Appendix — Teamsters v. United States
Supreme Court brief1977
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IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1975
Nn... 25-636 1
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
Petitioner,
VS
UNITED STATES OF AMERICA,
Respondent.
APPENDIX TO PETITION FOR CERTIORARI
DAVID PREVIANT
6th Floor, Midland Bank Building
211 West Wisconsin Avenue
Milwaukee, Wisconsin 53203
L. N. D. WELLS, JR.
Suite 200—8204 Elmbrook Drive
Dallas, Texas 75247
Counsel for Petitioner, International
Brotherhood of Teamsters
Of Counsel
GOLDBERG, PREVIANT & UELMEN
211 West Wisconsin Avenue
Milwaukee, Wisconsin 53203
MAILLINAX, WELLS, MAUZY & BAAB
Suite 200—8204 Elmbrook Drive
Dallas, Texas 75247
St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477
eal
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1975
_ eee
a ee eee we
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
Petitioner,
UNITED STATES OF AMERICA,
Respondent.
APPENDIX TO PETITION FOR CERTIORARI
INDEX TO APPENDIX
Page
1. Opinion of the U. S. Court of Appeals for the Fifth
Circuit, August 8, 1975; 517 F.2d 299 ...........
2. Opinions of the District Court for the Northern Dis-
I a i ee
(a) December 31, 1971; 335 F.Supp. 246..........
(b) January 20, 1972; 4 F.E.P. Cases 875, not other-
EE So's ob ov hae he clrondhaedin’ vas
(c) October 19, 1972; 6 F.E.P. Cases 690, not other-
EN Sided. n sehen eae ne ete ne vad sy
(d) December 6, 1972; 6 F.E.P. Cases 703, not other-
EE» 6.a:n san bbb opdiede ates Gees tata
. Decree in Partial Resolution of Suit—Northern District
of Texas, May 12, 1972; unreported ..............
. “Final Order” of the District Court for the Northern
District of Texas, March 2, 1973; unreported .......
. “Order,” Amending Final Order by District Court for
the Northern District of Texas, March 19, 1973; unre-
. Civil Rights Act of 1964, as amended—Title VII ..
(a) §§703(a) through (j); 42 U.S.C. §§2000(e)2(a)
| RE Re AI ea cate SE Se Jen ba
(b) §§707(a) through (e); 42 U.S.C. §§2000(a)6(a
eg PV TEEPE T OCTET ETT Eee eee
56
79
85
94
OPINION
Of the United States Court of Appeals for the Fifth Circuit;
August 8, 1975, 517 F.2d 299
No. 73-2214.
United States Court of Appeals, Fifth Circuit.
Aug. 8, 1975.
UNITED STATES of America, Plaintiff-Appellant-
Cross Appellee,
Vv.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA, Defendant-Appellant-Appellee.
UNITED STATES of America, Plaintiff-Appellant-
Cross-Appellee,
Vv.
T.I.M.E. FREIGHT, INC., et al.,
Defendants-Appellees-Cross Appellants,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America,
Defendant-Appellant- Appellee.
* > & * oa * o
Appeals from the United States District Court for the North-
ern District of Texas.
Before BROWN, Chief Judge, and AINSWORTH and MOR-
GAN, Circuit Judges.
JOHN R. BROWN, Chief Judge:
This governmental pattern and practice suit is one more in
an ever-increasing number of Title VII employment discrimi-
—
nation cases arising Out of the trucking industry and primarily
involving the past exclusion of minority group members from
the job of over-the-road-line driver (LD).! The Government,
T.I.M.E.-D.C., Inc. and the International Brotherhood of Team-
sters (IBT) all appeal from an order and decree that found
that T.1.M.E.-D.C. has engaged in a system-wide pattern and
practice of discrimination in violation of §§ 703(a)(1), (2)?
and 707(a)* of Title VII of the Civil Rights Act of 1964. This
! Three very recent cases are Rodriguez v. East Tex
Freight, 5 Cir., 1974, 505 F.2d 40; ~ a v. Yellow Freight Sy
tem, Inc., 5 Cir., 1974, 505 F.2d 66; and Resendis v. Lee Way
Motor Freight, Inc., 5 Cir., 1974, 505 F.2d 69, which were preceded
by Franks v. Bowman Transportation Company, 5 Cir., 1974,
495 F.2d 398; Bing v. Roadway Express, Inc., $ Cir., 1971, 444
F.2d 687 (Bing 1); Belt v. Johnson Motor Lines, Inc., 5 Cir., 1972,
458 F.2d 443; Withers v. Mercury Freight Lines, 5 Cir., 1972,
457 F.2d 496; United States v. Roadway Express, Inc., 6 Cir., 1972,
457 F.2d 854; Jones v. Lee Way Motor Freight, 10 Cir., 1970, 431
F.2d 245, cert. denied, 1970, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.
2d 237; United States v. Central Motor Lines, W.D.N.C., 1971, 338
F.Supp. 532, 352 F.Supp. 1253; United States v. Pilot Freight Car-
riers, Inc., M.D.N.C., 1973, 54 F.R.D. 519; United States v. Navajo
Freight Lines, Inc., C.D.Cal., 1973, 6 FEP Cases 274 and 1972, 4
FEP Cases 1044; Sa sv. Yellow Freight System, Inc., N.D.Ga.
, . , ; Sabala v. i
Tex. 1973, 362 FSupp. 1142. academies
2 42 U.S.C.A. § 2000e-2(a)
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any indivi
refuse ‘ y individual,
or otherwise to discriminate against any individual with respect
aS —— >) Seen or privileges of em-
. use of such individual’ igi
pl as aoe 4 ividual’s race, color, religion, sex,
(2) to limit, segregate, or classify his employees in any wa
which would deprive or tend to deprive ron individual of -
ployment opportunities or otherwise adversely affect his status
as an employee, because of such individual’s race
- . , color, re-
ligion, sex, or national origin. i
* 42 US.C.A. § 2000e-6
Civil actions by the Attorney General—Complaint
(a) Whenever the Attorney General has reasonable cause to
believe that any person or group of persons is engaged in a
mic — heey ~
en
ikten
appeal is largely focused on the issucs of whether the Govern-
ment carried its burden of proving pattern and practice, and if
so, whether the District Court's award of carry-over seniority
relief to the affected class of Black and Spanish-surnamed Amer-
ican (SSA) incumbent employees was appropriate, adequate or
both.
This litigation represents the culmination of the consolida-
tion of two separate suits filed by the United States against
T.LM.E.-D.C. and the Teamsters.‘ The first was filed on May
15, 1968 in the Middle District of Tennessee, alleging that
T.LM.E. Freight, Inc. (a predecessor of T.I.M.E.-D.C., Inc.,
see table, note 6, infra), the IBT, and Teamster Local 480
(representing T.I.M.E. Freight employees at the Nashville ter-
minal) were engaged in a pattern and practice of discrimination
in violation of Title VII at T.1.M.E.’s Nashville terminal.
The second suit was filed January 14, 1971 in the Northern
District of Texas, charging T.1.M.E.-D.C. and IBT with engag-
ing in a pattern and practice of discrimination on a systemwide
basis. The International Association of Machinists and Aero-
space Workers was subsequently joined as a defendant. After
transfer the suits were consolidated in the Northern District of
Texas on April 30, 1971.
pattern or practice of resistance to the full enjoyment of any of
the rights secured by this subchapter, and that the pattern or
practice is of such a nature and is intended to deny the full
exercise of the rights herein described, the Attorney General
may bring a civil action in the appropriate district court of the
United States by filing with it a complaint (1) signed by him
(or in his absence the Acting Attorney General), (2) setting
forth facts pertaining to such pattern or practice, and (3) re-
questing such relief, including an application for a permanent
or temporary injunction, restraining order or other order against
the person or persons responsible for such pattern or practice,
as he deems necessary to insure the full enjoyment of the rights
herein described.
4 Reference is made interchangeably to IBT and Teamsters unless
otherwise indicated by the context.
a
The Government's Claim
Essentially the Government charged T.I.M.E.-D.C. with en-
gaging in a pattern and practice of discrimination by
(a) Refusing to recruit, hire, transfer and promote black
and Spanish-surnamed persons on an equal basis with
whites.
(b) Assigning blacks and Spanish-surnamed persons to
lower paying, less desirable job classifications while re-
serving the higher paying, more desirable classifications for
whites.
(c) Refusing to employ black and Spanish-surnamed per-
sons as casuals (non-regular) employees on the same basis
as whites.
(d) Refusing to promote or transfer black and Spanish-
surnamed employees, or to provide an opportunity for
such employees to transfer, to road driver, mechanic and
managerial jobs on the same basis it has promoted, trans-
=
of Blacks and SSAs to more desirable jobs and by failing to
take affirmative action to correct continuing effects of past dis-
crimination.
Although the Government alleged and offered proof on a
wide variety of discriminatory practices, its main complaint cen-
tered on the charge that T.I.M.E.-D.C. and its predecessors had
refused to initially hire Blacks and SSAs as LDs and continued
to perpetuate that discrimination by refusing to permit or dis-
couraging them to transfer to LD vacancies.
T.1.M.E.-D.C.’s Operations
T.LM.E.-D.C. Inc. is a major interstate common carrier oper-
ating on a transcontinental basis, with headquarters in Lubbock,
Texas. T.I.M.E.-D.C. operates 51 terminals in 26 states and
three Canadian provinces and employs 6,472 people. T.I.M.E.-
D.C. nationwide motor freight system is a product of 10 mergers
over a 17 year period.*®
Merger History
ferred and provided the opportunity to transfer for white
employees to these jobs.
(e) Maintaining a system of promotions and transfers
which perpetuates the effects of the company’s past dis-
crimination against black and Spanish-surnamed persons.
Pretrial Order € 2.
The Government also alleged that [BT by itself and through
its Area Conferences* and locals engaged in a pattern and prac-
tice of discrimination by entering into contracts which perpet-
uate the effects of past discrimination by impeding the transfer
* The Southern Area Conference covers those terminals within
10/52 Southwestern Freight Lines, Inc. merged into Intercity Motor Express
9/54 Harrington Truck Lines
5/57 Southeastern Truck Lines
10/59 Powell Brothers Truck Lines
6/64 Super Service Motor Freight
4/67 Constructors Transport Co.
4/68 A portion of the rations of
Texas-Arizona Motor Freight
1/69 Los Angeles-Seattle Motor Ex-
press (LASME)** and Den-
ver-Chicago Trucking Co.
( DC ) +?
forming T.I.M.E., Inc.
T.1.M.E., Inc.
T.L.M.E. Freight, Inc.*
was acquired by
merged into T.1.M.E. Freight, Inc. form-
ing T.1.M.E. D.C., Inc.
* T.LM.E., Inc. was changed to T.I.M.E. Freight, Inc. in
** LASME was formed in 1932 in Seattle as Hendricks Refrigerated Express
and served points between Vancouver and Los Angeles as of the date of
the merger. .
*** D.C. was formed in Denver in 1930 as Cohen Brothers Trucking and devel-
oped into a transcontinental carrier through a series of 12 mergers.
the states of Alabama, Florida, Georgia, Mississippi, Tennessee, Ar-
kansas, Louisiana, Oklahoma and Texas. Seven terminals for which
the United States seeks class relief are within the Southern Area
Conference. See Rodriguez, supra, at 47.
a va
IBT is an unincorporated labor organization. T.1.M.E.-D.C.
has signed a total of 124 separate collective bargaining agree-
ments with 83 individual Teamster locals at its various terminals.
Each contract consists of three basic parts, the National Master
Freight Agreement, an Area Supplement and Local Riders or
Addenda. The National Master and the Area Supplements are
negotiated nationally on a multi-union, multi-employer basis.
See Rodriguez, supra, at 47 and 60.
Job Classifications and Seniority System
Non-managerial employees of T.I.M.E.-D.C. represented by
IBT are divided into four basic bargaining units—road (LD),
city, garage, and clerical’—each with its own separate contract.
The four basic bargaining units each operate under a sepa-
rate local rider and area supplement although all are covered
by the National Master Freight Agreement. Accordingly each
maintains its separate seniority roster.
There are generally no lines of progression within the ga-
rage. When a vacancy occurs notice is posted and any mem-
ber of the unit capable of meeting the minimum qualifications
for the job may bid on the basis of seniority. The same is es-
sentially true of the city. There is no line of progression and
any member of the unit may bid on the basis of seniority on
any job within the unit when a vacancy arises, if the employee
meets the minimum qualifications.
LD is the only job classification within the line unit. All
drivers within the unit are placed on the seniority board. Unit
* The drivers in the city operations unit pick freight at the
terminal and deliver it locally. They must necessarily drive in con-
gested city traffic and engage in a great deal of loading and unloading.
Those in the road unit (LDs) drive tractor-trailers over the road
between the company’s terminals in various cities. They do not load
or unload their trailers.
_——
seniority controls the bidding on particular line runs, over-
time and protection against layoffs, as well as transfer prefer-
ence within the Southern Conference under the Modified Sen-
iority Plan. (See text accompanying note 9, infra). A new
LD with low seniority is required to “sweat” the extra board
awaiting extra line runs as they arise. As he accumulates sen-
jority he may bid on and obtain the less desirable regular line
runs, looking eventually to the day he will have accumulated
enough seniority to qualify for the most desirable regular runs.
Nothing in the union contracts prohibits an employee from
transferring between separate bargaining units at a given ter-
minal, but he loses his pre-transfer accumulated seniority for
bid and layoff.*
While city drivers have occasionally and at some terminals
frequently transferred to LD, it was a more normal practice
for the terminal to hire many of its LDs “off the street.”
Ordinarily an employee would not be allowed to transfer
from one terminal to another and take his seniority with him.
However those terminals within the Southern Conference have
adopted a “Modified Seniority System” under which a LD
domiciled within the Southern Conference who has been laid
off at his home terminal is permitted to use his unit seniority
to either fill a vacancy at another terminal within the South-
‘ The parties stipulated:
15. If a regularly employed employee not on layoff moves to
a job cove oy Ons ottiontve bangeming agreement from a job
covered another collective bargaining agreement at one of
T.1.M.E. D.C.’s terminals, it is the uniform policy and practice,
in every known instance, that such employee establishes his
seniority for purposes of bidding and layoff in the job he trans-
fers to as of the date of the transfer gives up such seniority
for purposes of bidding and layoff in his old job as of that date;
however, he maintains his company seniority for purposes of
fringe benefits, such as vacation rights.
Pretrial Order € 15.
ern Conference or bump a junior LD at such other terminal.
Such transfer right must be utilized within 30 days of the
layoff. The transferring LD then has the option to return to
his old terminal prior to new hirees when a vacancy arises.*
Proceedings Below
The consolidated litigation was tried in the Northern Dis-
trict of Texas in early May 1972. All parties introduced live
testimony including that of many alleged discriminates,
supervisory and management personnel of T.I.M.E.-D.C.,
teamster Officers, and various experts, including a government
statistician and a social psychologist who testified for T.I.M.E.-
D.C. In addition the Government introduced over 80 depo-
sitions and 19 summaries of depositions taken at 10 of
T.LM.E.’s terminals.
” In regard to the precise tion i
fied Seniority, the parties stipulated. (ties aceaarioeaad
18. The provisions of modified system seniority as provided
in the Southern Conference Area Over-The- ‘suppl
Agreement are as follows: iia =
a. The Employer will prepare a seniority roster f
Road Drivers who have sealeciay under the Road phn
ment showing the drivers’ full company seniority.
b. Driver. will use company seniority for all purposes
at home terminal, but may only move to a foreign ‘eanion’
when laid off due to reduction in force at home terminal,
- L, A be yb a domicile point, or in the event of a
— = e or as approved by Change of Oper-
c. When a driver has been laid off, he will have a thi
(30) day period in which t ise hi i =
os an te ond “ exercise his seniority at some
d. A driver wishing to exercise his seniority due to lay-
off, will give advance notice to the terminal auaeae ef do
other station; which notice shall be posted on the bulletin
— ad forty-eight (48) hour period before a bump
e. Drivers who have been laid off from their original poi
of domicile and who have exercised their seniority at co
(1.) Decree in Partial Resolution of the Suit
Following the triai but before decision, the Government
and T.LM.E.-D.C. entered into a Decree in Partial Resolu-
tion of the suit. It stated that it was neither an adjudication
on the merits nor an admission by T.I.M.E. of a Title VII
violation. It dealt largely with the matter of applicants for
new hires. Under the decree T.I.M.E.-D.C. agreed (i) to en-
gage in a minority recruitment program in all communities
where it operates terminals in cooperation with community
organizations, (ii) to provide all minority applicants who in-
quire about employment with an application blank and notifi-
cation of any vacancies, (iii) to keep specific employment
records and file periodic reports with the District Court, and
other terminal shall be offered an opportunity to return to
that point before new employees are hired.
f. Drivers on lay-off who have not exercised their seni-
ority at some other terminal shall be recalled for work in
accordance with the Road Agreement. However, if recall
is to a foreign terminal he will have the option of turning
down the recall and thereafter, he will be entitled to recall
at his home terminal only.
g. Any employees of a corapany who under the terms
of the 1970-73 Contract have voted to have Southern Con-
ference Modified Seniority who did not already have South-
ern Conference Modified Seniority, and who are on lay-off
and who have not had an unity to exercise their
seniority into the other area will have a thirty (30) day
period from the date of the adoption of these rules in
which to exercise their seniority over any junior employee
in the other area. The thirty (30) day period shall com-
mence September 21, 1970.
h. An employer shall not lay off an employee if the em-
ployee averages $150.00 per week for thirty (30) days
except as provided in Artiicle 5, Section 4 of the National
Master etc. contract, or for a provable economic lay-off.
Pretrial Order € 18.
—_—
(iv) to abide by certain job qualification standards with re-
spect to future hiring and promotion.'°
Of greater significance to the issues on appeal, the decree
mandated priority to discriminatees and subsequently a one-
to-one minority-white hiring ratio.'?
1 With respect to driving positions to decree provided
Qualifications for Employment
5. The qualifications for city driving and road driving posi-
tions shall be those set forth in the Department of Transporta-
tion’s Motor Carrier Safety +4 Title 49, Part 391,
Sections 391.11 and 391.15. No black or Spanish-surnamed
American applicant for a road driving position who meets these
qualifications shall be deemed insufficiently experienced for that
position if he has the equivalent of two years experience driving
equipment comparable to that to be operated on the job. In de-
termining equivalence, T.1.M.E. D.C. shall consider such factors
as military driving experience and graduation from a truck driv-
ing school.
+ . + 7 > > 7
12. T.I.M.E. D.C. may continue to give the Department of
Transportation written safety test to all applicants; however,
assing the test shall not be a qualification for employment un-
ess the Department of Transportation revises its Motor Carrier
Safety Regulations, Title 49, Part 391, to so provide.
'! It prescribed the following procedure for filling future vacancies
at the T.I.M.E.-D.C. terminals involved:
13. All job vacancies at T.I.M.E. D.C. terminals and other
facilities at which it employs personnel shall be filled in the
following sequence:
(a) By those persons who may be found by the Court, if
any, to be individual or class discriminatees suffering the
present effects of t discrimination because of race or
national origin prohibited by Title VII of the Civil Rights
Act of 1964.
Paragraph 13(a) was expressly adopted in the Court’s Final
Order, so it became an adjudicative, not just a consent, decree. It
I ae pa that after all — covered by ¢ 13(a) have
n Offered an opportunity to ify for a LD vacancy at one of
the terminals, T.1.M.E. D.C. ome n fill future vacancies on a
One-to-one minority to white hiring ratio until the terminal reaches
the ratio of minority to white employees approximate to that of the
city or metropolitan area in which the terminal is located.
ih, Tate
Finally T.I.M.E.-D.C. agreed to pay $89,500.00 in full
settlement of its “alleged obligation” to individual and class
discriminatees as found by the District Court. The decree
provided for a maximum award of $1,500.00 to any indi-
vidual discriminatee, and any award of monetary compensa-
tion would be conditioned on a signed release of any right to
future compensation arising out of past discrimination covered
by the litigation.
(2.) The Court's Adjudicative Crder and Decree
The Court was then left with the task of determining whether
there was a pattern and practice, and if so, which employees
were “individual or class discriminatees suffering the present
effects of past discrimination” within the meaning of 4 13(a)
of the Consent Decree (see note 11, supra) and thereby en-
titled to transfer preference and seniority relief.
Pattern and Practice of Discrimination. The Court reviewed
the Government's proof including its statistical evidence which
consisted of tables showing the ratio of Blacks to Whites in
each Standard Metropolitan Statistical Area (SMSA) and in
each T.I.M.E.-D.C. terminal city compared with the ratio of
black to white employees at that terminal,'? and at selected
major metropolitan terminals the numerical breakdown by
race of each job classification.'*
12 §MSA is a census bureal term of art. The Government static-
tics were based on the 1970 United States Census of Population
Reports. information concerning the compilation of the
Government e BA ond Go enteiyins Ge ee ee a Jus-
tice Department statistician who testi at trial. T.I.M.E.-D.C. at-
tacks the reliability and probative values of these comparative sta-
tistics.
' The Government tabulated comparative employment statistics
for the 11 terminals at which it took itions. Statistics were
culled from a computer printout of T.1.M_E.-D.C.’s employment rec-
ords which was introduced into evidence at trial. Therefore the com-
plete comparative racial breakdown at all T.I.M.E.-D.C. terminals
was a matter of record and easily computable.
—
The Court concluded on the statistics and live testimony of
many witnesses that T.I.M.E.-D.C. has not hired minorities
in proportion to their numbers in the various terminals and
has not allowed minorities to engage in the choice jobs at the
terminals such as LD. In addition, the Court stated that the
union contracts while neutral on their face “operate to im-
pede the free transfer of minority groups.”
Having found a pattern and practice of discrimination the
Court then turned to the question of remedy. Following trial
the Government, responding to the Court’s request, submitted
a list of “Individuals for whom the Plaintiff Seeks Relief”
categorizing as an “affected class” of discriminatees those in-
cumbent employees’* at T.I.M.E.-D.C. terminals that main-
tained a LD domicile prior to 1969—the approximate date
at which T.I.M.E.-D.C. actively began hiring minority group
members as LDs.'®
Intra-Discriminatee Priorities and Seniority Dates. On the
basis of the evidence submitted by the Government and to
some degree countered by the defendants the Court divided
the affected class into three groups (referred to as App. A,
B, C).
App. A comprised 30 individuals'® all of whom the Dis-
trict Court concluded “have suffered severe injury because of
‘4 One major exception to the basic definition of the affected class
was a group of white employees at the Memphis terminal who were
hired into city operations prior to August 8, 1958—the date on
which the terminal ceased allowing city drivers to transfer to LD in
order to keep Black city drivers from so transferring.
'° Only 20 of T.I.M.E.-D.C.’s 51 terminals were thus included
within the Government's request for individual relief.
_ 1° Of the thirty, twenty had either applied initially for the posi-
tion of LD or had attempted to transfer from city operations to LD
and had been turned down. Six were maintenance servicemen at
the Nashville terminal discriminatorily denied training needed to
advance within the garage. The remaining three had been the sub-
jects of various other forms of discriminatory treatment.
= =
the practice and plan of discrimination by T.I.M.E. These
individuals produced the most convincing evidence of discrim-
ination and harm resulting therefrom.”
The Court placed four individuals in App. B because “The
evidence regarding these individuals is not sufficient to show
clear and convincing specific instances of discrimination or
harm resulting therefrom. The evidence does show, however,
that these individuals were very possibly the objects of dis-
crimination and that they were likely harmed by such dis-
crimination.”
Finally, the Court placed the three hundred plus remaining
individuals in App. C since they “either presented no evidence
of discrimination against themselves and resulting harm or
are no longer in the employ of TIME. As mentioned above,
all are members of a class of discriminatees; however, this
Court has no evidence to show that these individuals were
either harmed or not harmed individually by the discrimina-
tion to the class as a whole.”
A number of other provisions were significant:
In order to effectuate 4 13(a) (see note 11, supra) the
Court provided that T.I.M.E.-D.C. within a specified pe-
riod would send notice by certified mail to all in App.
A, B and C, informing them of their right to preference
on future vacancies at their terminal and of the neces-
sity of affirmatively responding within 60 days if inter-
ested.'7 The Court then prescribed specific successively
reduced bidding priorities for App. A, B and C and
seniority dates on future vacancies'* as well as a num-
ber of other provisions.
17 Further, failure to respond to T.I.M.E.-D.C.’s notice or failure
to accept an opportunity to transfer would be a waiver of the com-
pany’s obligation to the discriminatee.
1s For App. A: those affirmatively pees to the notice would
be notified when future vacancies arose at their home terminal in the
=
The Court carefully restricted the relief to future vacancies
and then determined that a position would not be consid-
ered vacant if there was a seniority roster employee on
layoff unless the layoff had been in existence for a period
of greater than three years. Otherwise, the laid off em-
ployee would be given a preference to bid on openings
prior to and without competition from the members of the
affected class. (See, e. g., note 44, infra).
Under the order, transferring members of the affected class
had to meet all objective requirements of the new job.
And as to driving jobs, the Court specified that members
of the affected class would be allowed to demonstrate
their driving skill after they familiarize themselves with
company equipment. Any such person who failed the
T.1.M.E.-D.C. driving test would be permitted to retake it
before a neutral examiner.
Transferring discriminatees would be allowed a 30 day
probationary period during which they could return to
their old job with no seniority loss in the event they were
not satisfied with the new job or were unable to qualify.
order of terminal seniority which, if the applicant qualified, could
be carried bacw to July 2, 1965 (the effective date of Title VII),
over into the new position regardless of whether it was in a separate
bargaining unit governed by a separate contract.
(ii) For App. B: after App. A members responding affirmatively to
the T.I.M.E.-D.C.’s initial notice have all been offered an opportu-
nity to bid on the position from which they had been excluded at
their home terminal, T.I.M.E-D.C. would then offer an opportunity
to bid on vacancies to those in App. B employed at that particular
terminal with seniority carryback to January 14, 1971 (the filing of
- — pattern and practice suit in the Northern District of
exas).
(iii) For App. C: on exhaustion of App. B, a terminal would then
Offer the opportunity to bid on future vacancies to those of App. C
at that terminal. Successful transferees of App. C would Carry no ac-
cumulated seniority into the new unit but would merely have the
opportunity to bid on the vacancy before persons not members of
the class and the general public.
= J
ee
te te iit ai
rae eae eT
_—
The Court also found it necessary to alter the Modified
Seniority System of the Southern Area Conference (see n.
9, supra and pp. 42-43, infra). While laid off LDs at
Southern Conference terminals would still be allowed to
bump junior drivers at other terminals where no vacancy
existed at the other terminal, if a vacancy did exist mem-
bers of the affected class would be permitted to compete
with the transferring LD on the basis of employment seni-
ority. Furthermore within the Southern Conference, mem-
bers of the affected class granted bidding priority on the
position of LD would be permitted to bid on LD vacan-
cies at other terminals on the basis of their seniority. How-
ever, members of the affected class domiciled at that ter-
minal would still receive first preference to bid on the
L.D. position.
The Court also specifically tailored relief to cover miscel-
laneous and unique circumstances at individual terminals.'”
T.LM.E.-D.C. was required to keep extensive records and
make periodic reports to the Court. And both T.1.M.E.-
D.C. and IBT were enjoined from “engaging in any act
or practice * * * which has the purpose or effect of dis-
crimination * * *”.
The Court retained jurisdiction and ordered a stay of the
App. C relief pending appeal. None are happy and all appeal—
T.I.M.E.-D.C. and IBT on the ground that the record does not
1” For instance it ordered that the Memphis terminal had com-
plied with the mandate of App. C in vew of the fact that as of 1969 it
had permitted members of - operations to transfer to LD, taking
with them company seniority for fringe benefit purposes.
It also ordered the Nashville terminal to provide adequate training
for the black garage servicemen who had previously been discrimi-
natorily denied such training.
In view of the ae seniority rosters at T.I.M.E.-D.C.’s two Los
Angeles terminals (Vernon and Montibello) discriminatees at either
would be allowed to bid on vacancies at the other reserving a pref-
erence for discriminatees at their own terminal however.
support the finding of pattern and practice and that the relief, es-
pecially to App. C is inappropriate. IBT and T.1.M.E-D.C.
assert that the locals wei indispensable parties.
The Government, on the other hand, supporting the finding
of pattern and practice, attacks the remedy in several respects.
The principal attack is centered on the Court's limiting effective
bidding rights to the 30 individuals in App. A to the detriment
of the few in App. B, and to the flagrant discrimination of the
300 plus discriminatees in App. C. Intertwined with this is the
attack on the seniority carry-back for those in App. A to July 2,
1965, the effective date of the Act, to January 14, 1971 for
App. B, the date of filing of the District Court suit and to the
date, if ever, each transfer into the specified better job for the
hundreds in App. C. Complaint is also made of the provision
requiring a layoff to continue for three years before a “vacancy”
exists for which those in App. A, B and C have successively
reduced transfer rights. Finally, the Government objects to
the use of an employer-union qualification committee at Nash-
ville and the failure to grant effective transfer rights to Memphis
city drivers*® hired prior to August 8, 1958.
Indispensable Parties
[1] We must determine whether Teamster locals representing
T.I.M.E.-D.C. employees were indispensable parties to this liti-
gation. We conclude that the District Court correctly ruled that
they were not.
Under F.R.Civ.P. 19(a) the Court must determine whether a
party should be joined “if feasible.” Since the remedy in issue
in this litigation will have some effect on the bargaining agree-
ments to which the local unions are parties, it would no doubt
be proper to join them as parties to the litigation. Since, how-
20 These are included in App. C.
— 7 —
—
—=— =
ever, they are scattered across the country, the trial court could
conclude that it is not feasible to join them.
Under 19(b) where joinder is not feasible the Court must
determine whether “in equity and good conscience” the action
should proceed in the absence of the parties in issue or whether
it should be dismissed. The District Court was warranted in
holding that the litigation could properly proceed in the absence
of the various Teamster locals.
Of great significance to the determination to proceed in the
absence of the Teamster locals is the major role played by the
International both in the process of contract negotiation and
in all phases of this litigation. Teamster contracts are negotiated
every three years on a nationwide, multi-union, multi-employer
basis with each individual local giving the National Over-The-
Road and City Cartage Policy and Negotiating Committee a
power of attorney to negotiate on its behalf.*?
While the National Master Freight and applicable Area Sup-
plement will be included in the contract which the local even-
tually signs with the employer, both the national and area con-
tracts are subject to acceptance by a nationwide majority vote
of Teamsters, thus the members of an individual local will be
bound by its provisions even if the majority of the members
of the particular local votes to reject it. The process of negotia-
tion shows that the individual locals play little if any role in
the actual negotiation of the contracts which control Teamsters’
seniority rights and further, that officers of the International are
in a position to play a major role in that negotiation.
On the basis of these circumstances other courts which have
been faced with the same issue in Title VII litigation in the
trucking industry have also concluded that where the Interna-
2! See Rodriguez, supra, at 60, for a more detailed description
of the contract negotiating process.
—
tional is a party to the litigation, the individual locals will not
be regarded as indispensable.**
Finally, the basic seniority issue in this case—whether a dis-
criminatee should be allowed to transfer from city operations
to LD (and thus from one contract to another) with full carry-
over terminal seniority—is neither specifically prohibited nor
even addressed by the contracts before the Court, and certainly
not that of local supplements. See Pilot Freight, supra, 54
F.R.D. at 521-22.
In view of all the circumstances we conclude that both below
and here the International more than adequately represents and
defends the seniority status of its members and that adequate
and effective relief may be granted without unduly prejudicing
the absent local unions, since they too are under the law and
cannot shield continued discrimination by contract terms.
Pattern and Practice**
Graphic statistics led the District Court to conclude that
minorities have simply been denied access to the more desirable
job of LD. As of March 31, 1971, T.I.M.E.-D.C. had approxi-
mately 6,472 employees. Of those, 314 (5%) were Black and
257 (4%) were Spanish-surnamed American. A large ma-
jority of the Black and SSA employees were assigned to city
operation (city driver, dockman, hostler) or serviceman (in-
cluding tireman) jobs. Of the Black employees, 260 or 83%
were in such jobs. Of the SSA employees, 199 or 78% were
in such jobs.
*2 Pilot Freight, supra, 54 F.R.D. at 522; Navajo Freight, supra,
4 FEP cases at 1045; see also United States v. Roadway Ex
supra, at 857. Cf. Sabala v. Western Gillette, supra, 1153-55.
** Although T.1.M.E.-D.C. operates 51 terminals, re relief
for minority members was sought for those employed at the following
20 terminals where line drivers were domiciled prior to 1969—the
“ee
eh et aie
a= 49 .
In contrast to this, of the 1,828 LDs as of March 31, 1971,
only 8 (or 0.4%) were Black and only 5 (or 0.3%) were SSAs.
None of the eight Blacks were employed as a line driver until
1969, even though the Government's Title VII suit with respect
to the Nashville terminal had been filed on May 15, 1968. Of the
approximate date when T.1.M.E.-D.C. began hiring and promoting
minority members to LD:
T.LM.E.-D.C. Terminals at Which the United States Seeks
Class Relief
Terminals Where Depositions Taken
Prior System
& Date of Teamsters
Into Area
Terminal T.LM.E. Conference
Vernon(L.A.) SW 52 Ww
OCA 54
C 67
DC 69
Oklahoma City OCA 54 S
Memphis SE 57 S
Atlanta SE 57 S
Chicago SS 64 Cc
DC 69
Nashville SE 57 S
SS 64
Irving TA 68 S
San Antonio TA 68 S
Montebello(L.A.) Lasme 69 Ww
Hayward(S.F.) C 67 Ww
Lasme 69
Denver DC 69 Ww
Key Ic—Intercity Motor Express
T_TIME. Inc.
SW—Southwestern Truck Lines
OCA—Oklahoma City Authority
H—Harrington Truck Lines
SE—Southeastern Truck Lines
S—Southern Area Conference
W—Western Area Conference
C——Central Area Conference
— 20 — —21—
eight Black LDs, three were transferred city drivers at Memphis, ever employed on a regular basis as LD by T.I.M.E.-D.C. or
two in 1969 and one in 1970; of the other five, one was hired in any of its predecessor companies prior to 1969.24
Evansville, Indiana in 1969 and the others were hired in Cin-
cinnati, St. Louis and Oklahoma City in 1970. Of the five Similar facts were starkly revealed as to minority discrimina-
SSA LDs, three were employed at El Paso, 1950, 1966 and tion at the Nashville?® and Memphis terminals. There is no evi-
1969 respectively, and two were employed at Los An i
Si. Getaten ein in dean on geles in 24 Systemwide Job Classification* Statistics for the T.1.M.E.-D.C.
g € situation that with the exception of system as of March 31, 1971:
one Black who worked as a LD at the Chicago terminal from ens -
1950 to 1959, there is no evidence that a single Black was a eo _ ot
Mechanic 4 3 1
City Drivers
Others City Heavy
Duty Dr 419 362 22 32 l 2
wy System a City PUD Dr. 874 755 57 56 5 1
. “yd ay yas | Dockmen 135932107 85 7 4
Pa T.LML.E. Conference Hostler 117 102 9 5 1
ubbock Ic 48 S a
Janitor—Shop 2 2
Phoeni bay Line antor—Termina 1828 1802 4 3 12 1
eee SW 52 Ww Mechanic 325 «297 r 12 $
DC 69 Mechanic Helper 11 9 2
a. Louls SE 57 Cc *Partemen 29 26 2 1
Se ma © 8 4 Ff i
iremen
DC 69 3/31/71 Pre-Trial stipulation 14.
Paris SE 57 5 ° fa ag a shows — only _—_ job classifications rele-
vant to the issues on appeal. itted are office and supervi i-
Chattanooga SE 57 S dom ppe pervisory pos
Cincinnati Mm
K Ci C 25 See as of March 31, 1971, the employee complement bY race:
ansas City PB 59 Cc T White
iain DC 69 Line Driver ................ 14 74 0
noxville Ss 64 S City Operation
Seattle Lasme 69 w ov rare 31 4
A ere 70 7
a @ Howler ............... 6 6 0
Portland Lasme 69 Shop
—_ DC 69 Mechanic .............. 30 28 2
ey _PB—Powell Brothers Truck Lines Partsman .............. 3 3 1)
fy +e
ructors ransport Co. eeeeeseseeen
Lasme—Los-Angeles-Seattle Motor Express The first Black ever hired as a regular mechanic at the terminal
DC—DC International ” was employed on April 15, 1968, approximately a month before the
Government's suit was filed. The first Black ever hired, as a regular
dockman at the terminal was employed on September 1, 1969.
antita
dence that Blacks were employed on a regular basis in any
job other than serviceman until April 15, 1968 at Nashville.
Mechanics, partsmen and servicemen are now on a common
seniority roster, but until May 27, 1971 they were on three
separate seniority rosters. The Southern Conference Area Sup-
plemental Agreement effective April 1, 1970 now permits ser-
vicemen to bid on and move to mechanic jobs (and partsman
jobs) and retain their seniority. However, the Agreement adds
2 new requirement. Servicemen may bid on and move to me-
chanic and partsman jobs only if they have “previously quali-
fied” for those jobs under rules established by an employer-
union qualification committee.
At Memphis*® the first transfer of a Black from city opera-
tion to LD was in July 1969. It was here where the Govern-
ment asserted and the District Court impliedly found the anti-
Black policy produced an anomalous injury to White city driv-
ers when in 1958 the company abandoned its practice of al-
lowing White city drivers to make extra LD trips.
On the other hand, and to its great credit, T.I.M.E.-D.C. in
December 1968, adopted a policy at the Memphis terminal of
offering vacancies in LD jobs to qualified city employees before
filling these jobs with persons “off the street.” And although
seniority for fringe benefits can be carried over from city to LD,
such transferring city employees may not use their accrued
seniority for bidding and layoff purposes as LDs.
26 See as of March 31, 1971, the employee complement by race:
Total White Black
Line Driver ................ 104 101 3
City
ee cc ees 35 24 11
Dockman (Checker) ..... 112 89 23
te ell x 6 2
Line Drivers and city operation employees are on separate seniority
rosters.
—
[2] Statistics, however, of this kind and intensity are not only
significant, they may often be dispositive especially in a pattern
and practice claim. As we pointed out in Rowe v. General
Motors Corp., 5 Cir., 1972, 457 F.2d 348, 358:
figures of this kind, while not necessarily satisfying the
whole case, have critical, if not decisive, significance—
certainly, at least in putting on the employer the operational
burden of demonstrating why, on acceptable reasons, the
apparent disparity is not the real one.
This synthesizes the many holdings of this and other Courts,**
the latest of which are the trilogy of Rodriguez v. East Texas
Motor Freight, 5 Cir., 1974, 505 F.2d 40; Herrera v. Yellow
Freight System, Inc., 5 Cir., 1974, 505 F.2d 66; and Resendis
v. Lee Way Motor Freight, Inc., 5 Cir., 1974, 505 F.2d 69,
which for this very industry and employment practices eliminates
all doubts of the decisive significance of flagrant statistical devia-
tions.
27 See also Franks, supra, at 419; Pettway v. American Cast Iron
Pipe Co., 5 Cir., 1974, 494 F.2d 211 at 225, note 34; Johnson v.
Goodyear Tire & Rubber Co., 5 Cir., 1974, 491 F.2d 1364, 1371-73;
Morrow v. Crisler, 5 Cir. (en banc), 1974, 491 F.2d 1053, 1055;
United States v. Hayes International Corp., 5 Cir., 1972, 456 F.2d
112, 120 (Hayes, II); Burns v. Thiokol Chemical Corp., 5 Cir.,
1973, 483 F.2d 300, 305; United States v. Jacksonville Terminal
Co., 5 Cir., 1971, 451 F.2d 418, 424-36 and 441-442, cert. denied,
406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815 (1972); United States
v. Hayes International Corp., 5 Cir., 1969, 415 F.2d 1038, 1043
(Hayes I); Bing (1) supra, at 689; Withers v. Mercury Freight
Lines, supra, at 498; Brown v. Gaston County Dyeing Machine
Co., 4 Cir. 1972, 457 F.2d 1377, 1382, cert. denied, 409 U.S. 982,
93 S.Ct. 319, 34 L.Ed.2d 246; United States v. N. L. Industries, Inc.,
8 Cir., 1973, 479 F.2d 354, 368-70; Carter v. Gallagher, 8 Cir.
(en banc), 1971, 452 F.2d 315, 321, cert. denied, 1972, 406 U.S.
950, 92 S.Ct. 2045, 32 L.Ed.2d 338; United States v. Carpenter's
Local 169, 7 Cir., 1972, 457 F.2d 210, 214; Parham v. Southwest-
ern Bell Telephone Co., 8 Cir., 1970, 433 F.2d 421; Jones v. Lee
Way Motor Freight, supra, at 247; Stamps v. Detroit Edison Co.,
1973, E.D.Mich., 365 F.Supp. 87, 110; United States v. Central
Motor Lines, Inc., supra, at 556; United States v. Navajo Freight
Lines, supra, 6 FEP at 294; United States v. Pilot Freight Carriers,
Inc., supra, 54 F.R.D. at 522.
inition
But the Government did not stop there. It buttressed its sta-
tistical evidence with a massive amount of testimony presented
by live witnesses as well as by depositions taken at 10 of the
major T.I.M.E.-D.C. terminals reflecting that members of these
minority groups with substantial amounts of driving experience
had frequently applied initially for and been rejected for the
position of LD, and that a substantial number of such qualified
persons employed in the city operations unit at each of the 10
terminals had sought and been refused transfer to LD.
Although, with the exception of Memphis (1958-68), there
may not have been an explicit no-transfer rule from city to LD
the evidence showed a reason in addition to purposeful refusal
to hire or transfer minorities. This was the seniority system that
prohibited the carry-over of seniority from city to LD for layoff
and bidding purposes. Thus the minority employees were
locked-in to the positions where they were initially discrimina-
torily assigned since they would be forced to forfeit their exten-
sive accumulated seniority for bidding and layoff purposes upon
transfer to the road.
Of course this practice has been roundly condemned.?* In
Franks, supra, at 414 we recently pointed out:
Though not as drastic as a rigid no-transfer rule, a
departmental seniority system discourages transfers and
2% See United States v. Pilot Freight, supra, 54 F.R.D. at 522,
United States v. Navajo Freight, supra, 6 FEP at 276, United States v.
Central Motor Lines, supra, at 539, 552, 557. The same principle has
been recognized in other industries as well. N.L. Industries, supra,
oa ae States v. Bethlehem Steel Corp., 2 Cir., 1971, 446
The Eighth Circuit only recently observed that:
The price that the existing seniority plan extracts from the pre-
1963 employees for the opportunity to break out of a department
to which they were racially assigned is too high, especially since
it is to be paid by the same group that has already endured the
hardships of past discriminatory practices.
N. L. Industries, supra, at 364.
a
_—
thereby locks a discriminatee into his inferior job by
threatening him with loss of his accumulated seniority if
he should transfer.
And again this is echoed in stronger terms in Rodriguez, supra,
at 53, 60, 61. And the pudding’s proof being in the eating, this
record furnishes fresh confirmation of the wisdom of our declara-
tion in United States v. Jacksonville Terminal, supra, at 453
that in “any industry loss of seniority is a critical inhibition to
transfer”.
Attack of T.1.M.E.-DC and IBT on Evidence
The defendants mount an attack on that portion of the plain-
tiffs’ statistical evidence that compares the proportion of Blacks
in the city or Standard Metropolitan Statistical Area (SMSA),
where T.I.M.E.-D.C. operates terminals with the proportion of
Blacks employed at those terminals. They complain that the
SMSA has not been properly defined, and thus it is impossible
for them to attempt to rebut the statistics. But the inability to
rebut came not from lack of an informed standard. Rather, in
most instances for LDs, the inability came from the inexorable
zero.*"
{3] Both as to statistical and testimonial evidence they urge
that the evidence of particular incidents of discrimination are
too few, too concentrated at certain terminals, and too remote
in time to establish a systemwide pattern and practice of em-
ployment discrimination. We cannot agree. The plaintiff pro-
i
2" For evample, Atlanta with SMSA ratio 77.14% White, 23.35%
— and a city ratio of 48.40 W, 51.31 N, and 57 White LDs
and no N ; Dallas with SMSA of 83.23 W, 15.98 N, city 74.15_
W, 24.01 N, and 20 LDs all White, none Black; Los Angeles with
SMSA 85.42 W, 10.84 N, city 77.19 W, 17.88 N, had at LAX and
LOS 374 LDs, all but two being White. (See Appefidix “ to Dis-
trict Court’s opinion). o
= -_
duced evidence of over 40 specific instances of discrimination
spread throughout the system of T.I.M.E.-D.C.— instances often
egregious and viewed as a whole quite definitely supporting
the finding that the pattern and practice of discrimination liter-
ally occurred. The terminals at which the Government took
depositions are spread throughout the entire T.I.M.E.-D.C.
system and for the most part contain the largest LD operations
within the system.*°
[4] On remoteness, the complaint is that the incidents and
figures go back too far, some as early as 1957. But for Title
VII the past is indeed prologue. We agree with the Fourth Cir-
cuit, United States v. Dillon Supply Company, 1970, 429 F.2d
800, 804, that proof is permissible of any “past specific or gen-
eral act, practice, policy or pattern of racial discrimination
which the proof showed had any present discriminatory effect”
and thus should be considered by the trial court in such a case.
[5] Under Title VII proof of pre-Act discrimination is always
relevant where the present seniority system perpetuates past
discrimination. Goodyear, supra, at 1374: Local 189 Paper-
makers v. United States, 5 Cir., 416 F.2d 980 at 988: Quarles
v. Philip Morris, Inc., E.D.Va., 1968, 279 F.Supp. 505, 516.
In Jacksonville Terminal, supra, at 450, we pointed out that
“when seniority becomes an issue * * * the past becomes more
important.”
[6] The Court was not compelled to credit the contention
that there were no openings for LD at the time the Blacks ap-
plied or sought transfer, or that the applicants failed in filling
out forms or seeking the right person. And considering the over-
powering prima facie case of pattern and practice the trial court
at the liability stage was not required to sustain the counter-
°° Seven of the ten largest LD operations are located at the ten
terminals where depositions were taken. Eleven hundred seventy one
L.Ds are domiciled at the terminals where depositions were taken as
opposed to 358 at those terminals where no depositions were taken.
_—
attack on the testimony of individual discriminatees as to credi-
bility, availability or qualification. As we observed in Hayes
(11), supra, at 120
The inference arises from the statistics themselves and
no other evidence is required to support the inference. At
this stage of the proceedings it was not necessary for the
Attorney General to show the availability of skilled negroes
in the community to perform the jobs in question because
the burden of going forward and showing the lack of quali-
fied negroes was upon Hayes. This burden is not met by
Hayes’ attempts to parry specific allegations of alleged dis-
crimination, e. g., the four negroes rejected after failing a
typing test and the one turned away for being overweight,
or by company officials stating in general terms that no one
was refused employment solely because of their race.
[7] Finally, we reject the attempt to discredit the testimonial
evidence introduced by the Government or the trial court s con-
clusions by subjecting them to the analytical steps delineated by
the recent case of McDonnell Douglas Corporation v. Green,
1973, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. Both
due to its own peculiar factual setting and by its own explicit
terms McDonnell Douglas is inapplicable to a pattern and prac-
tice suit such as the one before us. We dispose of this as we did
in Rodriguez, supra, at 55-56.
Good Intentions and Recent Improvement
Both T.1.M.E.-D.C. and IBT urge that the pattern and prac-
tice finding should not have been made, and that in any event
progress by each is such that no mandatory relief was either
appropriate or justified.
[8, 9] T.I.M.E.-D.C.’s recent minority hiring progress stands
as a laudable good faith effort to eradicate the effects of past
=
discrimination in the area of hiring and initial assignment.*!
But it is not enough to eradicate the effects of the past discrimi-
nation against incumbent minority group members who are pres-
ently locked into the positions to which they were initially and
discriminatorily assigned. We sounded this note in Rowe, supra,
at 355
the problem is not whether the employer has willingly—
yea, even enthusiastically—taken steps to eliminate what
it recognizes to be traces or consequences of its prior pre-
Act segregation practices. Rather, the question is whether
on this record—and despite the efforts toward conscientious
fulfillment—the employer still has practices which violate
the Act. In this sense, the question is whether the employer
has done enough.
See also Griggs v. Duke Power Co., 401 U.S. 424 at 432, 91
S.Ct. 849 at 854, 28 L.Ed.2d 158 at 164-65; Franks, supra, at
418; Local 53, Asbestos Workers v. Vogler, 5 Cir., 1969, 407
F.2d 1047, 1055; N. L. Industries, supra, at 361; Cypress v.
Newport News General and Nonsectarian Hospital Assn., 4 Cir.
(en banc), 1967, 375 F.2d 648, 658. The Judge was entitled
to consider the fact that the significant improvements in T.I.M.E.-
D.C.’s employment patterns have occurred subsequent to the
initiation of the 1968 Nashville litigation long after the effective
date of Title VII. See Goodyear, supra, at 1376, n. 36; Jenkins
v. United Gas Corp., 5 Cir., 1968, 400 F.2d 28, 33.
“1 According to the statistics introduced by the defendants in the
company’s periodic reports to the District Court, total number of
minorities employed increased from 7.1% in 1967 to 10.5% in
1972, and to 13% in 1973. During 1971, 16.9% of new hires were
members of minority groups and during the first six months of 1973,
72 out of 113 new hires, or 64%, were minority group members.
Likewise, during the first six months of 1973, 29 of 95 LDs or 30%
belonged to minority groups. Presumably, of course, the 1973 sta-
tistics reflected the one-to-one hiring ratio provided by the court-ap-
proved consent decree.
meets te eee
Ree ee
—_— we
IBT likewise emphasizes the Union's efforts to eradicate past
discrimination. They point out that in 1970 Article 38, a non-
discrimination clause was added to the National Master Freight
agreement.**
—_
eens
[10] But as with the employer, the issue is not simply what
has been done but whether what has been dese is enough. Of
course, a union is responsible when the seniority system created
by its contract perpetuates the effects of past discrimination. See
Goodyear, supra, at 1381; Robinson v. Lorillard Corp., 4 Cir.,
1971, 444 F.2d 791; United States v. St. Louis and San Fran-
cisco R.R., 8 Cir., 1972, 464 F.2d 301.
Our careful consideration of the record has convinced us that
despite their vigorous attempt, the District Court was entitled to
conclude that the defendants have failed to rebut the plaintiffs’
prima facie case of employment discrimination. Accordingly
the District Court correctly concluded that the defendants have
engaged in an extensive pattern of employment practices unlaw-
ful under Title VII and that strong remedial action is warranted.
The Remedy
The Affected Class. The Court defined the affected class
broadly as all incumbent** minority employees who had been
“2 ARTICLE 38.
Non-Discrimination
The Employer and the Union agree not to discriminate against
any individual with respect to his hirin compensation, terms
or conditions of employment because of such individual's race,
color, religion, sex, or national origin, nor will they limit, seg-
regate or classify employees in any way to deprive auy indi-
vidual employee of employment opportunities because of his
race, color, religion, sex, or national origin.
%% As the Government’s brief (p. 41, n. 80) points out the Dis-
trict Court granted retroactive seniority (to the date of their applica-
tion) for some of the rejected applicants for new hire, and did not for
—
-_—
EEE eee
—=_
hired during the period in which T.I.M.E.-D.C. was engaged in
discriminatory assignment and transfer practices. The Court then
measurably narrowed the class by the successively declining bid-
ding preference rights to those in App. A, App. B and App. C
with similar declining dates of carry-over seniority.
Rightful Place
[11] As this bears on all the relief to be accorded on the re-
examination upon remand, we emphasize without repetition each
time the doctrine of rightful place. We put it this way in Rod-
riguez, supra, at 61-62:
We have long subscribed in this circuit to the theory that
those who suffer discrimination under Title VII must be
permitted to take their “rightful place” when job openings
develop. As we said in Local 189, United Papermakers &
Paperworkers v. United States, 416 F.2d [980] at 988:
The Act should be construed to prohibit the future
awarding of vacant jobs on the basis of a seniority sys-
others. This appeal does not pertain to that issue, but is concerned
only with the nghts of incumbent employees who are members of
the affected class.
But since the affected class has to be reexamined to eliminate the
disparities between App. A, App. B and App. C, the District Court
has to have great flexibility on remand to consider former applicants
who never became incumbents. The priorities granted to such for-
mer applicants under App. A or App. B may have to give way as
will carry-over seniority dates, since we have rejected the notion of
super seniority. In Franks v. Bowman Transp. Co., 5 Cir., 1974,
495 F.2d 398, 417, rehearing en banc denied, — U.S. ~—, 95 S.Ct.
1421, 43 L.Ed.2d 669 (1974), we have recently observed that
In seeking application-date seniority for members of class 3
(black applicants who applied for OTR jobs before January |,
1972) appellants ask us to take a giant step beyond permitting
job competition on the basis of company seniority. They ask
us to create constructive seniority for applicants who have never
worked for the company. Granting that the black OTR appli-
a es ae ee ee = +
tees Oe
_—
tem that “locks in” prior racial classification. White
incumbent workers should not be bumped out of their
present positions by Negroes with greater plant sen-
iority; plant seniority should be asserted only with re-
spect to new job openings. This solution accords with
the purpose and history of the legislation.
See Note, Title VII, Seniority Discrimination, and the In-
cumbent Negro, 80 Harv.L.Rev. 1260 (1967). Thus,
black and Mexican-American city drivers, many of whoin
would now be road drivers but for the discrimination of the
defendants, must be given an opportunity to transfer to the
road as road driving job openings develop.
See also Franks, supra, at 416; Pettway, supra, at 222-25; Bing
(11) v. Roadway Express, Inc., 5 Cir., 485 F.2d 441 at 450;
Jacksonville Terminal, supra, at 452-53; 189 Paperworkers,
supra, at 988; Bethlehem Steel, supra, at 658-61.
The purpose of seniority carry-over under the rightful place
doctrine is to give the discriminatee the incentive to transfer by
cants who were rejected on racial grounds suffered a wrong, we
do not believe that Title VII permits the extension of construc-
tive seniority to them as a remedy.
The District Court specifically described App. C as those individ-
uals either for whom no evidence was offered, or who were no longer
employed by the Company. So it would seem that all former em-
ployees and rejected applicants should literally have been included
in App. C. On appeal, however, the Government disclaims any at-
tempt to seek review of the District Court’s failure to grant individual
relief to the rejected applicants or former employees in App. C. The
issue then is really not before us as to these applicants for jobs who
were not incumbents.
But in any event, we would caution all parties that the citing of
Franks is merely the repetition of the current state of the law in the
Fifth Circuit. Certiorari has recently been granted by the Supreme
Court on Franks and of course all wait with baited breath for the
outcome produced by the great people east of the Potomac River.
The flexibility we have given the District Court on remand is elastic
cnough to accommodate whatever wisdom will come from the High-
est Court.
eee
— 32 —
removing the major disincentive to such transfer (loss of ac-
cumulated seniority). It also gives the discriminatee enough
seniority in the new unit to permit effective competition for ad-
vancement and to provide the protection against the threat of
layoff to which the discriminatee would be exposed because
of the initial discrimination. Bethlehem Steel, supra, at 660;
Bing (11), supra, at 450; Local 189 Papermakers, supra, at 988.
Qualification Date
[12] As with “rightful place,” just discussed, this too is a re-
curring factor which has to be taken into account as relief is
accorded on the remand. Again in Rodriguez, supra, at 63, we
pointed out that “in Bing we approved a ‘qualification date’ for-
mulation—the date a transferee had the experience necessary
to qualify him for a road driving job. 485 F.2d at 451.”
In describing its operations we rejected the recent criticism of
this rule by the Sixth Circuit as made in Thornton v. East Texas
Motor Freight, 6 Cir., 1974, 497 F.2d 416. Rodriguez, 505 F.
2d at 64.
Since there was no uniform system-wide driver experience re-
quirement we do not undertake to blueprint what the qualifica-
tion date may or should be for LDs or other jobs from which
Blacks and SSAs have been excluded.*4 The evidence on remand
may justify some non-uniformity so long as the standard laid
down meets the test of Rodriguez.*®
decree. It may, and often will, be fixed at the date in the past on
which the person was in fact qualified had he been given the oppor-
* See e. g., 505 F.2d at 63 n. 29 and 64 n. 30. The Government
recognizes it may vary. See, e. g., Atlanta limiting seniority to August
a= 33
Descending Priority—App. A, App. B, App. C. The District
Court prescribed three classes of discriminatees, App. A, App.
B, App. C, and gave to those in App. A first priority for aoe
(and layoff) to be followed next by the few in App. B. and the
remaining some 300 were put in App. C. Equally important
were the declining carry-over seniority dates—those in App. A
the effective date of Title VII (July 2, 1965), in App. B the
date of the filing of the Texas suit (January 14, 1971), and stn
for App. C the date a discriminatee qualified for and obtai
the new position.
The classification was made on the basis of the showing of
relative prejudice. For those in App. A the live testimony no
Court or by deposition) showed positive discrimination an
prejudice. Those in App. B likely suffered but the Gemonstra-
tion was not so positive. As to those in App. C the Court's final
order held that although “all are members of a class of dis-
criminatees” there was “either—no evidence presented of dis-
crimination against—” them “or they are no longer employed
by T.I.M.E.”
[13] It is clear that the Judge thought that there had to be
proof of individualized discrimination and prejudice. This mis-
conceives both the purpose and procedural structure of a
pattern and practice suit (see note 3, supra). Congress circum-
scribed the circumstances in which the heavy power of the Gov-
ernment through the Attorney General could enter the lists. To
trigger the suit discrimination may not be merely isolated, on
adic, or non-repetitive. United States v. Iron Workers, Local 86,
443 F.2d 544, 552, cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30
|. 1958, the date on which LD positions for Whites or Blacks was
established at that terminal. a
Supplemental —— ion, the District Court also ordered in-
ceded in App. C those ite Ly = + = pe By me yr
is terminal before August 5, (
ian to LD as of that date (Supp.Op., p. 2, para. III, i).
a= 34
L.Ed.2d 367; United States v. Mayton, 5 Cir., 1964, 335 F.2d
153, 159; United States v. Ramsey, 5 Cir., 1964, 331 F.2d 824
837; Jacksonville Terminal Co., supra, at 441.
To permit the Court to grant any relief it must find pattern
and practice. The proof through statistics and live swearers is
directed toward that principal issue plus, in a more general sense,
facts bearing on the nature, kind and extent of the relief which
is either appropriate or required. It would be contrary to a claim
of this structure to have to offer testimony concerning every
member of the affected class. By its very nature it is a kind of
class action maintained by the sovereign to vindicate the rights
of the whole class.*®
With the pattern and practice established to the satisfaction of
the Judge, it would defy reason and waste precious judicial re-
sources for the Court either to require or permit individualized
proof for every member of a class here numbering nearly 400
but frequently involving thousands for whom effective relief
could not be achieved were we to approve the approach of the
District Court here. Whatever evidentiary hearings are required
for individuals can well be postponed to the remedy.
[14] The result is that we cannot accept the gradations of App.
A, App. B, and App. C. For all we know, at this stage some
on App. C may have suffered discriminations even more egre-
gious than those whom the Government singled out to be per-
Suasive witnesses to establish pattern and practice. All those
on App. A, App. B and App. C are entitled to be given an op-
portunity to bid on future vacancies in the specified job classifica-
tions to which they are allowed to transfer by the District Court's
order on the basis of their seniority and, if they qualify for those
%” Of course they are not identical. Rodriguez, supra, at 66, points
out some distinctions between private plaintiffs’ class actions and a
Government pattern and practice suit, particularly as to the interests
to be served.
—_— =
jobs, to be permitted to exercise their full seniority in such jobs
for all purposes, including bidding and layoff.*'
We believe that such a bidding procedure is designed to eradi-
cate the present effects of past discrimination by permitting all
members of the affected class rather than just a selected few to
have the opportunity to advance to the positions that they might
have achieved in the absence of racial discrimination.
As is true of the relief mechanism of the District Court's order,
such a bidding procedure provides all members of the affected
class at a given terminal the opportunity to bid on a vacancy in
the LD position prior to persons who are not a member of the
affected class, whether incumbent employees or otherwise.
[15] Nor does this bidding procedure amount to reverse dis-
crimination in violation of § 703(j) of the Act.®* It is now
well established that granting the first opporutnity to bid on
future vacancies to members of such an affected class is a per-
missible, an. in some instances essential, remedy where it Is
od ete shendt,
37 Those who have already moved to vacancies in such job classi
fications will be permitted to exercise their full seniority in those jobs
and likewise for all purposes.
» © ee bch shall be interpreted
i) Nothing contained in this subchapter rpre
to Sohn omy emuplayer, employment agency, —
or joint labor-management committee subject to this su pre
to grant preferential treatment to any individual or to any gr p
because of the race, color, religion, sex, Or national S
such individual or group on account of an inbalance pe ic hn
exist with respect to the total number or percentage Of pe -
of any race, color, religion, sex, or national origin —
by any employer, referred or classified for employment by = 'y
employment agency or labor organization, admitted a re -
ship or classified by any labor organization, or admi +~
employed in, any Sg oon poe Ay other training program, --
comparison with the total number or percentage of persons =
such race, color, religion, sex, or national origin in any =
munity, State, section, or other area, or in the available w
force in any community, State, section, or other area.
——————
necessary to effectively eradicate the present effects of past dis-
crimination. See Bing (II), supra, at 485; Franks, supra, at 413;
Vogler, supra, at 1054; Pettway, supra, at 248. Indeed, in the
discriminatory hiring context preferential treatment in the form
of temporary quota relief has frequently been ordained by the
courts.**
App. A, App. B, and App. C Seniority Carry-Over Dates
Tied into the App. A, App. B and App. C descending pri-
orities for bidding and layoff purposes was a similar tri-part
decline in seniority carry-over dates. We find none of them
acceptable.
[16] To the most favored group (App. A) the date fixed was
the effective date of the Act (July 2, 1965). But under the
rightful place theory members of the affected class of discrim-
inatees have regularly been allowed to use full seniority to bid
on vacancies and to continue to use it for bidding and layoff
purposes in the new position. Franks, supra, at 416; Pet.way,
supra, at 248; Jacksonville Terminal, supra, at 454; Quarles,
supra, at 521. And that includes full seniority even though it
may extend back beyond the “effective date” of Title VII since
seniority provisions that call for the forfeiture of accumulated
seniority on transfer serve to presently perpetuate the effects of
pre-Act discrimination. Bing (/1), supra, at 451; Jacksonville
*# See Morrow, supra, at 1056, NAACP v. Allen, 5 Cir
493 F.2d 614; Carter v. Gallagher, 8 Cir. (en banc), 1971, 482 F.26
15, cert. denied, 1972, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d
338; United States v. Wood, Wire & Metal Lathers Local No. 46
2 Cir., 1973, 471 F.2d 408, 413, cert. denied, 412 U.S. 939, 93 S.Ct.
2773, 37 L.Ed.2d 398; United States v. Ironworkers, Local 86, 9
Cir. 443 F.2d 544, 553-54, cert. denied, 404 U.S. 984, 92 S.Ct. 447
30 L.Ed.2d 367; Vulcan Society v. Civil Service Commission, 2 Cir.
1973, 490 F.2d 387, 399; Bridgeport Guard Inc. v. Members of
Bridgeport Civil Service Commission, ? Cir., 1973, 482 F.2d 1333,
—=—
Terminal, supra, at 454; Bethlehem Steel, supra, at 666. Indeed,
there is no precedent we are aware of which limits carry-over
seniority to the effective date of the Act.
[17] Tse App. B limitation to the date of filing of the Texas
suit (January 14, 1971) fares no better. First, it now flies in
the teeth of Rodriguez in which we reiterated the qualification
date principle despite the Sixth Circuit's criticism and use of
the date of application for transfer or of filing an EEOC charge.
505 F.2d at 64. Next, it ignores the accepted principle that
where there has been a showing of classwide discriminatory
practices coupled with a seniority system that tends to freeze or
perpetuate the effects of that discrimination, a member of the
affected class need not actually show that he or she unsuc-
cessfully attempted to transfer to the excluded position. Bing
(11), supra, at 451; Bing (1), supra, at 689; N. L. Industries,
supra, at 369; Leeway Motor Freight, supra, at 247; Cyprus,
supra, at 653; Pilot Freight, supra, at 522.
The Courts have as a practical matter recognized that a
member of the affected class may well have concluded that an
application for transfer to an all White position such as LD
was not worth the candle.*”
And, of course, the Sop. C limtation to the date the class
member somehow succeeds to a vacancy is worse. Aside from
the fact that this exposes App. C members to discrimination
at the hands of their fellow victims (App. A and App. B), it
means for all practical purposes that the discrimination in favor
of Whites continues.
4” In Bing (11), supra, at 451, we recently noted that
If an employee realizes full well that blacks simply are not
hired as road drivers, why should he bother to apply? Certainly
a few, such as Bing, have the courage to fight “the system, ,
but it is equally certain that others must have been intimidated
and discouraged by Roadway’s discriminatory practices.
Ce
—_
This means that for all members of the class there should be
full company employment seniority carry-over for bidding and
layoff purposes, subject of course to the proper application of
the qualification date principle (see n. 35, supra and related
text). On remand and after appropriate evidentiary hearings
the District Court’s decree must be suitably modified to elimi-
nate the prescribed priorities, the prescribed seniority dates, and
the prescribed differences therein, as between those in App. A,
App. B and App. C.*!
Individual Relief
We do not think it necessary for the trial court to reexamine
the findings as to the discrimination against those in App. A
or App. B and the prejudice suffered by each. But as the A,
B, C priorities and their distinctive seniority dates are now elim-
inated, the employment position of each may be affected and
call for further adjustment.
[18] Although not attacked here as such (see note 33, su-
pra), since the trial court must make a basic reexamination to
assure that all members of the affected class benefit in the re-
lief we prescribe, we recognize that there may be need for two
things. The first is an evidentiary exploration of the distinction
between incumbents, former employees and applicants who were
never hired. Second, there should be a legal determination con-
sistent with all our cases concerning relative relief (including
bidding priorities and seniority dates) appropriate to each.*?
41 According to the District Court's decree, the seniority date al-
lowed App. A was July 2, 1965, the effective date of Title VII, ex-
cept for those who were employed later.
42 Of the 30 in App. A, 20 of these are incumbents excluded from
LDs. Of the remaining 18 covered by specific testimony, 9 were for-
mer employees, 2 of whom were put in App. A, 1 in App. B, and
the balance in App. C together with all rejected applicants.
== 99 =
Nashville Servicemen
[19] The District Court ordered that proper training should
be provided for the six Nashville Black servicemen (included
in App. A) for whom there was specific evidence in the record
of exclusion from the city operations and mechanic and parts-
man classifications, and that they be allowed to bid on future
vacancies in the classifications of dockmen, partsman, and
mechanic and if qualified should be permitted to carry over
seniority as of July 2, 1965, the effective date of the Act. We
approve the District Court's remedial action but modify it in
several respects. First, the July 2, 1965 date is out and full
employment seniority as discussed generally will apply. Next,
the training transfer remedy prescribed by the District Court
should apply to al! Blacks hired into the serviceman classifica-
tion at the Nashville terminal prior to 1969** (the date when
the first Black was hired as a regular dockman in Nashville).
Of course as to all others, servicemen are entitled, on qualifica-
tion, to bid for LD with appropriate seniority.
The Government has one further objection. The 1970 union
contract abolished the requirement that servicemen at the Nash-
ville terminal were required to forfeit accumulated seniority in
order to transfer to the mechanic or partsman’s classification.
However, the new contract provided that transferees would be
required to qualify for the positions on the basis of require-
ments set forth by an employer-union committee.
[20] The United States argues that the new employer-union
committee violates Title VII in that it imposes a new and more
stringent requirement on Blacks now seeking to transfer from
serviceman to mechanic or partsman than was imposed on
Whites seeking a similar transfer prior to 1970. While the new
requirement may indeed be different, there is nothing in the
#8 The other 10 were included in App. C.
EOE
— =
record to compel the conclusion that by allowing the union to
participate in the formulation of job qualification requirements
it is in any way more onerous than the prior practice of leav-
ing questions solely to the employer.
But we think that in the modified decree specific provision
should be made to assure continuing power in the District Court
to monitor performance of employment practices by the Joint
Committee. The burden is on the Teamsters and T.I.M.E.-D.C.
to demonstrate that the process is fairly administered without
minority discrimination.
Memphis Transfer Policy
[21] As mentioned previously, the T.I.M.E. Memphis ter-
minal discontinued its policy of allowing White city drivers to
make extra line runs and transfer to the line in 1958 in order
to avoid having to grant similar privileges to Black city drivers.
The Government requested that all Whites hired into the city
driver department prior to August 8, 1958 (apparently the date
when the practice was discontinued) be allowed to bid on and
if qualified transfer to future vacancies in the LD position with
carry-over seniority as of August 8, 1958.
The District Court implicitly accepted the contention that
these Whites were the victims of a racial practice directed against
Blacks. But consistent with its approach generally about the
need for individualized testimony, the District Court put them
in App. C with its very junior priority and seniority. Of course
this treatment falls with our rejection of the App. A, B, C
structure.
Layoff For Vacancy
[22] In connection with provisions in the Union contract for
priority bidding rights after a layoff, the Court prescribed that
—— +
a vacancy would not be deemed to exist unless it continued for
three years.*+
We recognize that the Union contract provision granting laid-
off LDs a three-year period in which they may move into va-
cancies at their home terminal without competition was not
adopted for discriminatory purposes. Nevertheless, we believe
that to allow LDs a three-year priority right on future openings
would unduly impede the eradication of past discrimination.
See Hayes (11), supra, at 118; Rowe v. General Motors Corp.,
5 Cir., 1972, 457 F.2d 348, 358; Jacksonville Terminal, supra,
at 450-51. Therefore we modify the decree to provide that when
a vacancy which is not a purely temporary one arises in the
LD position at a T.I.M.E.-D.C. terminal, any LD on layoff at
that terminal may compete against members of the affected
class on the basis of full employment seniority.
The individual with the greatest employment seniority will
be given the first opportunity to qualify. We think that such
modification will accommodate the discriminatees’ right to ad-
vancement with the laid-off LDs “security interest” in his former
position.
*4 Par. 9(a) of the District Court's final order defined a vacancy
as
any Opening which is caused by the transfer or promotion to
a position outside the bargaining unit, death, registration or final
discharge of an incumbent, or by an increase in operations or
business where, ordinarily, additional employees would be put
to work. A vacancy shall not exist where there are laid off
employees on the seniority roster where the opening occurs.
Such laid off employees shall have a preference to fill such laid
off positions when these again become open without competi-
tion from the individuals granted relief in this case. However, if
such layoff continues for three consecutive years the position
will be deemed as “vacant” with the right of all concerned to
compete for the position, using their respective seniority dates.
including those provided for in this Order.
— 42 —
Southern Area Conference Modified Seniority
As detailed earlier, the Teamsters at terminals in the South-
ern Area Conference (see note 5, supra) have adopted a Modi-
fied Seniority system under which laid-off LDs may compete
for vacancies or bump junior LDs at other terminals within
the Southern Conference. The District Court, while recognizing
that the Southern Conference Modified Seniority provisions are
neutral on their face, determined that unaltered, they would tend
to impede the advancement of Blacks and SSAs into LD posi-
tions within the Southern Conference since laid-off LDs could
well fill the vacancies as they occur or even keep vacancies from
occurring by bumping junior LDs at particular terminals.
[23] Therefore the District Court provided the following
modifications. Laid-off LDs in the Southern Conference may
continue to bump junior LDs at other terminals. But where a
vacancy occurs, a laid-off LD from another terminal cannot
transfer in and take priority over any affected class members
on App A or App. B. In view of our disapproval of the Dis-
trict Court's tri-part division of the affected class, we will adapt
the decree to provide that a laid-off LD may not move to an-
other terminal where a vacancy exists and thereby automatically
take precedence over any member of the affected class at that
terminal. Of course, the laid-off LD may still move into the
vacancy whenever there are no members of the affected class
remaining who have not been offered the opportunity to qual-
ify for the LD position.
The District Court further provided that the laid-off LD who
bumps a junior driver at another terminal may exercise his
right of recall when an opening occurs at his own terminal with-
out competition from members of the affected class. However,
when an opening occurs at the terminal where the bump took
place, members of the affected class may compete on the basis
of seniority with the LD on layoff who was bumped (or with
any other LD on layoff at that terminal).
—
| Finally, in an effort to modify the Modified Seniority provi-
sions in a manner that would speed up the advancement of dis-
criminatees into the LD position, the District Court provided
that members of the affected class in the Southern Conference
may bid on LD openings at other terminals within the Confer-
ence in competition with employees at the terminal on the basis
of employment seniority after all members of the affected class
at that terminal have been given the opportunity to bid on the
position. This does not have the effect contended since this pro-
vision applies only after the priorities prescribed have been
exhausted at the terminal where the vacancy occurs.
Aside from our slight modification, the District Court did not
abuse its discretion in adjusting the Southern Conference Modi-
fied Seniority bidding procedure so as to accommodate the
effectuation of its remedy.
Victims and White Incumbents
[24] In its original opinion the District Court provided that
those in App. C were entitled to vacancies “before the general
public”. This, of course, subordinated them to White incum-
bents (not members of the class) who had no seniority for the
position. By supplementai opinion and order the Court recog-
nized that the removal of discriminatory practices would be de-
layed and the possibility would exist that inequities would result.
Consequently it ordered that those in App. C “shall also be given
preference over other . . . TIME employees who have no seni-
ority in the category where the vacancy occurs”.
The District Court's action in the supplemental opinion was
undoubtedly precipitated by the fact that the victims were di-
vided into App. A, B and C. Since App. A and B were given
preference over C and those in App. C were given relatively
small relief in comparison, the Court thought it only fair to give
those in App. C a priority over everyone else in-relation to the
relief awarded them.
Oe eV
—
In light of our abolishment of the App. A, B and C classifica-
tion, however, the District Judge should have the opportunity
to re-examine the preference given to those in App. C over every-
one. With all the victims now in one class, the record should be
developed when necessary to examine the impact of such a pref-
erence on current non-victim, incumbent employees who have
been employed by the company longer than a particular victim.
Consequently this portion of the remedy will be vacated for fur-
ther consideration.
Remand
The case is remanded for further evidentiary and judgmental
proceedings*® consistent with this opinion.*®
Remanded.
+5 With respect to the problems of the positions or rights of par-
ticular individuals, the District Court should feel free to fully use
special masters, since with the large numbers of people involved,
this presents “a showing that some exceptional condition requires
it.” F.R.Civ.P. 53(b).
46 Except for those portions of the District Court’s order which
we have disapproved or modified, the balance of the decree remains
intact, subject to such modifications as the District Court deems ap-
propriate as a part of the final order entered by the District Court
on remand.
—_
ORDER
Of the District Court for the Northern District of Texas,
December 13, 1971; 335 F.Supp. 246
In the United States District Court
For the Northern District of Texas
Lubbock Divison
United States of America, ‘
Plaintiff,
vs.
T.I.M.E.-DC, Inc. and the Interna- Civil Action
tional Brotherhood of Teamsters, } No. 5-868
Chauffeurs. Warehousemen and
Helpers «. merica and the Inter-
national Association of Machinists
and Aerospace Workers, AFL-CIO,
Defendants. |
Order
(Filed December 13, 1971)
The Court has under consideration the motion of plaintiff
to add a party defendant and to submit amendments to the
complaint.
Plaintiff's original complaint is against T.I.M.E.-DC, Inc., a
nationwide employer in the transportation industry, and two in-
ternational unions, seeking injunctive and declaratory relief. It
appears that the employer has itself, and through its predeces-
sors, entered into various labor contracts with approximately 70
local labor unions representing groups of employees at differ-
_— wn
ent terminals and other facilities of T.1.M.E.-DC throughout
the United States. Each of these contracts is directly between
the employer and the local labor union, and the two defendant
international unions are not signatory parties to any of said
contracts. Plaintiff alleges that because of said contracts and
the practices thereunder, the defendant employer follows a policy
and practice of discrimination against Negroes and Spanish-sur-
named employees, denying them an equal right to advancement
and other employment benefits.
The defendant international unions have moved to dismiss
or to stay the proceedings in this case until such time as the
joinder of the local unions has been effected. Plaintiff has now
moved to join Local No. 745 of the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica as a defendant individually and as a representative of a
class. This local is headquartered within the Northern District
of Texas.
It has been determined by the Court that the ultimate judg-
ment of this Court will, if favorable to the plaintiff, require in
all probability the alteration of the contractual agreements be-
tween T.I.M.E.-DC and the local unions. Further plaintiff is
seeking injunctive relief against the employer and those in con-
cert with the employer, ordering them to cease any discrimina-
tory practices pursuant to such labor contracts. It has been
urged upon the Court that each contract differs according to
the nature of the particular local union and the local circum-
stances involved, and that there is not a common question of
fact in all of said contracts. Defendants insist therefore that
Local 745 should not be permitted to be joined in this action
as a representative of a class. It has been further pointed out
that Local 745 is a local of the International Teamsters Union
while some of the contracts are with locals of the International
Machinists Union, and that 745 could not therefore be repre-
sentative of this second group.
—_—
This Court is of the opinion that should it finally enter an
order and judgment in favor of the plaintiff, such a judgment
would, as a practical matter, be meaningless insofar as it per-
tained to any local union that was not actually before and sub-
ject to the jurisdiction of this Court. Any judgment that alters
or amends the contractual rights of parties should be done
only when those parties are not only subject to the in personam
jurisdiction of the court but are also personally before the
court. This is even more important when injunctive relief
and remedies sought for enforcement of the injunction are in-
volved. If such relief were to be ordered by this Court against
the local unions who are represented only as members of a
class, it would only mean that the merits of the local case would
have to be determined again in some other proceeding in order
to obtain enforcement. Before such injunction could be en-
forced, another court would have to inquire into the particular
facts involving that particular local union in its dealings with
T.1.M.E.-DC.
While it is true that Washington v. Lee, 263 F.Supp. 327
(M.D. Ala. 1966), aff'd 390 U.S. 333 (1968) does in fact recog-
nize that injunctive relief can be afforded against defendants
who are members of a class, the suit now under consideration
involves not only injunctive relief but also the varying terms
of some 70 different contracts with the local unions. To en-
force a class injunction against the sheriffs of Alabama, each
of whom is singly in control of discrimination in his own jail
(Washington v. Lee, supra) is a far cry from attempting to en-
force changes in contractual agreements between a nationwide
employer and local labor unions having as many as 10,000
members in one local.
The matters to be decided in this case require that the de-
ciding court have in personam jurisdiction and that the defend-
ants be personally before the Court. In addition, this Court
also finds that there are not sufficient common questions of
—_~
fact to justify the use of Rule 23, Federal Rules of Civil Pro-
cedure, and that Local 745 could not fairly and adequately
represent the members of the class. Although the ultimate ques-
tion is the same—that of discrimination—the evidentiary facts
are so diverse as to render a class action unfeasible. It seems
apparent to the Court that each local should be given the
opportunity to appear and be heard on its own facts and its
own defenses.
It is therefore Ordered that:
I
The defendant unions’ motion to dismiss will not be ruled
upon at this time, but such motion will be carried along with
the trial of the case on its merits, and their motion to stay the
proceedings will be granted to the extent hereinafter set forth.
II
The parties will not be required to comply with the pre-trial
schedule heretofore set pending further notice by the Court.
Ill
Permission is here Granted to plaintiff to join Local 745 of
the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America as a defendant individually,
but not as a representative of a class.
IV
The plaintiff is hereby Ordered to determine if it desires to
prosecute its cause of action against any other local unions that
have contracts with T.I1.M.E.-DC. This Court will be notified
by plaintiff on or before February 1, 1972 as to whether or not
—=_
plaintiff desires to file actions against local unions in the proper
district court having jurisdiction thereof. If the plaintiff desires
to proceed against such local unions, same shall be forthwith
filed and this Court notified, and this Court will then determine
the proper procedures for multi-district litigation under the pro-
visions of Title 28, U.S.C. § 1407. If plaintiff does not desire
to file such additional suits, this Court should be immediately
notified, and as soon as the amendment has been filed against
Local 745 this Court will notify the parties of the setting of this
case against the defendants presently named and Local 745.
The Clerk will furnish a copy hereof to each attorney.
Entered this 13th day of December, 1971.
/s/ HALBERT O. WOODWARD
United States District Judge
—
ORDER
Of the District Court for the Northern District of Texas
January 20, 1972; 4 F.E.P. Cases 875
In the United States District Court
For the Northern District of Texas
Lubbock Division
United States of America, 5
Plaintiff,
v. Civil Action
No. 5-868.
T.1.M.E.-D.C., Inc., and the Interna-
tional Brotherhood of Teamsters,
Chauffeurs, Warehousemen and
Helpers of America, and the Inter-
national Association of Machinists
and Aerospace Workers, AFL-
CIO,
Defendants, ‘
Consolidated With
United States of America,
Plaintiff,
v. Civil Action
No. 5-897.
T.IL.M.E. Freight, Inc. (Now Known
as T.I.M.E.-D.C., Inc.) and Local
480, International Brotherhood of
Teamsters,
Defendants. -
Order
I. Status of the Pleadings
The United States of America, through the Attorney Gen-
eral, filed its original complaint against T.I.M.E.-DC, a na-
_—
tional motor freight carrier, and the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, an international labor union, alleging violations of
the Civil Rights Act of 1964 (78 Stat. 253), 42 U.S.C. 2000¢
et seq. Subsequently, a motion was made and granted to add
International Association of Machinists and Aerospace Work-
ers, AFL-CIO, as party defendants, and all defendants have
now answered.
Defendant T.I.M.E.-DC is a common motor carrier with
forty-nine terminals in twenty-four states, employing approxi-
mately 6,500 persons. The defendant international unions,
through their affiliated locals, are alleged to be the exclusive
bargaining representatives of the majority of the employees
of T.I.M.E.-DC. The burden of the complaint is that T.I.M.E.-
DC follows a policy or practice of discrimination in employ-
ment against Negroes and Spanish surnamed persons in the
following particulars:
(a) refusing to recruit, hire, transfer and promote Negro
and Spanish-surnamed persons on an equal »asis with whites;
(b) hiring or assigning job classifications on the basis of
race or national origin, with Negro and Spanish-surnamed
employees being assigned to lower-paying or less desirable
jobs while higher-paying and more desirable jobs are reserved
for whites;
(c) refusing to employ Negroes and Spanish-surnamed per-
sons as non-regular employees and denying these persons the
opportunity to become regular employees on the same basis
as whites;
(d) refusing to promote and transfer Negro and Spanish-
surnamed employees to higher positions on the same basis as
whites.
a 92 axe
The defendant unions are alleged to be parties to collective
bargaining agreements with T.I.M.E..DC which provide for
accumulation of separate lines of seniority within each job
classification and which therefore tend to prevent transfer from
one classification to another. If, as plaintiffs allege, Negro and
Spanish-surnamed employees are assigned as a matter of pol-
icy Or practice to less desirable classifications, such agreements
would reinforce the pattern of keeping those persons trapped
in lower ciassifications.
Plaintiff seeks injunctive relief to prohibit defendants from
engaging in such practices and from failing to take adequate
steps to correct the effects of past discrimination.
In 1968, the United States of America filed its complaint
in the United States District Court for the Middle District of
Tennessee, Nashville Division, against the company then known
as T.I.M.E. Freight, Inc., now T.I.M.E.-DC, alleging certain
discriminatory practices in the Nashville office. Subsequently,
permission was granted to plaintiff to join Local 480, Inter-
national Brotherhood of Teamsters, as a party defendant, and
both defendants have duly answered.
The specific allegations and prayers for relief against the
defendants in the Tennessee case were substantially identical
to those in the action later filed in this Court; for this reason,
the Tennessee case was transferred to this Court and the two
cases have been consolidated for trial.
II. Motions Before the Court
The following motions have been filed:
1) Motions by both international nions that they be dis-
missed because they are not parties to any of the contracts
or practices alleged.
oh 23 xn
2) Motion by plaintiff, the United States of America, to add
Local No. 745 of the International Brotherhood of Teamsters,
a Dallas local, both individually and as representative of a class
of all locals having similar contracts with T.I.M.E.-DC.
3) Motion by T.I.M.E.-DC to dismiss because of failure to
join indispensable parties: namely, all the other local unions
having similar contracts with T.I.M.E.-DC; or, in the alterna-
tive, to limit the trial issues to those involving solely the parties
now before the Court.
As to Motion No. 1, the Court has noted that although the
international unions were not themselves signatory parties to
any of the contracts in question, they have been alleged by
plaintiff to have been vital parties to the bargaining negotiations
from which those contracts resulted. In view of these allega-
tions, it is the opinion of this Court that they are proper parties
to this suit, and said motions to dismiss by the international
unions are therefore DENIED.
Motion No. 2, to join Teamsters Local 745 individually and
as representative of a class, was determined by the Court on
December 13, 1971, and the ruling denied the motion for class
action, but gave plaintiff permission to add Local 745 individ-
ually as a party defendant. In addition, the Court granted plain-
tiff permission to file suits against all the other involved locals
and to then proceed for consolidation of all suits under the
multi-district litigation practice. Plaintiff has declined both to
add Local 745 individually and to proceed against any other
locals, and has requested that the case be set for trial with the
parties before the Court.
Motion No. 3, the motion of T.I.M.E.-DC to dismiss, presents
a more complex problem. Were it clear to the Court that any
relief granted would necessarily affect rights of local unions
who are now under contract with T.I.M.E.-DC and who are not
before the Court, there would be no question but that the case
—
should be dismissed for failure to join indispensable parties. But
it appears to the Court that the allegations and prayers for relief
present a great many issues regarding the practices and policies
of T.I.M.E.-DC itself which can properly be adjudicated in the
absence of any other parties. Further, it is obvious that even
the contractual issues can properly be adjudicated as they involve
Local 480, the Tennessee local now before the Court. The mo-
tion of defendant T.I.M.E.-DC to dismiss for failure to join in-
dispensable parties is therefore DENIED.
This Court is of the opinion that the primary goal of the Civil
Rights Act of 1964 would be thwarted by dismissing this suit
and requiring a multiplicity of suits to be tried before resolving
the issues now properly before this Court. And if, in fact, the
evidence shows that the international unions are active in the
negotiations of such contracts or in effect control the terms of
such contracts on behalf of their locals, then ample relief could
be afforded against the international unions as well as against
employer. It is recognized that any remedy afforded by this
Court would be granted only as to the named parties defendant.
Russell v. American Tobacco Company, 3 F.E.P.T. Cases 201,
(U.S.D.C. M.D.No.Car., 1971).
If the Court finds that the relief sought would force upon a
defendant a breach of contract with a signatory party not before
this Court, serious consideration would be given to denial of
such relief. However, the pleadings and briefs indicate that at
least some types of relief would be available without causing
such a conflict.
T.I.M.E.-DC, in its brief, has informed the Court that addi-
tional time is needed for trial preparation and that the trial itself
will demand several weeks. They have suggested, without re-
questing, that it would be well for the question of whether the
locals are indispensable parties to be decided by interlocutory
appeal to the United States Court of Appeals for the Fifth Cir-
—
cuit under the provisions of 28 U.S.C. 1292(b). This matter not
now being before the Court, the Court hereby directs that any
such motion for interlocutory appeal be filed in this Court on
or before February 15, 1972. If the motion is denied, the case
will proceed to trial and is tentatively set on the non-jury docket
for May 1, 1972 at 10:00 a.m. in Lubbock, Texas. The pre-
vious setting of April 4, 1972 is hereby vacated, as the Court
had overlooked a request by counsel regarding a prior commit-
ment during that period.
The pre-trial procedures heretofore ordered will be complied
with except as modified above and except that each step may
be delayed for thirty days due to the later trial setting.
The Clerk will furnish a copy hereof to each attorney.
ENTERED this 20th day of January, 1972.
/s/ HALBERT 0. WOODWARD
United States District Judge
= =
OPINION
Of the District Court for the Northern District of Texas
October 19, 1972; 6 F.E.P. Cases 690
In the United States District Court for the
Northern District of Texas
Lubbock Division
United States of America, !
Plaintiff,
v. Civil Action
No. 5-868
T.I.M.E.-DC, Inc., and the International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of Amer-
ica, and the International Association
of Machinists and Aerospace Workers,
AFL-CIO,
Defendants. ‘
United States of America,
Plaintiff,
v. Civil Action
No. 5-897
T.IL.M.E. Freight, Inc. (now T.1.M.E.-
DC, Inc.) and Local 480 of the Inter-
national Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Help-
ers of America,
Defendants. |
Memorandum Opinion
The United States brings this suit against defendants T.I.M.E.
D.C., Inc. (hereinafter referred to as TIME), the International
= =
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, and Local 480 of the Internationai Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America (hereinafter referred to as Unions) alleging discrimina-
tion in employment in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. The International As-
sociation of Machinists and Aerospace Workers, AFL-CIO was
joined as a defendant in Civil Action No. 5-868 on April 21,
1971.
This court has jurisdiction over the parties and subject matter
in this action by virtue of 28 U.S.C. § 1345; Civil Rights Act
of 1964, 42 U.S.C. § 2000e-6(b).
Defendant TIME is engaged in trucking operations throughout
the United States and is an employer within the meaning of 42
U.S.C. § 2000e(b) and is engaged in an industry affecting com-
merce within the meaning of 42 U.S.C. § 2000e(h). Defendant
Unions are labor organizations within the meaning of 42 U.S.C.
§ 2000e(d), and are engaged in an industry affecting commerce
within the meaning of 42 U.S.C. § 2000e(e).
T.I.M.E. D.C. Inc. is the name of a trucking concern spawned
out of the merger and acquisition of various smaller firms
throughout the country, to-wit: Los Angeles Motor Express,
D.C. International, Inc., T.1.M.E. Freight, Inc., Texas-Arizona
Motor Freight, Super Service Motor Freight, Inc., Southeastern
Trucking Lines, Southwestern Freight Lines, Inc., and Intercity
Motor Express (which later became T.I.M.E., Inc.). T.1.M.E.
D.C. is used in this opinion in reference to all the above named
corporations as well as to the present corporation.
The cases being consolidated, trial on the merits began before
the Court on May 3, 1972. All parties and their attorneys were
present and testimony and evidence were heard and depositions
were introduced which had previously been taken in this cause.
Trial of the case ended on May 12, 1972 by a Consent Decree
—=—
in Partial Resolution of Suit. That decree is here referred to and
made a part of this opinion for all purposes.
The Partial Decree provided, among other things, that TIME
would revise iis hiring and promotiona! practices so that more
minorities would be hired in the future.
The Government names specific individuals as those who were
allegedly victims of TIME’s discriminatory hiring practices.
Plaintiff has submitted two lists in that regard: one listing indi-
vidual discriminatees and the amount of monetary damages they
have suffered, and another listing individual discriminatees with
suggested specific equitable relief to be afforded each individual.
This last instrument was filed with the Clerk on June 19, 1972
and is designated “Individuals for Whom Plaintiff Seeks Relief.”
The Consent Decree provided that TIME D.C. would pay
$89,500.00 to compensate individual discriminatees as named
on list number one for monetary damages suffered. In regard
to those claiming specific equitable relief, the Consent Decree
provided:
13. All job vacancies at T.I.M ©. D.C. terminals and
other facilities at which it employs personnel shall be filled
in the following sequence:
(a) By those persons who may be found by the Court,
if any, to be individual or class discriminatees suffer-
ing the present effects of past discrimination because
of race or national origin prohibited by Tit's VII of
the Civil Rights Act of 1964.
By this order therefore, this Court has the final task in this
suit—to determine those individuals, if any, who are entitled
to relief under Paragraph 13(a) of the Consent Decree. The
determination involves a three step process: 1) was there a
general plan and practice of discrimination by TIME; 2) was
there discrimination against a person either as an individual or
—
as a member of a class; and 3) what relief should be given each
individual discriminatee.
A brief and general description of TIME’s employee hierarchy
should be given so that a discussion of any discriminatory prac-
tices can be more easily understood. Servicemen perform the
most unskilled task of greasing trucks and changing tires within
the yard. Mechanics and partsmen also work within the yard.
Hostlers, checkers, and dockmen are responsible for servicing
and loading trucks within the yard. Trucks are loaded accord-
ing to size and destination. Light and heavy duty trucks deliver
within a city or surrounding locale. Heavy trucks are also loaded
for long distance or “line” runs. Line runs are considered the
most desirable of the driving jobs because of generally higher
pay and less physical loading and unloading duties. The city
drivers usually have to unload their own trucks and contend with
city traffic.
All categories within the trucking hierarchy are unionized.
Seniority within a job category is governed by a “board”; the
employee with the longest tenure within a job category being
number one on the board and the most recently hired employee
being the last number on the board. There is also a status within
a job known as “casual.” A casual employee is one who was
called to work on a certain job for an indeterminate, but usually
short, period of time. After a casual works for a certain period
of time he is eligible to go on the job “regular”: which entitles
him to be put on the board. Naturally, if a layoff occurs within
a job category, the employees on the bottom of the board are
the first to be released. Also, the employees on the top of the
board enjoy overtime and transfer options and preference in bid-
ding on the various jobs in that category.
The United States alleges that TIME discriminates against
individuals because of their race in various ways. The Govern-
ment claims that TIME doesn’t hire minorities for any job in a
—
proportionate ratio to whites; that if a black or member of an-
other minority group is hired, he is hired for the less beneficial
jobs, and that if they are hired, these minorities are discrimi-
nated against in promotions and transfers to more advantageous
positions.
In support of their claim, the Government has introduced
statistics and depositions as well as witness testimony at the trial.
The statistics introduced are of two types. One is a compari-
son of the number of a minority residing in an area with the
number of that minority who actually are employed by TIME.
The other is a comparison of the number of minorities at each
particular job at each terminal with the number of whites at the
particular job at each terminal. Both statistical tables are set out
in toto in Appendix A of this opinion, and as a finding of fact
by this Court.
The statistics are a convincing commentary regarding the
claim of TIME’s discriminatory practices. They show that TIME
has not in the past hired minorities in proportion to the minori-
ties available within each terminal area. Further, statistics show
that minorities have simply not been allowed to engage in the
more choice jobs such as line driver.
These statistics alone are sufficient to show a prima facie vio-
lation of Title VII. Statistics are relevant and carry great weight
in determining whether there has been a plan and practice of
discrimination. Bing v. Roadway Express Inc., 444 F.2d 687
(Sth Cir. 1971); Witherspoon v. Mercury Freight Lines, Inc.,
547 F.2d 496 (Sth Cir. 1972).
The testimony from the witness chair and the depositions
clearly indicate that TIME and its predecessors engaged in the
following practices:
(a) Numerous qualified black and Spanish-surnamed Ameri-
can applicants who sought line driving jobs at the company over
-
the years either had their requests ignored, were given false or
misleading information about requirements, opportunities, and
application procedures, or were not considered and hired on the
same basis that whites were considered and hired.
(b) Numerous qualified black and Spanish surnamed Ameri-
can employees who have sought transfer to line driving jobs at
the company have either been denied the opportunity to do so, or
have not been permitted to transfer on the same basis as whites.
(c) At its Nashville terminal, the company has trained whites,
but not blacks, to be mechanics, partsmen and shop supervisors.
All of the evidence is ample to show by a preponderance of
the evidence that T.I.M.E. D.C. and its predecessor companies
were engaged in a plan and practice of discrimination in viola-
tion of Title VII of the Civil Rights Act of 1964. Griggs v. Duke
Power Co., 401 U.S. 424 (1971); Bing v. Roadway Express,
Inc., 444 F.2d 687 (Sth Cir. 1971); Witherspoon v. Mercury
Freight Lines Inc., 457 F.2d 496 (Sth Cir. 1972); United States
v. Hayes Int'l Corp., 456 F.2d 112 (Sth Cir. 1972).
Defendant Unions asserts that even though TIME might be
guilty of discrimination that the Unions themselves have done
no act which could be construed as discriminatory. The contracts
between the Unions and TIME, while being neutral on their
face, do, however, operate to impede the free transfer of mi-
nority groups into and within the company. “Under the Act,
practices, procedures, or tests neutral on their face, and even
neutral in terms of intent, cannot be maintained if they operate to
‘freeze’ the status quo of prior discriminatory employment prac-
tices,” Griggs v. Duke Power Co., 401 U.S. 424, 429-30 (1971).
It is not the intent of this Court to order the Union to completely
revise their seniority system, however it is the ruling of this Court
that neither TIME nor the Unions can set up the seniority sys-
tem or the collective bargaining agreements to impede the natural
infiltration of minority groups into and within the more ad-
—_—
vantageous jobs through TIME’s employee hierarchy and the
order of the Court, hereinafter described, will enjoin the Unions
from interfering with relief here granted as well as the relief
ordered by this Court’s decree of May 12, 1972.
Since it has been established that the defendants here are in
general violation of Title VII, and TIME has engaged in a plan
and practice of discrimination, the next issue is whether the in-
dividuals listed have been the victims of this discrimination.
Plaintiff's list of individuals for whom relief is sought is taken
from Plaintiff's Exhibit 204, which is a list of all persons hired
by TIME or its predecessor companies with a notation as to
their race. The plaintiff then listed those who were members of
a minority to compose Plaintiff's List of Individuals for Whom
Relief is Sought. The plaintiff claims that since these people
were hired durii , a period in which TIME was practicing a plan
and pattern of discrimination, that they are members of a class
affected by TIME’s discriminatory practices. The Court accepts
this view to the extent that all are members of an affected class.
However, this Court does not hold that all members were in-
jured individually by being within the class, or that those who
were injured were all affected to the same degree. This Court,
in fact, does hold that some were not injured by being a mem-
ber of the class, and that those who were injured were injured
in varying degrees. There are no degrees of discrimination—
discrimination is discrimination, and if made on the basis of race
is deplorable whatever the degree; however there are degrees of
injury due to that discrimination—and this is important in de-
termining the equitable relief this Court should afford these in-
dividuals.
It should be noted that with two exceptions, all individuals
on the list have been awarded monetary damages as provided in
the Consent Decree in Partial Resolution of Suit. It should
also be noted that of the hundreds listed, this Court has specific
evidence on only 41 listed individuals.
—
Further, the evidence in this case has been introduced to
show the plan and practice of discrimination by the defendant
employer aided by the defendant labor unions. The Court has
no evidence showing acts of discrimination by white employees.
This fact is noted because the plaintiff has suggested as one form
of relief that the alleged individual discriminatees be ordered
to be placed on the “board,” at a better classified or higher pay-
ing classification of job with the employer; and that his date of
seniority be the date that that individual first entered into the
employment of the defendant company or its predecessors. This
suggestion has the advantage of restoring, as nearly as possible,
an individual to the position that he would have enjoyed had
there never been discrimination. But it has the overriding dis-
advantage of placing this person in a more senior status than
white employees who have been placed in that category in the
meantime and this record contains no evidence of discrimination
by the white employees who would be severely affected by the
Government's proposal. Of course it could be argued that
had the discrimination not occurred the white employee would
have enjoyed the junior status; but this Court cannot overlook
the fact that these white employees are not responsible for the
discrimination, although they may be beneficiaries thereof, and
to enforce such a harsh remedy would unduly and unnecessarily
disrupt whites who have grown accustomed to and been given
and earned their senior status. It is unfortunate that a remedy
does not exist which would fully compensate those who have
suffered discrimination. Facing such a situation, this Court
must balance the equities and determine a solution that will ful-
fill the meaning and intent of the Act.
The Court finds that 30 members of the class have suffered
severe injury because of the practice and plan of discrimination
by TIME. These individuals produced the most convincing evi-
dence of discrimination and harm resulting therefrom. A list
of these individuals, a brief summary of the evidence they pre-
sented, and the relief granted each is found in Appendix B,
Le eeeeeeeeeEEEeEeEe———eeEeeee
—
which is made a part of this opinion for all purposes. The high-
est seniority date granted any individual listed in Appendix B
is July 2, 1964, the effective date of 42 U.S.C. § 2000e. Of
course, if one on the list has an employment date later than July
2, 1964, then the later date will be his seniority date.
It is therefore the Order of this Court that in complying with
the provisions of 13(a) of the decree of this Court heretofore
entered, that the company will first place those listed on Ap-
pendix B into the position sought and that when a vacancy oc-
curs they will be given the place in the new category and that
their seniority date for all purposes including bidding, layoff, and
seniority purposes will be the date shown in column 3 of Ap-
pendix B.
These persons will be placed in the various positions that are
shown in column three on Appendix B and at the terminal listed
in column 1 when such a vacancy in such position exists at
such terminal.
There are other individuals on plaintiff's list who fall within
a grey area. The evidence regarding these individuals is not
sufficient to show clear and convincing specific instances of
discrimination or harm resulting therefrom. The evidence does
show, however, that these individuals were very possibly the ob-
jects of discrimination and that they were likely harmed by
such discrimination. Because there is no specific evidence, this
Court, having broad equitable power with which to fashion
a remedy, holds that these individuals are entitled to openings
in the jobs listed with a seniority date as of the date of the
filing of this suit, the 14th day of January, 1971. A list of
these individuals with a brief summary of their complaint and
the relief afforded each is set out in Appendix C, which is made
a part of this opinion for all purposes. It is therefore the Order
of this Court that in complying with the provisions of 13(a) of
the decree of this Court heretofore entered, that the company
—
will place these employees after those listed in Appendix B into
the positions sought and that when a vacancy occurs at the
terminal and in the job position shown on Appendix C, they
will be given the place in the new category and that their seni-
ority date for all purposes including bidding, layoff, and seni-
ority purposes will be the date shown on Appendix C.
Regarding a third group, listed on Appendix D, the evidence
fails to show that there was any injury or harm to them as a re-
sult of TIME’s discriminatory practices. The Court is convinced
that even though these people had some dealings with TIME
during the period of discrimination, that they were clearly not
injured by such discrimination. It is therefore the ORDER of
the Court that any equitable relief claimed by these individuals
be DENIED. These people are listed in Appendix D, which is
made a part of this opinion for all purposes.
The remainder of the individuals on plaintiff's list (filed with
the Court on June 19, 1972) have either presented no evidence
of discrimination against themselves and resulting harm or are
no longer in the employ of TIME. As mentioned above, all are
members of a class of discriminatees; however, this Court has
no evidence to show that these individuals were either harmed
or not harmed individually by the discrimination to the class as
a whole. It would be unjust to deny completely any relief to
these individuals; however, it would also be unjust to grant re-
lief to all when the Court has no evidence of harm individually.
In balancing the equities, it is the ORDER of this Court that
these individuals be entitled to openings under paragraph 1 3(a)
of the Consent Decree before those from the general public and
after those listed in Appendix B and C, and that their seniority
date be the date hired under paragraph 1 3(a).
In implementing the relief to be ordered defendant TIME
will, with the aid of the defendant Unions, mail notice by Certi-
fied Mail to each individual named on the plaintiff's list filed
—
June 19, 1972 and entitled “INDIVIDUALS FOR WHOM
PLAINTIFF SEEKS RELIEF” except that no such notice may
be mailed to those individuals listed on Appendix D. Such noti-
fication will be by Certified Mail, Return Receipt Requested,
and will be deposited in the mails within sixty (60) days from
the date that the order of the Court becomes final, and shall be
mailed to each individual’s last known address. If delivery
cannot be effected by such means, no further requirement of .
notice shall be required of the defendants to such individuals,
provided that the notice was mailed to the last known address
known to any of the defendants herein. Each individual shall
be notified of the relief ordered to be given to each individual,
and as shown on the various appendices to this opinion, and
shall further advise that the individual must accept in writing
the relief offered within sixty (60) days after such notice has
been mailed. Failure to accept the relief ordered in writing by
the individual will relieve defendants of any further obligation
to such individual under the terms of the decree to be entered.
The order of this Court will further provide that in no event
will any individual be entitled to receive any of the relief pro-
vided for except and unless that individual fully meets all of the
requirements of the new job category to which he is to be as-
signed. Further, it will be provided that each individual will
retain his present date of seniority for all company-wide benefits
(such as retirement and fringe benefits), although such individual
will have a different date of seniority on the new “board” to
which he is assigned.
The defendant TIME will be required to furnish semi-annual
reports to this Court and to the United States Attorney General
showing compliance and reporting and other pertinent statistical
information with respect to the individuals affected by this order,
and in addition to those reports required in the previous Consent
Decree heretofore entered.
— =
The attorneys in this cause are directed to confer and to sub-
mit to the Court an appropriate form of order in accordance
with the requirements of this Memorandum Opinion. It is recog-
nized that in effecting the decree herein ordered to be entered
that certain procedures will be necessary in order to prevent
possible resulting inequities and injustices, and it is for that rea-
son that the Court feels that the attorneys can appropriately draft
the final order in this case as herein outlined.
This Memorandum Opinion shall constitute the Court’s Find-
ings of Fact and Conclusions of Law.
The Clerk will furnish a copy hereof to each attorney.
ENTERED this 19th day of October, 1972.
/s/ HALBERT O. WOODWARD
United States District Judge
—
APPENDIX A
Percent of “White”, “Negro” and “Other” P
Area and the City at T.1.M.E. D.C.’s Terminal
Terminal City
Albany
Atlanta
Baltimore
Boston
Buffalo
Chattanooga
Chicago
Cincinnati
Cleveland
Dallas
Decatur
Denver
Detroit
El Paso
Evansville
Fountain
Hobbs
Kansas City
Knoxville
Little Rock
Los Angeles (1)
Los Angeles (2)
Louisville
Lubbock
General Office
Memphis
Milwaukee
Montreal
Nashville
New York City (1)
New York City (2)
Oklahoma City
Paris
Philadelphia
Phoenix
Portland
Ripley
White Negro Other
96.31
77.41
75.78
94.52
91.22
83.48
3.28
22.35
23.67
4.61
8.06
16.37
17.64
41
24
55
87
in the Standard Metropolitan
and the “White”, “Negro”
City
White Negro Other
87.00
48.40
$2.98
81.85
78.74
63.72
65.57
71.91
61.01
74.15
86.90
89.02
55.50
96.38
92.52
90.64
77.20
86.87
74.48
77.19
77.19
75.94
12.31
$1.31
46.39
16.33
20.38
36.06
31.75
27.64
38.33
24.91
13.00
9.13
43.69
2.58
7.28
7.88
22.09
12.79
25.28
17.88
17.88
23.80
7.50
7.50
38.89
14.65
19.62
21.18
21.18
13.69
33.55
4.80
5.64
.69
29
63
1.82
4.93
4.93
and “Other” Work Force at T.1.M.E. D.C.’s Terminals
SMSA
Statistical
T.LM.E. D.C.
White Negro Other
96.97
85.63
87.50
98.28
100.00
92.96
93.84
93.48
97.14
85.32
100.00
90.87
98.11
39.39
97.83
91.67
100.00
96.12
96.36
94.12
77.89
80.08
100.00
95.77
95.16
87.31
100.00
100.00
92.78
97.67
95.95
94.50
97.50
97.30
89.56
97.78
100.00
0
13.17
10.00
3.03
1.20
2.50
1.72
=—
SMSA City T.LM.E. D.C.
Terminal City White Negro Other White Negro Other White Negro Other
Rochester 92.96 6.54 50 82.41 16.76 83 100.00 0 0
Sacramento 90.96 4.74 4.30 81.50 10.71 7.79 89.47 0 10.53
Salisaw — —_ — _ _ —_ 100.00 0 0
San Antonio 91.98 693 1.09 91.37 7.65 98 35.30 5.88 58.82
San Francisco 82.80 10.62 6.58 71.43 13.42 15.15 81.52 4.74 13.74
Seattle 94.03 2.93 3.04 87.39 7.13 5.48 96.36 1.04 2.60
Springfield 98.11 1.58 3l 97.67 1.98 35 100.00 0 0
Stockton 88.08 544 6.48 79.52 10.98 9.50 100.00 0 0
Syracuse 95.61 3.68 71 88.04 10.84 1.12 100.00 0 0
St. Louis 83.59 16.03 38 $8.66 40.85 49 97.87 2.13 0
Tacoma 93.04 450 2.46 90.76 6.75 2.49 100.00 0 0
Toledo 91.35 8.25 40 85.73 13.79 48 100.00 0 0
Toronto = os ae — — — 100.00 0 0
Tucson 93.63 2.94 3.43 94.82 3.49 1.69 80.00 10.00 10.00
Tulsa 88.28 8.25 3.47 86.55 10.64 2.81 93.34 3.33 3.33
Vancouver -_— — — —_ —_ —_ 100.00 0 0
Vinita _ — _- — — — 81.82 O 18.18
Washington, D.C. 74.26 24.61 1.13 27.66 71.08 1.26 100.00 0 0
Winchester a —_ _ 90.94 8.93 13 96.70 94 2.36
Yreka a — — a — 100.00 0 0
York 97.41 2.37 22 86.53 12.96 SI 100.00 0
0
SMSA (Standard Metropolitan Statistical Area) percentages are based on the 1970 U.S. Census
of Population Reports. The terminal cities with dashes in the SMSA columns have no metro-
politan area figures available from the Census Bureau.
City percentages are based on the 1970 U.S. Census of Population Reports of urban places
with a population of more than 10,000. Population for cities with populations of under
i Se cas ee ee Oe a Se ae Sey OD Oe ES ee ee
in these columns.
Population figures for Canadian cities are not included on the chart.
T.LM.E. D.C. oyment are based on the total terminal employment. The percent-
ages are com from the March 31, 1971 printout “Personne! List,
plaintiff by T.1.M.E. D.C., Inc., Lubbock, Texas.
Job Category Total White Negro SSA 7 Oriental
m.
DP . ccc su ceseouceeeessoanse 6 3 2 1
ET on 00666 0000600600006000006 1 1
PD . -cocecceescessceseuceue 6 5 1
City H.D. Driver ............5-+0055 18 14 3 1
City PUD Driver ............-..4:- 45 33 3 9
RN EE ic cnocs ce e6ee0sceeusuoes 31 31
PES coccudesedeccoccecesacese 44 31 5 x
PP ccosedecdsees sénceesecgeese 10 x 1 1
= at 99 an
Denver, Colorado Terminal on Atlanta, Georgia Terminal ‘
Job Category Total White Negro SSA Indian Oriental Job Category Total White Negro SSA Indian Oriental
Ee ace sige saneenegeenes $1 46 2 2 1 PE Sidcacesscccecetéeeeededws 9 9
TTT TT TTT TT TTT 6 b) 1 = 8 8 BPP ree 31 20 11
BT, cocccccccccveeccseccesss 27 7 19 1 DD i664 4666e60800600~0000 cn 57 57
City Heavy Duty Driver ............ 21 19 2 EE ic. ccwigsancccdhwesesioget 31 23 .
- Bf PPP 33 24 3 5 1 |” RRS i re Ae 6 4 2
BE GD cccnncecsseeeeeceessees 313 311 1 1
BED cccccceccceccescsecceeses 65 53 5 7
DEE, cccceeeseedeosescosoceososs 17 15 Chicago, Illinois Terminal
Dy scevechsaceceteceseseséenss 5 2 2 1 Am.
Job Category Total White Negro SSA _—iIndian Oriental
BEE pc ctubebvcdécdsoescesondade 26 25 1
Vernon and Montebello, California Terminals (Los Angeles) —_ ET “ds ¢ ca euboeseseereseesese 1 1
Job Category Total White Negro SSA Indian Oriental City Heavy Duty Driver ............ 83 78 4 1
DEE sccecesooceseesecocevesse 40 29 4 6 1 DMT .coccehesseesousestéeees 97 97
DT ccccageceseeesesetesesace 6 5 1 PE ¢ ccs se0beheee¥esees Gees 83 75 7 1
DD cccccnconceceoesereesees 31 16 11 4 DE ccccédesesveseseeuesonceesos 12 12
City Heavy Duty Driver ............ 45 22 11 12
Se SEP EEE coceccceccesceesse 74 53 7 12 2
tt MD 2c ccc ceeceeesceseoosees 319 315 2 2 Oklahoma City, Oklahoma Terminal ‘
m.
— panes coeteesedessiceveude . 7 . 30 2 1 Job Category Total White Negro SSA Indian Oriental
ep 04 Set eS DED ccccsickesdéoucanossseuees UE 40 1 2
PTL cvccenvecceuesouceosesens 5 4 1
Vernon and Montebello, California Terminals (Los Angeles) a TN 1050 dusedeccoeheuuneihad 23 18 3 2
Job Category Total White Negro SSA Indian Oriental Coty PUD BBvGP onc ccccccccvccces 20 20
"RE Sap aaa alee RNS 9 8 1 De HED. cénccconceceocesscseeees 103 101 2
I ee?) 8a ae ee l 1 PD ccocenencansesseoosseswess 38 35 2 1
RES Es Rep Re nt 7 2 5 DD cogecees600606000eeueseeues 2 2
City Heavy Duty Driver ............ 30 21 3 5 1
Se Ge SD a vcesecenscoceeees 48 36 3 9
EE oa ee ina buedexemseent 55 55 Dallas (Irving), Texas Terminal po
DE csucncuseeseenenns6e0eees 47 30 5 10 1 1 Job Category Total White Negro SSA Indian Oriental
DT acsudcdcs cudenvensSusucenus 2 2 City PUD Driver ............00000: 29 22 7
DET . cocccecceoosceessoceses 20 20
Nashville, Tennessee Terminal rE re 5 5
Job Category Total White Negro SSA R. 2 Oriental DE «ccisencodoeneseeeeeeeees 41 32 a 1
PE cece caseenbeesasuenene 30 28 2
Dt! ccccbnokanesdenedaseenbes 3 3
RR ee eres Pree 25 y 16 San Antonio, Texas Terminal in,
< 8. 8 BPP 31 31 Job Category Total White Negro SSA Indian Oriental
Line Drivers ..............+++: +» 74 74 i I GE ncn ce cosessceseves 13 3 1 9
DE cocccpenesneceosneocevectos 70 70 es cee eueeeenre 1 1
Job Category Total White Negro SSA x. 4 Oriental
DT) bttvscangesegonenenseeeus 17 16 1
SD 2. dee ceuitkicnccadai 35 24 i1
DEE, Hitch wncingdinhi dedk sé meee 104 101 3
DE gubdosdsnentbowseusedunds 112 89 23
DT shbsewedesdeolensenedsuncdes 8 6 2
— vo
APPENDIX B
The following individuals are those which the evidence clearly
shows were the objects of discrimination in the hiring and pro-
motional practices of defendant T.I.M.E. D.C. included here is
a brief description of specific acts of discrimination and the
equitable relief given each by this Court.
Name (Terminal and Race)
1) Edgar Cornelius Rudison
(Vernon, Negro)
2) Roy F. Patton
(Vernon, Negro)
3) Jose de Ramirez Almarez
(Montebello,
Mexican American)
4) John Passi
(Montebello, Polynesian)
5) James A. Floyd
(Vernon. Negro)
Complaint
city driver
2) Has been a city driver
with T.1.M.E. D.C. for 14
years. Has asked for a line
job two times but was re-
fused or told that he would
have to go on the extra
board.
3) Applied for line job in
1956 but was refused be-
cause of his race. Has been
» Plaintiff* to be Be
opportunity to ine
driver job on basis of July
2, 1964 seniority date, and
if found qualified, to take his
seniority to that job for all
Tice enema bidding
2) Plaintiff to A ny A
opportunity to ine driver
job on basis of July 2, 1964
seniority date, and if found
qualified, to take his senior-
ity to that job for all pur-
including bidding and
yoff.
3) Plaintiff to be offered the
opportunity to fill line driver
Name (Terminal and Race)
6) Marvin R. Vestal
(Vernon, Negro)
7) Veris Sims
(Denver, Negro)
8) Filberto Trujillo
ver,
Mexican American)
9) James H. Walker
(Memphis, Negro)
10) J. L. McNeal
(Memphis, Negro)
11) Arthur L. Thornton
(Memphis, Negro)
12) Lee Francis Jones
13) Thomas Richard Johnson
14) Henry L. Davis
15) Raymond L. Rucker
16) Levi Grant
17) James A. Keeling
(Nashville, Negroes)
ee eee ee
—
Complaint
6) Has been employed by
T.LM.E. D.C. on a “casual”
basis. Has i with
T.LM.E. for line job on
three occasions and was re-
fused for various reasons.
7) Started with T.1.M.E. in
1955 as a serviceman. Asked
would drive with him.
8) Applied with T.I.M.E. for
line job when he started in
1965 and again in 1967. Re-
fused because of his race.
10) Started with T.I.M.E. in
1948 as a city driver. Asked
for line job in 1956 but was
told that no line drivers were
being hired.
race. Was eventually hired
as line driver in 1969.
All are servicemen in Nash-
ville who started prior to
1964 and who have been de-
nied advancement due to
their race.
Relief
to be offered the
opportunity to fill line driver
job on basis of July 15, 1965
job of line driver for all
purposes, including bidding
and layoff.
[Defendant to provide
[proper training to qualify
[these individuals to work as
[dockman, partsman, or me-
[chanic; and if qualified that
[they be 2 seniority date
{of July 2, 1964 for all pur-
including bidding and
ayoff.
Name (Terminal and Race)
18) Joe Amos
(Atlanta, Negro)
19) Theodus Perry
(Atlanta, Negro)
20) John J. Calhoun
(Atlanta, Negro)
21) Thomas M. White
(Los Angeles, Negro)
22) Grady Amos
(Atlanta, Negro)
23) David E. O'Neal
(Vernon, Negro)
24) Otis A. Zeno
(Hayward, Negro)
—
Complaint
18) or in 1957 and
1966 for extra line runs. In
1966 all extra line runs were
eliminated to avoid giving
the runs to Negroes.
19) Started as heavy duty
driver with T.I1.M.E. in 1964,
applied for extra line runs
in 1966 but was refused.
20) Started in 1956 as a
heavy duty driver. Asked
for extra line runs in 1966;
however company cancelled
extra line runs instead of
hiring Negroes.
21) Started as city driver in
1946. Applied for line job in
1956 numerous times
thereafter. No reason was
given for his refusal.
22) Started with T.I.M.E. in
1956 as a city driver. Asked
for extra line runs in 1957
and regular line job in 1965.
Was told he would get poor
accommodations.
23) Started with T.I.M.E. in
1961. Has a college degree,
however failed to put this on
his ication so he could
a laboring job. Applied
or salesman job in 1965 but
was refused because of his
race.
24) Started with T.1.M.E. in
1966 as a dockman. Became
city driver in 1967; however
has been assigned defective
and unsafe equipment and is
the only driver who does not
have equipment assigned to
him permanently.
Relief
» Plaintiff to be oS
¢ opportunity to
driver job on basis of July
2, 1964 seniority date, and
if found qualified, to take his
seniority to that job for all
including bidding
layoff.
19) Plaintiff to be offered
the opportunity to fill line
driver job on basis of July
1, 1966 seniority date, and
if found qualified, to take
his seniority to that job for
all purposes, including bid-
ding and layoff.
20) Plaintiff to be re
opportunity to ine
driver job on basis of July
1, 1966 seniority date, and
if found qualified, to take
his seniority to that job for
all purposes, including bid-
ding and layoff.
~ Plaintiff to be Fe
tunity to .
driver job on basis of July
2, 1964 seniority date, and
if found qualified, to take
his seniority to that job for
all purposes, including bid-
ding and layoff.
22) Plaintiff to be offered
the opportunity to fill line
driver job on basis of July
2, 1964 seniority date, and
if found qualified, to take
his seniority to that job for
all purposes, including bid-
ding and layoff.
23) Defendant will provide
normal training and proba-
tionary period for salesman
jobs and if qualified will of-
er first salesman position
available with January 1,
1966 as seniority date in that
job for all purposes, includ-
ing bidding and layoff.
24) Defendant shall assign
this plaintiff a truck-tractor
of a condition equivalent to
those assi to other city
drivers have assigned
routes.
Name (Terminal and Race)
25) Robert T. Jones
(Memphis, Negro)
26) Clayborn Moman
(Memphis, Negro)
27) Robert McCrimmon
(Dallas, Negro)
28) Richard Stinson
(Oakland, Negro)
29) Iris G. Darden Hix
(Los Angeles, Negro)
30) Virgil A. Hardin
(Montebello, Negro)
_ =
Complaint
25) Became a regular city
driver with T. I M.E. in 1953
Applied for line job in Au-
t of 1970. Was later of-
ered line job but did not
take it.
26) Started in 1964 as a
hostler and applied for a line
job a few months thereafter.
Now is a city driver. Was of-
fered a line job in 1969 but
refused it.
27) Employed by T.I.M.E.
in 1969. Asked for a line
job in 1970 but was told it
was a company policy not to
transfer from city to line.
28) Applied for line job in
1969 but was told that
T.LM.E. didn’t have enough
equipment. Tried again in
1971. Has had extensive
driving experience with other
companies.
29) Worked for T.1.M.E. as
billing clerk for 3 weeks in
1966. Was fired because her
work was too slow, however
the evidence clearly shows
that she was the object of
blatant discrimination.
30) Started with T.I.M.E. in
October of 1968. Applied
for local job because he was
_ not to apply for a line
job.
= Plaintiff to be Fm
¢ opportunity to ine
driver job on basis of Au-
gust, 1970 seniority date,
and if found qualified, to
take his seniority to that job
for all purposes, including
bidding and layoff.
= Plaintiff to be Fm
¢ opportunity to ine
driver job on basis of Janu-
ary 1, 1966 seniority date,
and if found quali to
take his seniority to that job
for all purposes, including
bidding and layoff.
27) Plaintiff to be offered
the unity to fill line
driver job on basis of July
1, 1970 seniority date, and
if found qualified, to take
his seniority to that job for
all purposes, including bid-
ding and layoff.
28) Plaintiff to be offered
the ity to fill line
driver job on basis of July
1, 1969 seniority date, and
if found qualified, to take
his seniority to that job for
all purposes, including bid-
ding and layoff.
29) Plaintiff to be offered
unity to fill billing
clerk job on basis of Au-
gust 1, 1966 seniority date,
and if found qualified, to
take her seniority to that job
for all purposes, including
bidding and layoff.
30) Plaintiff to be offered
the opportunity to fill line
driver job on basis of Oc-
tober 1, 1968 seniority date,
and if found qualified, to
take his seniority to that job
for all purposes, including
bidding and layoff.
* Plaintiff used throughout this Appendix refers to the individual for whom the Govern-
ment is seeking relief.
= —_
APPENDIX C
The evidence in respect to the following individuals is not
sufficient to show clear and convincing specific instances of dis-
crimination. The evidence does show, however, that these indi-
viduals were very possibly the objects of discrimination or that
discrimination in their case was likely. Because there is no spe-
cific evidence, this Court, having broad equitable powers with
which to fashion a remedy, holds that these individuals are en-
titled to openings in the jobs listed with a seniority date as of the
date of the filing of this suit the 14th of January, 1971.
Name (Terminal and Race)
1) Carlton Ki
(Hayward, Negro)
2) Foster Barnes
(San Antonio, Negro)
3) George W. Sullivan
(Hayward, Negro)
4) paw Barber
Negro)
Complaint
1) Started in 1962 with
T.LM.E. as a heavy duty
His complaint is that he has
never been hired by T.LM.E
as a or worked regular
status enough to avoid
laid off; however he has
not hired as a regular by
3) Started in 1968 with T.I.
M.E. as a dock worker. Be-
came city driver in 1970. Has
not asked for line job.
4) First hired by T.1.M.E. as
a city driver in 1967. Has never
asked for a line job.
Job
1) Line driver
2) City driver
3) Line job
4) Line driver
—
APPENDIX D
The Court finds that the evidence regarding the following
individuals either shows no discrimination or that there was any
harm as a result of T.I.M.E.’s hiring practice.
1) Earmitt Ceophalus Jones (Denver, Negro).
2) Jerome Pastwick (Denver, white).
3) Fontaine E. Yount (Memphis, white).
4) W. G. Gately (Memphis, white).
5) James Wallace, Jr. (Nashville, Negro).
6) Harrell Holley (Dallas, Negro).
7) Michael Arriga (Dallas, Mexican-American).
— =
OPINION
Of the District Court for the Northern District of Texas
December 6, 1972; 6 F.E.P. Cases 703
In the United States District Court
For the Northern District of Texas
Lubbock Division
United States of America,
Vv.
T.I.M.E.-DC, Inc., and the Interna-
tional Brotherhood of
Chauffeurs, Warehousemen and
Helpers of America, and the Inter-
national Association of Machinists
and Aerospace Workers, AFL-CIO,
United States of America,
We
T.I.M.E. Freight, Inc. (now T.I.M.E.-
DC, Inc.) and Local 480 of the In-
ternational Brotherhood of Team-
sters, Chauffeurs, Warehousemen
and Helpers of America,
,
Plaintiff,
Teamsters,
Defendants.
Plaintiff,
Defendants. ”
Civil Action No. 5-868.
Civil Action No. 5-897.
Supplemental Opinion
The Court having received inquiries from the parties regard-
ing the prior Opinion of October 19, 1972, and upon further
—_— =
reconsideration of such Opinion it is the Order of the Court
that the following be supplemental thereto:
I
That Appendix D be removed from the October 19th Opin-
ion and that the names heretofore listed in such appendix be
treated and included as those individuals mentioned on page
11, i.e., the remainder group entitled to openings under Para-
graph 13(a) of the Consent Decree before those from the gen-
eral public and after those listed in Appendices B and C, and
their seniority date be the date hired under Paragraph 13(a).
II
It is the Order of the Court that the 16 individuals listed in
“Attachment A” of the government’s November 2, 1972, letter
be treated and included as those individuals mentioned on page
11 of the October 19, 1972 Opinion, i.e., those entitled to
openings under Paragraph 13(a) of the Consent Decree before
those from the general public and after those listed in Ap-
pendices B and C, and their seniority date be the date hired
under Paragraph 13(a). Such “Attachment A” above referred
to is attached to this Supplemental Opinion as “Attachment A.”
Mm |
Since Appendix D has been removed from the October 19,
1972 Opinion, it is the Order of the Court that those listed
in “Attachment B” of the government's letters of November 2,
1972, as well as Tereso J. Gonzales, be treated and included as
those individuals mentioned on page 11 of the October 19.
1972 Opinion, i.e., those entitled to openings under Paragraph
13(a) of the Consent Decree before those from the general pub-
lic and after those listed in Appendices B and C, and their seni-
ority date be the date hired under Paragraph 13(a). Such “At-
tachment B” above referred to is attached to this Supplemental
Opinion as “Attachment B.”
IV
If an employee of T.I.M.E. is laid off such laid off employee
shall have a preference to fill such laid off position when it again
becomes open without competition from the individuals granted
relief in this case. However, if such layoff continues for three
consecutive years the position will be deemed as “vacant” with
the right of all concerned to compete for such position, using
their respective seniority dates, including those ordered by the
decrees of this Court.
v
Subject to paragraph IV above and where a vacancy occurs,
the individuals given relief hereunder shall have preference over
employees at other terminals in filling such vacancy at the ter-
minal shown by their respective names in Appendices B and C
of the order of this Court, even though such individual’s date of
seniority is junior to that of another employee located at another
terminal. This preference over employees at other terminals,
even though such other employees may have seniority, is to be
given regardless of the provisions of any agreements to the con-
trary such as the Southern Conference area over-the-road Sup-
plemental Agreement. If an individual afforded relief hereunder
desires to bid on a vacancy at a terminal other than that shown
by his name in such appendices, such individual shall be per-
mitted to bid on an equal basis with others, using as a seniority
the date granted for seniority purposes by the Court in this case.
—
VI
The effective date of Title VII of the Civil Rights Act of
1964 is July 2, 1965. This date should be substituted for July
2, 1964 in the October 19th Opinion as the seniority date for
certain individuals.
vil
The reporting requirements mentioned at the bottom of page
12 of the October 19th Opinion will terminate three (3) years
subsequent to final entry of judgment in this cause; provided,
however, that such time may be extended upon good cause shown.
Vill
It is ordered that TIME shall first fill the vacancies in accord-
ance with Paragraph 13(a) of the Consent Decree with those
individuals listed in Appendices B and C as well as the others
referred to on page 11 of the October 19th, 1972 Opinion and
those included in such category by the above provisions of this
Supplemental Opinion. After all such individuals named in these
appendices and those others included in the category defined on
page 11 of the original Opinion have been given a full and fair
opportunity to fill such vacancies in accordance with the orders
of this Court, then Paragraph 13(a) will be deemed to have
been complied with and the provisions of Paragraph 13(b) of
the Consent Decree wil! then become operative.
In the event an individual, other than those listed on Appen-
dices B and C, given relief hereunder, wishes to compete and bid
on a vacancy, such individual is given preference over those
other applicants not then in the employ of TIME and shall also
be given preference over other TIME employees who have no
seniority in the category where the vacancy occurs. Provided,
— =
however, that in all cases where a vacancy is to be filled, that
the qualification of an applicant shall be governed by the terms
of Paragraphs 5-12, inclusive, of the Consent Decree.
IX
The attorneys shall forthwith confer and submit a proposed
form of final and formal judgment and decree to be entered by
the Court. In preparing such formal decree the Court suggests
to the attorneys that it may be desirable that each individual
be listed and named including those referred to in the category
on the bottom of page 11 of the October 19th, 1972 Opinion.
Xx
As a further clarification of the second full paragraph on page
11 of the October 19th, 1972 Decree, it is here specified that
the term, on page 11 as well as where used in this Opinion, “be
the date hired under Paragraph 13(a)” shall mean that date that
such employee enters into the employment in the category which
he applies for under the rights given him by this Court, even
though he might have an earlier seniority date in his then-previous
category of his employment by TIME.
The Clerk will furnish a copy hereof to each attorney.
ENTERED this 6th day of December, 1972.
/s/ HALBERT O. WOODWARD
United States District Judge
—
ATTACHMENT B
Name
R. D. Campbell
B. B. Hodges
O. Holcomb
A. C. Taylor
J. L. Benefield
J. L. Boudreaux
W. G. Bryan
H. S. Holliday
T. Luttrell
O. McElroy
L. E. Nichols
J. W. O'Neill
O. L. Shaw
P. C. Thomas
J. Williamson
B. Wilbanks
H. Kelley
G. Jacques
—
DECREE
In Partial Resolution of Suit—Northern District of Texas,
May 12, 1972; Unreported
In the United States District Court for the
Northern District of Texas
Lubbock Division
United States of America,
vs.
T.I.M.E. D.C., Inc., and the Interna-
tional Brotherhood of Teamsters,
Chauffeurs, Warehousemen and
Helpers of America, and the Inter-
national Association of Machinists
and Aerospace Workers, AFL-CIO,
Defendants,
United States of America,
Plaintiff,
vs.
T.LM.E. Freighi, Inc. (now known as
T.I.M.E. D.C., Inc.), and Local 480
of the International Brotherhood of
Teamsters, Chauffeurs, Warehouse-
men and Helpers of America,
Plaintiff,
Defendants. /
Civil Action
No. 5-868
Civil Action
No. 5-897
Decree in Partial Resolution of Suit
The United States of America commenced Civil Action No.
5-868 in this Court on January 14, 1971. Civil Action No.
_—
5-897, originally commenced by the United States in the Fed-
eral District Court for the Middle District of Tennessee, Nash-
ville Division, on May 15, 1968, was consolidated with Civil
Action No. 5-868 in this Court on April 30, 1971. The United
States alleged that the defendants T.I.M.E. D.C., Inc. (herein-
after called T.I.M.E. D.C.), the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, and Local 480 of the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America were
engaged in a pattern and practice of discrimination in employ-
ment in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. 2000e et seq.. The International Association of Ma-
chinists and Aerospace Workers, AFL-CIO was joined as a de-
fendant in Civil Action No. 5-868 on April 21, 1971. Trial
on the merits in these actions begain on May 3, 1972 and the
parties have presented evidence to the Court.
This Court has jurisdiction of the parties and of the subject
matter of this action. This Order, being issued with the con-
sent of the defendant T.I.M.E. D.C., shall not constitute an
adjudication or finding on the merits of the case and shall in no
manner be construed as an admission by T.I.M.E. D.C. of any
violation of said Title VII.
It is therefore Ordered, Adjudged and Decreed that:
Employee Recruitment
1. T.I.M.E. D.C. shall undertake an employee recruiting
program aimed at the black and Spanish-surnamed American
communities in each city where T.I.M.E. D.C. maintains a
terminal or other facility at which it employs personnel. Within
45 days of the date of this Decree, T.I.M.E. D.C. shall contact
organizations in the black and Spanish-surnamed American com-
munities, such as the Urban League and the American G.I.
— pa
Forum, and shall also contact local job training organizations.
T.I.M.E. D.C. shall inform each such organization that it de-
sires to hire qualified black and Spanish-surnamed Ameri’ in
employees and that it will contact the organization whenever
job vacancies ocur. T.I.M.E. D.C. shall give each organization
a statement setting forth the minimum qualifications for each
job classification and a copy of the company’s equal emplvy-
ment opportunity statement. Thereafter, whenever new em-
ployees are being hired for any job classification at a T.I.M.E.
D.C. terminal, the terminal manager or his designee shall no-
tify said black and Spanish-surnamed American organizations
and job training organizations immediately upon determining
that job vacancies exist, in order to give said organizations an
opportunity to refer qualified applicants.
If such contacts fail to develop an adequate number of
qualified black and Spanish-surnamed American applicants for
each job classification at a particular terminal or other facility,
T.I.M.E. D.C. shall undertake an advertising program in news-
papers or on radio stations in that city directed to and having
general circulation in the black and Spanish-surnamed American
communities.
2. T.I.M.E. D.C. shall take applications from all blacks and
Spanish-surnamed Americans who inquire about employment,
regardless of whether job vacancies exist. T.I.M.E. D.C. shall
keep such applications in a current file for at least four months.
When job vacancies occur, T.I.M.E. D.C. shall notify each black
and Spanish-surnamed American applicant on the current list
for the job to be filled at least three days before it is filled.
T.I.M.E. D.C. shall inform each such black and Spanish-sur-
named American applicant that he may renew his application
every four months in person or by letter.
3. Each T.I.M.E. D.C. terminal and facility shall maintain,
during the period of this Decree, the records listed below. Such
records shall be made available to plaintiff or its designee for
inspection and copying upon written request.
a. A list of minority community organizations and job
training organizations contacted, showing the date of each
contact, persons contacted, name and position of the
T.I.M.LE. D.C. employee making the contact and the nature
of the contact.
b. All job applications. The company shall note on each
application whether the applicant is white, black, Spanish-
surnamed American, American Indian or Oriental.
c. Logs showing by name, race or national origin and date
all new hires, job assignments, promotions within a job
classification, transfers between job classifications, termina-
tions within a probationary period on the job and dismis-
sals.
d. Such other records as are set forth elsewhere in this De-
cree, e.g., new hires, job assignments, etc.
4. T.I.M.E. D.C. shall, during the period of this Decree,
submit quarterly reports to the Court and the plaintiff or its
designee showing, by race or national origin for each job classi-
fication at each terminal or other facility, the number of persons
employed at the beginning of the period, job applicants, new
hires, promotions within job classifications, transfers between
job classifications, terminations within a probationary period on
the job and dismissals.
Qualifications for Employment
5. The qualifications for city driving and road driving posi-
tions shall be those set forth in the Department of Transporta-
tion’s Motor Carrier Safety Regulations, Title 49, Part 391, Sec-
— —_
tions 391.11 and 391.15. No black or Spanish-surnamed
American applicant for a road driving position who meets these
qualifications shall be deemed insufficiently experienced for that
position if he has the equivalent of two years experience driving
equipment comparable to that to be operated on the job. In
determining equivalence, T.I.M.E. D.C. shall consider such
factors as military driving experience and graduation from a
truck driving school.
6. Applicants for the position of dockman, mechanic helper,
mechanic apprentice and serviceman shall not be required to
have any prior experience in the position sought or in the truck-
ing industry. Applicants for the position of diesel, auto or
trailer mechanic must have some journeyman experience, or be
a graduate of a recognized mechanic training school, unless the
company desires to train a person for the job.
1 In evaluating the qualifications of applicants for salesman
positions, the company shall give consideration to sales experi-
ence acquired in areas other than the trucking industry.
8. T.I.M.E. D.C. may continue to require applicants for all
positions except office and clerical to pass the standard Depart-
ment of Transportation physical examination.
9. Applicants for office and clerical positions may be re-
quired to pass objective, practical tests which measure the skills
and aptitudes which they will need on the job sought. Practical
tests are exemplified by typing, shorthand and office machine
tests.
10. No applicant shall be disqualified for employment solely
because he has an arrest record involving no convictions or does
not have a high school diploma or the equivalent, unless the job
reasonably requires a high school diploma.
11. Before T.I.M.E. D.C. imposes more stringent qualifica-
tions than those listed in paragraphs 5, 6, 7, 8, 9 and 10 above,
—_—
it shall give plaintiff written notice of the intended changes and
the reasons therefore at least 45 days before such qualifications
are imposed. T.I.M.E. D.C. may not give any general intelli-
gence or aptitude test to minority employees or applicants which
has not been validated in accordance with the provisions set
forth in the Equal Employment Opportunity Commission's
Guidelines on Employee Selection Procedures, 35 F.R. 12333,
et seq., 29 C.F.R. §1607.1 to 1607.14.
12. T.I.M.E. D.C. may continue to give the Department of
Transportation written safety test to all applicants; however,
passing the test shall not be a qualification for employment un-
less the Department of Transportation revises its Motor Carrier
Safety Regulations, Title 49. Part 391 to so provide.
New Hires
13. All job vacancies at T.I.M.E. D.C. terminals and other
facilities at which it employs personnel shall be filled in the fol-
lowing sequence:
(a) By those persons who may be found by the Court, if
any, to be individual or class discriminatees suffering the
present effects of past discrimination because of race or
national origin prohibited by Title VII of the Civil Rights
Act of 1964.
(b) By any other persons. Subject to the availability of
qualified black and Spanish-surnamed American applicants,
T.I.M.E. D.C. shall hire or may transfer other persons in
addition to those in paragraph (a) above in the ratio of
at least one black or one Spanish-surnamed American for
each white hired or transferred in vacancies in each job
classification at each of its terminals and facilities until
the number of blacks and Spanish-surnamed Americans in
each job classification at each terminal and facility is equal
to the percentage of blacks and Spanish-surnamed Ameri-
cans in the population of the city (or Standard Metro-
ame Of) ou
politan Statistical Area, if the city in which the terminal
or facility is located is in close proximity to a much
larger city) where the terminal or facility is located. When
T.I.M.E. D.C. reaches either the city or Standard Metro-
politan Statistical Area percentage, whichever is applica-
ble, for either blacks or Spanish-surnamed Americans, the
company shall then hire one black or one Spanish-surnamed
American, depending on which said minority percentage
has not yet been attained, for each white hired, to the ex-
tent that qualified applicants from that said minority are
available, until said minority percentage is equal to the
percentage of that minority in the city or Standard Metro-
politan Statistical Area, whichever is applicable. The per-
centages shall be based on the “U.S. Bureau of the Census
General Population Characteristics, Final Report PC (1-B)”
for the 1970 Census, as supplemented, unless T.I.M.E.
D.C. shows that any percentages contained therein are not
substantially reflective of the black or Spanish-surnamed
American work force figures for a given city. The plain-
tiff shall provide T.I.M.E. D.C. with a copy of said report
or reports as soon as they become available.
14. T.I.M.E. D.C. shall use its best efforts to hire casuals
and summer employees in the same
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.