The opinion
BOREMAN, Senior Circuit Judge,
concurring in part and stating his view, in which he is joined by Circuit Judge BRYAN, with respect to “THE GANG SYSTEM”:
I concur in that portion of Judge Butzner’s opinion pertaining to the merger of Local Unions Nos. 829 and 858, the abolition of dual hiring halls, and the points discussed generally in his opinion under the heading “MERGER OF THE LOCALS.”
I find myself in disagreement with part II of Judge Butzner’s opinion under the heading “THE GANG SYSTEM” in which he would hold the District Judge Harvey erred in refusing to order the immediate desegregation of the established gangs of workers and in rejecting the Government’s proposal to require the adoption of a daily shape-up system. I would affirm the district judge on this point and I am authorized by Judge Bryan to state that he shares my views in this connection and joins in such affirmance.
The opinion of the district court in United States v. International Longshoremen’s Ass’n is reported at 319 F.Supp. 737 (D.Md.1970). Under the heading Injunctive Relief, 319 F.Supp. 742 , et seq., the court discussed at length the relief sought by the Government and the contentions advanced by the parties, pro and con. It is clear that the court was keenly aware that nonracial business purposes are dominant considerations along with others such as safety, efficiency, and productivity.
“ . . . In deciding upon appropriate injunctive relief here, this Court is faced with a balancing process On the one hand, the Court must consider the effects of the many years of racial segregation of the members of Locals 829 and 858, insofar as such practice has or may have tended to deprive individual union members of employment opportunities. Against these considerations must be weighed the effects that a decree reorganizing longshoring operations might have on *505 the entire industry in the Port of Baltimore. Far-reaching relief which would adversely affect productivity and efficiency to such an extent as to discourage the use of the Port by shipping interests would reduce the availability of the very employment which is sought to be protected. What is required here is a decree which would eliminate, as far as possible, past discriminatory practices and yet would have a minimal adverse effect on normal and efficient longshoring operations in the Port.” 319 F.Supp. at 743 .
In turning its attention to the Government’s proposal that the gang system be abruptly abandoned and that a daily shape-up system be instituted the court analyzed the evidence and stated its findings and conclusions. The court compared the longshoring work at the Port of Baltimore and at other ports, New York, Philadelphia, Galveston, Houston and Jacksonville, the nature of the cargoes handled at some of the various ports, the number of accidents per one million man hours worked, the favorable accident rate at Baltimore under the gang system where more dangerous cargoes are handled (large shipments of steel and steel products) as against the less favorable accident rate at other ports under the daily shape-up system where less dangerous cargoes are handled (grain, cotton, etc.). Based upon evidence discussed by the court, findings were made which are supported by the record. As noted, the few witnesses who favored the daily shape-up system were from other ports and were not generally familiar with the cargoes usually handled in Baltimore or the conditions at that port.
The court pointed out that a gang of longshoremen operates as a team; that the skill and efficiency of a particular gang depends in large measure on the teamwork of its members, developed by working together over a period of years; that the evidence discloses that a daily shape-up system would be inefficient, would increase safety hazards and would decrease productivity of the workers; that almost all of the experienced longshoremen who testified, both white and Negro, opposed abolition o,f the gang system; that the daily shape-up system in general has not been satisfactory elsewhere in those few ports where it is used; that in recent years the productivity of longshoremen in the Port of Baltimore has increased while that of similar workers in other ports where new gangs are formed each morning has decreased.
While refusing to order the immediate and abrupt abolition of the gang system the court indicated that important modifications are necessary:
“To hold that the gang system should not be discontinued is not to imply that in the future it should operate in all respects as it has in the past. On the contrary, important modifications are necessary if the present system is to operate in such a way that members of the merged local will not be denied equal employment opportunities. The decree in this case should require the defendants to take affirmative action to insure that the continued operation of the gang system does not deprive any such member of employment opportunities or limit such opportunities.
“In particular, the new local should take steps to insure that available work is apportioned equally between existing white gangs and Negro gangs. Furthermore, when an extra man is needed or when an opening occurs in a particular gang because of sickness, retirement, death or for any other reason, such gang may not discriminate in selecting a replacement and may not choose a new white or Negro member merely because other members of the gang are white or Negro. It is clear that the present replacement policy, based as it has been on racial considerations, is discriminatory and unlawful. An opening in a gang should be filled either temporarily or permanently on the basis of seniority or other objective factors and not on the basis of race. If union rules required *506 that an opening in a gang should be offered to a qualified white or Negro longshoreman with the greatest seniority before being offered to a similarly qualified individual with lesser seniority, most of the existing gangs would before long have both Negro and white members.” 319 F.Supp. at 745, 746 .
In footnote 9 of his opinion Judge Butzner undertakes a comparison of accident rates in various ports where the daily shape-up system has been in use in recent years and reaches the conclusion that the accident rate has been reduced. At the same time he recognizes that the shape-up cannot be isolated as the only reason for the decline in accident rates and that other undisclosed factors may have played an important role. But the district judge found from the evidence that the average accident rate for the last four years in each of the ports of Jacksonville, Galveston and Houston which have instituted the daily shape-up system is higher than the accident rate in Baltimore under the gang system even though more dangerous cargoes are handled in Baltimore. In fact, the court below pointed to Galveston as having one of the highest accident rates in the country, the average rate over the last four years being 118.1 per one million man hours worked as against the amazingly much lower rate of 76.2 over the same period in Baltimore.
The evidence disclosed also, as found by the court, that the longshoremen in Jacksonville and Galveston have complained about the amount of wasted time spent each morning attending the shape-up. A man is not paid until he actually starts work at 8 a. m. each morning, yet he must report to the hiring hall around 6:30 a. m. and wait without compensation “for the gangs to be formed.”
The court noted the Government’s claim of unequal employment opportunities in the past for the Negro longshoremen but he found a reason for the disparity and discussed the solution to the problem and the anticipated total elimination of the disparity.
In its opinion the court observed that for the reasons stated the gang system would not be discontinued in the Port of Baltimore but that the decree entered should contain provisions requiring modification of the gang system in the manner stated in the opinion and should further provide that jurisdiction be retained by the court for the purpose of entering any additional order that is feasible and necessary to insure equal employment opportunities without regard to race for all members of the defendant unions in the Port of Baltimore. It is obvious that, by retaining jurisdiction, the court below was prepared to enter such orders as might be necessary if, after a trial period, it should appear that additional action is necessary to further implement the court’s stated objectives. The decree providing for the retention of jurisdiction is most appropriate in the circumstances.