. Crown Zellerbach Corp., E.D.La.1970, 310 F.Supp. 536. After finding that the maintenance of separate local unions for white and black employees at Crown Zellerbach's Bogalusa plant by the Int'l Brotherhood of Pulp, Sulphite, and Paper Mill Workers violated Title VII, Judge Heebe ordered immediate merger of the locals with "Negro participation in the leadership of the merged local union over a two-year transition period". 310 F.Supp. at 537. Specifically, in that case the court ordered 1) the election by the members of the formerly all-black local of a General Vice-President, a Trustee, and ten other persons to serve as stewards and members of the Executive Board of the merged union,⁵ 2) an increase in the membership of the Executive Board from 83 to 95 with the twelve additional places to be filled by members of the all-black local, 3) full participation by the new officers in the supervision of the union, the negotiating committee, and the grievance committee during the transition period, and 4) representation of the formerly all-black local on all committees and delegations.

In general terms this Court has also addressed itself to this problem. In United States v. Jacksonville Terminal Co., 5 Cir. 1971, 451 F.2d 418, the Court was faced with two segregated local unions. We held:

We conclude that the District Court erred in refusing to hold that the failure to consolidate the locals violates section 703(c) of the Act, 42 U.S.C.A. § 2000e-2(c). See United States v. Sheet Metal Workers etc. Local Union No. 36 8 Cir. 1969 416 F.2d 123 at 127-129; Local 53, International Association of Heat & Frost Insulators & Asbestos Workers v. Volger 5 Cir. 1969 407 F.2d 1047 at 1051-1055; United States v. International Longshoremen\'s Association, D. Md.1970, 319 F.Supp. 737, 741-742; Hicks v. Crown Zellerbach Corp., E. D.La.1970, 310 F.Supp. 536; United States by Clark v. Local 189, United Papermakers & Paperworkers, E.D. La.1969, 301 F.Supp. 906, 919, aff\'d Local 189, United Papermakers and Paperworkers, A.F.L.-C.I.O., C.L.C. v. United States by Mitchell 5 Cir., 416 F.2d 980.

We implicitly recognized the appropriateness of transitional relief measures when we remanded the case to the district court stating:

The District Court shall order consolidation of the BRAC and BMWE locals. The court shall prescribe a reasonable consolidation procedure and provide for the equitable representation of all Union members during and after any necessary transition period. (Emphasis supplied)

In analogous situations outside of the employment area, courts have ordered transitional protective measures. For example, in Lee v. Macon County, M.D. Ala.1968, 283 F.Supp. 194, a three-judge district court ordered merger of two segregated athletic associations

For the purpose of assisting and guiding the parties, it is appropriate to observe that the planned merger of the Alabama High School Athletic Association and the Alabama Interscholastic Athletic Association should provide for a desegregated administrative staff and if, as has been suggested to the Court, the Alabama Interscholastic Athletic

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