Vogler v. McCarty, Inc.

• Decision Date: 12 January 1972
• Docket Number: No. 71-1458.,71-1458.
• Citation: 451 F.2d 1236
• Parties: Paul VOGLER, Jr., et al., Plaintiffs-Appellees, v. McCARTY, INC., et al., Defendants. UNITED STATES of America, Plaintiffs-Appellees, v. LOCAL 53 OF the INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS, et al., Defendants-Appellees, Master Insulator's Association of New Orleans and Baton Rouge, La., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

451 F.2d 1236 (1971)

Paul VOGLER, Jr., et al., Plaintiffs-Appellees, v. McCARTY, INC., et al., Defendants.

UNITED STATES of America, Plaintiffs-Appellees, v. LOCAL 53 OF the INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS, et al., Defendants-Appellees, Master Insulator's Association of New Orleans and Baton Rouge, La., Defendant-Appellant.

No. 71-1458.

United States Court of Appeals, Fifth Circuit.

November 17, 1971.

Rehearing Denied January 12, 1972.

Horace A. Thompson, III, Michael J. Molony, Jr., Jones, Walker, Waechter, Poitevent, Carrere and Denegre, New Orleans, La., for defendant-appellant.

Revius O. Ortique, Jr., New Orleans, La., Jack Greenberg, Norman C. Amaker, William L. Robinson, New York City, Gerald J. Gallinghouse, U. S. Atty., New Orleans, La., Jerris Leonard, Asst. Atty. Gen., Herbert A. Goldsmith, Jr., Civil Rights Div., David L. Rose, David L. Norman, Acting Asst. Atty. Gen., Dept. of Justice, Washington, D. C., C. Paul Barker, Jerry L. Gardener, Jr., Dodd, Hirsch, Barker, Meunier, Boudreaux & Lamy, New Orleans, La., for appellees; Albert J. Rosenthal, New York City, of counsel.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

THORNBERRY, Circuit Judge:

This appeal concerns the district court's equity jurisdiction to fashion remedies pursuant to Sections 706 and 707 of Title VII of the Civil Rights Act of 1964.¹

Although the decision is simple, the facts are somewhat complex. We therefore begin by setting them out.

On May 31, 1967, the district court, based on its finding that the Union² had denied to Negroes opportunities for both employment referral and Union membership, ordered the Union to effectuate a system of alternate referrals of Negro and white workers and required it to develop a plan for the admission of new members based on factors other than race.

The parties to the original action were unable to agree on criteria for membership in the Union, and the referral system originally set up did not succeed in furnishing more than limited employment opportunities to Negroes. In order to resolve these problems, the district court, pursuant to proposals by the government, on February 19, 1970, entered a new order.

The February order provided in part that separate hiring books were to be maintained for four categories of employees: (1) White mechanics, (2) black mechanics, (3) white improvers, and (4) black improvers. As before, the Union was to alternate referrals between Negro and white workers on a one-for-one basis. The order further provided that the Union could set up so-called "A" and "B" books for the white mechanics. Workers listed in the "A" book were to be those men with more than five 1200-hour years experience in the trade; workers listed in the "B" book were to be those men with less than five years of such experience. Referral preference could be given to workers listed in the "A" book.

The Union, on December 9, 1970, sought to modify the court order because of its alleged failure to accomplish the desired results in certain respects. Due to the influx of Negroes into the trade, along with a depressed economy which substantially affected overall employment opportunity in the building and trades industry, the system established by the court had created a substantial backlog of persons who were potential employees, but who had not been employed for long periods of time, or not at all. Full employment, because of the large number of employees in each seniority book, was thus impossible for a substantial number of workers. As a result of prolonged layoffs, many of the applicants appearing on the white mechanic lists had lost their eligibility for hospitalization and pension benefits.

To remedy this unstable employment situation and the accompanying effects on the white mechanics, the district court on January 25, 1971 entered the order involved in the instant case. This order substituted three lists of white mechanics, cited as groups A, B, and C, based on different periods of experience, in place of the previous two lists. This resulted in increased employment opportunity for the more experienced white employees at the expense of those white employees with less experience, and thus provided stable employment for at least some white workers. The order admittedly had no effect on the Negro workers because the one-for-one referral system was preserved.

Appellant (Association)³ contends that the district court had no discretion to enter this order, which affects only white Union members and which imposes on the Association terms of employment subject to collective bargaining between the Union and the Association.

We note at the outset that district courts are possessed of broad discretionary power under Title VII of the Civil Rights Act to fashion remedies which prevent future discrimination and remedy the effects of past discrimination.

In formulating relief from such practices the courts are not limited to simply parroting the Act\'s prohibitions but are permitted, if not required, to "order such affirmative action as may be appropriate."

Local 53 of the International Association of Heat and Frost Insulators and Asbestos Workers v. Vogler, Jr., et al., 5th Cir., 407 F.2d 1047. See also Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709 (1965). The district court's discretion in preventing discriminatory practices and violations of federal law may even include orders affecting private agreements, including those under collective bargaining. J. I. Case Company v. NLRB, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762 (1944); Philadelphia, B. & W. R. R. Co. v. Schubert, 224 U.S. 603, 32 S.Ct. 589, 56 L.Ed. 911 (1912); Local 189, United Papermakers and Paperworkers v. United States, 5th Cir. 1969, 416 F.2d 980; Local Union No. 12, United Rubber, Cork, Linoleum & Plastic Workers v. NLRB, 5th Cir. 1966, 368 F.2d 12.

Adequate protection of Negro rights under Title VII may necessitate, as in the instant case, some adjustment of the rights of white employees. The Court must be free to deal equitably with conflicting interests of white employees in order to shape remedies that will most effectively protect and redress the rights of the Negro victims of discrimination. We hold, therefore, that the district court, under the circumstances of the instant case, did not abuse its discretion in making reasonable adjustments between the various classes of white employees.

The Association further contends that the district court order will eventually harm Negro employment opportunity. For present purposes the order will cause no disadvantage to Negroes because referrals will continue to be made on a one-for-one basis. It may, however, affect the...