Appendix — United Transportation Union v. Sears
Supreme Court brief1985
Ask Donna
What actually matters in this document.
Text
No. FILED
JAN 19 1985
ecu ‘ ALEXANDER L. STEVAS,
Supreme Court of the United States!
OCTOBER TERM, 1984
UNITED TRANSPORTATION UNION, SUCCESSOR TO
BROTHERHOOD OF RAILROAD TRAINMEN,
a labor organization,
Petitioner,
vs.
JOE VERNON SEARS, an individual, in person and for all other
persons similarly situated, ALBERT L. BENNETT, C. J. SKELTON,
ARCHIE N. Jones, Forest D. TOLLETT, JOHN W. LANDRUM,
Lawson C. SPENCER, THOMAS H. WHITE, EARLIE NASH, AUBREY
A. ROBINSON, EDWARD RAWLINS, JOHN W. COLE, CHARLES
Mayors, Jr., Jesse J. SMITH, PAUL H. STEWART, Jimmy E.
Brown, CARL E. CHESTER, RAY E. LANDRUM, RAYMOND WILLEY,
ELGiE Crow and ELLis JOHNSON, CRISCEL Kemp, A. M. BENNETT,
A. L. WooLFoLk, T. C. LucKEy, W. W. SEyMour, THE
BROTHERHOOD OF SLEEPING CAR PorTERS, and THE ATCHISON,
TOPEKA & SANTA FE RAILWAY COMPANY,
Respondents.
APPENDIX TO PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
WILLIAM SITZER
KEITH C. ZAGAR
DUBAIL, JUDGE, KILKER,
O’ LEARY & SMITH
One Mercantile Center, Suite 3210
St. Louis, Missouri 63101
(314) 241-4261
and
RoBerT L. HART
General Counsel, United
Transportation Union
14600 Detroit Avenue
Cleveland, Ohio 44107
(216) 228-9400
Attorneys for Petitioner
January 18, 1985
St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477
hae we pes
= .
TABLE OF CONTENTS
Page
Appendix A:
Opinion whose decision is sought to be
reviewed
Opinion of U.S. Court of Appeals for the
Tenth Circuit filed and entered December 10,
SU rad Pegs LUk CPE AE OC) Cosi kabecceess 1
Appendix B:
Other applicable opinions and orders
rendered in the case
District Court’s Order filed 9-8-75 .......... 11
District Court’s Order filed 6-14-78 ......... 15
District Court’s Order filed 10-23-78 ........ 63
10th Circuit’s Opinion filed 3-11-81......... 83
10th Circuit’s Order filed 5-11-81 ........... 109
District Court’s Order filed 7-22-81 ......... 111
U.S. Supreme Court’s Order dated 5-3-82 ... 117
District Court’s Order filed 7-1-82 .......... 118.
District Court’s Order filed 7-13-82 ......... 126
District Court’s Order filed 10-25-82 ........ 132
District Court’s Order filed 12-1-82 ......... 140
District Court’s Order filed 2-16-83 ......... 166
District Court’s Order filed 5-13-83 ......... 176
psa
(ve ‘e
hae tha BPE
a Se a ey a eee ee
F Saas oath hee nee:
* .y aay
seapedeie
ae aka
ot phe:
ene
4
apes
5 a Koga
APPENDIX A
- PUBLISH
Filed Dec. 10, 1984
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
Nos. 82-2549 & 83-1726
Joe Vernon Sears, an individual, in
person and for all other persons
similarly situated,
Plaintiffs-Appellees,
and
The Brotherhood of Sleeping Car Porters,
and Ray E. Landrum, et al.,
Intervenor-Plaintiffs,
Vv.
The Atchison, Topeka & Santa Fe Railway,
Company,
Defendants,
United Transportation Union, successor
to Brotherhood of Railway Trainmen, a
labor organization,
Defendants-Appellants,
Nos. 82-2550 & 83-1736
Mildred Collins, Executrix of the
Estate of James Collins, Jr., Deceased,
Plaintiff-Appellee,
v.
United Transportation Union, a successor
to Brotherhood of Trainmen, a labor
organization,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. W-4946 and W-4963)
William Sitzer (William B. Smith, also of Dubail, Judge, Kilker,
O’Leary & Smith, St. Louis, Missouri, and E. Lee Kinch, of
Ratner, Mattox, Ratner, Ratner & Barnes, Wichita, Kansas,
with him on the brief) for Defendant-Appellaat United
Transportation Union.
Terry G. Paup, Wichita, Kansas, (Jim L. Lawing, Wichita,
Kansas, and Lee H. Woodard of Woodard, Blaylock, Her-
nandez, Pilgreen & Roth, Wichita, Kansas, with him on the
brief) for Plaintiffs-Appellees.
Before SETH, BARRETT, and LOGAN, Circuit Judges.
LOGAN, Circuit Judge.
The United Transportation Union appeals from the district
court’s order on remand concerning damages in this Title VII
action. Appellee Joe Sears filed a discrimination complaint
with the Equal Employment Opportunity Commission (EEOC)
in March 1966 against the Atchison, Topeka & Santa Fe
Railway (Santa Fe) and the United Transportation Union’s
predecessor. Once the EEOC issued a right to sue letter, Sears
filed this class action on behalf of the railroad’s train porters
alleging a violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e - 2000e-17, based on discrimination
resulting from the railroad’s segregated job structure for
brakemen (whites) and train porters (blacks).
iat Oks
The trial court ruled that Santa Fe and the union were liable
te part of the class of train porters and awarded damages. Sears
v. Atchison, Topeka & Santa Fe Ry., 454 F. Supp. 158, 180 (D.
Kan. 1978) (order concerning liability); /d., 19 Fair Empl. Prac.
Cas. (BNA) 1007, 1014-15 (D. Kan. Oct. 23, 1978) (order con-
cerning seniority and back pay relief). This court reviewed that
decision, affirming it in part, reversing it in part, and remanded
the case to the trial court to fashion a back pay award for the
entire class. Sears v. Atchison, Topeka & Santa Fe Ry., 645
F.2d 1365 (10th Cir. 1981). After we denied the union’s petition
for rehearing the United States Supreme Court denied cer-
tiorari. 456 U.S. 964 (1982). On remand the district court
issued an order responding to the directives in our opinion,
Sears v. Atchison, Topeka & Santa Fe Ry., 30 Fair Empl. Prac.
Cas. (BNA) 1084 (D. Kan. Dec. 1, 1982), from which the union
has appealed.
On appeal the union asserts the following: (1) that the court
of appeals erred in its prior decision in finding the union liable
for back pay and attorney’s fees; (2) that the district court erred
in holding the union liable to class members whom Santa Fe did
not have to pay under a court-approved settlement agreement
between Santa Fe and the class and in not limiting the union’s
liability to its relative degree of fault; (3) that the district court
erred in permitting Sears to represent the entire class, rather
than creating a separate subclass with its own class represen-
tative to represent the train porters who had a seniority date
after April 20, 1942, and who were demoted from train porters
to chair car attendants pursuant to a 1959 National Railroad
Adjustment Board award; and (4) that the district court erred in
including a tax component in the back pay award to class
members. We reject each of these contentions and affirm the
district court’s judgment.
I
The union contends that we must reverse our prior judgment
upholding the union’s liability to the class because the decision
ais than
was inconsistent with four recent Supreme Court cases: General
Building Contractors Ass’n v. Pennsyivania, 458 U.S. 375
(1982); Ford Motor Co. v. EEOC, 458 U.S. 219 (1982);
Pullman-Standard v. Swint, 456 U.S. 273 (1982); and American
Tobacco Co. v. Patterson, 456 U.S. 63 (1982). We will not
dignify this argument by any extended discussion. We have ex-
amined the decisions and find nothing in them to convince us
that we erroneously decided the earlier appeal. We also note
that all of those cases were argued in the Supreme Court before
it declined, on May 3, 1982, to review our prior opinion; two of
the cited cases were decided before the Supreme Court denied
certiorari and the other two were decided before the Court’s
term ended two months later. Under these circumstances we
believe that if the Supreme Court had thought any of those deci-
sions required reconsideration of our opinion, it would have
granted certiorari and summarily remanded the case for our
reconsideration in light of its determinations.
II
Relatively early in this litigation Santa Fe entered into a court-
approved settlement agreement with the class that covered back
pay relief and attorney’s fees. See Order Approving Com-
promise and Dismissal of Back Pay and Attorney’s Fees Claim
(Sept. 8, 1975), R. III, 1094. Santa Fe remained in the litigation
for determination of issues concerning its future practices and
the seniority relief to be granted to current Santa Fe employees
who were members of the class. The court explicitly approved
the provision in the settlement agreement releasing Santa Fe
from having to pay back pay and attorney’s fees to porters who
retired, became disability annuitants or died prior to May 1,
1972. R. III, 1096. Paragraph 9 of the settlement order express-
ly provided, however, that ‘‘this Order does not affect the
liability issue of the United Transportation Union for back pay
relief and attorney’s fees [under Title VII].’’ R. III, 1097. In its
initial decision on damages, the district court found that Santa
Fe was not liable for additional money damages to any plaintiff,
jus Gases
beyond what it had paid in its settlement, but that the union was
liable ‘‘for any additional monetary loss suffered by the train
porter subclass members over and above the Santa Fe settlement
.... Sears, 19 Fair Empl. Prac. Cas. (BNA) at 1015.
Following our decision in the first appeal, the district court
ordered the union to pay relief to a class of plaintiffs that in-
cluded former porters or their representatives who had retired,
become disability annuitants, or died prior to May 1,
1972—persons denied payment under the settlement agreement
with Santa Fe. The court rejected the union’s arguments that it
was unfair for the union to be held liable to these persons when
Santa Fe had escaped liability. Sears, 30 Fair Empl. Prac. Cas.
(BNA) at 1086. The union makes the same unfairness argument
on appeal. It also contends that the district court should have
determined the relative fault of Santa Fe and the union and re-
quired the union to pay only that proportion of the total back
pay award reflecting the union’s degree of fault.
There might be merit in the contentions if this were an or-
dinary case of joint tortfeasors who were liable to each other for
contribution. See Restatement (Second) of Torts §§ 886A &
comment m, at 337, 343-44 (1979) (listing three alternative solu-
tions to the problem created by settlement with and release of
one tortfeasor with respect to the right of other tortfeasors to
seek contribution from the one released). This case is a Title VII
action, however. Although the Supreme Court has never con-
sidered the situation before us, it has decided a closely
analogous case. It refused to find a right of contribution for an
employer held liable under Title VII against a union that was
not joined in the original suit but nevertheless was partly
responsible for the discriminatory treatment. See Northwest
Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 98
(1981). The Supreme Court stated that it was unwilling to create
a contribution remedy for a statutory violation when Congress
had not manifested any intent that a right of contribution
should exist. Jd. at 94-95, 97. Cf. Texas Industries, Inc. v.
ia
Radcliff Materials, Inc., 451 U.S. 630 (1981) (antitrust defen-
dants not entitled to contribution from coconspirators). Fur-
ther, tlic wrong that the union committed was a separate wrong
from that of the employer, defined by separate subsections of
the statute. See 42 U.S.C. § 2000e-2(a), (c). Cf. Dobson v.
Camden, 725 F.2d 1003, 1005-06 (Sth Cir. 1984) (en banc) (no
problem arises requiring contribution or credit for settlement in
§ 1983 suit when no joint liability existed between
codefendants).
Surely the law should encourage settlement of Title VII
disputes. If we were to hold the trial court erred in not requiring
further contribution from Santa Fe, or that it should have
limited the union’s liability to its “‘share’’ of the fault, we would
discourage settlement of these cases. Santa Fe would not have
settled if it had known it would still remain liable in the event
the nonsettling union defendant lost the case. Similarly, the ag-
grieved porters also would have been unlikely to settle with San-
ta Fe if they risked being made less than whole because of a
subsequent court finding on the union’s percentage of fault.
The instant case illustrates the desirability of settlement and the
cruel effect of litigation delays on older class members; more
than eighteen years have passed since Sears brought his com-
plaint to the attention of the EEOC.
The cases approving of district courts’ exercise of discretion
in allocating damages among nonsettling defendants, e.g., Par-
son v. Kaiser Aluminum & Chemical Corp., 583 F.2d 132,
133-34 (Sth Cir. 1978), cert. denied, 441 U.S. 968 (1979); Meyers
v. Gilman Paper Corp., 544 F.2d 837, 851-52 (Sth Cir.), rev’d in
part on other grounds, 556 F.2d 758 (Sth Cir.), cert. dismissed,
434 U.S. 801 (1977); United States v. United States Stee! Corp.,
520 F.2d 1043, 1060 (Sth Cir. 1975), cert. denied, 429 U.S. 817
(1976), are not inconsistent with requiring that nonsettling
defendants pay the difference between the damages paid by set-
tling defendants and the total necessary to make the victims
whole. The district court here allowed a credit against the judg-
ives
ment for the amount Santa Fe had already paid in its separate
settlement. The union complains that because the settlement
Santa Fe made appears to be a favorable one to Santa Fe the
union is left with the burden of paying most of the plaintiffs’
damages. Of course, under the court’s order had Santa Fe settl-
ed for more than its proportionate share, the union would have
benefitted by having to pay only the remaining amount
necessary to make the victims whole.
Santa Fe’s settlement with the class expressly provided that it
did not affect the union’s liability for back pay or attorney’s
fees. Any objections the union had to that provision should
have been raised as an objection in the district court before the
court approved the settlement. Instead the union waited to
challenge the effect of this provision until the case was remand-
ed after the union had been found liable, and the case had been
appealed the first time. See Motion to Limit Damage Award
(Aug. 24, 1981), R. VII, 2534-36. We hold that the district
court acted properly in determining the damages chargeable
against the union.
Ill
The union claims that the district court erred in failing to
designate a separate subciass representative for the train porters
who had a seniority date after April 20, 1942, and who were
demoted from train porters to chair car attendants pursuant to a
1959 National Railroad Adjustment Board award. We hold
that the union has waived its right to make this objection. The
union consented to the district court’s original order entered
August 4, 1975, certifying Joe Sears as class representative for
the class comprised of ‘‘all Black Train Porters employed by
Santa Fe, at any time, as a Train Porter and who have been in
the employment of Santa Fe during the period from July 2,
1965, to the present.”’ Order Determining That Action is Main-
tainable As Class Action, R. II, 967-68. Throughout the trial,
the hearing on damages, and the first appeal, the union never
—
objected, and must te deemed to have consented, to having
Sears as class representative for all Santa Fe train porters, in-
cluding those later demoted as a result of the 1959 award. See
Pretrial Conference Order (Sept. 16, 1977), R. IV, 1687, 1695;
Stipulation of Facts Subject To Objections of Relevancy and
Materiality (Feb. 8, 1978), R. V, 1876, 1882-83; Brief for United
Transportation Union as Appellant and In Response to Brief of
Sears et al. as Cross-Appellee, No. 78-1995, at 28-29 (filed with
10th Cir. July 19, 1979).
We recognize that the district court may redefine the class to
include serveral subclasses after it has initially certified the class.
See 7A C. Wright & A. Miller, Federal Practice & Procedure §
1790, at 186 (1972). The district court acknowledged in its in-
itial decision that differences existed within the class represented
by Joe Sears because some of the porters had been demoted as a
result of the 1959 Award. See Sears, 19 Fair Empl. Prac. Cas.
(BNA) at 1010. The court awarded different relief to the dif-
ferent groups. /d. at 1010-12. It also distinguished between
demoted porters who had applied for transfer and/or promo-
tion and those who had not. /d. at 1012. But the court’s
analysis was made in the context of the original certification as
one class with Joe Sears as its sole representative. The union did
not seek separate subclass representatives before the trial court
ruled on liability and damages. Indeed, the union approved of
the separate treatment and raised no objection in its first appeal
to the fact that the district court had not named separate
subclass representatives. See Brief For United Transporation
Union as Appellant and In Response to Brief of Sears et al. as
Cross-Appellee, No. 78-1995, at 28-29 (filed with 10th Cir., July
19, 1979). As a result, when we reviewed the district court’s
award of relicf and ordered a different remedy, we gave no con-
sideration to having separate subclass representatives. Instead,
we suggested: a method for treating the demoted porters dif-
ferently in calculating back pay, to reflect their different cir-
cumstances, but all within the context of a single class
represented by Joe Sears. See Sears. 645 F.2d at 1378-79. The
waists
union has waited too long to seek separate subclass represen-
tatives.' Therefore, we find no error in the district court’s order
denying the union’s motion for separate representatives.
IV
Finally, we hold that the district court did not abuse its discre-
tion when it included a tax component in the back pay award to
compensate class members for their additional tax liability as a
result of receiving over seventeen years of back pay in one lump
sum. As we stated in our prior opinion, the trial court has wide
discretion in fashioning remedies to make victims of discrimina-
tion whole. Sears, 645 F.2d at 1378; see also Ford Motor Co. v.
EEOC, 458 U.S. 219, 230 (1982); International Brotherhood of
Teamsters v. United States, 431 U.S. 324, 364 (1977). A tax
component may not be appropriate in a typical Title VII case.
But this case presents special circumstances in view of the pro-
tracted nature of the litigation. The court-ordered back pay
awards will likely place the living members of the class in the
highest income tax bracket on much of the back pay they now
receive. Even if the class members income average, they can
now only consider the three years preceding the computation
year. See Tax Reform Act of 1984, Pub. L. No. 98-369, §
173(a), 98 Stat. 494, 703 (1984) (to be codified at I.R.C. §
1302(c)(2)). Apparently nearly 40% of the class members have
died. Estates of deceased taxpayers are not eligible for income
averaging. Treas. Reg. § 1.1303-1(a). In Blim v. Western Elec-
tric Co., 731 F.2d 1473, 1480 (10th Cir.), cert. denied, 53
U.S.L.W. 3241 (U.S. Oct. 1, 1984), we held a tax component to
be inapporpriate in an age discrimination case. That case in-
volved different circumstances than the case at bar; additional-
ly, an important factor in that decision was the liquidated
damages provision of 29 U.S.C. § 216(b), providing for an
' We offer no opinion as to whether separate subclass represen-
tatives would have been appropriate in this case.
—
automatic doubling of the back pay award tc make up, in part,
for the delays in receipt of payment. We beiieve the trial court’s
inclusion of the tax component was an appropriate exercise of
its discretion in the instant case.
AFFIRMED.
hee aie
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Civil Action No. W-4963
Joe Vernon Sears, an individual,
in person, and for all other persons
similarly situated,
Plaintiff,
Vv.
The Atchison, Topeka and Santa Fe
Railway Company;
and
United Transportation Union, successor
to Brotherhood of Railway Trainmen,
a labor organization,
Defendants.
ORDER APPROVING COMPROMISE AND DISMISSAL
OF BACK PAY AND ATTORNEY’S FEES CLAIM
AGAINST DEFENDANT AND ATCHISON, TOPEKA
AND SANTA FE RAILWAY COMPANY
Filed Sept. 8, 1975
Now on this 8 day of September, 1975, this matter comes on
for hearing before the Court in accordance with the previous
Orders of the Court setting hearings on the approval or rejec-
tion of the proposed compromise and settlement agreement bet-
ween Plaintiff Joe Vernon Sears, an individual, in person, and
for all other persons similarly situated, (hereinafter referred to
as ‘‘Plaintiff’’), and Defendant the Atchison, Topeka and San-
ta Fe Railway Company (hereinafter referred to as ‘‘Santa Fe’’)
relating to the Plaintiff’s claim on behalf of himself and other
members of the class for back pay and attorney’s fees against
~~ oo
the Santa Fe. At the hearing held on September 3, 1975, Plain-
tiff appeared by his counsel, Terry G. Paup; Defendant Santa
Fe appeared by its counsel, Thomas R. Conklin; Defendant
United Transportation Union appeared by its counsel, William
C. Maier and Richard R. Barnes; and five (5) members of the
class, Criscell Kemp, A. M. Bennett, A. L. Woolfolk, T. C.
Luckey, and W. W. Seymour, appeared by their counsel,
Richard L. Butler, Hillord H. Hinson and Arden P. Miller.
After hearing arguments and being fully advised in the
premises, the Court continued the hearing to September 8,
1975.
WHEREUPON, the Court, after reviewing the files, hearing
the arguments and statements of counsel, and being fully advis-
ed in the premises, finds and determines that notice as
heretofore ordered by the Court was duly mailed to all members
of the class, including those class members not receiving any
payment, and that such method of notification was the most
reasonable and practicable way of giving notice and that no fur-
ther notice is required.
WHEREUPON, the Court, based upon the Court’s files and
the records therein contained, finds that the total amount of the
settlement agreement as filed herein is now $110,750 due to the
fact that five (5) members of the class have taken exceptions,
and the Court finds that the settlement agreement as fully set
forth in Appendix ‘‘A’’ and Appendix ‘‘B’’ attached hereto and
made a part hereof, is reasonable and in the best interest of the
Plaintiff and all members of the class except the five (5) class
members who have taken exception.
WHEREUPON, the Court finds that all federal and state in-
come taxes and taxes required by the Railroad Retirement Act
and other lawful payroll deductions must be deducted by the
Santa Fe from the payments to be made to the Plaintiff and
other members of the class.
WHEREUPON, the Court finds that the fact that all Santa
Fe Train Porters who retired, became disability annuitants, or
died prior to May 1, 1972, do not receive any payment is proper
and lawful.
IT IS, THEREFORE, ORDERED, ADJUDGED AND
DECREED:
(1) That the settlement agreement as set forth in Appendix
**A’’ and Appendix ‘‘B’’ attached hereto and made a part
hereof is in all respects approved and ratified by the Court.
(2) That the payments reflected on Appendix ‘‘A’’ attached
hereto and made a part hereof to be made to the Plaintiff and
other members of the class are subject to the deduction by Santa
Fe of all federal and state income taxes and taxes required by the
Railroad Retirement Act and other lawful payroll deductions.
(3) That Defendant Santa Fe shall pay to the Plaintiff and
other members of the class the amounts reflected on Appendix
**A”’ attached hereto and made a part hereof, subject to the
deductions mentioned in (2) above, provided that such payment
is to be made as Plaintiff and each member of the ciass listed on
Appendix ‘‘A’’ file notarized claims as provided in the Notice
forwarded to Plaintiff and all members of the class.
(4) That the fact that all Santa Fe Train Porters who retired,
became disability annuitants or died prior to May 1, 1972, do
not receive any payment is proper and lawful and is approved by
the Court.
(5) That Thomas R. Conklin, attorney for Defendant Santa
Fe, shall file with the Court an itemized statement of the
disbursements made to the Plaintiff and the other members of
the class within five days following November 1, 1975.
(6) That the attorney’s fees set forth in Appendix ‘‘B’’ attach-
ed hereto and made a part hereof are approved and ratified by
the Court.
= =
\
(7) That this settlement does not affect the rights of the five
class members who have taken exceptions, who are Criscell
Kemp, A. M. Bennett, A. L. Woolfolk, T. C. Luckey, and W.
W. Seymour.
(8) That the Santa Fe, upon compliance with (3) above, is
released and discharged from any and all claims and liabilities to
the Plaintiff and the other members of the class, except the five
members listed in (7) above, for back pay relief and attorney’s
fees under or pursuant to Title VII of the Civil Rights Act of
1965, as amended, (42 U.S.C.A. Sec. 2000e, et seq.).
(9) That this Order does not affect the liability issue of the
United Transportation Union for back pay relief and attorney’s
fees under or pursuant to Title VII of the Civil Rights Act of
1965, as amended, (42 U.S.C.A. Sec. 2000e, et seq.).
Dated at Wichita, Kansas, this 8 day of September, 1975.
/s/ WESLEY E. BROWN
Chief Judge
APPROVED:
/s/ Terry G. Paup, Attorney for
Plaintiff and other members
of the class.
/s/ Arden P. Miller
the class: Criscell Kemp,
A. M. Bennett, A. L. Woolfolk,
T. C. Luckey, and W. W. Seymour.
/s/ Thomas R. Conklin
Attorney for Defendant The
Atchison, Topeka and Santa Fe
Railway Company.
ro ae
United States District Court,
D. Kansas.
Civ. A. No. W-4963.
Joe Vernon SEARS, an Individuai, in
person and for all other persons
similarly situated,
Plaintiffs,
v.
The ATCHISON, TOPEKA & SANTA FE
RAILWAY COMPANY, and United
Transportation Union, a successor to
Brotherhood of Railway Trainmen, a
labor organization,
Defendants.
June 14, 1978
MEMORANDUM OF DECISION
WESLEY E. BROWN, District Judge.
BACKGROUND
This is an action under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e er seq. (Title VII or the Act]. Plaintiffs
and class members' charge The Atchison, Topeka and Santa Fe
' The action was intitially filed by Joe Vernon Sears as a class ac-
tion. The Court ordered that Criscell Kemp, A. M. Bennett, A. L.
Woolfolk, T. C. Luckey, and W. W. Seymour be permitted to in-
tervene on September 3, 1975. On December 16, 1975, the Court
granted jeave to intervene as named party plaintiffs to Albert L. Ben-
nett, C. J. Skelton, Archie N. Jones, Forrest P. Tollett, John W. Lan-
drum, Lawson C. Spencer, Thomas H. White, Earlie Nash, Aubrey
A. Robinson, Edward Rawlins, John W. Cole, Charles Majors, Jr.,
Jessie J. Smith, Paul H. Stewart, Jimmy E. Brown, Carl E. Chester,
Raymond Wiley, Elgie Crow, Ellis Johnson, and Ray E. Landrum.
Railway [Santa Fe] and the United Transportation Union
{UTU], successor to the Brotherhood of Railway Trainmen
[BRT] and the Order of Railway Conductors and Brakemen
{ORC&B], with having engaged in a policy and practice of
discrimination on account of race in their dealings with plain-
tiffs and other black train porters employed by Santa Fe, in
violation of Title VII.
The plaintiffs are black male Americans who at any time were
employed by Santa Fe as train porters, also known as porter-
brakemen, and who have been employed by Santa Fe, in any
capacity, during the period from July 2, 1965, to the present.
The Brotherhood of Sleeping Car Porters [BSCP], an unincor-
porated labor association ceertified to represent train porters
since April 5, 1946, is also a party plaintiff. The BSCP was
merged with the ‘‘System Division’’ of The Brotherhood of
Railway, Airline and Steamship Clerks, Freight Handlers, Ex-
press and Station Employees [BRAC], effective April 1, 1978.
Because of the merger, the appropriate division of BRAC is a
party plaintiff, but all relevant actions were taken by the BSCP,
and any judgment rendered by this Court will be as to the
BSCP, subject to later action if necessary.
The defendant Santa Fe is a Delaware corporation which con-
ducts interstate transportation by railroad. Santa Fe rail lines
extend from Chicago, Illinois, west to San Francisco, Califor-
nia, and south to Houston, Texas.” At all times material, Santa
Fe was organized for operating purposes into three subdivi-
sions: Eastern Lines, operating in Illinois, lowa, Missouri, Kan-
sas, Oklahoma, Colorado, and New Mexico; Western Lines,
operating in Kansas, Oklahoma, Texas, Louisiana, and New
Mexico; and Coast Lines, operating in New Mexico, Arizona,
and California.
? For the purposes and issues herein, the Gulf, Colorado and Santa
Fe Company and the Panhandle and Santa Fe Railroad Company,
both separate corporations, were part of the Santa Fe. Both of these
corporations were merged into the Santa Fe on August 1, 1965.
a
The UTU is an unincorporated labor union consisting of an
International union, local unions, and intermediate bodies. The
UTU or its predecessors, BRT and ORC&B, are and have been
the certified bargaining representatives for brakemen and con-
ductors since the 1920’s. The BRT and ORC&B merged into the
UTU, effective January 1, 1969. The UTU and its predecessors,
BRT and ORC&B, have represented, in labor matters, some
members of the crafts of brakemen and conductors since 1868.
From 1868 until 1966 the Santa Fe was an ‘‘open shop’’
employer and membership in a union was not a condition of
employment. Since 1966, the Santa Fe has been a ‘‘union
shop’’ employer and membership in a union, certified to repre-
sent the employee craft by the Railway Labor Act, 45 U.S.C. §
151 et seq., is required within thirty days of employment. The
parties have stipulated that the UTU is capable of being sued
and is properly being sued in this action.
Plaintiff Joe Vernon Sears filed a Complaint against Santa Fe
and UTU with the Kansas Commission on Civil Rights [KCCR]
on March 8, 1966, alleging that Santa Fe and UTU had denied
and were denying him and other Santa Fe train porters their
rights under Title VII by reason of race. Sears filed a Complaint
with the Equal Employment Opportunity Commission [EEOC]
on October 4, 1966, setting forth the same charges as brought
before the KCCR, and the EEOC asserted jurisdiction over
Sears’ complaint. On October 7, 1972, Sears was notified by the
EEOC that he was entitled to file suit against defendants under
Title VII. Several other plaintiffs also filed Complaints with the
EEOC and were notified of their right to sue. The parties have
stipulated that the jurisdictional requirements to bring suit
under Title VII have been satisfied by plaintiffs and class
members, and that venue is proper in this district.
On August 4, 1975, the Court entered an Order pursuant to
Rule 23, Fed.R.Civ.P., that this action is maintainable as a class
action under Rule 23(b)(2), on behalf of a class composed of the
plaintiffs and all other black train porters employed by Santa
~~
Fe, in any capacity, during the period from July 2, 1965, to the
present. Thereafter, on September 8, 1976, the Court, follow-
ing notice to all class members, entered an Order Approving
Compromise and Dismisal of Back Pay and Attorneys’ Fees
Claim Against Defendant Santa Fe, with respect to plaintiffs
and class members except Criscell Kemp, A. M. Bennett, A. L.
Woolfolk, T. C. Luckey, and W. W. Seymour. On December
29, 1976, January 3, 1977, and January 4, 1977, plaintiffs
Kemp, Bennett, Woolfolk, Luckey, and Seymour each entered
into Covenants Not to Sue with Santa Fe, and compromised
and dismissed their respective back pay and attorneys’ fees
claims against Santa Fe. As a result, ali plaintiffs and class
members have compromised and settled their back pay and at-
torneys’ fees claims with defendants Santa Fe.
On January 16, 1978, the BSCP was joined as a party plain-
tiff. Trial of this matter was had to the Court by means of a
joint presentation of stipulated facts, subject to ogjections of
relevancy and materiality, filed February 8, 1978. In connection
with this presentation, each party also filed numerous exhibits.
Memorandum briefs and reply briefs were subsequently filed by
each party. The record before the Court is complete. The par-
ties are agreed that this action will be bifurcated into a liability
and a damage stage, the latter to follow only if liability is found.
We now turn our attention to the question of the liability of
defendants.
THE ISSUES
Plaintiffs contend that the Santa Fe, and UTU, and the
UTU’s predecessors have, for over three quarters of a century,
engaged in a systematic campaign and practice of excluding
blacks, and more particularly, black train porters, from
employment as brakemen, conductors, and supervisory or
management personnel with Santa Fe. Plaintiffs claim that they
have suffered disparate treatment because Santa Fe denied
employment opportunity to blacks by employing and retaining
ia ae
blacks in the traditionally Negro crafts of train porter and chair
car attendant. Plaintiffs also claim that the seniority systems
for the relevant crafts, entered into and maintained through col-
lective bargaining agreements between Santa Fe and the BRT
and ORC&B, have had a discriminatory impact upon them by
locking them into the crafts of train porter and chair car atten-
dant. Plaintiffs contend that the result of the seniority system is
to perpetuate the effects of prior discrimination, establishing a
Title VII violation even though the actual discriminatory acts
may have occurred before the effective date of Title VII [pre-
Act]. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28
L.Ed.2d 158 (1971) [Griggs]. Plaintiffs contend that the seniori-
ty system is not bona fide within the meaning of J/nternational
Brotherhood of Teamsters v. United States, 431 U.S. 324, 97
S.Ct. 1843, 52 L.Ed.2d 396 (1977) [Teamsters]. In part, plain-
tiffs assert that the seniority system is not bona fide under Title
VII because of the defendant unions’ failure to eradicate
discrimination, alleging that the unions had a duty to plaintiffs
to eradicate discrimination against them. Plaintiffs further con-
tend that their rights should be governed by Title VII rather
than the Railway Labor Act, 45 U.S.C. § 151 et seqg., so that
defendants cannot defend their conduct by asserting that such
conduct was immunized by the Railway Labor Act. Plaintiffs
seek equitable and injunctive relief against Santa Fe and UTU
whereunder the plaintiffs and all class members are granted
seniority rights as brakemen and conductors retroactive to July
2, 1965, the effective date of Title VII. In addition, plaintiffs
seek to recover from the UTU, on behalf of themselves and all
other class members, an award of back pay and their reasonable
attorneys’ fees and costs incurred herein. It is stipulated that
plaintiffs have settled all damage and attorneys’ fees claims with
the Santa Fe.
Both Santa Fe and the UTU contend that plaintiffs have fail-
ed to make out a case of discrimination. Defendants assert that
the discriminatory conduct, if any, was in hiring plaintiffs as
chair car attendants and train porters rather than as brakemen,
|
acts which were done before the effective date of Title VII, and
that under the doctrine of United Airlines Inc. v. Evans, 431
U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977) [Evans], the ef-
fect of discriminatory hiring is not a continuing violation past
the effective date of the Act. In the alternative, defendants
claim that even if plantiffs have established. racial discrimination
perpetuated into the period covered by Title VII by a seniority
system, the seniority system is bona fide pursuant to § 703(h) of
Title VII and Teamsters, and therefore there can be no violation
of Title VII.
Santa Fe contends that it in no way discriminated against
plaintiffs in violation of Title VII, either pre-Act or post-Act.
The railroad asserts that under § 703(j) of the Act, it is not re-
quired to grant preferential treatment to a group because of
race. Santa Fe contends that it is bound by the provisions of the
Railway Labor Act. Accordingly, Santa Fe states that it must
recognize, for collective bargaining purposes, the UTU and its
predecessors as the union certified to represent brakemen and
conductors, and the BSCP as the union certified to represent
train porters and chair car attendants. Furthermore, Santa Fe
contends that it is bound by decisions rendered under and in ac-
cordance with the Railway Laobr Act. Santa Fe contends that it
has no right to unilaterally transfer employees under the
Railway Labor Act, and points out that plaintiffs’ certified
representative, the BSCP, objected to the alleged offering of
jobs in other crafts by the Santa Fe to employees represented by
the BSCP, after the effective date of the Act. Santa Fe contends
that post-Act statistics offered by plaintiff are of little eviden-
tiary value, and fail to make out a prima facie case of post-Act
discrimination.
The UTU joins Santa Fe in asserting that the statistical
evidence submitted by plaintiffs fails to show discrimination
against the plaintiff class. On its own behalf, UTU contends
that it is and its predecessors were prohibited by the Railway
Labor Act from representing the plaintiff class because they
i
were represented by the BSCP, and that the UTU had no duty
to plaintiffs to attempt to eradicate alleged discrimination
against them. UTU asserts that BSCP, as plaintiffs’ certified
bargaining representative, could have worked on plaintiffs’
behalf. UTU contends that Santa Fe has exclusive hiring and
promotion authority, and that the UTU is not liable or responsi-
ble for any acts Santa Fe may have done pursuant to that
authority. The UTU asserts taht it and its predecessors were
certified to represent brakemen and conductors, and actions on
behalf of these crafts were not discriminatory, but were within
the framework of the Railway Labor Act.
The defendants deny that plaintiffs are entitled to relief. They
contend that plaintiffs and class members, even in the absence
of any discrimination, should such discrimination be found,
would not have obtained better paying positions by reason of
their lack of qualifications and are therefore precluded in-
dividually from receiving monetary relief. Defendants further
contend, in the event that seniority is awarded plaintiffs, that
the rights of white brakemen and conductors should be taken
into account. The question of relief, of course, is for the second
stage of this action, and is not before the Court at this time.
THE FACTS
The stipulated facts are by reference made a part of the deci-
sion. We summarize those relevant facts which are necessary to-
an understanding of the views expressed herein.
The operation of trains by Santa Fe and other railroads re-
quires the performance of braking duties. These duties include
the inspection of the train cars, the testing of signals and brake
apparatus for the safety of train movement, the use of hand and
lamp signals for the protection and movement of trains, open-
ing and closing switches, coupling and uncoupling cars and
engines and the hose and chain attachments thereof, the com-
parison of watches when required by the rules of the company,
reporting to and receiving instructions from the train master,
—
and while on duty, being under the direction of the conductor
and performing such other braking duties as may be necessary.
Historically, the Santa Fe train runs include passenger trains,
through freight trains, local freights, and mixed passenger and
freight trains. Traditionally, the train crew on local and
through freight trains consisted of a conductor, head-end
brakeman, rear-end brakeman, engineer and fireman. Train
porters were not employed on freight trains. The train crew on
passenger trains traditionally consisted of a conductor, a train
porter or head-end brakeman, a rear-end brakeman, a fireman,
and engineer. Arizona and California, in the Coast Lines sub-
division, and Texas, had at one time full crew laws. These laws
required that two brakemen be employed. As a result, train
porters did not work in Arizona and California. Full crew law
requirements were abolished by 1964.
After 1944, except in full crew law states, Santa Fe phased out
train porters or headend brakemen on passenger trains, ac-
complishing this through attrition and the reduction of
passenger service. After 1964, Santa Fe phased out head-end
brakemen in the full crew law states, except where labor
agreements dictated otherwise. Head-end braking functions
were assumed by other members of the operational crew after
being phased away from brakemen and train porters. The last
train porter on the Santa Fe last worked in July 1975.*° Those
plaintiffs who are still active with the railroad work in capacities
other than train porter. Effe tive May 1, 1971, the Santa Fe
discontinued passenger trains and Amtrak took over passenger
service.
A head-end brakeman or a train porter on a passenger train
performed the same duties. These were:
(a) Inspect cars and test signal and brake apparatus for
the safety of train movement.
> Joe Vernon Sears, the last train porter with the Santa Fe, retired in
August 1975.
oe
(b) Use hand and lamp signals for the protection and
movement of trains.
(c) Open and close switches.
(d) Couple and uncouple cars and engines and the hose
and chain attachments thereof.
(e) Compare watches when required by rule.‘
These employees also assisted the conductor and performed
work directed and supervised by the conductor.
A train porter on a passenger train performed additional
duties, attending to passengers in the first car and the interior
condition of the car. A train porter wore a uniform. Train
porters and head-end and rear-end brakemen on passenger
trains received the same mileage rate or hourly rate from 1918
until termination of the job of train porter in 1975. However,
the brakemen on passenger trains received additional compensa-
tion such as pay in connection with delays not paid to a train
porter. The total wages to a brakeman on a passenger train
were higher than the total wages paid to a train porter on a
passenger train. Brakeman rate of pay varied by type of train.
* These duties were described in this manner in Supplement No. 12
to General Order 27, issued by the District General of Railroads on
December 2, 1918. General Order 27 also provided:
Effective June 1, 1918, colored men employed as firemen,
trainmen and switchmen shall be paid the same rate of wages as
are paid white men in the same category.
Supplement No. 12 to General Order 27 also provided;
2. | Where white brakemen are not employed, the compensa-
tion and overtime rule for colored brakemen shall be the
same, for both passenger and freight service, as for the
same positions on the minimum paid contiguous road.
3. This order shall not curtail the duties of employees
heretofore classed as ‘‘train porters.’’
4. This order shall not infringe upon the seniority rights of
white brakemen.
a,"
Most passenger trains also carried chair car attendants. Chair
car attendants are non-operational personnel, and do not per-
form any braking duties. The duties of a chair car attendant in-
clude attending to the passengers in a given train car or cars and
to the condition of the interior of the car or cars. He works
passenger trains only.
Brakemen had additional duties on non-passenger train runs.
On local freight trains, a brakeman’s duties included in specting
the consist of the train (i.e., the arrangement or alignment of
freight cars on a freight train in accordance with operating pro-
cedures and safety regulations), adjusting the consist of the
train, walking alongside the train for inspection at stops, dropp-
ing off empty and full freight cars for customers, picking up
empty and full freight cars from customers, respotting cars, and
repairing cars dropped off by through freight trains. Uniforms
were not required or worn by local freight brakemen since the
work and equipment soiled any clothing worn. The duties of a
brakeman on a through freight train were substantially similar
to those on a local freight train.
A yardman or switchman works within a specific geographic
area, the train yard. A yardman switches freight and passenger
equipment, transfers freight and passenger equipment, and
handles construciton and maintenance of way trains and work
trains operating in the yardman’s territory. On May 30, 1960,
the seniority lists of yardmen and brakemen were dualized on
the Santa Fe. After May 30, 1960, to the present time, a new
hire generally starts work in the yard moving cars, switching,
performing minor car repairs and other railroad yard work.
After gaining sufficient seniority the yardman can move to the
freight extra board protecting local and freight brakeman ser-
vice and then passenger services (now discontinued), if seniority
permits and the brakeman is qualified and so desires.
The conductor of a freight or passenger train had the ultimate
responsiblity for the operation of a train, pursuant to the
operating rules of the Santa Fe and train orders.
» 4
~~.
A flagman performs flagman functions and rear-end braking
On a passenger train.
The term ‘‘trainmen”’ is generally understood to mean freight
and passenger brakemen,' flagmen, train baggagemen, and
brakemen baggagemen.
Railroad crafts or classes are denominated by the National
Mediation Board,’ which designated employees of a carrier ac-
cording to traditional work functions who are generally organiz-
ed with a certified representative to make and maintain
agreements with the carrier under the Railway Labor Act. This
law suit is concerned with the crafts of train porter, brakeman,
conductor, and tangentially chair car attendant insofar as many
plaintiffs and class members have served as chair car attendants
with the Santa Fe. The ORC&B was certified to represent the
conductors on the Santa Fe in 1926. The BRT was certified to
represent the brakemen on the Santa Fe in 1926. The BSCP was
certified to represent the train porters and chair car attendants
in separate proceedings on April 5, 1946. From and after the
dates of the above respective certifications, the conductors,
brakemen and train porters and chair car attendants were
recognized as separate crafts under the Railway Labor Act. The
crafts were recognized by the federal government in General
Order 27 in 1918 (See note 4).
The position of train porter was created by the Santa Fe on or
about March 1, 1899. Train porter positions have always been
filled by black males. In most instances between the dates of
* The National Mediation Board is an independent agency in the ex-
ecutive branch of government established by the Railway Labor Act,
and is known as the Mediation Board. Parties or either party to a
dispute between employees and carrier concerning changes in rates of
pay, rules, or working conditions, or any other dispute not referable
to the National Railway Adjustment Board may invoke the services of
the Mediation Board. The Nationa! Railway Adjustment Board, also
known as the Adjustment Board, is divided into fourt divisions with
jurisdiction over disputes involving employee crafts within that divi-
sion.
—
1918 and 1959,° the entry level job with the Santa Fe for a black
man was the position of chair car attendant. Chair car atten-
dants could qualify for, and be promoted to, the position of a
train porter upon taking a Rules Examination, completing stu-
dent trips on passenger trains, and satisfactorily passing a
physical examination. The Rules Examination was both written
and oral, and the written portion thereof consisted of an open
book test containing questions concerning the Santa Fe
operating Book of Rules. This examination was not a test which
was failed or passed, and was used by the Santa Fe as a learning
process to familiarize the applicant with the Santa Fe operating
rules. Likewise, the later oral examination was administered for
the purpose of determining whether the applicant understood
the Santa Fe Book of Rules and to clear up any misunderstan-
ding he might have with respect to them. The Rules Examina-
tion was given by the trainmaster at the location of the applica-
tion. Upon satisfactory completion of the Rules Examination,
student trips and physical examination, a black chair car atten-
dant was promoted to the position of train porter and was
thereafter qualified to perform front end braking duties on
passenger trains. Also, in certin instances, the Santa Fe would
directly hire a black man as a train porter, and on other occa-
sions train porters were hired by the Santa Fe from other jobs.
There was no requirement that a chair car attendant proceed in
a timely manner to the craft of train porter or else lose his job
with the Santa Fe.
The Santa Fe has, at all times, maintained seniority districts
within the operating divisions for each crafi. The seniority
district is a certain geographic area and within the district a
published seniority roster is maintained. The seniority roster
carried an individual’s seniority date, which is the earliest date
. After 1959, the Santa Fe was prohibited from hiring a new man to
a job of train porter because of the ruling in Award 19324, discussed
infra.
itis Tt
sing SO
of continuous service on the Santa Fe, in a given craft. Seniority
in craft determines the right to protect work within the craft
(within the seniority district), to obtain regular runs, order of
furlough and recall, as well as other employment rights.
Seniority is not transferable from one seniority district to
another, nor is it transferable from one craft to another craft.
Seniority as a chair car attendant began as of the date the man
first went to work as a chair car attendant. The seniority date
on a Santa Fe train porter’s seniority roster was the date a man
first became qualified as a train porter. A train porter con-
tinued to accumulate seniority on a chair car attendant’s roster
after he began working as a train porter, in addition to his trian
porter senioriiy. At all times, and within the various seniority
districts for chair car attendants and train porters, two separate
seniority rosters were maintained with one being for train
porters and the other being for chair car attendants. On May 1,
1950, the BSCP and Santa Fe executed a collective bargaining
contract for chair car attendants which set forth seniority provi-
sions for chair car attendants. Prior to this time, the seniority
system for chair car attendants had been maintained by Santa
Fe on the basis of custom and practice. There has never been a
written collective bargaining agreement covering seniority for
train porters, although the Santa Fe and the BSCP did enter in-
to written contracts concerning rates of pay, vacations, and
prescribed uniforms for the train porters. The seniority system
for Santa Fe train porters was established through custom, prac-
tice, published seniority rosters, and recognized by the Train
Service Board and Naticnal Railway Adjustment Board (suc-
cessor to the Train Service Board) decisions during the years the
Santa Fe employed train porters, and was based upon time and
service on the Santa Fe in a train porter’s seniority district.’
” It is the testimony of plaintiff Arthur L. Woolfolk, who was active
in the union affoars of the BSCP, that Santa Fe always took the posi-
tion with the BSC’ that Santa Fe did not want to negotiate a contract
for the train porters until the ‘‘Hunter Litigation,’’ which culminated
in Award 19324, was finally terminated or resolved.
— we
A chair car attendant started working off of the chair car at-
tendant’s extra board® until he had sufficient seniority to bid for
an advertised regular job on a passenger train in his seniority
district. After becoming a train porter, he would continue to
work as a chair car attendant and off of the train porter’s extra
board, protecting against temporary vacancies in train porter
positions. After accumulating sufficient seniority, he could
likewise obtain a regular job as a train porter on a Santa Fe
passenger train.
A non-black man desiring to be a brakeman qualified for that
position with the Santa Fe upon taking a Rules Examination,
completing student trips on local freight trains, and by satisfac-
torily passing a physical examination. The Rules Examination
for a brakeman applicant and the administration thereof was
the same as for train porters. Upon satisfactory completion of
the Rules Examination, student trips and physical examination,
the applicant was employed by the Santa Fe as a brakeman
qualified to perform braking duties on the Santa Fe. Generally,
prior to 1971, although the requirement varied from time to
time, the Santa Fe required a high school education as a
qualification for an applicant to the position of brakeman. This
requirement was eliminated in 1971 by the Santa Fe. From 1918
until July 2, 1965, with the exception of the Silsbee, Texas
Seniority District,’ front-end and rear-end braking duties on
* Working off the extra board generally meant that the employee
was available for call to temporarily take the place of an employee
who did hold a regular job, but who was absent for reason of illness,
vacation or otherwise. The employee called off the extra board would
be protecting the job or work for which he was called. When vacan-
cies occurred in regularly held or full-time jobs, the jobs would be
‘‘advertised’’ for bid by Santa Fe, usually through a bulletin, and the
employee with the most seniority who bid pursuant to the advertise-
ment got the job.
* The Silsbee, Texas Seniority District has been something of an
anomaly in the history of the Santa Fe, for black rather than white
males have been predominantly employed as brakemen in that district.
ie wee
Santa Fe freight trains were performed exclusively by non-black
males employed by the Santa Fe as brakemen. The seniority
system for Santa Fe brakemen mandated the promotion of a
stated number of brakemen to the position of conductor on the
basis of seniority, and only after they had had at least two years
experience in the treight service. Promotion from brakeman to
conductor was mandatory if the employee was to stay in service.
Brakemen took a qualifying examination as a prerequisite to
becoming a conductor. On July 2, 1965, the effective date of
Title VII, except in the Silsbee District the Santa Fe did not
employ a single black conductor. There were no black conduc-
tors outside the Silsbee District until 1970.
A brakeman’s seniority began as of the date the man first
started to work as a brakeman or, after the dualization of the
yardmen and brakemen’s seniorvity system in 1960, the date he
first started to work as a Santa Fe switchman-brakeman. The
seniority date on a Santa Fe conductor’s seniority roster was
determined as of the date a man was promoted to, or hired as, a
Santa Fe conductor. Within the seniority districts separate
seniority rosters were maintained for brakemen and conductors.
Under the seniority system for Santa Fe brakemen, prior to
1960, a new hire normally started protecting all extra services
for which he qualified, which could be local freight, through
freight, mixed trains, passenger trains, road switchers and work
trains. After accumulating sufficient seniority the brakeman
could obtain regular braking jobs on through freight trains.
Generally a brakeman needed substantial seniority to obtain a
regular braking job on passenger trains. Some brakemen never
I here were 55 black brakemen in the Silsbee District as of the effective
date of Title VII. However, there were apparently no black conduc-
tors in the Silsbee District as of the effective date of the Act. It is the
testimony of Fred Douglas Woodberry, who has been employed in the
Silsbee District as brakeman, conductor, and engine foreman, that
from July 22, 1940 until September, 1965, there were no black con-
ductors in the Silsbee District. Statistics indicate that as of 1965, there
were four black conductors in the Silsbee District.
sought braking work on passenger trains; and once a brakeman
obtained a regular position as a brakeman on a passenger train,
he could also return to freight service by exercising his seniority
rights. In 1960 and thereafter, after the seniority systems of
yardmen and brakemen were dualized, a new hire seeking a job
as brakeman would generally start on the extra board for yard-
men, performing swithcing work. With sufficient seniority, a
swithcman-yardman could obtain a regular position in the Santa
Fe, and as the extra board for Santa Fe brakemen required more
men, he could obtain a position on the brakeman’s extra board
on the basis of his seniority. He could then proceed as a
brakeman as outlined above.
The seniority system for brakemen and conductors was
established under collective bargaining contracts negotiated by
the BRT and ORC&B with the Santa Fe. From prior to 1892
until merged into the UTU on January 1, 1969, the BRT and
ORC&B were separate labor unions; both unions represented
the crafts of brakemen and conductors from before 1892 until
the merger; both unions were certified to represent their respec-
tive craft of brakeman and conductor on the Santa Fe in 1926.
The first known contract containing seniority provisions was an
agreement executed on April 1, 1892, by the Santa Fe and the
BRT and the Order of Railway Conductors, predecessor to the
ORC&B. Thereafter, according to all evidence before this
Court, separate contracts were negotiated by the BRT and the
ORC&B with Santa Fe, and those contracts likewise contained
seniority provisions for brakemen and conductors respectively.
The evidence includes seniority provisions from Santa Fe’s
Schedule of Rates, Rules and Regulations for Trainmen dated
1904, 1907, 1910, 1917, 1923, 1928, 1940, 1943, 1948, 1956,
1964 and 1966. At all times, an employee’s seniority date in a
craft began when he first worked in or was promoted to that
craft, and position on a seniority roster determined the type of
work and promotion opportunities an employee could attain.
In 1883 the BRT established its first Constitution. Member-
ship requirements were: male, sober, industrious and employed
oe aa
as a brakeman by a railroad. By 1939, the BRT Constitution
provided that a candidate for membership shall have been
employed as a railroad trainman for at least one month prior to
application for admission and shall be white, male, sober, in-
dustrious and join of his own free will. The evidence before the
Court does not disclose, and the parties do not know, if the
1939 requirement that a BRT member be white was in existence
before 1939. The requirement that a member be white was re-
tained by the BRT until 1960. The first known Constitution of
the ORC&B is dated May 7, 1934, and requires for membership:
any white male who had qualified as a train or yard conductor
and had at least six months experience in road or yard service at
the time of application. The requirement that a member be
white was retained by the ORC&B until 1966. The UTU, suc-
cessor to the BRT and the ORC&B, provides in its 1975 Con-
stitution that any person of good moral character employed in a
craft represented by the UTU is eligible to membership.
Hiring and promoting employees is a retained right of
management of the Santa Fe, and unions are not authorized to
make these decisions.
The certified bargaining representatives of brakemen have
acted throughout the history of the railroad to ensure that brak-
ing duties are performed by its members. Beginning not later
than 1920, the BRT made several attempts to transfer braking
duties from black train porters to white brakemen. These at-
ternpts took the form of letter requests, demands, legislative
lobbying, proceedings before the Train Service Board of Ad-
justment, the National Railroad Adjustment Board, First Divi-
sion and were also the subject of litigation in the federal courts.
It appears from the evidence that BRT had no black members,
nor Santa Fe black brakemen or conductors, at any time when
these attempts were made. The BRT was ultimately successful.
In Award 19324, issued October 14, 1959, the National Railroad
Adjustment Board, First Division, held that only those train
porters holding a seniority date prior to April 20, 1942, could
_— pn
perform front-end braking as a part of their duties. All train
porters who had a seniority date subsequent to April 20, 1942,
were demoted to chair car attendants and could no longer work
as train porters.
The main thrust of the BRT protests was that contracts bet-
ween the BRT and the Santa Fe provided for the seniority rights
and duties of brakemen, that on passenger trains the duties of
head-end brakemen were being performed by train porters, and
that the train porters were not on the brakemen’s seniority
roster. This protest can be seen in a number of incidences. The
General Chairman for the BRT, S. R. Harvey, sent a letter,
Septeniber 30, 1920, to the Santa Fe’s Eastern and Western Line
General Managers complaining of the use of train porters; the
Santa Fe responded that it would not replace train porters with
brakemen because the train porters performed additional duties
which would be distasteful to the brakemen. The BRT pro-
tested the use of train porters in Case No. 2167 to the Train Ser-
vice Board for the Western Region in June, 1926; in Award
2126, the protest was denied. The BRT protested the use of
train porters in Case No. 2359 to the Train Service Board in
November, 1926; in Award 2336, the protest was denied. The
General Chairman for the BRT, H. W. Gross, sent a series of
letters to the Santa Fe in 1932, proposing negotiations for the
consolidation of the seniority of brakemen and train porters on
all divisions of Santa Fe’s Eastern and Western Lines; the Santa
Fe responded that it would not negotiate such a consolidation
because the BRT did not represent the train porters and because
the request of the BRT amounted to nothing more than a
restatement of the protests previously filed with the Train Ser-
vice Board. The BRT filed a protest in 1939 with the National
Railroad Adjustment Board, First Division, Docket 7400; this
protest ultimately resulted in Award No. 19324. On April 20,
1942, the National Railroad Adjustment Board, First Division,
sustained the protest filec by the BRT and in Award 6640 ruled
that the front-end braking duties on Santa Fe passenger trains
should be performed by brakemen holding seniority as such on
—
the Santa Fe brakemen’s seniority roster. Award 6640 was
challenged in a series of cases known as the ‘‘Hunter
Litigation,’’ brought in the United States District Court for the
Northern District of Illinois, Eastern Division. The court
entered a temporary injunction against the enforcement of
Award 6640 on the theory that the train porters did not receive
notice of the proceedings. Hunter v. Atchison, T. & S. F. Ry.
Co., 78 F.Supp. 984 (N.D.IIl. 1948), aff’d 171 F.2d 594 (7th
Cir. 1948). A permanent injunction was then entered by the
trial court. This was reversed by the Seventh Circuit on the
basis that the trial court should have heard evidence on the issue
of whether the train porters, as a class, had actual notice of the
prior proceedings hefore the National Railroad Adjustment
Board, even though they had not received formal notice.
Hunter v. Atchison, T. & S. R. Ry. Co., 188 F.2d 294 (7th Cir.
1951). On August 8, 1958, the trial court remanded the case to
the National Railway Adjustment Board. On October 14, 1959,
the Board ruled in favor of the BRT in Award 19324, holding
that only those train porters with a seniority date prior to April
20, 1942, the date of Award 6640, could continue to work as
train porters. Since 1956, approximately three years prior to
Award 19324, the Santa Fe had not hired or promoted any per-
son to the position of train porter. Pursuant to the Railway
Labor Act, the Santa Fe was bound by Award 19324 and
therefore demoted to chair car attendant all persons with a train
porter seniority date subsequent to April 20, 1942.'°
'° Of the plaintiffs and class members listed in the pretrial order, the
following men had a train porter seniority date prior to April 20, 1942:
Joe Vernon Sears, Edward Rawlins, Theodore Butler, Luther Prince,
Oscar Alfred Walker, William D. Christopher, Archie N. Jones, For-
rest P. Tollett, Earlie Nash, William H. Cheers, Robert H. Garner,
Jr., George Guest, Obie F. Hunter, James P. Jackson, Frank C.
Knighton, Herbert C. Knighton, Marion R. Mitchell, Sherwood
Moore, Cecil M. Robinson, Vaughn H. Smith, Baylon K. Thaw, Ray
O. Wagner, C. B. Williams, G. L. Williams, Wilborn Williams and
Offie Wimberly. The following men had a train porter seniority date
ee
The Court notes that there were other efforts by the BRT on
behalf of brakemen, involving other railways, to assume brak-
ing duties performed by train porters on passenger trains.''
We turn now to events occurring after the effective date of Ti-
tle VII. On February 7, 1965, railroads which included the San-
ta Fe, represented by the National Railway Labor Conference,
and five unions comprising the Employee’s National Con-
ference Committee (not including the BSCP, BRT, or ORC&B)
executed a mediation agreement in Case No. A-7128. This
agreement is commonly referred to as the ‘‘Feb. 7 Agreement.”’
A year later on February 8, 1966, the BSCP and the Santa Fe ex-
ecuted an agr2ement extending the Feb. 7 Agreement, along
with agreed-upon interpretations thereof, to plaintiffs and class
members, effective February 8, 1966. Those plaintiffs and class
subsequent to April 20, 1942: Albert L. Bennett, Jimmie E. Brown,
Bobbie Charles Papin, C. J. Skelton, T. J. White, Elgie Crow, Ellis
Johnson, Obie Wright, Thomas H. White, Samuel Marvin Talbert,
Jr., John W. Landrum, Lawson C. Spencer, Aubrey A. Robinson,
John W. Cole, Charles A. Majors, Jr., Jessie J. Smith, Paul H.
Stewart, Cari E. Chester, Raymond I. Wiley, Robert W. Austin,
Willie Combs, Leon A. Finley, E. S. Garth, J. R. Garth, John S.
Henry, Jr., Robert L. Holiowell, Herbert L. Jenkins, Eugene E.
McGaugh, Leroy Preston, Pink Reynolds, Vernon M. Robinson, Levi
E. Southall, William Steward and A. L. Woolfolk. Of the foregoing
men, most are disability annuitants, retired, or deceased.
'' See, e. g., the ‘‘Howard Litigation,’’ Howard v. Thompson, 72
F.Supp. 695 (E.D.Mo. 1947); Howard v. St. Louis-San Francisco Ry.
Co., 191 F.2d 442 (8th Cir. 1951); Brotherhood of Railway Trainmen
v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283 (1952);
Howard v. St. Louis-San Francisco Ry. Co., 215 F.2d 690 (8th Cir.
1954); and the ‘‘Randolph Litigation,’’ Randolph v. Missouri-Kansas-
Texas Ry. Co., 68 F.Supp. 1007 (W.D. Mo. 1946); Randolph v.
Missouri-Kansas-Texas Ry. co., 7 F.R.D. 54 (W.D. Mo. 1947);
Missouri-Kansas-Texas Ry. Co. v. Randolph, 164 F.2d 4 (8th Cir.
1947); Randolph v. Missouri-Kansas-Texas Ry. Co., 78 F.Supp. 727
(W.D.Mo. 1948); Randolph v. Missouri-Kansas-Texas Ry. Co., 85
F.Supp. 846 (W.D.Mo. 1949); Missouri-Kansas-Texas Ry. Co. v.
Randolph, 182 F.2d 996 (8th Cir. 1950); Wood v. Randolph, 209 F.2d
634 (8th Cir. 1954).
—
members that were covered by the agreement, by its terms, are
‘*chair car attendants of this Company [Santa Fe] whose wages
and working conditions are subject to the agreement between
this Carrier and the Brotherhood of Sleeping Car Porters.’’ The
Feb. 7 agreement protects the employee until death, retirement,
resignation, dismissal for cause in accordance with existing
agreements, failure to retain or obtain a position available to
him in the exercise of his seniority rights, or any period in which
he occupies a position not subject to the working agreement.
The Feb. 7 agreement established a base of wage protection for
those protected employees. The protected employee is
guaranteed a certain level of income even if furloughed or
employed in a job normally paying a lower level of income. The
Feb. 7 agreement also prohibits the Santa Fe from transferring
protected employee from his craft or class to another craft or
class on the Santa Fe.
On at least one occasion the BSCP took steps to ensure that
Santa Fe followed the Feb. 7 agreement. In a letter dated
November 16, 1967, Vice President of the BSCP, T. D.
McNeal, objected to Santa Fe offering switchman and other
positions to chair car attendants covered by the agreement. The
Santa Fe responded by letter, December 19, 1967, that the
employees in question had applied for employment as
switchmen-brakemen, that they had not been approached by the
Santa Fe to cross craft lines, and that they had voluntarily relin-
quished chair car attendant seniority to accept employment as
switchmen-brakemen. The outcome of this correspondence was
that the BSCP and Santa Fe negotiated a further agreement per-
mitting Santa Fe to assign protected employees, if qualified, to
other jobs on the Santa Fe, including but not limited to
brakeman, switchman, fireman, or clerk. The employees so
assigned would retain previously accumulated seniority as chair
car attendants and therefore retain their status as protected
employees under the Feb. 7 agreement. This extension of the
Feb. 7 agreement was finalized between the BSCP and Santa Fe,
March 23, 1971.
—
Testimony of Individual Plaintiffs
Several individual plaintiffs testified by summary of
testimony. We note the following as common threads running
through their testimony which are relevant to our enquiry:
Train porters and chair car attendants had the same annual
physical examination as that given to brakemen and conductors.
A train porter’s braking duties took priority over his clean-up
duties; the clean-up duties were not performed wher the brak-
ing duties required extra time.
Upon occasion, some train porters would assume the conduc-
tor’s function when the conductor was drunk or otherwise
unable to work, and would also on occasion be asked by a Train
Master to watch over a new conductor while he was learning his
duties. [Edward Rawlins, Luther Prince, William D.
Christopher].
Plaintiffs and class members, all of whom have worked as
train porters, feel and feit themselves qualified by their train
porter experience to assume the duties of yardman or freight or
passenger brakeman. Although non-passenger train brakemen
had duties in addition to those of a passenger train porter, these
additional brakemen duties were not difficult to learn, in the
opinion of plaintiffs. Former train porters who became
brakemen had no problem performing their duties as brakeman
or brakeman-switchman due to their past experience and
knowledge. {Jimmie E. Brown, Bobbie Charles Papin, Ellis
Johnson, Samuel Marvin Talbert, Jr.].
Brakeman and conductor jobs were white jobs, while train
porter and chair car attendant jobs were black jobs. As far as
many plaintiffs and class members knew, the first black
brakemen were Bobtie Charles Papin in 1968 and Leroy Beeson
in 1969.'?
EASTERN AND WESTERN LINES OF THE
SANTA FE RAILWAY CO.
1965
1966
1907
19
1969
1970
1971
ig7Z
1973
1974
1975
1976
oe ee
EMPLOYMENT OF BRAKEMEN AND CONDUCTORS
ALL RACES NEGRO TOTALS LESS SILSGEE
EAST- WEST- EAST- WEST- PERCENT SB ALL PERCENT
ERN ERN IQTAL ERN ERN JIOTAL NEGRO N* RACE NEGRO NEGRO
246 2452 4921 0 Mi) 56 1.1379 56 4865 0 0
2478 2047 4525 0 65 65 | 4364 65 4460 ‘) 0
2478 2081 4559 0 74 74 1 6237 69 4490 2 113
2280 2136 4416 1 92 93 2.1059 7 4340 23 §299
2373 2345 4618 7 109 116 2.5119 75 3543 3) ba23
2248 2145 4393 6 115 121 2 7543 a2 4311 41 9510
2814 219% 5012 11 121 132 2.6336 82 4920 5U 10141
2745 2115 4560 17 . 144 16) 3.3127 7 4781 §2 17151
2861 2576 5437 48 212 260 4.7820 34 5353 186 34746
2640 2522 5162 38 191 249 4.8237 84 5078 165 3.2433
2361 2355 4716 65 183 248 5.2586 86 4630 162 3 4589
2251 2198 4449 73 169 242 § 4394 39 4360 183 3.5091
CONDUCTORS
106] 1092 2153 0 4 ° 1857 dq 2149 0 rv)
1072 956 2028 0 17 17 8382 17 201) 9) )
047 967 2014 0 27 27 1.3406 27 1987 V) 0
98S 102 2050 0 A4 $4 1 6585 a 29016 0) n)
1900 1213 2213 0 536 30 1.62687 36 2177 0 0
1070 1236 2306 0 50 50 2.1682 48 2255 2 O8R5
1020 12i4 2234 0 57 57 25514 48 2186 9 4117
162 1239 2262 0 64 64 2.8293 34 2208 10 a52y
1031 1281 2312 0 6S 65 2.8114 55 225. 10 4430
1005 1514 2519 0 69 69 2.7291 55 2464 14 5681
943 1530 2473 0 73 73 2.9518 56 2417 17 7033
944 1472 2416 0 90 90 3.7251 63 2353 27 1.1474
Note: Data for 1973 were recorded in March; for ali other years the month record 1s July
There is expert testimony that in the regions from which the Santa Fe
would probably draw its employees, black males would constitute
9.2% of the relevant labor market in 1965, defined as males 25 years
of age or over with a high school education and up to three years of
college. Defendants challenge this, and state that the Court should
not consider any statistical evidence. They allege that the statistics of-
fered by plaintiff as to employment of black brakemen and conduc-
tors on the Santa Fe are invalid under Hazelwood School District v.
United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977),
stating that the proper group of employees to examine is the active
class members rather than all black brakemen, that the black male
population of the regions served by thie railroad possessing a high
school education is not the proper labor pool, and that the statistics
are incomplete. A prima facie case of pattern or practice discrimina-
tion may or course be established by statistics alone. Hazelwood,
supra. However, we do not rely on statistics to hold that plaintiffs
have made out a prima facie case of discrimination. See text, infra.
The Supreme Court has indicated that statistics come in infinite varie-
— pa
Some plaintiffs and class members applied for brakeman
positions after the effective date of Title VI1. Common ex-
periences of these applicants were being told that the applicant
was too old [T. J. White, Joe Vernon Sears, Oscar Alfred
Walker], being told that the applicant would have to give up all
previous seniority as train porter or chair car attendant and
begin at the bottom of the brakeman seniority roster [C. J.
Skelton, Sears, Walker], being told that Santa Fe was not taking
applications [Elgie Crow, Thomas H. White], in an application
made before Title VII being told that black men couldn’t be
brakemen [Wiiliam D. Christopher], or being told that Award
19324 would not allow it [Crow] (Award 19324 was most com-
monly referred to, however, in connection with a chair car at-
tendant’s request to assume train porter duties). At least one
plaintiff who was told he was too old for the position was subse-
quently asked by the Santa Fe to transfer to a brakeman posi-
tion [T. J. White]. Other plaintiffs and class members testified
that they did not apply for brakeman positions because they
knew of these experiences of others and felt that there was no
point in applying to be a brakeman [Talbert, Johnson, Thomas
H. White]. Others refused to apply for or accept a brakeman
position because they would have had to forfeit train porter and
chair car attendant seniority [Sears, Rawlins, Skelton]. One
plaintiff testified that after a Santa Fe official saw him looking
at an equal opportunity poster which was posted in a Santa Fe
office in 1967 or 1968, the poster was no longer on the wall.
[Skelton].
ty and that their usefulness depends on all of the surrounding facts
and circumstances. Teamsters, 431 U.S. at 339, 97 S.Ct. at 1856, 52
L.Ed.2d at 418. We need accept neither plaintiffs’ statistics nor
defendants’ challenges to those statistics to conclude, as we do, that
for all the years before Title VII and for several years after Title VIi,
there were few or no black brakemen and conductors. The statistics
merely indicate the point in time at which the railroad began employ-
ing blacks as brakemen and conductors, thereby buttressing plaintiffs’
contention that they were not so employed until well after the effective
date of Title VII, which in turn supports their contention that they
were discriminated against on the basis of race.
se ci
During all periods in question, brakemen or switchmen-
orakemen were regularly hired by Santa Fe and Santa Fe
regularly promoted brakemen to conductor. These positions
were always open even in periods of force reduction due to
resignation, death, disability, or promotion of the Santa Fe
brakemen or conductors.
Plaintiffs and class members are of the opinion that age
would have been no bar to their employment as brakemen and
conductors, for they were already experienced as brakemen,
and white men as old as they or older were performing the duties
of brakemen and conductors.
Certain plaintiffs and class members were either transferred
by Santa Fe on its own initiative or after application by the
respective employee to brakeman and other positions; these
transfers generally taking place after 1971. [Johnson, T. J.
White]. Bobbie Charles Papin was the first black brakeman on
the Santa Fe Eastern Lines, and he was transferred on his own
application in 1968 to the position of brakeman. Mr. Papin
testified that he wore all white clothing to work his first day as
switchman-brakeman, because he was afraid of the possibility
he could be hurt if someone might ‘‘accidently’’ not see him.
During the 1940’s and 1950’s, Santa Fe filled some head-end
braking positions with employees known as_ brakemen-
baggagemen. These employees were white. Train porters could
not bid for brakemen-baggagemen positions, nor could
brakemen-baggagemen bid for train porter positions, although
they performed the same braking duties.
A few plaintiffs and class members applied for membership in
the BRT, feeling that such union membership would aid their
quest to obtain brakeman positions. Of these, at least one, Ed-
ward Rawlins, was told that the BRT could not represent him as
he was a train porter already represented by the BSCP. Elgie
Crow was also refused BRT membership. However, one such
attempt was successful. Luther Price applied for BRT member-
=
ship in 1964 and was accepted. The local RRT, through J. M.
Phillips, General Chairman of the BRT, helped Prince protect
his front-end braking position on Santa Fe passenger trains.
Four other train porters were also accepted for BRT member-
ship. In correspondence with Santa Fe, 1964-65, Mir. Phillips
maintained the position that these five men were protected as
trainmen by the BRT, although Santa Fe took the position that
the BRT could not represent these train porters. The BRT
prevailed, and in the 1968 agreement between the BRT and the
Santa Fe, Schedule of Pay, Rules and Regulations governing
Santa Fe trainmen, four of the men, L. T. Prince, O. Wimberly,
C. M. Robinson, and J. W. Shelby, are listed as porter-
brakemen who would retain rights to regular head-end
passenger asignments in their respective seniority districts.
The black Silsbee, Texas brakemen formed a BRT lodge on
July 11, 1965. The BRT thereafter, in August 1965, requested
the Santa Fe to allow the Silsbee brakemen the opportunity for
promotion to conductor. The Santa Fe, in a letter dated August
31, 1965, agreed that black trainmen as Silsbee would be afford-
ed that opportunity. The procedure was to be that the Silsbee
trainmen would be contacted in order of seniority and afforded
an Opportunity to pass the written and oral examination, and in -
addition, if the examination was taken and failed, the
employee’s seniority as trainman would not be affected. This
procedure may be contrasted to the general contract between
BRT and Santa Fe, covering white brakemen, which required
that the brakeman take the conductor’s exam within three years
of becoming a brakeman, no waiver being permitted, and upon
iwice failing the exam, the brakeman would be dismissed or
assigned to other service. However, as to any black trainmen
employed at Silsbee after August 31, 1965, the Santa Fe stated
that such trainman would be required to pass the conductor ex-
amination under the usual terms, with no waiver being permit-
ted.
Excluding the deceased, retired and disability annuitants, the
= Po
possible active class members at the date of trial and their oc-
cupations are as follows:
Name
Elgie Crow
A.M. Bennett
A. L. Woolfolk
T. C. Luckey
Raymond |. Wiley
Bobbie C. Papin
Carl E. Chester
Samuel M. Talbert, Jr.
Herbert L. Jenkins
Archie N. Jones
Lawson C. Spencer
Criscell Kemp
W. W. Seymour
A. L. Bennett
Forrest P. Tollett
Earlie Nash
Craft or Classification
Brakeman and conductor
Brakeman and conductor
Brakeman and conductor
Brakeman and conductor
Brakeman and conductor
Flagman (restricted to flagman
On passenger service)
Fireman and oiler laborer
Locomotive Fireman and
Locomoiive Engineer
Librarian
Security guard
Business Car chef-porter
Receiving benefits under Feb. 7
Agreement
Brakeman on leave of absence
since October 21, 1971 from
Santa Fe to perform services as
International Secretary-
Treasurer of BSCP
Employed by Amtrak since May
1, 1974 as chair car attendant
Employed by Amtrak since May
1, 1974 as chair car attendant
Employed by Amtrak since May
1, 1974
Neither the UTU nor the BSCP represent the craft or c‘ass of
fireman, oilers and laborer, locomotive engineer, librarian,
security guard, or business car chef-porter.
All other plaintiffs and class members are retired, deceased,
or disability annuitants.
as A os
Effective May 1, 1971, the Santa Fe discontinued passenger
service. Effective that date, Amtrak took over. Effective May
1, 1974, all non-operational personnel on passenger trains
operated by Amtrak on Santa Fe lines became employees of
Amtrak; all operational personnel remained employees of the
Santa Fe.
THE LAW
42 U.S.C. § 2000e-2 provides in pertinent part:
(a) It shall be an unlawful employment practice for an
employer —
(1) to fail or refuse to hire or to discharge any in-
dividual, or otherwise to discriminate against any in-
dividual with respect to his compensation, terms, con-
ditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national
origin; or
(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would
deprive or tend to deprive any individual of employ-
ment opportunities or otherwise adversely affect his
Status as an employee, because of such individual’s
race, color, religion, sex, or national origin.
The plaintiff in a Title VII case is required to establish a
prima facie case of discrimination. McDonnell Doug!as Corp.
v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Since plaintiffs here have alleged a systemwide pattern or prac-
tice of discrimination, they must establish more than the ‘‘mere
occurrence of isolated or ‘accidental’ or sporadic discriminatory
acts.” They must establish that ‘‘racial discrimination was the
company’s standard operating procedure—the regular rather
than the unusual practice,’’ and of a ‘‘repeated, routine, or of a
generalized nature.’” Teamsters, 431 U.S. at 336, 97 S.Ct. at
1855, 52 L.Ed.2d at 416 and n. 16. ‘‘The basic framework in a
oo
pattern-or-practice suit...under Title VII of the Civil Rights
Act is the same as that in any other lawsuit. The plaintiff has
the burden of proving a prima facie case; if it does so, the
burden of rebutting that case shifts to the defendant.”’
Hazelwood School District v. United States, 433 U.S. 299, 97
S.Ct. 2736, 53 L.Ed.2d 768 (1977) (Stevens, J., dissenting). **At
the initial, ‘liability’ stage of a pattern or practice suit the [plain-
tiff] is not required to offer evidence that each person for whom
it will ultimately seek relief was a victim of the employer’s
discriminatory policy. Its burden is to establish a prima facie
case that such a policy existed.’’ Teamsters, 431 U.S. at 360, 97
S.Ct. at 1867, 52 L.Ed.2d at 430.
There can be no question that Santa Fe, except for the Silsbee
District, deliberately segregated whites into brakeman and con-
ductor positions and blacks into chair car attendant and train
porter positions. There can be no question that this segregation
was approved by, acquiesced in, and maintained and demanded
by the ‘‘white’’ unions. The evidence is clear. For almost all
the years of the Twentieth Century to date, there have been no
black brakemen, no white train porters. Both positions re-
quired the performance of substantially similar braking duties;
the difference in additional duties is insignificant compared to
the similarity of total duties. The fact is that employees perfor-
ming essentially the same duties were segregated into job
category by race, and the evidence is overwhelming that such
segregation was intentional. This is disparate treatment.
‘*Disparate treatment’’.. .is the most easily understood
type of discrimination. The employer simply treats some
people less favorably than others because of their race, col-
or, religion, sex, or national origin. Proof of
discriminatory inotive is critical, although it can in some
situations be inferred from the mere fact of differences in
treatment.
a * * * * ” »
— ea
Claims of disparate treatment may be distinguished
from claims that stress ‘‘disparate impact.’’ The latter in-
volve employment practices that are facially neutral in
their treatment of different groups but in fact fall more
harshly on one group than another and cannot be justified
by business necessity...Proof of discriminatory motive,
we have heid, is not required under a disparate impact
theory....
Teamsters, 431 U.S. at 335, 97 S.Ct. at 1854, 52 L.Ed.2d at 415,
Ss. 5.
Defendants urge, however, that Title VII is prospective rather
than retrospective, citing Teamsters and Franks v. Bowman
Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d
444 (1976). They state that the discriminatory conduct, if any,
was the segregated hiring, that the last such hiring took place in
1956, before the effective date of Title VII, and that therefore
plaintiffs have not made out a prima facie case of post-Act
discrimination. The Court disagrees. In the first place, we have
here the situation described in Teamsters where pre-Act conduct
has a discriminatory post-Act impact. Furthermore, we also are
concerned with post-Act conduct in the alleged discriminatory
refusal to transfer or promote plaintiffs to brakeman positions
after the effective date of the Act.
In McDonnell Douglas Corp., supra, the Sipreme Court
found a prima facie case of discrimination by disparate treat-
ment when the plaintiff showed:
(i) that he belongs to a racial minority; (ii) that he applied
and was qualified for a job for which the employer was
seeking applicants; (iti) that, despite his qualifications, he
was rejected; and (iv) that, after his rejection, the position
remained open and the employer continued to seek ap-
plicants from persons of complainant’s qualifications.
411 U.S. at 802, 93 S.Ct. at 1824, 36 L.Ed.2d at 677. The Court
in Teamsters said that the criteria usec in McDonnell Douglas
—
did not purport to be ‘‘an inflexible formulation,’’ and that the
facts and criteria would vary from case to case. 431i U.S. at 357,
97 S.Ct. at 1865, 52 L.Ed.2d at 429.
The Court has examined the facts here. We note at the outset
that since we are concerned with liability, not remedy, at this
stage of the proceedings, the ability of an individual plaintiff to
perform brakeman’s duties is not at issue. Every plaintiff at ene
time performed braking duties. Certain braking positions re-
quired additional duties, but those plaintiffs who performed
such additional duties testified that their prior experience enabl-
ed them to quickly learn such duties. Brakemen and train
porters took the same Rules Examinations and student trips.
We therefore hold, for purposes of establishing class-wide
liability, that the plaintiff class was qualified for promotion or
transfer to brakemen’s positions, by virtue of past experience.
See Love v. Pullman Company, 569 F.2d 1074 (10th Cir. 1978),
where the Tenth Circuit Court of Appeals made a similar fin-
ding for porters-in-charge and train conductors.
Summing up the evidence of disparate treatment, in accor-
dance with the summation in McDonnell Douglas Corp., we
find that no black brakeman was appointed on Santa Fe, out-
side the Silsbee, Texas Seniority District, until 1967 or 1968,
well after the effective date of Title VII, and that the Santa Fe's
appointment of black brakemen did not accelerate until approx-
imately 1970-71. We further find that no member of the plain-
tiff class was transferred to a brakeman’s position until 1968,
well after the effective date of Title VII, ana that most such
transfers were not made until approximately 1971. From the
testimony of the individual plaintiffs, we find a general will-
ingness and desire on the part of the plaintiff class for transfer
to brakeman’s positions, beginning at least as of the effective
date of Title VII. We find that that desire and willingness was in
several instances communicated to the Santa Fe, and infer from
the evidence before us that the defendant Santa Fe was aware
that black chair car attendants and train porters as a class were
tal cies
desirous of becoming brakemen and conductors. We find that
throughout the period between 1965 and the present, brakemen
positions regularly became vacant and were filled, notwithstan-
ding the general cutback in services and personnel undergone by
the Santa Fe. We find that plaintiffs as a class were qualified to
fill these positions. We find that plaintiffs as a class were not
transferred to these positions, at least not for several years after
the effective date of Title VII,'* and that the positions were fill-
ed by persons who, if lacking prior braking experience, were not
as qualified as plaintiffs.
These findings, in the Court’s view, establish post-Act
disparate treatment of plaintiffs as a class.
However, defendants urge that this action should be govern-
ed by United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct.
1885, 52 L.Ed.2d 571 (1977) [Evans], rather than by Teamsters,
and that Evans requires that we dismiss this action for failure to
prove a continuing violation. Evans and Teamsters are compa-
nion cases; both were decided May 3i, 1977. In Evans, a
stewardess complained that her employer’s previous no-
marriage policy, under which she had been terminated and
which was subsequently declared invalid, resulted in a denial to
her, after her reinstatement, of her seniority accrued before she
was terminated. She had not filed an EEOC complaint based
on her termination. After her reinstatement, she filed an EEOC
complaint alleging that the denial to her of past seniority was a
continuing violation of Title VII. As to that, the Supreme Court
said:
Respondent emphasizes the fact that she has alleged a con-
tinuing violation. United’s seniority system does indeed
'? We note, as defendants urge, that at the present, 50% of the ac-
tive class members, or 8 of 16, are employed by the Santa Fe in
brakeman, conductor, flagman, fireman, and engineer capacities. We
also note as plaintiffs urge, that these employees did not assume these
func.ions for several years after the passage of the Act, and that com-
paratively more class members never assumed comparable functions.
pr. gee
have a continuing impact on her pay and fringe benefits.
But the emphasis should not be placed on mere continuity;
the critical question is whether any present violation exists.
She has not alleged that the system discriminates against
former female employees or that it treats former employees
who were discharged for a discriminatory reason any dif-
ferently than former employees who resigned or were
discharged for a nondiscriminatory reason. In short, the
system is neutral in its operation.
431 U.S. at 558, 97 S.Ct. at 1889, 52 L.Ed.2d at 578-79.
The Court also said that her wrongful termination, since it was
not the basis for a timely charge with the EEOC, ‘‘is the legal
equivalent of a discriminatory act which occurred before the
statute [Title VII] was passed.’’ /d.
In Teamsters, by contrast, the defendant employer had, on a
class-wide basis, separated employees into white and minority
jobs. Black and Spanish-surnamed employees were primarily
assigned to the ‘ower paying city driver positions, with some
whites also so assigned, while only whites were assigned to line
or over-the-road driver positions. Such a segregation occurred
both pre- and post-Act. The Supreme Court found a systematic
pattern or practice of discrimination in the segregation. As to
the post-Act discriminatees, the Court ordered full ‘‘make
whole”’ relief'under Franks v. Bowman Transportation Co., 424
U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). As to the pre-
Act discriminatees, the Court found that they too had stated a
cause of action under Title VII, because the seniority system us-
ed by the employer, by which seniority could not be transferred
from city to line driver positions, perpetuated the effect of pre-
Act discrimination. The Court used a disparate impact theory
in discussing this issue, saying:
One kind of practice ‘‘fair in form, but discriminatory in
operation’’ is that which perpetuates the effects of prior
discrimination. As the Court held in Griggs, supra:
ry ee
**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 practices.’’
401 U.S. at 430, 28 L.Ed.2d 158, 91 S.Ct. 849.
...[T]he seniority system in this case would seem to fall
under the Griggs rationale. The heart of the system is its
allocation of the choicest jobs, the greatest protection
against layoffs, and other advantages to those employees
who have been line drivers for the longest time. Where,
because of the employer’s prior intentional discrimination,
the line drivers with the longest tenure are without excep-
tion white, the advantages of the seniority system flow
disproportionately to them and away from Negro and
Spanish-surnamed employees who might now have en-
joyed those advantages had not the employer
discriminated before the passage of the Act. This
disproportionate distribution of advantages does in a very
real sense ‘‘operate to ‘freeze’ the status quo of prior
discriminatory employment practices.’’ /bid.
Teamsters, 431 U.S. at 349, 97 S.Ct. at 1861, 52 L.Ed.2d at 424.
The Supreme Court then went on to hold that though the
seniority system had an adverse impact under Griggs, it was
validated, in effect, by § 703(h) of Title VII, which exempts
bona fide seniority systems from the operation of Title VII.
We are of the opinion and so hold that this case falls within
the rationale of Teamsters rather than of Evans. The pre-Act
discriminatory job segregation is the status quo which is frozen
by the operation of the Santa Fe seniority system, under which
seniority cannot be transferred from train porter to brakeman
positions. Like Teamsters, the seniority system operates within
a seniority division. See Teamsters, 431 U.S. at 342, 97 S.Ct. at
1858, 52 L.Ed.2d at 420 1:. 26. The seniority system is not
neutral in its operation, as was the case in Evans. Teamsters
a ae
provides a cause of action to these plaintiffs on a theory of
disparate impact of the seniority system.'* Plaintiffs have made
out a prima facie case of discrimination by disparate impact of
the seniority system as it applies to them, since it Operates to
freeze them into the positions to which they were assigned by
the employer’s pre-Act discrimination, and since it operates to
deprive them of the ‘‘allocation of the choicest jobs, the greatest
protection against layoffs, and other advantages...’’
Teamsters, 431 U.S. at 349, 97 S.Ct. at 1862, 52 L.Ed.2d at 424.
The evidence supports the piaintiffs’ position of discrimina-
tion against them by defendants on the basis of race. Defen-
dants seek to overcome plaintiffs’ prima facie evidence on two
theories. First, as to disparate impact, defendants assert that
the seniority system is bona fide under § 703(h) of the Act. We
disagree with this assertion. Second, as to disparate treatment,
defendants asse:t that they were required to act as they did by
provisions of labor contracts and the Railway Labor Act.
Although these provide a reason for defendants’ conduct, they
do not excuse defendants’ discrimination against individual
plaintiffs, as we will hereafter outline. We will discuss defen-
dants’ theories seriatim.
'* We have examined cases cited vy defendants in support of their
assertion that Evans governs. The factual situations in severa! of these
cases were more like Evans than Teamsters, and the cases are inap-
plicable. DeGraffenreid v. General Motors Assembly Div., 558 F.2d
486 (8th Cir. 1977); Martin v. Georgia-Pacific Corp., 568 €.2d 58 (8th
Cir. 1977); Freude v. Bell Telephone Company of Pennsylvania, 438
F.Supp. 1059 (E.D.Pa. 1977). In Acha v. Beame, 438 F.Supp. 70
(S.D.N.Y. 1977), the court said that ‘‘ Teamsters held that a Title VII
violation may not be premised upon discriminatory acts which occur-
red before the effective date of Title VII even though a present seniori-
ty system perpetuates the effect of pre-Title VII discrimination.’’ 438
F.Supp. at 76. We disagree with the Acha court’s interpretation of
Teamsters; our interpretation is that a Title VII violation may be so
premised if the seniority system in question is not bona fide. In sum.
we disagree with cases cited by defendant on this issue.
iat ns
THE SENIORITY SYSTEM
42 U.S.C. § 2000e-2[§ 703(h) of Title VII] provides in perti-
nent part:
(h) Notwithstanding any other provision of this sub-
chapter, it shall not be an unlawful employment practice
for an employer to apply different standards of compensa-
tion, or different terms, conditions, or privileges of
employment pursuant to a bona fide seniority or merit
system, ... provided that such differences are not the result
of an intention to discriminate because of race, color,
religion, sex, or national origin...
The Supreme Court dealt with the issue of what was meant by
a bona fide seniority system in the Teamsters case. The Court
rejected the view that a seniority system is invalid merely
because it perpetuates the effects of past discrimination. In in-
terpreting § 703(h) of Title VII, the Court stated:
In sum, the unmistakable purpose of §703(h) was to
make clear that the routine application of a bona fide
seniority system would not be unlawful under Title VII. As
the legislative history shows, this was the intended result
even where the employer’s pre-Act discrimination resulted
in whites having greater existing seniority rights than
Negroes. Although a seniority system inevitably tends to
perpetuate the effects of pre-Act discrimination in such
cases, the congressional judgment was that Title VII
should not outlaw the use of existing seniority lists and
thereby destroy or water down the vested seniority rights
of employees simply because their employer had engaged
in discrimination prior to the passage of the Act.
431 U.S. at 352, 97 S.Ct. at 1863, 52 L.Ed.2d at 426. However,
the Court recognized ‘‘the proposition that a seniority system
that perpetuates the effects of pre-Act discrimination cannot be
boi.d fide if an intent to discriminate entered into its very adop-
aa pe
tion.’’ 431 U.S. at 346, 97 S.Ct. at 1860, 52 L.Ed.2d at 422 n.
28. The Court states the criteria of a bona fide system as
follows:
The seniority system in this case is entirely bona fide. It
applies equally to all races and ethnic groups. To the ex-
tent that it ‘‘locks’’ employees into non-line-driver jobs, it
does so for all. The city drivers and servicemen who are
discouraged from transferring to line-driver jobs are not all
Negroes or Spanish-surnamed Americans; to the contrary,
the overwhelming majority are white. The placing of line
drivers in a separate bargaining unit from other employees
is rational, in accord with the industry practice, and consis-
tent with NLRB precedents. It is conceded that the
seniority system did not have its genesis in racial
discrimination, and that it was negotiated and has been
maintained free from any illegal purpose. In these cir-
cumstances, the single fact that the system extends no
retroactive seniority to pre-Act discriminatees does not
make it unlawful.
431 U.S. at 355, 97 S.Ct. at 1865, 52 L.Ed.2d at 427-28.
The criteria have been considered by a few courts. In Croker
v. Boeing Co. (Vertol Div.), 437 F.Supp. 1138, 1187
(E.D.Penn. 1977), the court said:
In this case, the plaintiff’s evidence in no way establishes
that Boeing Vertol’s job family system is other than bona
fide and facially neutral . . . The plaintiffs presented no
evidence to show that creation of the job family system in
1956 was intended to preserve discriminatory patterns of
employment. To the extent the restrictions of the job
family system lock employees in undesirable jobs, the
system affects blacks and whites in such jobs equally. Con-
sequently, the job family system is not itself unlawful
under Title VII.
si I it
In Chrapliwy vy. Uniroyal, Inc., 15 E.P.D. 47933
(N.D.Ind.1977), the court held a seniority system unlawful
because it had its genesis in discrimination. —
[Bjefore the passage of the Act, Uniroyal ‘‘. . . kept
segregated seniority lists according to sex . . .”’ [Citations
omitted]. From 1965 through 1970 it was found that the
A-B system of employment was only a disguise to the
___ former segregated system. Finally, from 1970 to the pre-
sent, this court found that the classification of certain jobs
as those which ‘‘should not be performed by females’’
unlawfully discriminates on the bases of sex. In short, it is
clear that the employment system at Uniroyal has had as its
_genesis discriminatory conduct both before and after
passage of the Act.
The court in Southbridge Plastics Division, Etc. v. Local 759,
Etc., 565 F.2d 913, 916 (Sth Cir. 1978) said ‘‘ Teamsters holds
that absent a showing of discriminatory purpose in a seniority
system, that system is protected by § 703(h) from attack on
other Title VII grounds.”’
On of the most detailed analyses of this issue is found in
James v. Stockham Valves & Fittings Co., 559 F.2d 310, 351-52
(Sth cir. 1977):
As we read the 7Jeamsters opinion, the issue whether
there has been purposeful discrimination in connection
with the establishment or continuation of a seniority
system is integral to a determination that the system is or is
not bona fide . . . The Court’s analysis suggests that the
totality of the circumstances in the development and
maintenance of the system is relevant to examining that
issue . . In Teamsters the Court focused on four factors:
1) whether the seniority system operates to discourage
all employees equally from transferring between
seniority units;
a eee
2) whether the seniority units are in the same or
separate bargaining units (if the laterr, whether that
structure is rational and in conformance with industry
practice);
3) whether the seniority system had its genesis in
racial discrimination; and
4) whether the system was negotiated and has been
maintained free from any illegal purpose.
The Court analyzed the context in which the seniority
system developed. In discussing the relationship of
seniority units to bargaining units, the Court quoted a Na-
tional Labor Relations Board opinion that emphasized the
rationality of separate bargaining units in the case of over-
the-road and city drivers ‘‘where they are shown to be
clearly defined, homogeneous, and functionally distinct
groups with separate interests.’’ [431 U.S. at 356, 97 S.Ct.
at 1865, 52 L.Ed.2d at 428 n. 42]. Thus, the facts of a par-
ticular senicrity unit are critical to a determination whether
the system is bona fide; and a case-by-case analysis of
seniority systems in light of section 703(h) is necessary.
The Stockham Valves court expressed dissatisfaction with teh
district court’s finding that the seniority system was bona fide.
The appellate court directed the lower court on remand to pay
particular attention to the facts indicating that the seniority
system had its genesis and was negotiated and maintained in
discriminatory conditions and that the seniority units did not
reflect existing separate and distinct bargaining units.
We have analyzed the seniority system in this case according
to the criteria as listed in Teamsters and analyzed by Stockham
Valves, and conclude that the seniority system is not bona fide.
Since for the most part conductors achieve that position in a
progression from a brakeman position, our main concern is
with the seniority system for brakemen, and our discussion will
poe” en
center around that system. Brakeman seniority begins as of the
day the employee is qualified as a brakeman, and is ac-
cumulated within a seniority district and is not transferable
from one seniority district to another, nor is seniority in another
craft transferable to a brakeman position, except that a conduc-
tor continues to accumulate brakeman as well as conductor
seniority. It is important that we distinguish between this
seniority system per se and the segregation of employees into
different crafts. That segregation is the deliberate historic ex-
clusion of black men from the trainmen crafts of brakeman and
conductor. Teamsters makes it clear that the brakeman seniori-
ty system is not unlawful under § 703(h) merely because it
perpetuates pre-Act exclusion and segregation. Our concern is
with whether an intent to discriminate entered into the adoption
and maintenance of the seniority system, not with whether an
intent to discriminate entered into the segregation of employees.
The four criteria listed in Teamsters must be applied to the
seniority system.
First, the seniority system is neutral on its face and applies
equally to all brakemen. No transferee to a brakeman position,
black or white, would accrue seniority any differently than any
other transferee. In this regard, we analyze the present opera-
tion of the seniority system, @s did the Teamsters Court.
Second, the structure of separate crafts or bargaining units is
rational, in accord with the industry practice, and consistent
with Railway Labor Act [RLA] precedents. The crafts have
been recognized by the federal government and its agencies. The
separate crafts have sepai:te certified bargaining represen-
tatives under the RLA, they are denominated as separate crafts
by the National Mediation Board under the RLA, and they were
recognized by the United States Government by Supplement
No. 12 to General Order 27 in 1918. The separate crafts are in
accord with industry practice as the craft structure on the Santa
Fe has existed in substantially the same form since the late
1800’s and has existed on the other railway lines in the United
ie MO i
States. At any rate, this Court cannot impose liability because
of the structure of separate crafts, for the separation into two
crafts by race is the very discrimination which the Teamsters
Court said would not, standing alone, invalidate a seniority
system.
We determine that the seniority system in question does not
meet the third and fourth criteria. The seniority system had its
genesis in racial discrimination and was created and maintained
with illegal purpose. The defendants argue that the seniority
system was first established in 1892 and that the position of
train porter was not created until 1899, so the seniority system
could not have had its genesis in racial discrimination against
train porters. They argue that the seniority system has been in
continuous effect in substantially the same form from 1892 to
the present time. Defendants assert that this historical evidence
indicates that the seniority system was created and maintained
to offer job security and economic protection. In the Court’s
opinion, this argument goes to the first factor in the Teamsters
analysis, that the seniority system is neutral on its face. We have
already held that it is neutral. We must look to other facts to
determine the nature of the genesis and maintenance of the
seniority system. The Stockham Valves court has considered
this issue.
The seniority system at Stockham was adopted in a collec-
tive bargaining agreement in 1949, when segregation in the
Sourth was standard operating procedure. The history of
the negotiations associated with Stockham’s seniority
system is clouded. Since 1967 the locai union has sought
major revisions in the departmental seniority system
through contract negotiations with the defendant
Stockham. In 1970 the union struck for five months seek-
ing the company’s agreement with its proposals, including
plant-wide seniority. Stockham’s failure to go along with
revisions in the seniority system must be evaluated in the
context of the company’s extensive unlawful employment
me
—
practices during the period of the negotiations and its in-
transigent adherence to wide-spread segregated facilities at
the plant, at least until 1974,
Here, we have a seniority system which was adopted and
maintained during a period when segregation was standard
Operating procedure on the Santa Fe. The seniority system was
created by collective bargaining at a time when there were no
black brakemen and no white train porters, at a time when
blacks as a class performed only the most menial tasks on the
railroad. It would not be until 1918 that ‘colored men
employed as firemen, trainmen, and switchmen [were] paid the
same rate of wages as [were] paid white men in the same
category,’’ and that only by order of the United States Govern-
ment. See note 4. The unions which maintained the seniority
system through negotiations and collective bargaining with the
Santa Fe had clauses in their Constitutions with limited
membership to white males. This written prohibition of black
membership lasted at least from the 1930’s to the 1960's, and
there were no blacks in the unions before the 1930's. Since
blacks were not eligible for membership in the unions, they
could not be employed as brakemen or conducters, and they
could not be eligible for the economic protection of the seniority
systems in question. It was not until 1950 that chair car atten-
dants had a written seniority system which was established
through collective bargaining with the Santa Fe, and the train
porters never had a written seniority system at all. The seniority
system was used by the unions to deprive blacks of their train
porter positions.
In sum, we conclude and so hold that the seniority system had
its genesis in racial discrimination and was created and main-
tained with illegal purpose, that it fails to meet the Teamsters
test, and that it is not bona fide. It follows that liability may be
imposed against the Santa Fe in favor of the plaintiff class
members.
We also conclude that liability may be imposed against the
UTU. 42 U.S.C. § 2000e—2 provides in pertinent part:
=
\ (c) It shall be an unlawful employment practice for a labor
organization—
*** e+ ©
(3) to cause or attempt to cause an employer to
discriminate against an individual in violation of this see
tion,
There was no detailed analysis of this provision in Teamsters,
The Jeamsters Court said ‘'[bJecause the seniority system was
protected by § 703(h), the union’s conduct in agreeing to and
maintaining the system did not violate Tithe VIL.’ 431 U.S. at
486, 97 S.Ct. at 1865, $2 L.Bd.2d at 428, The courts which have
considered the issue say that if the seniority system is not pro-
tected by § 703(h), there must be an additional determination of
the union’s role in agreeing to, maintaining, or otherwise ratity
ing the seniority system. See James v. Stocktiam Valves & bit
tines Co., supra; United States v. bast lexas Motor Freight
System, $64 F.2d 179 (Sth Cir. 1977). We have made such a
determination and conclude that the UTW is properly lable.
The UTU and its predecessors played a principal role in the
creation and maintenance of the seniorivy systems through col-
lective bargaining between themselves and the Santa be. There
is no indication in the facts that this collective bargaining was at
less than arms length or that Santa ke controlled the resulting
labor agreements, and thus the UTU and its predecessors were
equally responsible for the resulting seniority system. In addi
tion to their role in collective bargaining, the unions were also
involved in some of the conduct which led the Court to conclude
that the seniority system was invalid, most notably the creation
of the Constitutions which excluded blacks from union
membership. We conclude that the unions’ role in creating,
maintaining, and otherwise ratifying the seniority system was al
least as great as Santa Fe’s role, and that therefore liability ts
properly imposed upon the UTU under Title VII.
oo pon
POST—ACT DISCRIMINATION
We have stated that plaintiffs have made out a prima facie
case of post-Act discrimination against them as a class under the
standards of McDonnell Douglas Cerp. v. Green, supra. Deten-
dants may rebut this by meeting their burden ‘‘to articulate
some legitimate, nondiscriminatory reason’’ for their conduct in
not transferring and promoting plaintiffs. If defendants present
the Court with such a reason, plaintiffs may show that defen-
dants’ stated reason for not transferring and promoting them
was pretext. McDonnell Douglas Corp., 411 U.S. at 802, 93
S.Ct. at 1824, 36 L.Ed.2d at 678 and 679. Defendants point to
the Feb. 7 agreement as a legitimate nondiscriminatory reason
for the Santa Fe’s failure to unilaterally transfer the plaintiff
class to other positions for which they were as a class qualified.
The Court has analyzed the Feb. 7 agreement and agrees with
defendants. We further find no pretext. However, we find that
the Santa Fe may be liable to individual plaintiffs for a
discriminatory refusal to transfer them in situations where the
Feb. 7 agreement was not applicable.
The Feb. 7 agreement is legitimate. Congress has throughout
the years created a number of structures and systems governing
numerous facets of labor relations. One such structure, Title
VII, is designed to prohibit and eliminate racial and other
discrimination in employment, while the RLA is one of the
structures designed to promote the orderly management of
labor through collective bargaining. Both purposes are impor-
tant, and neither statute repeals the other. The relation between
the two kinds of employment statutes has been addressed in
anumber of cases. In Southbridge Plastics, supra, the employer
brought an action pursuant to the Labor Management Relations
Act [LMRA] seeking a declaratory judgment that a conciliation
agreement it had entered into with the EEOC overrode any con-
tradiciory provisions contained in a collective bargaining agree-
ment with the union; the union counterclaimed seeking arbitra-
tion. The district court found the conciliation binding; on ap-
— pa
peal the Fifth Circuit reversed. In so doing, the court quoted
with approval from Myers v. Gilman Paper Corp., 544 &.2d 837
(Sth Cir. 1977), amended and modified on other grounds, 556
b.2d 758 (Sth Cir. 1977):
We are reminded that while Tithe VII expresses an impor
tant national policy, it does not exist in a vacuum. Impor
tant policies also emanate trom the NERA [National
Labor Relations Act], among them the principle that terms
and conditions of employment are to be shaped by the
employer and the exclusive bargaining representatives of
its employees.
The same principles apply to the RLA as to the LMRA and the
NLRA. See United States v. St. Louts-San Francisco Railway
Co., 52 F.R.D. 276 (E.D.Mo.1971); Norman v. Missouri
Pacific Railroad Co., 414 &.2d 73 (&th Cir. 1969). The collec:
tive bargaining provisions of the RLA are not invalidated by 11
tle VIE.
It was the BSCP, the exclusive bargaining representative of
plaintiffs, which entered into the Feb. 7 agreement which fos
bade the Santa ke to unilaterally transfer employees covered by
the agreement, which included most if not all of the plainutt
class members. The agreement is not discriminatory on its face,
nor is there any evidence that the intent of the BSCP in entering
into the agreement was discriminatory. On the contrary, the
evidenc eis that the intent was to ensure that plaintiffs would
not be arbitrarily deprived of their jobs by their employer. Fur.
thermore, once it became apparent that certain employees
covered by the Feb. 7 agreement were seeking transfers to othe!
positions, the BSCP and the Santa Fe negotiated to extend, and
did extend, the agreement to permit the transfer of qualified
employees covered by the agreement without any loss by them
of the protection of the Feb. 7 agreement. This collective
bargaining is important under and is protected by the RLA. We
refuse to find that Tithe VII required defendant Santa Fe to act
oie NE it
in contravention of the agreement, and therefore hoid that the
Feb. 7 agreement is a legitimate nondiscriminatory reason for
Santa Fe’s failure to unilaterally transfer or promote the plain-
tiff class members to the brakeman positions for which they
were as a Class qualified. We further hold that the Santa Fe
followed the terms of the agreement because it was required to
by the RLA, and not as a pretext. In light of the protest by the
BSCP of the voluntary transfer of two of its members, we
believe that the BSCP, certified bargaining representative of the
plaintiff class, would have vehemently protested any attempt by
the Santa Fe to violate the Feb. 7 agreement. There is no pretext
in such a situation.
However, there is testimony of discriminatory conduct by the
Santa Fe in situations not covered by the Feb. 7 agreement. The
Feb. 7 agreement did not prohibit any plaintiff from transferr-
ing to another position nor prohibit the Santa Fe from permit-
ting such a voluntary transfer. It appears to the Court that the
Santa Fe showed great reluctance to transfer or promote the
black train porters and chair car attendants who affirmatively
sought such transfer. The individual testimony of plaintiffs in-
cludes a number of instances where a plaintiff expressed interest
in voluntary transfer to another position, only to be met by eva-
sion, rejection, or refusal on the part of the Santa Fe, with a
number of reasons given for refusal ranging from Award 19324
to the Feb. 7 agreement to the plaintiff’s age to the plaintiff’s
lack of BRT membership to the seniority that the plaintiff
would -have to give up. In every case, the Santa Fe refused,
directly or indirectly, to transfer or promote black chair car ai-
tendants and train porters. This conduct, being outside the Feb.
7 agreement, cannot be excused by it. The prima facie case of
post-Act discrimination had not been rebutted as to this con-
duct of the Santa Fe. Therefore, those individual plaintiffs who
suffered this post-Act discriminatory conduct have a basis of
liability in addition to the invalidity of the seniority system. The
Supreme Court in Teamsters affirmed the holding of Franks v.
Bowman Transportation Co., supra, that ‘‘§ 703(h) does not
ate OE at
bar the award of retroactive seniority to job applicants who seek
relief from an employer’s post-Act hiring discrimination . . .”’
and that ‘‘[pJost-Act discriminatees . . . may obtain full ‘make
whole’ relief, including retroactive seniority under Franks v.
Bowman, supra, without attacking the legality of the seniority
system as applied to them.’’ 431 U.S. at 346, 97 S.Ct. at 1860,
52 L.Ed.2d at 422.
The UTU has no liability for post-Act discriminatory con-
duct, for it neither had nor exercised any hiring and transfer
authority. 3nd therefore did not engage in any employment con-
duct which affected plaintiffs.
DAMAGES
As noted earlier, the parties agreed that the case be tried in
two stages, a liability stage and a damage stage. Because we
have found liability on the part of both Santa Fe and the UTU,
the case will proceed to the damages stage. To expedite matters,
we note the following:
Since Santa Fe has previously settled all claims for damages,
back pay, and attorneys’ fees with all plaintiffs, there will be no
damages or attorneys’ fees award against Santa Fe in favor of
plaintiffs. Monetary relief and attorneys’ fees may be awarded
against the UTU, since it has not settled these claims with plain-
tiffs.
Retroactive seniority may be awarded to plaintiffs, and this
remedy may be awarded against the Santa Fe, since the railroad
remained a party for purposes of injunctive relief and seniority
carryover. Seniority relief may also be awarded against the
UTU. Retroactive seniority may not be awarded prior to the ef-
fective date of Title VII. Teamsters, supra; Franks v. Bowman
Transportation Co., supra. Teamsters sets out standards under
which individual plaintiffs will be eligible for an award of
retroactive seniority. Only those plaintiffs who are still actively
employed by the Santa Fe will benefit from an award of retroac-
tive seniority.
ont GO ew
We direct that counsel present to the Court within thirty days
after receipt of this decision their proposed findings concerning
the manner in which the damage and equitable relief issues of
the case should be ordered.
IT IS SO ORDERED.
s
iat sssin
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Civil Action No. W-4963
Joe Vernon Sears, et al, an
individual in person and for
all other persons similarly
situated,
and
The Brotherhood of Sleeping
Car Porters,
Plaintiffs,
VS.
The Atchison, Topeka and Santa Fe
Railway Company and United
Transportation Union, successor
to Brotherhood of Railway Trainmen,
a labor organization,
Defendants.
MEMORANDUM AND ORDER
Filed Oct. 23, 1978
This is an action under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e er seg. [Title VII or the Act]. The ac-
tion is now in its second or damage stage. The first or liability
stage of the action was concluded on June 14, 1978, when the
Court rendered a decision in favor of the plaintiff class against
the defendants The Atchison, Topeka and Santa Fe Railway
Company [Santa Fe] and the United Transportation Union
[UTU]. 454 F.Supp. 158 (D. Kan. 1978).
A Summary of the facts and earlier decision is appropriate.
The plaintiffs are black male Americans who at any time were
employed by Santa Fe as train porters and who have been
employed by Santa Fe, in any capacity, during the period from
sins WO eas
July 2, 1965. Plaintiffs charged the Santa Fe and UTU with
discrimination on the basis of race. The Santa Fe settled all
claims for damages, back pay, and attorneys’ fees with plain-
tiffs, but remained a party for purposes of injunctive relief and
seniority carryover. The UTU made no settlement with plain-
tiffs. The Court determined that the seniority system entered
into between the UTU or its predecessors and the Santa Fe was
not bona fide under § 703(h) of Title VII, because it had its
genesis and was created and maintained in racial discrimination.
International Brotherhood of Teamsters v. United States, 431
U.S. 324, 52 L.Ed.2d 396, 97 S.Ct. 1843 (1977) [Teamsters].
Liability was therefore properly imposed on a discriminatory
impact theory for the perpetuation of past discrimination by the
invalid seniority system after the effective date of Title VII. We
held that the UTU was equally responsible with the Santa Fe for
the creation and maintenance of the invalid seniority system,
and that creation and maintenance of the invalid seniority
system, and that liability could be imposed on the UTU.
Monetary relief and attorneys’ fees may be awarded against the
UTU, while seniority relief may be awarded against both the
UTU and the Santa Fe. Seniority relief was also held an ap-
propriate remedy against the Santa Fe for the post-Act
discrimination against the plaintiff class. The Court held that
the UTU engaged in no post-Act discriminatory conduct against
the plaintiffs.
The Court requested briefs from the parties as to how the
damage stage of the trial should proceed. We have been fully
briefed and are now ready to set out guidelines to expedite mat-
ters.
The statute provides for remedies in 42 U.S.C. § 2000e-5(g):
(g) If the court finds that the respondent has intentional-
ly engaged in or is intentionally engaging in an unlawful
employment practice charged in the complaint, the court
may enjoin the respondent from engaging in such unlawful
employment practice, and order such affirmative action as
ie I ies,
may be appropriate, which may include, but is not limited
to, reinstatement or hiring of employees, with or without
back pay (payable by the employer, employment agency,
or labor organization, as the case may be, responsible for
the unlawful employment practice), or any other equitable
relief as the court deems appropriate. Back pay liability
shall not accrue from a date more than two years prior to
the filing of a charge with the Commission. Interim earn-
ings Or amounts earnable with reasonable diligence by the
person or persons discriminated against shall operate to
reduce the back pay otherwise allowable. No order of the
court shall require the admission or reinstatement of an in-
dividual as a member of a union, or the hiring, reinstate-
ment, or promotion of an individual as an employee, or
the payment to him of any back pay, if such individual was
refused admission, suspended, or expelled, or was refused
employment or advancement or was suspended or
discharged for any reason other than discrimination on ac-
count of race, color, religion, sex, or national origin or in
violation of section 2000e-3(a) of this title.
The 1972 amendments to Title VII added the provisions which
authorized the Court .o order affirmative action not limited
solely to the enumerated affirmative acts and such other
equitable relief as deemed appropriate, and the provisions
which set forth the accrual date for back pay.
The remedies of Title VII are equitable in nature. One pur-
p »se of Title VII is ‘‘to make persons whole for injuries suffered
on account of unlawful discrimination.’’ A/bermarle Paper Co.
v. Moody, 422 U.S. 405, 45 L.Ed.2d 280, 95 S.Ct. 2362 (1975).
The courts have been armed with full equitable powers to
fashion remedies which will achieve this ‘‘make whole’’ pur-
pose. /d. Back pay is one such remedy. The Supreme Court
stated in A/bemarle that:
Back pay has an obvious connection with this purpose [to
achieve equality of employment opportunities]. If
— on
employers faced only the prospect of an injunctive order,
they would have little incentive to shun practices of
dubious legality. It is the reasonably certain prospect of a
backpay award that ‘‘provide[s] the spur or catalyst which
causes employers and unions to self-examine and to self-
evaluate their employment practices and to endeavor to
eliminate, so far as possible, the last vestiges of an unfor-
tunate and ignominious page in this country’s history.’’
[citation omitted]
* * *
It follows that, given a finding of unlawful discrimina-
tion, backpay should be denied only for reasons which, if
applied generally, would not frustrate the central statutory
purposes of eradicating discrimination throughout the
economy and maling persons whole for injuries suffered
through past discrimination... .
45 L.Ed.2d at 296-97, 298-99. However, a back pay award is
not punitive in nature, but equitable, intended to restore the
recipients to their rightful economic status. Robinson v.
Lorillard Corp., 444 F.2d 791 (4th Cir. 1971), cert. dismd. 404
U.S. 1006, 30 L.Ed.2d 655, 92 S.Ct. 573, cert. dismd. 404 U.S.
1007, 30 L.Ed.2d 655, 92 S.Ct. 651. It follows that plaintiffs
must show actual financial loss before they are entitled to back
pay. See generally United States v. Georgia Power Co., 474
F.2d 906 (Sth Cir. 1973); Johnson v. Goodyear Tire & Rubber,
Co., Synthetic Rubber Plant, 491 F.2d 1364 (Sth Cir. 1974). In
some situations, courts have made a determination of financial
loss on a class-wide basis. To justify such an award, plaintiffs
proved that there was a class whose members suffered economic
loss as a result of discrimination; such proof established a prima
facie claim to back pay for each member of the class. United
Transp. U. Loc. No. 974 v. Norfolk & W. Ry. 532 F.2d 336 (4th
Cir. 1975); Johnson v. Goodyear Tire & Rubber Co., Synthetic
Rubber Plant, supra.
ac as
An award of back seniority is another equitable remedy which
may be necessary to achieve the ‘‘make whole’’ purpose of the
act. Franks v. Bowman Transporiation Co., 424 U.S. 747, 47
L.Ed.2d 444, 96 S.Ct. 1251 (1976); Teamsters. As with back
pay, an award of seniority relief should generally be made
‘unless there exist reasons for denying relief’ ‘which, if applied
generally, would not frustrate the central statutory purposes of
eradicating discrimination. . . and making persons whole for in-
juries suffered.’ ’ ’’ Teamsters. 52 L.Ed.2d at 433, quoting
Franks which quoted A/bemarle. The seniority award should be
that which will slot the victim in that position in the seniority
system that would have been his had he been hired or transfer-
red at the time of his application or at the time he would have
applied but for the discriminatory practices. Franks, 47
L.Ed.2d at 462; Teamsters, 52 L.Ed.2d at 438.
The Court notes that a plaintiff who suffered only pre-Act
discrimination is of course not entitled to relief, for Title VII is
not retroactive. See Teamsters, 52 L.Ed.2d at 428. No person
may be given retroactive seniority io a date earlier than the ef-
fective date of the Act, id., or hack pay for periods earlier than
that time.
As we have remarked, there are two different sorts of
discrimination at issue here. First, there is the discriminatory
impact of the invalid seniority system. This impact is upon
those clasmembers who performed braking duties but did not
accrue brakeman seniority, i.e., persons employed as train
porters. Liability for this discriminatory impact is properly im-
posed upon both the UTU and the Santa Fe, the UTU being
liable for back pay, damages, and attorneys’ fees and both be-
ing liable for back seniority. Second, there is the discriminatory
treatment by the Santa Fe after the effective date of the Act in
refusing to transfer or promote class members. Liability for this
discriminatory treatment is properly imposed only upon the
Santa Fe, and back seniority is the only remaining remedy.
— se
There are also two different groups or subclasses of class
members, those who were serving as train porters when Title VII
went into effect in 1965 and those who have been demoted to
chair car attendants at an earlier date. As we discussed in the
first stage of this opinion, all class members with a seniority
date after April 20, 1942, were precluded from serving as train
porters afier 1959 by virtue of Award 19324. These class
members were chair car attendants thereafter. They were not
performing braking duties as of the effective date of Title VII.
Since these class members were not performing braking duties,
they had no right to accumulate brakemen seniority, and the in-
valid seniority system had no discriminatory impact upon them
as of the effective date of the Act. Whether or not the events
culminating in Award 19324 constituted discrimination on the
part of the UTU and its predecessors is irrelevant because pre-
Act discrimination does not entitle a victim to relief under the
Act. Teamsters, supra. The only compensable discrimination
suffered by those persons employed as chair car attendants as of
July 2, 1965 was perpetrated by the Santa Fe, not the UTU. Thi
group of plaintiffs is not entitled to an award of back pay
against the UTU, but only to a grant of seniority. We will
discuss further how such a grant is to be awarded.
The second group of plaintiffs is those persons who had a
seniority date prior to April 20, 1942, remained train porters,
and were entitled to perform braking duties as of the effective
date of Title VII. The invalid seniority system therefore had a
discriminatory impact upon them. Under Griggs v. Duke
Power Co., 401 U.S. 424, 28 L.Ed.2d 158, 91 S.Ct. 849 (1971),
such a practice which perpetuates the effects of prior
discrimination is violative of Title VII. Unlike the result in
Teamsters, the seniority system here is invalid, and therefore the
perpetuation of past discrimination by it is the basis of imposing
liaiblity against the UTU. These persons are therefore entitled
to back pay and attoarneys fees from the UTU as well as seniori-
ty relief as to both defendants.
— fe
Subclass of Train Porters
As we noted, those class members serving as train porters as
of 1965 are entitled to back pay since they were damaged by the
invalid seniority system. The back pay is what each would have
received had he been employed as a brakeman. The Court
found previously that train porters and brakemen received the
same mileage rate or hourly rate on passenger trains, but that
brakemen on passenger trains received additional compensation
such as pay in connection with delays, so that the total wages
paid to a brakeman on a passenger train were higher than those
paid to a train porter. Also, brakemen on other types of trains
received other compensation. A back pay award to a plaintift
would be an award of the difference in a train porter’s and a
brakeman’s total compensation. Such an award would be in
essence a monetary realization of the fact that the plaintiff
should have been employed as a brakeman because he should
have been able to accrue brakeman’s seniority for performing
brakeman’s duties, but was unable to do so because of the in
valid seniority system.
The Supreme Court has said that seniority may not be award
ed prior to the effective date of Tithe VI. 7eamsters. Since atiy
back pay award in this action is derived from a determination
that the plaintiff should have had brakeman’s seniority, an
award of back pay is tied to the date such seniority should have
begun to accrue. This cannot be before July 2, 1965. Plaintiffs
urge that each class member should be deemed to have had
some 15 years of brakeman’s seniority as of July 2, 1965, so as
to be placed in his ‘‘rightful place.’’ This we cannot do, for to
grant back pay as though the class member had several years of
past seniority would be to award seniority prior to the effective
date of Title VII. However, we do determine that a// members
of this subsclass are presumptively entitled to accrue
brakeman’s seniority and pay as of July 2, 1965, since plaintiff
Sears filed his EEOC complaint less than two years later.’
ee pe
A class-wide entitlement is appropriate for the following
reasons. First, all members of the train porter subclass received
less than brakemen, so that there is a class-wide harm. Second,
the situation of the subclass is unlike the situation in 7eamsters,
for these men did n need to transfer to other positions in order
to eliminate the discrimination they suffered. This is not 2
situation of disparate treatment that may or may not have been
suffered by an individual, but an instance where all have suf-
fered disparate impact.
We will require, of course, that the amount of back pay due
be determined on an individual basis, since this is an equitable
award designed to put each into the place he would have been.
The Court considers that the use of averages may be ap-
propriate. The 10th Circuit Court of Appeals in Love v. The
Pullman Co., 569 F.2d 1074, 1977 (10th Cir. 1978), a case decid-
ed after Teamsters, approved the Colorado U.S. District
Court’s use of averages in fixing back pay awards for porters-in-
charge who performed conductors’ work without conductors’
compensations:
Each member of the class was harmed. There was no
showing under 7eamsters v. United States, 431 U.S. 324,
97 S.Ct. 1843, 52 L.Ed.2d 396, that any member of the
class would have received less under the combined
classification [merging seniority rosters of porters-in-
charge and conductors]. Under these circumstances, and
in view of the impossibility of reconstructing the relation-
ship of the members in the combined classification, and
relating to the available runs, the use of averages derived
from the separate classifications is a reasonable basis for a
back-pay formula. See Stewart v. General Motors Corp.,
542 F.2d 445 (7th Cir.); Sabala v. Western Gillette, Inc.,
516 F.2d 1251 (Sth Cir.); and Pettway v. American Cast
Iron Pipe Co., 494 F.2d 211 (Sth Cir.).
As plaintiffs note, the holdings in Sabala and Pettway, insofar
as they conflict with Teamsters by deciding that seniority
a
systems which perpetruate prior discrimination are without
more invalid, are overruled, but are still relevant insofar as they
discuss remedies under Title VII. We have no problem in
stating that averages may be used when there is an invalid
seniority system. We think averages may be appropriate
because, as plaintiffs point out, it would be difficult to deter-
mine at this late date what each subclass members would have
done in terms of making bids for positions. The chaim of events
cannot be reconstructed. By using averages, those high-paying
and those low-paying positions will be combined. We feel plain-
tiffs stated it well in their Response Brief, note 9:
. .. Some brakemen might select shorter trips so as not
to be awary from home as much as those who selected
longer trips. Other brakemen might select work on
passenger trains while still others would remain in the
freight service. As to any particular train porter, the
assumption that he might exercise his seniority in the same
manner as the white brakeman with whom he is compared
{in the defendants’ method of calculation] could either be
unfair to the train porter or unfair to the UTU. In addi-
tion, going back and crating the exact condition that ex-
isted with respect to each and every possible opening that
might have been available to a train porter after the effec-
tive date of Title VII could be impractical. The Plaintiffs
believe that an equitable adjustment of these conflicting
and competing claims is achieved by using averages which
take into account those white brakemen who may have
earned more because of their particular selection of jobs as
well as the wages of those white brakemen who selected the
lower paying jobs.
Also, there would be no need to determine when particular
vacancies occurred. As we stated in our earlier Memorandum
and Decision, p. 21, brakemen and conductor positions were
always open in periods of force reduction due to resignation,
death, disability, or promotion of the Santa Fe brakemen or
conductors. We think these class members are entitled to
‘ey ae
presume that there would have been opportunities tor them to
bid their seniority the same as white brakemen with similar
seniority.
The period of time in which these class members are entitled
to back pay is that period from 1965 on until they were no
longer capable of performing an active day’s work. This may be
evidenced by each’s termination, retirement, or disability date.
This evidence should be produced ty each plaintiff, and may be
rebutted by defendants.
We therefore tentatively propose the following formula, to be
applied to each class member:
1) Determine the average compensation paid a white brakemen
with seniority as of July 2, 1965, until the date the plaintiff
could no longer work.
2) Subtract the actual compensation paid the class member.
3) Subtract the amount received by the class member from the
Santa Fe.
4) Add interest at the legal rate from July 2, 1965.
The Court is not aware that any member of this subsclass is
still activley employed by the Santa Fe. However, an active
subclass member would be entitled to an award of brakeman
seniority as of July 2, 1965, rather than as of the date he did or
would have applied for transfer, since this damage award deems
that he accrued such seniority from and after July 2, 1965. An
award of front pay, a monetary award calculated to terminate
the date a victim of discrimination attains an opportunity to
move to his ‘‘rightful place,’’ is inappropriate except for active
subclass members. Cf. James v. Stockham Valves & Fittings
Co., 559 F.2d 310, 358 (Sth Cir. 1977).
Subclass of Chair Car Attendants
The Court has already stated that those class members
employed as chair car attendants as of the effective date of the
—. . on
Act are not entitled to back pay from the UTU. An additional
reason for this holding is that any back pay award would be in
effect a determination that the class member is entitled to
seniority for braking duties performed before 1965, and under
Teamsters, as we said, we cannot make such a determination.
The Santa Fe has settled all claims for back pay arising in con-
nection with awards of seniority for post-Act discrimination.
The only remedy available to these class members is an award of
brakeman seniority. This seniority is only available to those
class members still actively employed, since only they would
benefit from it.
In accordance with Teamsters, PART III, we will distinguish
between subclass members who applied for transfer and/or pro-
motion and those who did not.
Applicants
The Supreme Court discussed presumptions which could be
applied in situations where discrimination victims had made
some application:
As was true of the particular facts in Franks [v. Bowman,
supra], and as is typical of Title VII pattern-or-practice
suits, the question of individual relief does not arise until it
has been proved that the employer has followed an
employment policy of unlawful discrimination. The force
of that proof does not dissipate at the remedial stage of the
trial. The employer cannot, therefore, claim that there is
no reason to believe that its individual employment deci-
sions were discriminatorily based; it has already shown to
have maintained a policy of discriminatory decisionmak-
ing.
The proof of the pattern or practice supports an in-
ference that any particular employment decision, during
the period in which the discriminatory policy was in force,
ini es
was made in pursuit of that policy. The Government need
only show that an alleged individual discriminatee unsuc-
cessfully applied for a job and therefore was a potential
victim of the proved discrimination. As in Franks, the
burden then rests on the employer to demonstrate that the
individual applicant was denied an employment opportuni-
ty for lawful reasons. Teamsters, 52 L.Ed.2d 431-32.
The Court explained the reasons behind the evidentiary scheme:
The holding in Franks that proof of a discriminatory
pattern and practice creates a rebuttable presumption in
favor of individual relief is consistent with the manner in
which presumptions are created generally. Presumptions
shifting the burden of proof are often created to reflect
judicial evalutations of probabilities and to conform with a
party’s superior access to the proof. [citations omitted]
These factors were present in Franks. Although the prima
facie case did not conclusively demonstrate that all of the
employer’s decisions were part of the proved
discriminatory pattern and practice, it did create a greater
likelihood that any single decision was a component of the
overall pattern. Moreover, the finding of a pattern or
practice changed the position of the employer to that of a
proved wrongdoer. Finally, the employer was in the best
position to show why any individual employee was denied
an employment opportunity. Insorfar as the reasons
related to available vacancies or the employer’s evaluation
of the applicant’s qualifications, the company’s records
were the most relevant items of proof. If the refusal to hire
was based on other factors, the employer and its agents
knew best what those factors were and the extent to which
they influenced the decisionmaking process. Teamsters n.
45.
This Court found a pattern or practice of discrimination on
the part of the Santa Fe. As we stated in our earlier Memoran-
sila
dum and Order, June 14, 1978, at 27, we found no appointment
of black brakemen on the Santa Fe, outside tne Silsbee District,
until well after the effective date of Title VII, although plaintiffs
as a Class were desirous of such appointments, as the Santa Fe
knew, and although there were regular vacancies to which plain-
tiffs could have been appointed and for which they were as a
class qualified.
Individual chair and car attendant plaintiffs who were not
transferred to brakemen positions when they first applied are
entitled to the presumption that the Santa Fe’s action in not
transferring them was discriminatory. This presumption may
be rebutted by the Santa Fe, as the Supreme Court stated in
Teamsters. To meet his burden of proof, each plaintiff must
show:
1) The date he applied for a transfer or promotion;
2) He was physically qualified for the job of brakeman. This
may be shown by submitting evidence that he performed
another job for the Santa Fe requiring physical activity.
Plaintiffs who prove these two elemeiits are entitled to the
following presumptions which we applied to the class in our
June Memorandum and Order:
1) That he was unable to perform the job functions of a
brakeman, since he had done so in the past;
2) That a vacancy for a brakeman existed at the time of his
application, since vacancies regularly occurred and were filled.
\
We will not require that plaintiffs who actually applied for a
transfer prove that they would have resigned their February 7th
Agreement protection and their seniority as chair car atten-
dants, for the evidence has been that plaintiffs knew that they
would lose these benefits upon transferring to brakeman posi-
tions, as this was a characteristic of the craft seniority systems
of the railroad. By applying for brakeman positions, they in-
dicated a willingness to give up February 7th Agreement protec-
tion and chair car attendant seniority.
Plaintiffs who applied for and were transferred to brakemen
positions, but wish to show that they would have applied at an
earlier date but for the Santa Fe’s discriminatory practices, will
be required to prove the elements of proof for those who made
no application, as to that earlier date.
Nonapplicants
Chair car attendant nonapplicants may be entitled to relief.
[A]n incumbent employee’s failure to apply for a job is not
an inexorable bar to an award of retroactive seniority. In-
dividual nonapplicants must be given an opportunity to
undertake their difficult task of proving that they should
be treated as applicants and therefore are presumptively
entitled to relief accordingly. Teamsters, 52 L.Ed.2d at
433.
Teamsters goes on to discuss that difficult burden:
4
A nonapplicant must show that he was a potential victim
of unlawful discrimination. Because he is necessarily
claiming that he was deterred from applying for the job by
the employer’s discriminatory practices, his is the not
always easy burden of proving that he would have applied
for the job had it not been for those practices. [citations
omitted] When this burden is met, the nonapplicant is in a
position analogous to that of an applicant and is entitled to
the presumption discussed in Part III-A, supra. 52
LiEd.2d at 435.
*_ * ©
The known prospect of discriminatory rejection shows on-
ly that employees who wanted line-driving jobs may have
been deterred from applying for them. It does not show
which of the nonapplicants actually wanted such jobs, or
| pm
which possessed the requisite qualifications.... 52
L.Ed.2d at 436.
A plaintiff’s current willingness to transfer into a brakeman
position does not confirm his past desire for the job:
A willingness to accept the job security and biddi» — power
afforded by retroactive seniority says little about what
choice an employee would have made had he previously
been given the opportunity freely to choose a starting line-
driver job. While it may be true that many of the non-
applicant employees desired and would have applied for
line-driver jobs but for their knowledge of the company’s
policy of discrimination, the Government must carry its
burden of proof, with respect to each specific individual
...52 L.Ed.2d at 437.
* * *
To the extent that an incumbent was deterred from apply-
ing by his desire to retain his competitive seniority, he
simply did not want a line-driver job requiring him to start
at the bottom of the ‘‘board.’’ Those nonapplicants who
did not apply for transfer because they were unwilling to
give up their previowsiy acquired seniority suffered only
from a lawful deterrent imposed on all employees
regardless of race or ethnicity. The nonapplicant’s remedy
in such cases is limited solely to the relief, if any, to which
he may be entitled because of the discrimination he en-
countered at a time when he wanted to take a Starting line-
driver job. Teamsters, n. 56.
The Court has considered whether nonapplicants should be
required to prove that they would have given up their February
7th Agreement protection and chair car attendant seniority, and
would have been willing to start at the bottom of the brakeman
seniority board. Plaintiffs assert that such a requirement would
be giving effect to the invalid seniority system by making a class
member prove he would have been willing to have gone to work
—
under that seniority system, and that such a requirement would
therefore perpetuate the effects of past discrimination. We
must reject this argument. First, this subclass of chair car atten-
dant plaintiffs, since not employed as train porters as of the ef-
fective date of the Act, did not suffer the discriminatory impact
of the seniority system. As we noted earlier, these plaintiffs per-
formed braking duties before, not after, the effective date of the
Act, and are not entitled to relief for injuries suffered in that
earlier period. These plaintiffs were in the same position as
other employees of the railroad, i.e., they would have had to
give up the seniority in one craft to transfer to another. They
were not in the same position as the subclass of train porters,
who did not accrue brakemen’s seniority though they perform-
ed brakemen’s duties. Second, this subclass of plaintiffs was
bound by the terms of the February 7th Agreement. As the
Court noted in the June Memorandum and Order, the February
7th Agreement was valid, entered into between plaintiffs’ union
and plaintiffs’ employer, and was binding upon them. Chair
car attendants had benefits and protections under the February
7th Agreement, but until March 1971, could not voluntarily
transfer to another position with the Santa Fe without losing
their seniority as chair car attendants. Title Vil does not give
this Court the authority to change the terms of the Agreement
under these circumstances. Cf. Southbridge Plastics Division,
Etc. v. Local 759, Etc., 565 F.2d 913 (Sth Cir. 1978), where an
earlier collective bargaining contract took precedence over a
conciliation agreement entered into which the EEOC pursuant
to Title VII. These plaintiffs, therefore must show to the
satisfaction of the Court they they would have been willing,
prior to March 23, 1971, to give up chair car attendant seniority
and the protections of the February 7th Agreement, and that
they would have been willing to start at the bottom of the
brakeman seniority roster.
To meet his burden of proof, each plaintiff must show:
1) He would have applied for the job of brakeman with the
Santa Fe, being willing
po
a) to give up the protections of the February 7th Agreement
between February 8, 1966 and March 23, 1971,
b) to resign his seniority as a chair car attendant prior to
March 23, 1971, and
c) to begin at the bottom of the brakeman senio. ty roster;
2) The date he would have applied for the job of brakeman
under these conditions;
3) He was physically qualified for the job of brakeman. This
may be shown by submitting evidence that he performed
another job for the Santa Fe requiring physical activity.
Plaintiffs who prove these three elements are entitled to the
following presumptions which we applied to the class in our
June Memorandum and Order.
1) That he was able to perform the job functions of a
brakeman, since he had done so in the past;
2) That a vacancy for a brakeman existed at the time of his
application, since vacancies regularly occurred and were filled.
Applicant and nonapplicant chair car attendants who show
these required elements set out above will have shown that they
were actual victims of discrimination, entitled to the relief that
will as nearly as possible, ‘‘recreate the conditions and relation-
ships that would have been had there been no unlawful
discrimination. Teamsters, 52 L.Ed.2d at 438. This will be an
award of retroactive seniority from the date each would have or
did apply for transfer or promotion.
CONCLUSION
Our guidelines for the damage stage of this trial may be sum-
marized as follows:
The class has not been decertified. For purposes of determin-
ing remedies, it will be divided into two subclasses, plaintiffs
—_—
with a seniority date prior to April 20, 1942, who remained train
porters, and plaintiffs with a seniority date after April 20, 1942,
who were demoted to chair car attendants.
We find Santa Fe has no financial liability to any plaintiff,
having settled all monetary claims. Santa Fe does, however,
have the responsibility to adjust its seniority system if required
under the guidelines as follows:
1) All persons in the train porter subclass, if still active, are
entitled to brakeman seniority as of the effective date of Title
Vil.
2) All persons in the chair car attendant subclass, if still ac-
tive, are entitled to prove that each would have become a
brakeman but for the discrimination of the Santa Fe.
3) To make such proof, each applicant must show:
a) the date he applied for transfer or promotion;
and
b) that he was physically qualified for the job.
4) To make such proof, each nonapplicant must show:
a) he would have applied for transfer or promotion, being
~ willing to give up his February 7 Agreement protection and his
chair car attendant seniority, and would have been willing to
begin at the bottom of the brakeman seniority roster;
b) the date he would have applied for transfer or promo-
tion under these conditions; and
c) that he was physically qualified for the job.
5) Each subclass member meeting the requirements of 3) or 4)
is entitled to the presumptions.
a) that he was able to perform the job functions of a
brakeman; and
i, an
b) that a vacancy for a brakeman existed at the relevant
time.
The UTU also have to adjust seniority lists as set out herein.
The UTU is liable for appropriate attoneys’ fees and for any
additional monetary loss suffered by the train porter subclass
members over and above the Santa Fe settlement when, if and
as established in accordance with the following formula:
1) Determine the average compensation paid a white
brakeman with seniority as of July 2, 1965, until the date the
subclass member could no longer work;
2) Subtract the actual compensation paid the class member;
3) Subtract the amount received by the class member from the
Santa Fe; and
4) Add interest at the legal rate from July 2, 1965.
The Court will not appoint a special master to make remedy
computations, feeling such to be unnecessary. These matters
should be obtainable by Santa Fe from its records, and there are
not a large number of persons involved.
This Memorandum is designed to apprise the parties and thei
counsel of the Court’s intentions as to remedies. To expedite
the remedial stage of this action, we order that this matter be set
down for hearing on January 2, 1979 at 1:30 P.M. at Wichita,
Kansas.
IT IS SO ORDERED.
At Wichita, Kansas this 23rd day of Octobe:, 1978.
/s/ Wesley E. Brown
United States District Judge
—
FOOTNOTE
' Back pay may not accrue prior to two years of filing with the
EEOC. 42 U.S.C. § 2000e-5(g). This may not be earlier than
the effective date of Title VII. All persons in the class will be en-
titled to the same starting date, even though some may not have
filed complaints with the EEOC or filed complaints at a later
time than the named plaintiff Joe Vernon Sears, since in a class
action it is not required that every plaintiff exhaust ad-
ministrative remedies. See A/bemarle, supra n. 8. We see no
reason to decertify the class, as the UTU suggests, since to do so
would only deprive plaintiffs of this protection and of the
presumptions they are entitled to as a result of our finding that
defendants are liable for violating the Act. |
—
United States Court of Appeals,
Tenth Circuit.
Nos. 78-1995, 78-1997 and 78-1998
Argued March 13, 1980
Decided March 11, 1981
Rehearing Denied in No. 78-1995
May 11, 1981
Joe Vernon SEARS, an individual, in
person and for all other persons
similarly situated,
Plaintiffs-Appellees and
Cross-Appellants,
Vv.
Albert L. BENNETT, C. J. Skelton, Archie
N. Jones, Forest D. Tollett, John W.
Landrum, Lawson C. Spencer, Thomas
H. White, Earlie Nash, Aubrey A. Robinson,
Edward Rawlins, John W. Cole, Charles
Majors, Jr., Jessee J. Smith, Paul H.
Stewart, Jimmy E. Brown, Carl E. Chester,
Ray E. Landrum, Raymond Willey, Elgie
Crow and Ellis Johnson; Criscel Kemp,
A. M. Bennett, A. L. Woolfolk, T. C.
Luckey and W. W. Seymour,
Intervenors-Plaintiffs-Appellees
and Cross-
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.