ELECTRICAL WORKERS v. ROBBINS & MYERS, INC.

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Argument of Barry L. Goldstein

Chief Justice Warren E. Burger: We will hear arguments next in 75-1264, International Union against Robbins and Myers, and 1276, Guy against Robbins and Myers.

Mr. Goldstein, you may proceed whenever you are ready.

Mr. Barry L. Goldstein: Thank you, Mr. Chief Justice and may it please the court.

I shall emphasize the importance in reversing the Sixth Circuit from the perspective of providing fairness to the victims of employment discrimination and encouraging effective implementation of the public policy of achieving equal employment opportunity.

Mr. Newman will argue from the perspective of encouraging voluntary compliance and incorporating equal employment opportunity into the law of the shops.

This case arises from a straight-forward set of undisputed facts.

Mrs. Guy, a Black woman, was originally hired by Robbins and Myers on November 1, 1968.

From October 19 through October 24, 1971, Mrs. Guy was absent due to illness.

That illness was excused by the company.

On October 25, Mrs. Guy did not return to work.

She was immediately discharged.

Within two days, she caused a review to be undertaken of her discharge by filing a grievance, pursuant to the collective bargaining agreement entered into between the Union and the company.

Within 22 days, on November 18, 1971, the personnel director after reviewing the decision denied her grievance.

Within 84 days of that decision, on February 10, 1972, Mrs. Guy filed a charge with the Equal Employment Opportunity Commission.

That charge was filed 108 days after the initial company decision to discharge Mrs. Guy.

Herein, lays the case.

The lower courts held that the 90-day limitations period began to run from October 25, 1971, the date of the initial company decision to discharge Mrs. Guy.

That 90-day provision was amended by the Equal Employment Opportunity Act of 1972 to 180 days, but petitioners here raise three grounds why Mrs. Guy’s charge should be treated as timely filed.

The first one is, that the final occurrence of the unlawful act did not occur until November 18, 1971 when the personnel director of the company last acted pursuant to the collective bargaining agreement in a contractual relationship between the company and Mrs. Guy.

Two, the petitioners submit that the filing of a grievance towards the running of the period of limitations during the resort to the grievance procedure and lastly, the petitioners submit that the 180-day period provided by the 1972 amendment applies to this case.

The first ground that the practice had not occurred until November 18 when the personnel director of the company affirmed the initial decision to discharge Mrs. Guy does not involve any analysis of legislative history or any review of this court’s seminal decisions in Johnson v. REA and Alexander v. Gardner-Denver.

Rather the issue is as the Seventh Circuit stated in Moore v. Sunbeam Corp., when was the last occurrence of the unlawful act?

We submit that that occurrence was when the personnel director last acted under the collective bargaining relationship with Mrs. Guy.

Unknown Speaker: Did the personnel director have taken an affirmative action at that time or did he just sit?

Mr. Barry L. Goldstein: Your Honor, the contract is set out I think in 37A and 38A of the appendix which requires the personnel director to make a decision within 10 days of the submission of a third-step grievance to him.

When the company initially made its decision to discharge Mrs. Guy, the situation was analogous to an anticipatory contract breach.

The contract between Mrs. Guy and the company was not thereby terminated.

She had a right to seek review of the decision to discharge her by filing a grievance and proceeding to a conference with her general foreman and the personnel director of the company.

During these three steps of intra company review, the company had sole power to reverse its initial decision, reinstate Mrs. Guy and cure the breach of contract.

To treat the denial of her grievance by the company as the final occurrence which triggers the running of the limitations period, within which the worker must file a charge with the EEOC or courts with common sense.

Justice John Paul Stevens: Mr. Goldstein, did she have a right of further review within the grievance machinery?

Mr. Barry L. Goldstein: Yes, Mr. Justice Stevens, she had the right to proceed to arbitration.

Justice John Paul Stevens: Would it not be appropriate to postpone the complete denial of her contractual rights or termination of her contractual rights until the time in which she could obtain review expired?

Mr. Barry L. Goldstein: Yes, Mr. Justice Stevens, it could be that the period here have been told until November 28 since the Union had 10 days to indicate whether they were going to take their option and proceed to arbitration.

Justice John Paul Stevens: Is that your position or is it whenever they -- I do not see how to differentiate in other words between the denial after the third stage and the initial discharge because under your theory neither of those was the expiration of the contractual relationship.

Mr. Barry L. Goldstein: I think, Mr. Justice Stevens, it would be more correct to say November 28 than November 18 when the decision was made not to proceed to arbitration, but it was unnecessary to reach that question here.

When the agreement for which you bargained provides protection against discrimination in employment and also provides an accessible means of redress, it is understandable that a worker like Mrs. Guy who was also a Union steward would turn first to her collective bargaining agreement and the support of her fellow workers before turning to the government.

Accordingly, petitioner, Guy’s charge was timely filed regardless of whether Congress intended that the limitation period could be affected by equitable consideration such as tolling.

However, an analysis of the legislative history the Congressional policies effectuated by Title VII and this court’s opinion in Alexander v. Gardner-Denver Company, all support tolling the limitations period during resort to the grievance procedure.

The Sixth Circuit’s and respondent’s reliance on Johnson v. REA is misplaced.

In Johnson, this court held that federal actions undertaken pursuant to Section 1981 and Title VII were independent, separate and distinct and stated that the filing of an EEOC charge does not necessarily toll the limitations period for filing a 1981 action.

The court in comparing the remedies available under 1981 and Title VII, examined each and said that each has its advantages and each has its disadvantages.

Here, however, there is no such parity of judicial enforceable remedies.

The grievance procedure is conciliatory and pragmatic, dear does this court have said to the law of the shot, not the law of the land.

Second, in Johnson the court looked to the state tolling law.

Here, the only question is the application of a federal limitations period.

This court has repeatedly stated that the question of whether a federal limitation period is tolled or not is not a semantic question.

It is not a determination of whether the period is procedural or substantive.

Rather, it is a question of examining what it the intent of Congress.

Here, Congress made it clear in several ways, in the legislative history of the 1972 Equal Employment Opportunity Act that the limitations periods in 706 and specifically 706(e) were to be interpreted so “as to give persons the maximum benefit of the law.”

The Congress specifically approved this court’s flexible interpretations of the limitations period for deferral to state, the employment agencies in Love v. Pullman Company and it specifically approved other equitable considerations such as the notion of a continuing violation.

Lastly, the court in Johnson stated that the adoption of the state tolling principles was not inconsistent in that case with federal policies since the court pointed out little was at stake and here, there is much at stake.

The accommodation with the effective utilization of the system for an industrial self government to achieve equal employment opportunity, the grievance machinery is not an alternative judicial remedy.

Rather, it is a basic component of industrial self government and a prime mechanism by which fair employment practices must be incorporated into American industry if the goal of equal employment opportunity is to be achieved.

Chief Justice Warren E. Burger: You have been talking so far, Mr. Goldstein, about the Congressional purposes.

What are we to decide the case on, the Congressional purposes or the language of the statute?

The language of the statute is that a charge shall be filed within 90 days after the alleged unlawful employment practice occurred.

That is not ambiguous, is it?

Mr. Barry L. Goldstein: No, Mr. Chief Justice Burger.

Chief Justice Warren E. Burger: Recently, when Congress amended that, after your case was under way there was no change except changing it from 90 days to 180 days and the language is repeated “shall be filed,” mandatory language, “within 180 days after the alleged unlawful employment practice occurred.”

That is on page 2 and 3 of your petition for cert.

How much emphasis should we place upon the purposes when the language is clear, if it is clear?

Mr. Barry L. Goldstein: Mr. Chief Justice, we would submit that that language speaks to the amount of time someone would have to file a charge once the limitation period begins to run.

Chief Justice Warren E. Burger: It does not say that though, does it?

It says 90 days after the practice or event has occurred and the event was what, the discharge, was it not?

Mr. Barry L. Goldstein: Under our first theory, we would say that the last occurrence was not until the termination of the review procedure of the initial decision to discharge which occurred on November 18 when the personnel director of the company denied Mrs. Guy’s third-step grievance.

Chief Justice Warren E. Burger: But, as Justice Stevens’ question suggested, if you then were to use other remedies, it might be a long, long time before the period would begin to run on your theory, is that not so?

Mr. Barry L. Goldstein: The grievance arbitration procedure in American industry is generally geared to a very short period of time approximately, as pointed out in the reply brief of the Union, 90% of the collective bargaining agreements have provisions such as the one here where the maximum period of time for the decision to go to arbitration could be 35 days.

Also, Mr. Chief Justice, I believe in our reply brief we pointed to the statute limitations periods that were discussed in the Burnett Case and also in the Midstate Case which were as mandatory as the statute in this case, but nevertheless, the court said that those mandatory time periods did not preclude the application of equitable considerations to a decision as to when those time periods would begin to run.

Justice Byron R. White: Was your first approach presented in the lower court?

Mr. Barry L. Goldstein: Mr. Justice White, the argument which basically depends upon the Moore v. Sunbeam Corp. was stated to the Sixth Circuit.

The pertinent language in Moore v. Sunbeam Corp. was cited to the Sixth Circuit.

We did not articulate it as a separate argument as we do.

Justice Byron R. White: You never argued in the courts below that termination did not occur until the grievance procedure was concluded.

Mr. Barry L. Goldstein: No, Mr. Justice White, we did not.

We just sited the pertinent language in Moore v. Sunbeam Corp. to the Sixth Circuit.

While Mr. Newman will discuss the grievance arbitration procedure at some length, I would like to briefly state contrary to respondent’s argument, why the court’s opinion in Alexander requires tolling.

In Alexander, the court considered the conflict or rather the accommodation of two paramount federal policies, fair employment practices and industrial self government.

The court in Alexander, by its ruling, was pointing out that the procedure for the resort to the law of the shot and the law of the land should supplement each other.

Repeatedly, the court pointed out that a proper grievance arbitration procedure could effectively assist in implementing Title VII and even indicated that under certain circumstances evidence gathered in that process could be used by the District Court.

In conclusion, this court has delineated at some length the law enforcing the policy of equal employment.

In Griggs and Albemarle Paper Company, unlawful practices were defined.

In Albemarle Paper Company in Franks v. Bowman Transportation Company, the requirements for adequate remedy discussed.

In this case, the court has the opportunity by reversing the Sixth Circuit to encourage the full implementation of these decisions into the law of the shot where with the continued spur of court decisions make the goal of equal employment opportunity a reality.

Chief Justice Warren E. Burger: Thank you, Mr. Goldstein.

Mr. Newman.

Argument of Winn Newman

Mr. Winn Newman: Mr. Chief Justice and May it please the court.

Mr. Goldstein has articulated the legal theories supporting our view that the charge was filed timely.

I should like to make one additional comment with respect to the first point, namely the date on which the violation occurred and then devote the remainder of my time to the equitable considerations in respect to the tolling issue.

In the industrial world, it is well understood that a first-level foreman’s decision is hardly the last word.

This generally results or may result in request from the Union for a review of that decision which the foreman’s action has triggered and that decision is then as you know reviewed and culminates into review through various steps of the grievance procedure, including high-ranking company and Union officials.

Unknown Speaker: At what time does the pay stop?

Mr. Winn Newman: The pay stops, in a case of a discharge and in most cases, immediately, not in all cases and it did stop in this case immediately.

However, the decision is not an appeal kind of thing.

It is not an appeal to up the steps.

It is a review by other management to determine whether the action is consistent with the company policy or the Union contract and that, I submit, is the way in which it was looked at in the industrial world.

Unknown Speaker: I ask this, Mr. Newman, am I correct in my understanding that on the grievance was first filed there was no claim at all of racial discrimination?

Mr. Winn Newman: The grievance was filed with the charge of unfair action, but that is not untypical of grievances that are filed.

Unknown Speaker: Are you telling me I miss understood?

Mr. Winn Newman: No, the language used in the grievance did not allege racial discrimination.

However, a grievance that alleges unfair actions does include any unfair action as held by arbitrators in legion which includes race discrimination, sex discrimination or any disparate treatment.

Unknown Speaker: But there was not identification of it?

Mr. Winn Newman: There was no identification of it.

Unknown Speaker: Should that make a difference, do you think?

In other words, let us say the grievance was specifically that there had been a violation of some quite different and unrelated provision of the collective bargaining agreement, nothing whatsoever to do with racial or sexual or age discrimination and that had been processed.

Would that make a difference in your argument?

Would that not detract from some of your arguments for the point of view of both tolling and the finality of the grievance?

Mr. Winn Newman: Your Honor I suppose it might.

Unknown Speaker: If it had been based on a wholly different inquiry than the one that has to be undertaken if there is a claim of racial discrimination?

Mr. Winn Newman: I suppose it might if it is a totally different grievance.

We submit that in this case, this grievance of unfair action did in fact cover any unfair treatment relating to her discharge.

Unknown Speaker: But in the grievance procedure, was there focus on racial discrimination at all?

Mr. Winn Newman: The grievance procedure itself is not in the record.

What took place in that grievance procedure as you know is a very informal process, so there is no record of what took place, but the company too, both sides have the burden of establishing the facts on the way up through the grievance procedure.

Unknown Speaker: It would really be unnoticed if there is no focus and no inquiry into racial discrimination whatsoever during this grievance procedure.

There was no notice to the company of any such claim.

Mr. Winn Newman: The employer has notice of what the Union is alleging in the grievance procedure.

There is no formal record that we have.

The issue came up in the grievance procedure, but I could tell you that it is in the record, obviously I cannot do that.

Unknown Speaker: No, it is not in the record, we do not have it.

Mr. Winn Newman: But I can say that if this issue had gone before an arbitrator with a charge of unfair action, an arbitrator would fully consider any unfair action including race discrimination.

Unknown Speaker: He probably would have if it were not even suggested to him that that might have been the reason for the discharge, would he?

Mr. Winn Newman: He would consider it if it came before him in a form of evidence.

Unknown Speaker: Yes, if it came before him.

Mr. Winn Newman: Sure, that is right.

In this case, unfair charge is the typical way.

There are many contracts indeed that prohibit a grievance from being filed if you allege race or sex discrimination.

It is not arbitral.

The General Electric contract for example, provides that you can grieve on that but you cannot arbitrate on that, with the result that our Union typically files a grievance and does not allege race or sex discrimination because as soon as we allege that, it no longer becomes arbitral.

Nevertheless, the issue goes before the arbitrator in the context of just cause, because whether you view this as race discrimination or sex discrimination, you come out to the same place if the treatment is disparate, which is a basic fundamental of arbitration.

Unknown Speaker: I think perhaps you understand what was behind my question in any event.

If there is no notice to the employer at all that this is going to turn ultimately to a claim under Section 7 then perhaps there is some of the force of your argument to disparity.

Mr. Winn Newman: I submit, Your Honor, that there had been many charges of discrimination filed under Title VII against this employer.

There had been EEOC determinations against this employer.

There had been a heavily blocked plant.

It can be assumed in such cases, I think that anytime you have discharge of Black employees, this is liable to be an issue.

There is some burden on the employer to determine whether that is a factor as well.

Unknown Speaker: When you are with the EEOC, it is right to sue latter concluding that there was no racial discrimination.

Was the employer informed of that circumstance?

Mr. Winn Newman: The employer, within a normal course of things gets a copy of that determination, yes, Your Honor.

Unknown Speaker: So the employer was entitled to draw some inferences at that time as to status of the matter, was he not?

Mr. Winn Newman: That was after, of course the grievance had been dropped and that determination issued.

Unknown Speaker: Mr. Newman, if the petitioner was discharged on October 25, could she have filed a claim immediately on October 26 with EEOC?

Mr. Winn Newman: Yes, we would argue that she can file that claim, but she is not required to do so at that time because although some action has been taken against her and she is no longer on the payroll, the decision is still under review.

Let me suggest, in this regard, that if the employer treated this as a final decision and approached the subsequent steps of a grievance procedure with that in mind and failed to approach the subsequent steps of a grievance procedure with an open mind, they would be in violation of Section 8(a)(5) of the National Labor Relations Act.

I suggest that that requires to the extent that he is required to come to that table with an open mind.

He cannot have come and as you have asked about earlier, Mr. Chief Justice, just sit there.

He has to come there with an open mind and give a de novo review of whether the conduct warranted the results that were imposed, whether it would be to sustain it, reverse it or compromise it and these grievance meetings are hardly perfunctory.

Mitigating circumstances would be considered.

Other courts have held as it has been suggested that the grievance does not occur until the grievance procedure is exhausted.

In Butler versus the Teamsters, 514 Federal 2nd 442, for example, the Eight Circuit’s state of the common sense indicates that there is no accrual until all facts have been learned including those obtained during the grievance procedure.

That has been upheld by a recent district court in Ohio and I would like just briefly to touch upon tolling and comment that if you find the occurrence took place on October 25 rather than the third step of the grievance procedure, there is substantial equitable grounds to toll on this case aside from to be in a court with a federal policy, articulated in Alexander and numerous cases.

It is clear that non-discrimination matters are going to have to be handled through the grievance procedure.

The success rate is far greater in arbitration.

They are more than six times as great as before EEOC in discharge cases.

The retention rate is more than two times the rate of people restored by the NLRB.

We do not have figures for USC.

Unknown Speaker: Mr. Newman, let me interrupt because I am troubled by the same points that, apparently, Justice Stewart had in mind.

For your argument really to be sound, should you not also have the burden of showing that the grievance procedure and the arbitration procedure focused on the charge of discrimination?

Is that not a part of what Judge Tuttle had in mind in Culpepper and the other cases in Appellate Court, but I may be wrong.

I have not reread those cases, but if you do not have that, does your argument really hold water?

The second part of my question, just to have it all out is, if that is relevant, who should have the burden of showing whether the arbitration did involve racial discrimination?

Mr. Winn Newman: In terms of arbitral, both parties have the burden of bringing out all the facts and discussing them with an open mind as I have said earlier and discussing them as a grievance during the grievance procedure.

Unknown Speaker: But you are saying the employer should have the burden of showing under a general charge to always come in with evidence that there was no racial motivation.

Is that what you are saying?

Mr. Winn Newman: Under a general charge, you can always come in with evidence that there is racial discrimination.

Unknown Speaker: I understand that, but the question, if it is relevant to know whether or not the arbitration involved racial discrimination who should the judge put the burden on to explain whether or not that was part of the arbitration process?

Here, we have a silent record, as I understand.

Mr. Winn Newman: We submit that the charge of unfair includes any disparity.

Unknown Speaker: I understand, but in terms of that view, bring it out before the arbitrary.

Mr. Winn Newman: I think we have met that burden when a grievance is filed which alleges unfair treatment.

It alleges disparate treatment on all grounds including race.

Unknown Speaker: That is going to be in every single grievance involving a firing, is it not?

Is that not always going to be the claim, that it is unfair?

Mr. Winn Newman: No not always.

There might be other factors involved.

Unknown Speaker: I cannot think of any because that is such a broad generic covering the waterfront term, that is what it is always going to be, is it not?

Mr. Winn Newman: Well, maybe absenteeism or something of that sort when you have lots of other claims.

Unknown Speaker: The employee and the grievers are never going to say he was fired for absenteeism.

He is going to say “I was fired unfairly.”

Then the employer is going to respond, well, “The fact is, you were fired for absenteeism.”

So, is that not always going to be generic with the charge?

Mr. Winn Newman: I think when you have a plan with this kind of racial breakdown and within large numbers of EEOC charges that existed, you do have a burden on an employer to look at race discrimination where he has agreed to do so in his affirmative action plan and conciliation agreements.

Unknown Speaker: What is your answer to Justice Stewart’s question?

Unknown Speaker: Or to Justice Stevens, because I do not think you have answered either one of them.

Is that not always going to be a claim of disparate treatment?

Mr. Winn Newman: It will not always be disparate treatment.

There would be other factors mitigating circumstances, length of service employee should get another chance and good work record, and so forth, but as distinguished in the Act that has taken place, I cannot say it any differently, but unfair would include race discrimination.

Unknown Speaker: Clearly, if it would have gone to arbitration, that would have been an issue?

Mr. Winn Newman: Mr. Chief Justice and May it please the court.

I move that Fletcher L. Hudson of the State of Tennessee be permitted to present oral argument pro hac vice in this case on behalf of the respondents.

I am satisfied he possesses the necessary qualifications.

Chief Justice Warren E. Burger: Thank you, Mr. Newman.

Your motion will be granted and we will be glad to hear from Mr. Hudson in this case.

Argument of Fletcher L. Hudson

Mr. Fletcher L. Hudson: Mr. Chief Justice and May it please the court.

First of all, we disagree with the petitioners here as to the issue before this court.

We submit that the issues here are not as complicated and complex as they have made it out in their argument.

There was only one issue decided by the District Court in this case.

There was only one issue that was briefed on the merits by both parties in the Court of Appeals, and there was only one issue decided by the Court of Appeals and that issue was simply whether or not the filing of a grievance under collective bargaining contract operates to sustain or toll the time for filing the charge with the EEOC.

We contend that this is the only issue that is properly before this court.

Now, the facts as have been noted are basically undisputed and simple.

This employee was discharged on October 25 and she did not file a charge until 108 days from the date of her discharge.

Now, she filed a grievance or had a grievance filed on her behalf that alleged the violation of the contract as she claimed the discharge was unfair.

The Union decided not to take this case to arbitration and nothing happened on this grievance from the date it was denied by the employer.

Nothing happened after that point and nothing happened until the employee filed a charge with EEOC.

It is interesting to note here that the plaintiff, when she filed her case in the District Court, alleged two claims.

She alleged a claim under 1866 Civil Rights Act and she alleged a claim under Civil Rights Act of 1964.

In the argument on the motion to dismiss or claim under the 1866 Civil Rights Act, the motion to dismiss was granted, the plaintiff defended her failure to file her lawsuit within the one year state statute of limitations on the ground that the time of her filing of the EEOC charge had tolled the time for her filing this lawsuit under 1866.

In the argument on the dismissal or the motion to dismiss the Title VII claim, she took the position and the sole position that the filing of the grievance tolled the time for filing the charge with EEOC.

The District Court rejected these arguments and dismissed both of these claims.

The plaintiff appealed the claim under Title VII and as I noted the Court of Appeals deciding the issue of tolling and relying on this court’s decision in Alexander and in Johnson, affirmed the dismissal by the District Court.

The petitioners and the respondents in this case basically agree on the test that should be applied by this court in deciding this issue.

And the test is whether or not the failure to apply tolling would be inconsistent with the federal policy underlying the cause of action under consideration.

We both agree that this is the basic test that should apply.

Now, what we disagree on here are two things.

Number one, what is this federal policy and number two would it be inconsistent with this federal policy to refuse to apply tolling?

This court in Alexander and in Johnson had several things to say about this federal policy that we contend should control the answer to the first question.

This court stated that the underlying policy of Title VII was to provide the Title VII remedies as parallel and overlapping to any other remedies that might be available.

The court also stated that the policy underlying Title VII was that the EEOC and the court should have the preferred role in resolving claims of discrimination and not arbitrators and grievance procedures.

The court stated that the procedures of Title VII should be given full play and should not be made dependent on what might happen in a grievance or arbitration procedure.

The court also noted in Alexander that the underlying policy of Title VII was that precise jurisdictional prerequisites must be met before an individual will be able to assert a claim under Title VII.

And one of these prerequisites is the timely filing of a charge with EEOC.

Now, we can see nothing inconsistent with these policies to refuse to apply tolling in this case.

And we have heard nothing from the petitioners that suggests that there is anything inconsistent with these policies to require this employee to file her charge within 90 days.

The basic position of the petitioner seem to be that it would be preferable to sustain Title VII remedies and the remedies under Title VII so that the arbitration and grievance procedure will be given a chance to work.

They basically take the position that these two remedies are so interrelated and dependent that what happens in the pursuit of one remedy will necessarily affect what happens in another.

These same arguments were made to this court in Alexander and in Johnson and were rejected by this court.

Their perusable argument is that, to require an employee to file a grievance or to file an EEOC charge while a grievance is pending would in some way interfere with the National Policy that encourages the settlement of labor disputes, the grievance and arbitration.

Now, we submit that this has not been shown to be the case or that we take the position that there would be no substantial interference with the grievance and arbitration procedure to require an employee to file an EEOC charge within 180 days under the new law.

In any event, we take the position that is not the policy underlying the national labor laws that they should be considered here is the policies underlying Title VII that should control whether or not tolling should apply.

The petitioners in their brief, took the position that allowing tolling to take place will encourage the settlement of disputes that will discourage the filing of charges with the EEOC and would cut down on the work of the EEOC.

This court in Alexander answered this argument by stating that Congress intended for the commission and the courts to handle claims of discrimination and not arbitrators.

Contrary to this argument, Congress did not intend to discourage charges with the EEOC.

They intended to encourage charges and we see nothing inconsistent with the policies underlying Title VII to require an employee to file a charge with EEOC.

Unknown Speaker: But Mr. Hudson is not the purpose of the filing with the EEOC to try and seek voluntary adjustment of the matter without resort to the courts and if that is correct, is it not consistent with that purpose also to exhaust arbitration first?

Mr. Fletcher L. Hudson: We do not feel it is consistent with that purpose to exhaust arbitration because arbitration and grievance procedures are basically between Unions and companies.

Often times the Unions are alleged as the perpetrators to discrimination with the company and they were in this case.

The purposes underlying Title VII and the filing of the charge are to have the commission’s conciliation procedures to take effect.

And the fact that other efforts are taking place --

Unknown Speaker: Very simply stated, the purpose is to try and forestall litigation, to try to make it unnecessary to go to court, is it not?

Mr. Fletcher L. Hudson: I do not necessarily agree with that.

I think the purpose is to bring into play the procedures under Title VII, to try to bring about conciliation.

Unknown Speaker: The EEOC has no power other than to try and get the parties to work it out, is it not?

Mr. Fletcher L. Hudson: That is correct, but we feel that the basic argument that this tolling will allow for the settlement of disputes is not an argument in support of tolling because the basic purpose of Title VII is to have the EEOC and the courts handle these cases and not Unions and employers who are often times together the perpetrators of discrimination.

Unknown Speaker: Mr. Hudson, does the collective bargaining agreement in this case contain any provisions with respect to the time periods or with respect to concluding grievance proceedings or the filing of grievance proceedings or they going to arbitration, is there a schedule of limitation period within that bargaining agreement with itself?

Mr. Fletcher L. Hudson: There is a time limit in which a party has to take a grievance from the final step and the third step to arbitration.

Unknown Speaker: What is that?

Mr. Fletcher L. Hudson: I think it is 10 days in this case.

I do not recall it.

Ten to fifteen days.

Unknown Speaker: Is there any time limitation on filing the initial grievance?

Mr. Fletcher L. Hudson: There is a time limit on filing the initial grievance of five days.

Unknown Speaker: After the final step, arbitration must be initiated within 10 days.

Mr. Fletcher L. Hudson: The request for arbitration must be initiated within 10 days. Many times, under any contract and under this contract, there is no time limit on how long it would be before the arbitrator rendered the final decision.

As a matter of fact, in this particular plant we have one grievance go to arbitration and we never got an answer from the arbitrator.

It is still pending.

It has been pending for about five years.

This was one of the points I wish to make, that these collective bargaining contracts are all different.

Their negotiations or contracts between Unions and companies with different time limits for taking grievances to arbitrations, taking the filing of the grievances and what has to be alleged and the procedures in having these grievances.

To allow tolling will cause complicated and complex issues that will have to be decided by the EEOC and the courts.

And their work in trying to decide these issues, we feel, would detract from their principle objective of trying to eliminate racial discrimination.

As Mr. Goldstein stated, this grievance procedure involved here is relatively short.

In most grievance procedures, you know within a very short period of time whether or not this grievance procedure will bring about a settlement of your particular claim.

We contend that 180 days is ample time for an employee to know whether or not their grievance will bring about an adjustment.

They have plenty of time even if they wanted to wait until after the grievance procedure to file a claim with the Equal Employment Opportunity Commission.

The Equal Employment Opportunity Commission can develop procedures of deferrals, such as the procedures developed by the National Labor Relations Board, which will minimize the meaning of the problems the petitioners contend will take place if tolling is not permitted to occur.

Unknown Speaker: Mr. Hudson, you just referred to the 180-day provision.

Mr. Fletcher L. Hudson: Yes.

Unknown Speaker: I take it you are not receding from your position that the amendment does not apply to this claim as filed.

Mr. Fletcher L. Hudson: That is correct, Your Honor.

Unknown Speaker: Is it true, however, that when the amendment was effected, she still could have filed the day after the amendment and then on time, and you would have no defense to that filing?

Mr. Fletcher L. Hudson: Our position is that she could not have filed after the amendments pertained effective.

On March 24, 1972, it was still within 180 days from the date of her discharge, but we contend that the Congress has no power to give her the right to file a charge over a claim that has been extinguished or has never come into existence.

Unknown Speaker: Despite the language of the amendment?

Mr. Fletcher L. Hudson: The language of the amendment applies to all charges filed thereafter and all pending charges.

If she had filed a charge thereafter, we contend that that would be beyond the power of Congress to give her this right to file a charge if it occurred more than 90 days prior to the effective date of the amendment.

Unknown Speaker: Are you not really saying that none of the amendment applies to all occurrences that took place after the amendment?

Mr. Fletcher L. Hudson: Yes, that is our position.

Unknown Speaker: So you are driven to the position that her charge and her incident were completely extinguished and even if she had not filed the charge and even though it was within 180 days, she could not now file the charge?

Mr. Fletcher L. Hudson: That is correct.

Justice Byron R. White: It is my knowledge she could not have filed the charge between March 24 and April 22 of that year?

Mr. Fletcher L. Hudson: She could not have filed a charge.

That is our first position on that.

Justice Byron R. White: Are you saying Congress was without power to allow her to do so, without constitutional power?

Mr. Fletcher L. Hudson: Without constitutional power.

Justice Byron R. White: Under what provision of the constitution or what inhibition of the constitution?

Mr. Fletcher L. Hudson: We contend that this would be a violation of the Fifth Amendment, the due process of law that this is a situation that as of the date of the amendments, March 24, there was no right in existence and no liability in existence as of that date.

Congress cannot legislate rights and liabilities based on conduct that occurred prior to the effective date of this amendment.

Justice Byron R. White: Mr. Hudson, could the defendant not waive the statute of limitations?

Mr. Fletcher L. Hudson: We feel like the defendant could not waive the statute of limitations.

Justice Byron R. White: Do you think it is a non-waivable defense, the statute of limitations?

Mr. Fletcher L. Hudson: Yes.

Justice Byron R. White: That is remarkable.

Unknown Speaker: In a way, you can waive the Fifth Amendment, I guess.

Mr. Fletcher L. Hudson: Well, we would contend that the court would have no jurisdiction over the subject matter of this claim because no charge was filed and the filing of a charge is a prerequisite to the very existence of the right and liability.

Unknown Speaker: Well that is true as a matter of statute, but what authorities do you rely on for the proposition that the Fifth Amendment would prevent Congress from accomplishing this if they chose to do so?

Mr. Fletcher L. Hudson: We rely on this court’s decision in the Danzer Case that was cited in our brief, that has later been distinguished in other situations where the statute of limitations goes to the remedy only and not to the right.

But, we contend that the Danzer decision that we have cited stands for this proposition.

And we also contend that even if Congress did have the power to legislate these rights, they did not legislate the rights in this case because the 1972 amendments do not apply to this situation.

They can only apply if this charge was pending and this charge was not pending.

Justice John Paul Stevens: Mr. Hudson, I gather on your submission, the 90 days run out on January 25?

Mr. Fletcher L. Hudson: Approximately, yes.

Justice John Paul Stevens: But there was a complaint file on February 10?

Mr. Fletcher L. Hudson: That is correct.

Justice John Paul Stevens: And you say, I gather, that the EEOC could not accept it on February 10 the complaint which, in fact, EEOC did accept that you say had no authority to, and therefore, the complaint filed on February 10, although still with the commission on March 24, was not pending for the purposes of the ‘72 to amendments.

Mr. Fletcher L. Hudson: That is our position and we would also want to point out --

Unknown Speaker: And we have to accept all those propositions to agree with you.

Mr. Fletcher L. Hudson: Yes and you also have to decide that you have this issue before the court.

Unknown Speaker: Well that is because as I understand it, the Sixth Circuit refused to reach this question on the ground of amicus.

I gather EEOC is amicus.

It had suggested that it had not been tendered by the petitioners.

Mr. Fletcher L. Hudson: Our position is that it was not before the court because a party did not raise the issue.

Unknown Speaker: That is what I said, but it was tendered by EEOC as amicus.

Mr. Fletcher L. Hudson: Could not in the District Court.

It was not before the District Court for decision.

It was not briefed on the merits by the parties in the Court of Appeals.

Now, I would also point out that this employee, when she filed her charge on February, stated that the most recent date of discrimination was January 29.

Unknown Speaker: You say that there is nothing in the record that would support that allegation.

Mr. Fletcher L. Hudson: There has nothing ever been suggested any discrimination occurred on that dateIf she had not misrepresented this fact—

Unknown Speaker: The EEOC would not have taken it.

That is a lie, is it not?

She does not know whether they would or not.

Mr. Fletcher L. Hudson: Well, under their procedures, we have to assume they would not.

Unknown Speaker: Mr. Hudson, let me get back in my question in response to this other ones.

Suppose the occurrence took place 30 days before the ’72 amendment, how long would she have to file, 60 or 120 days?

Mr. Fletcher L. Hudson: We contend that she would have 90 days to file, or 60 more days.

Unknown Speaker: Despite the interposition of the ’72 amendment.

Mr. Fletcher L. Hudson: Well, this argument, I am not frankly solid on this.

I cannot really answer your question directly.

From a constitutional stand point, maybe that she could file 180 days later, but I will have to take the position that to be consistent that she could not file after 60 days.

Unknown Speaker: The limitation is a condition to the right itself.

You could not suggest that the 180 days would be applicable, could you?

Mr. Fletcher L. Hudson: That is correct, Your Honor.

Unknown Speaker: Is it really accurate to say that the Court of Appeals did not consider this issue?

Judge White’s opinion says that there is a new issue which was not raised by the plaintiff in the District Court.

I am looking at pages 8A and 9A of the appendix to the petition for certiorari, but then he goes along and in two or three or four short paragraphs he does discuss the issue and dispose of it, does he not?

Mr. Fletcher L. Hudson: That is correct.

In the first part of that decision, the attempts of making clear that there was only one issue for decision.

And he does go ahead and decided the issue without the benefit of the respondent’s argument on the merits to that issue.

Unknown Speaker: That does deal with the issue and dispose of it on the merits.

Do you give it the same reading as I do?

Mr. Fletcher L. Hudson: They discussed the issue.

I do not feel that they decided the issue.

I do not feel that they actually decided the issue.

They said, in effect, that “if we were to decide this issue we would decide such and such” and that is the basis of their decision.

Unknown Speaker: He ends up the discussion with “the subsequent increase of time to file a charge enacted by Congress could not revive plaintiff’s claim which have previously been barred and extinguished.

That seems to me, a fairly unambiguous conclusion.

It does not say “if we did decide the issue, we would decide it that way.”

Mr. Fletcher L. Hudson: That maybe true, Your Honor, it is really unclear.

Unknown Speaker: Judge Edward’s dissent is squarely on the 180 days, is it not?

Mr. Fletcher L. Hudson: That is a point that, I think, should be noted.Judge Edward’s dissent states that they should not decide the issue but send it back to the District Court and let the District Court decide it.

In effect, that is his dissent, that they should send the case back to the District Court.

I would like to say, concerning the argument that the discharge was not a final act until the termination of the grievance procedure.

As I stated earlier, there is also a question here of whether of not this issue is properly before the court.

We contend that this issue was raised for the first time in brief to this court.

Under this court’s rules and policies, it should not be considered since it was not considered by the courts below.

But in any event, we contend that a discharge of an employee is a final and completed act.

It was a final and completed act in this particular case.

There was nothing left to be done.

The only thing left to be done was a question of whether or not the company would change its mind.

Now, the company still has this question.

They can still change their mind, but that does not make the discharge, not a final completed act.

The denial of the grievance was also a final act and completed.

It was a separate act.

The employee could have filed EEOC charge over the denial of the grievance.

The employee filed a charge over the discharge of the employee.

And it should be noted also that plaintiff’s complaint in the District Court alleged that this discharge occurred on October 25, 1971.

So we contend that this argument does not lend any assistance to the petitioner’s case here.

In conclusion, we contend that the only issue before this court is whether or not tolling should apply.

And based on the policies of this court, we contend it would not be inconsistent with the policies underlying Title VII of the Civil Rights Act to refuse to apply tolling.

And since it would not be inconsistent, we contend that the decision of the court below should be affirmed.

Chief Justice Warren E. Burger: Thank you, Mr. Hudson.

Do you have anything further, Mr. Newman?

Rebuttal of Winn Newman

Mr. Winn Newman: Yes, Chief Justice.

On the point of the --

Unknown Speaker: Your side does not seem to address the 180 days.

Mr. Winn Newman: Well, we think it is an important issue, but in terms of the long --

Unknown Speaker: Actually, if you were right on the 180 days, we would not have to reach any of these.

Mr. Winn Newman: Yes, but in terms of the long-run effect, we think that in interest of --

Unknown Speaker: If you want to win your lawsuits, you might try to help us with the 180 days.

Mr. Winn Newman: But we think that is what we have said in our briefs.

We thought it was fully briefed there that the 180-day provision applies in this case and that the grievance clearly is timely on that basis.

No question about our thinking on that score.

Unknown Speaker: You would not disagree with the argument made in the amicus brief of the United States?

Mr. Winn Newman: No, we fully support it in that sense and did.

I would like to point out though that the complaint does allege race discrimination, that the company was silent in its response.

It never argued that on the argument that they are now making.

It did not argue that Mrs. Guy had slept on her rights.

It did not argue that it was prejudiced by the delay.

We submit that since the statute of limitations is a defense, that the burden has the obligation to prove all those elements and at worst, this case should be remanded on that matter.

Secondly, I want to make clear that we are not, in any way, suggesting here that the employee should give up the right to utilize Title VII.

What we are saying is that, for various reasons that we get into a brief and would not be able to get into here, the employee maybe hound by the fact that a grievance is pending and it may disrupt the informal atmosphere in terms of settling the case.

There would be people looking over their shoulders at lawyers rather than trying to settle a grievance, with the lawyers taking over rather than the industry relations people.

Congress clearly did not intend to force people to court as this court had said in Alexander it intended to encourage people to stay with the arbitration process.

As far as increasing the statute of limitations is concerned, it seems to us, this area is clear.

That a case has already been referred to and there is Minnesota Mining Chase Securities.

I am sorry, my time is up.

Thank you very much.

Chief Justice Warren E. Burger: Thank you gentleman, the case is submitted.