Petition for Writ of Certiorari — United Transportation Union v. Blankenbaker

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(,\ Supreme Court, U.S.

8 9 7 9 & 0 FILED

DEC 13 1989

No. 89- JOSEPH F. SPANIOL, JR,

— CHER

In The

Supreme Court of the United States

October Term, 1989

UNITED TRANSPORTATION UNION,

Petitioner,

VS.

JOHN H. BLANKENBAKER; LESLIE B. CALVIN;

MOSE A. COVINGTON; ALFRED E. LYONS;

LONNIE L. MOORE; VICTOR POWELL; WILLIAM

A. SMITH; MARTYN H. TUGGLE; T. F.

VAN WINKLE; EARL O. WALKER; GREEN JUNIOR

WALLACE; WILLIAM H. ZANDERS; HOMER

JACKSON; EUGENE H. BUNCH; GEORGE E

HARVEY, SR., By His Personal Representative;

RAY E. LANDRUM; and Ali Other Persons

Similarly Situated,

~~ 4

Respondents

PETITION FOR A WRIT OF CERTIORARI]

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PAMELA D. WALKER

PAMELA D. WALKER,

First Commercia! Building

400 W. Capitol, Suite 170

Little Rock, Arkansas 72201

(501) 372-3363

Attorney for Petition

1e7

QUESTIONS PRESENTED

(1) Can the intent to discriminate required by

§ 703(h) of Title VII of the 1964 Civil Rights Act be

presumed from proof of a disparate impact of a seniority

system on minority employees?

(2) Can a seniority system be held to be non-bona

fide if there is no causal connection proved between the

seniority system and any statistical disparity in the posi-

tions of minority and majority employees?

(3) Is a legitimate business reason for adopting and

maintaining a seniority system relevant only insofar as it

reflects the existence or lack of discriminatory intent, or is

it a complete affirmative defense if the same action would

have been taken even in the absence of an impermissible

motive?

(4) Does a seniority system automatically have its

genesis in racial discrimination if it was created at a time

when racial discrimination was the standard operating

procedure of the employer?

(5) Is an attack in 1976 on a seniority provision that

was adopted one hundred years ago, a timely action?

(6) Is pre-Act discrimination actionable under Title

VII of the 1964 Civil Rights Act?

(7) Can damages be sought under Title VII?

(8) Cana plaintiff seek “back pay” against a union

under Title VII if the union takes no part in any post-Act

discrimination?

QUESTIONS PRESENTED-Continued

(9) Can an employee seek “back pay” against a

union if there is no master-servant relationship and no

inference of a bargain to pay for services between a union

and its members, which would make such back pay resti-

tution instead of damages?

(10) Can plaintiffs seek back pay against a union for

a non-bona fide s@hiority system if the plaintiffs could

have been made whole by receiving back pay from the

employer, but chose not to do so?

(11) Did the Court of Appeals overstep its authority

in making findings of fact?

(12) Does failure to change a seniority system post-

Act to provide a remedy for pre-Act or post-Act discrimi-

natory placement make a seniority system non-bona fide?

ili

PARTIES TO THE PROCEEDINGS BELOW AND

RULE 28.1 STATEMENT

The proceedings below were a consolidation of three

actions, all against the Atchison, Topeka and Santa Fe

Railway Co., a corporation, and the petitioner, the United

Transportation Union:

John Blankenbaker, et al. v. The Atchison, Topeka & Santa

Fe Railway Co., et al., Case No. 82-1984;

George E. Harvey v. United Transportation Union, Case

No. 76-31-C6; and

Ray E. Landrum, an intervenor in the case of Sears v.

Santa Fe Railway Company, 454 F.Supp. 158 (D. Kan. 1978)

in 1973, who was determined not to be a member of the

class covered by the Sears case, and whose claims were

later consolidated with Blankenbaker.

There are fourteen other individual plaintiffs in the

Blankenbaker action, Case No. 82-1984. They are: Eugene

Bunch, James Bunch, Leslie Calvin, Mose Covington,

Homer Jackson, Alfred Lyons, Lonnie Moore, Victor Pow-

- ell, William Smith, Martyn Tuggle, T. F. Van Winkle, Earl

Walker, Green Junior Wallace, and William Zanders.

Petitioner United Transportation Union is not a

corporation.

TABLE OF CONTENTS

Page

Ca ES ok was ONG 5 ok chtwee newebckanes i

Parties to the Proceedings Below and Rule 28.1 State- __

Ss Shae Geo anvd baw eckcies eho nes oka eR eaaess iii

pF RP TET OTT Tee or ree ee Vv

EN inn kn b's 65S ORR che ck edad hana e ema eee 1

gr dei inlet Dh Die we pel eee 2

oc obs cd Kwkuse cde eweceen 2

a ere e rer 2

Reasons for Granting the Writ..................... 6

Ore ee en er ee ee 14

TABLE OF AUTHORITIES

Page

CASEs:

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1974) .... 12

Firefighters Loc. 1784 v. Stotts, 467 U.S. 561 (1984) .... 13

Ford Motor Co. v. EEOC, 458 U.S. 219 (1982)......... 13

Franks v. Bowman, 424 U.S. 747 (1976)............... 11

International Brotherhood of Teamsters v. U.S., 431

ea SOD sk 000 i cosa canes 7, 10, 11, 12, 13, 14

Lorance v. AT&T Technologies, Inc., __ U.S. __, 109

S.Ct. 2261, 104 L.Ed.2d 961 (1989) .............. 6, 11

Patterson v. McLean Credit Union, __ U.S. ___, 109

S.Ct. 2363, 105 L.Ed.2d 132 (1989) ................ 12

Price Waterhouse v. Hopkins, ___ U.S. __, 109 S.Ct.

ee ee eee ee rr 6, 9

Pullman-Standard v. Swint, 456 U.S. 273 (1982)..... 7, 12

Sears v. Santa Fe Railway Co., 454 F.Supp. 158 (D.C.

Kan. 1978), affirmed in part, reversed in part,

remanded, 645 F.2d 1365 (10th Cir. 1981), cert.

SONNE, GE Siae. OO NE nen aie ewan can tau nedace 3

Sears v. Santa Fe Railway Co. and United Transporta-

tion Union, 779 F.2d 1450 (10th Cir. 1985) .......... 4

United States v. United States Gypsum Co., 333 US.

OW GOD «ocak er uncdeedavee do baks xe eee saves a 12

Wards Cove Packing Co. v. Atonio, ___ U.S. __, 109

S.Ct. 2115, 104 L.Ed.2d 733 (1989) .......... 6, 7, & 9

TABLE OF AUTHORITIES —- Continued

Page

Watson v. Fort Worth Bank & Trust, 487 U.S. __,

Stam: 2. eereransl ara: 6, 7, 8

STATUTE:

Title VII of the Civil Rights Act of 1964

42 U.S.C. § FIGOG OF OGG. onic cc civcnscnsscongascns 2, 3

No. 89-

sa.

In The

Supreme Court of the United States

October Term, 1989

UNITED TRANSPORTATION UNION,

Petitioner,

vs.

JOHN H. BLANKENBAKER; et al.,

Respondents.

—

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

. 4

To the Honorable, the Chief Justice and Associate

Justices of the Supreme Court of the United States:

The United Transportation Union, the petitioner

herein, prays that a writ of certiorari issue to review the

judgment of the Tenth Circuit Court of Appeals entered

in the above-entitled case on June 16, 1989.

a 4

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Tenth Circuit is reported at 878 F.2d 1235 (10th Cir.

1989), and is reproduced in the Appendix at A-1 to A-39.

The District Court decision has not been officially or

unofficially reported and is reproduced in the Appendix

at A-40 to A-88.

—

JURISDICTION

The decision of the court of appeals was entered on

June 16, 1989. A timely petition for rehearing was denied

on September 14, 1989. The jurisdiction of this Court is

invoked under 28 U.S.C. §1254.1.

—_

FEDERAL STATUTE INVOLVED |

The federal statute involved in this case is Title VII of

the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. The

text of the pertinent sections of this title is set forth in the

Appendix at A-89 to A-98.

STATEMENT OF THE CASE

Respondents were black employees of the Santa Fe

Railway Co. They brought this action on November 24,

1982, on their behalf and on behalf of all black male and

female Americans employed by Santa Fe as chair car

attendants, who had never been employed as train por-

ters, during any period from July 2, 1965, to the present

date. Liability was premised upon the contentions of

disparate treatment and disparate impact from the defen-

dants’ roles in establishing and maintaining a discrimina-

tory employment policy and a mala-fide seniority system

against these black chair car attendant employees in vio-

lation of 42 U.S.C. Sec. 2000e-2(a) and -2(c).

In a Memorandum and Order dated September 6,

1984, the district court concluded that the claims by chair

car attendants were preserved under the equitable tolling

doctrine by the filing of the Complaint in Sears vu. Santa Fe

Railway Co., 454 FSupp. 158 (D. Kan. 1978), affirmed in

part, reversed in part, remanded, 645 F.2d 1365 (10th Cir.

1981), cert. denied, 456 U.S. 964 (1982). The Sears plaintiffs

had originally sought to represent the claims of chair car

attendants, but later dropped any such claims as being in

conflict with the claims of porter brakemen. The district

court also found that the respondents met the require-

ments of Rule 23(a), FR.Civ.P., and allowed this matter to

proceed as a class action. The certified class consisted of

the named plaintiffs and all other Negro (black)

male and female Americans employed by The

Atchison, Topeka and Santa Fe Railway Com-

pany, at any time, as chair car attendants, exclu-

sive of the provisional employees during

summers and holidays, who were never

employed as train porters, during any period

from July 2, 1965 to the present date.

In the Sears litigation, the working provisions at issue

were those that gave separate and different seniority, pay,

and promotion rights to white brakemen and black por-

ter-brakemen, even though they both performed, in

essence, the same job. The issue was equal pay and

seniority for equal work. Sears v. Santa Fe Railway Co., 454

F.Supp. 158 (D.C. Kan. 1978), affirmed in part, reversed in

part, remanded, 645 F.2d 1365 (10th Cir. 1981); see also Sears

v. Santa Fe Railway Co. and United Transportation Union,

779 F.2d 1450, 1456 (10th Cir. 1985). The claim in the

instant case was the claim that the seniority system pre-

vented the chair car attendants from taking jobs as brake-

men, because to do so, they could not retain their chair

car attendant seniority. Prior to the segregated porter

brakeman position’s being done away with by the Sears

litigation, the Brotherhood of Sleeping Car Porters

(BSCP), the union which represents the chair car atten-

dant craft, had a contract with the Santa Fe which

allowed any chair car attendant transferring to the por-

ter-brakeman position to retain his chair car attendant

seniority. This contractual provision was not enlarged to

include seniority retention upon transfer to any other

craft, including regular brakeinan, until March 23, 1971.

The Brotherhood of Sleeping Car Porters was never a

party to the Blankenbaker action, and it was never con-

tended that the petitioner herein, the United Transporta-

tion Union, ever committed any act to deter such

seniority retention from being enacted.

The consolidated action was tried to the district court

before the Honorable Wesley E. Brown in January, 1985.

Subsequent to trial, plaintiffs settled their claims for back

pay and attorneys’ fees, but not injunctive seniority relief

as to the Santa Fe. Plaintiffs and defendant UTU were

unable to reach a settlement. The settlement between

plaintiffs and defendant Santa Fe was approved by the

district court on January 14, 1986.

Thereafter, the district court issued its “Memoran-

dum Opinion and Order” on June 9, 1986, holding that

defendant UTU had not violated Title VII post Act and

was not liable to plaintiffs. The Court found that defen-

dant Santa Fe had discriminated in violation of Title VII

as to placement, or “job assignment,” and concluded that

some class members might be entitled to relief. Since all

monetary claims had been settled with the Santa Fe, the

only potential relief of the class members against the

Santa Fe was possible seniority injunctive relief for those

still employed by the Santa Fe. The district court con-

cluded that there was no pattern or practice of discrimi-

nation in filling switchman or brakeman jobs “by 1968

and thereafter,” recognizing that at any time there might

be individual, non-pattern or practice cases. (A-69.) As to

the matter of deterrence in transfer to switchman or

brakeman, the Court concluded that any deterrence that

existed ended in March, 1971, when the Santa Fe and the

chair car craft union, the Brotherhood of Sleeping Car

Porters, made a seniority retention agreement that

allowed a transferring chair car attendant to retain his

chair car seniority. At that point, there was no economic

risk to transfer to a different craft. (A-68 — A-72.)

In light of the finding on elimination of deterrence to

transfer in March, 1971, the district court modified the

previously certified class so as to now exclude “those

who were employed as chair car attendants on the Santa

Fe after March 23, 1971.” (A-83, A-87.) The court further

found that the challenged seniority system was bona fide

under Section 703(h). (A-83.) While the Court accordingly

held that the UTU had no Title VII liability, the Court

ordered that the UTU remain a party Defendant under

Rule 19 for purposes of effectuating potential injunctive

seniority relief on claims against the Santa Fe as to indi-

vidual class members. A judgment was entered on

August 20, 1986, in accord with the June 9, 1986, opinion,

and an appeal to the Tenth Circuit Court of Appeals

followed on September 16, 1986.

The Tenth Circuit vacated the district court’s judg-

ment on June 16, 1989. The court of appeals reversed and

remanded the district court’s determination “that the

seniority system in issue was bona fide” because, the

court of appeals held, the district court made “legal er-

rors ... in its application of the Stockham Valve factors

and in its failure to consider” what the court of appeals

determined to be other “relevant evidence.” (A-20.) Peti-

tioner’s Petition for Rehearing was denied on September

14, 1989, and the cause was remanded to the district court

for further proceedings on September 25, 1989.

sé,

—

REASONS FOR GRANTING THE WRIT

THE DECISION IS CONTRARY TO THE

HOLDINGS OF THIS COURT

The decision of the Tenth Circuit Court of Appeals

conflicts with the following decisions of the Supreme

Court of the United States:

Lorance v. AT&T Technologies, Inc., __ U.S. __,

109 S.Ct. 2261, 104 L.Ed.2d 961 (1989)

Wards Cove Packing Co. v. Atonio, __ U.S. __,

109 S.Ct. 2115, 104 L.Ed.2d 733 (1989)

Price Waterhouse v. Hopkins, __ U.S. __, 109

S.Ct. 1775, 104 L.Ed.2d 268 (1989)

Watson v. Fort Worth Bank & Trust, 487 U.S.__,

108 S.Ct. 2777, 101 L.Ed.2d 827 (1988)

Pullman-Standard v. Swint, 456 U.S. 273 (1982)

International Brotherhood of Teamsters v. U.S., 431

U.S. 324 (1977)

A. Disparate Impact v. Discriminatory Intent

While the court of appeals states that “a finding of

discriminatory intent can be based on indirect, circum-

stantial evidence including evidence of discriminatory

impact,” citing the decision of this Court in Pullman-

Standard v. Swint, 456 U.S. 273, 289 (1982) (A-20 - A-21),

this Court actually held in Swint at 456 U.S. 289 that

under §703(h) of Title VII,

[differentials among employees that result from

a seniority system are not unlawful employment

practices unless the product of an intent to dis-

criminate. It would make no sense, therefore, to

say that the intent to discriminate required by

703(h) may be presumed from such an impact.

Nothing is mentioned in Swint about circumstantial

evidence. The court of appeals calls for a shifting of the

“intent” test back to an “impact” test. This is contrary not

only to Pullman-Standard v. Swint, but also to International

Brotherhood of Teamsters v. U.S., 431 U.S. 324, 345, 352-354,

356 (1977).

B. Causation in Disparate Impact Cases

The court of appeals’ decision is also contrary to this

Court’s recent decisions in Watson v. Fort Worth Bank &

Trust, 487 U.S. __, 108 S.Ct. 2777 (1988); Wards Cove

Packing Co. v. Atonio, __ U.S. __, 109 S.Ct. 2115, 104

L.Ed.2d 733 (1989). As a threshold to determining

whether a particular action has any bearing on any

proven statistical disparity, these cases require a causal

connection between the allegedly discriminatory actions

and such disparity. The district court here found plaintiffs

failed to prove a causal connection between separate

seniority for chair car attendants and brakemen, and

blacks not being represented in sufficient numbers in the

brakeman’s craft until the 1960’s or later. (A-78 — A-79.)

As the district court found, subject to the clearly

erroneous rule of Fed.R.Civ.Pro. 52(a):

Whatever undesirable economic effects plain-

tiffs claim such a craft system might have had in

deterring chair car attendants from considering

inter-craft transfer or promotion across craft

lines to better jobs, the Cross-Craft Agreement

relieved those chair car attendants who chose to

hire out in new crafts of any anxiety in having

had to “commit seniority suicide.” By this

Agreement of March 23, 1971, virtually all rea-

sonable economic risks that might have discour-

aged chair car attendants’ long-yearning desire

to seek better-paid jobs after 1968 was effec-

tively and securely eliminated.

A-70 — A-71.

The district court’s opinion is in line with Watson v.

Fort Worth Bank & Trust, supra, and Wards Cove Packing v.

Atonio, supra. The Court of Appeals’ decision is not.

C. Legitimate Business Justification

The court of appeals also stated that “a defendant’s

legitimate business reasons for adopting and maintaining

a seniority system are relevant only insofar as they reflect

the existence or lack of discriminatory intent.” (A-21.)

This holding is contrary to the recent decisions of this

Court in Price Waterhouse v. Hopkins, __ U.S. __, 109

S.Ct. 1775, 104 L.Ed.2d 268 (1989); and Wards Cove Packing

Co. v. Atonio, __ U.S. ___, 109 S.Ct. 2115, 104 L.Ed.2d 733

(1989). These decisions hold that if a defendant would

have made the same decisions or taken the same action

based on legitimate non-discriminatory business reasons,

and if this would have been the same action even “in the

absence of an impermissible motive,” then that is a com-

plete affirmative defense, whether in a disparate treat-

ment or in a disparate impact case. Price Waterhouse, 109

S.Ct. at 1782; Wards Cove Packing Co., 109 S.Ct. at 2125-26.

The defendants showed in the instant case, the dis-

trict court so found, and the plaintiffs did not show

otherwise, that not only was separate seniority for chair

car attendants and the operating crafts based on legiti-

mate business reasons, but that in every place in the

world where railroad workers were of the same race,

chair car attendants still have separate seniority from

brakemen, switchmen, and other operating crafts.

(A-79.)

D. Genesis

The court of appeals panel further held that the dis-

trict court, “contrary to its findings in Sears I,” found that

“the seniority system did not have its genesis in racial

discrimination.” (A-27.) The court of appeals finds this to

be clearly erroneous because “a seniority system has its

genesis in racial discrimination if it is created when dis-

crimination is the ‘standard operating procedure’ of the

employer.” (A-27.) This holding of the court of appeals

completely misconstrues International Brotherhood of Team-

sters v. U.S., 431 U.S. 324 (1977), and excludes potentially

relevant evidence while purporting to do the opposite.

In Teamsters v. U.S., 431 U.S. 324, 346 n. 28 (1977), this

Court found that seniority systems which “had their

‘genesis in racial discrimination’ ” were seniority systems

in which “an intent to discriminate entered into [their]

very adoption.” Whether “segregation was standard

operating procedure” with the employer at the time of

the adoption of the seniority provisions in question is

merely one of the conditions that should be looked at.

Contrary to the court of appeals’ holding, that is not the

one determining factor.

The district court’s finding that the origin of seniority

for brakemen and switchmen as separate from other

crafts

was not motivated by racial animus. . . .[but)

was a direct countervailing response to protect

its members against favoritism and nepotism in

personnel management

is not clearly erroneous. (A-81.) Rather, it represents a

correct application of the principle in Teamsters, which the

court of appeals seeks to rewrite.

Chair car attendant seniority was, and is, separate

not only from the brakeman and switchman crafts, which

were previously predominantly white, but also from the

porter-brakeman craft, which was all black. Race did not

matter; the chair car attendant’s position had its genesis

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as a bona fide craft, separate from all the operating jobs,

based on job differences, not on race.

E. Seniority Relief and Back Pay - Pre-Act v. Post-

Act Discrimination

In the instant case, as in Teamsters, there was no need

to find a perpetuation of pre-Act or even pre-charge

discrimination for the plaintiffs’ cause to be actionable, as

no claims against the employer for discriminatory place-

ment were time-barred. As this Court said in Teamsters,

431 U.S. at 348, n. 30:

[T]his is simply an additional reason not to

hold the seniority system unlawful, since such a

holding would in no way enlarge the relief to be

awarded. Lee Franks v. Bowman, 424 US. at

778-79.

Under Franks v. Bowman, 424 U.S. 747 (1976), and

Teamsters, 431 U.S. at 347, the plaintiffs are eligible for

retroactive seniority as a remedy for discriminatory

placement, “even if the seniority system agreement itself

makes no provision for such relief,” and the plaintiffs

have received it in this case. (A-83 - A-88.)

Actions against a seniority system begin to run at the

time the particular seniority provisions are adopted.

Lorance v. AT&T Technologies, Inc., __ U.S. __, 109 S.Ct.

2261, 104 L.Ed.2d 961 (1989). The seniority provisions

under attack here are the separate seniority for chair car

attendants and brakemen. That separation of craft

seniority was put into effect one hundred years ago, and

any action against it now is untimely.

cai

What the court of appeals seems to be sending the

case back to the district court for, however, is to assess

damages for pre-Act discrimination. (A-2.) This is con-

trary to the decisions of this Court for two reasons. First,

even if pre-Act discrimination were found, it is not

actionable under Title VII. Teamsters v. U.S., 431 U.S. at

356. Second, damages are not recoverable under Title VII.

Patterson v. McLean Credit Union, __ U.S. __, 109 S.Ct.

2363, 2375 n.4, 105 L.Ed.2d 132 (1989); Albemarle Paper Co.

v. Moody, 422 U.S. 405, 416-19 (1974).

F. Failure of a Seniority System to Provide a

Remedy

The court of appeals also held that “UTU’s failure to

execute the 1976 Seniority Modification Agreement also

may be evidence of maintenance of the seniority system

with an intent to discriminate,” and admonished that

“[o]n remand the district court should consider this dis-

criminatory use of Santa Fe’s seniority system in making

its ultimate finding under §703(h).” (A-33 - A-34.) While

it is true that the UTU’s endorsement was necessary for

the Seniority Modification Agreement to be effective as to

the brakeman and switchman crafts, there was no evi-

dence that the failure to endorse this Agreement was a

“discriminatory use of Santa Fe’s seniority system.” In so

holding, therefore, the court of appeals panel has over-

stepped its authority in making a finding of fact on its

own contrary to Fed. Rule 52(a), United States v. United

States Gypsum Co., 333 U.S. 364, 395 (1948); Pullman-

Standard v. Swint, 456 U.S. 273, 287-88 (1982).

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The Seniority Modification Agreement was instituted

by the carrier as a remedy to its pre-Act (or pre-1968)

discriminatory placement. This remedy was not retroac-

tive seniority back to the effective date of the Act; it was

carry-over of pre-Act seniority to other crafts. The United

Transportation Union did not have an affirmative duty to

execute a new seniority agreement allowing chair car

attendants to carry over pre-Act seniority to the brake-

man craft, and the failure to execute such an agreement

did not render the brakemen’s seniority system non-bona

fide. This Court specifically said in Teamsters that to

place an affirmative obligation on the parties to

the seniority agreement to subordinate those

[seniority] rights in favor of the claims of pre-

Act discriminatees without seniority. . . .would

be a perversion of the congressional purpose,

and that

Congress did not intend to make it illegal for

employees with vested seniority rights to con-

tinue to exercise those rights, even at the

expense of pre-Act discriminatees.

431 U.S. at 353-354.

And in Ford Motor Co. v. EEOC, 458 U.S. 219, 239

(1982), this Court held that Title VII considers the rights

of “innocent third parties,” and that a defendant should

not be required to cap backpay liability “only by forc-

ing . . . incumbent employees to yield seniority to a

person who has not proven, and may never prove, unlaw-

ful discrimination.” See also, Firefighters Loc. 1784 v. Stotts,

467 U.S. 561 (1984).

That is not to say that the plaintiffs should not have

gotten retroactive seniority back to the date of the Act. As

the Supreme Court stated in Teamsters:

Post-Act discriminatees . . . may obtain full

“make whole” relief, including retroactive

seniority under Franks v. Bowman, supra, with-

out attacking the legality of the seniority system

as applied to them. Franks made clear and the

union acknowledges that retroactive seniority

may be awarded as relief from an employer’s

discriminatory hiring and assignment policies

even if the seniority system agreement itself

makes no provision for such relief. 424 U.S. at

778-779.

Teamsters v. U.S., 431 U.S. 324, 347 (1977).

While the chair car attendants’ union’s 1971 Cross-

Craft Agreement and the brakemen’s and switchmen’s

seniority agreements make no provisions for retroactive

seniority, that relief was still available to the plaintiffs

from the court as an equitable remedy, and the district

court so awarded it. (A-83 - A-86.) However, failure to

provide a remedy through the seniority system for dis-

criminatory segregated placement does not make a

seniority system non-bona fide. Teamsters, 431 U.S. at 347.

7 =

CONCLUSION

The Tenth Circuit decision conflicts with decisions of

the United States Supreme Court, and consideration by

this Court is necessary to secure and maintain the deci-

sions of this Court. If the Supreme Court does not grant

this petition and reverse the Tenth Circuit, the Circuit

Court’s erroneous legal holdings will become the law of

the case on remand to the district court.

Respectfully submitted,

PaMELA D. WALKER

First Commercial Building

400 W. Capitol, Suite 1700

Little Rock, AR 72201

(501) 372-3363

Attorney of Record for Petitioner

United Transportation Union

A-1

George E. HARVEY, Sr., by his personal representative;

John H. BLANKENBAKER; Leslie B. Calvin; Mose

A. Covington; Alfred E. Lyons; Lonnie L. Moore;

Victor Powell; William A. Smith; Martin H. Tuggle;

T.F. Vanwinkle; Earl O. Walker; Green Junior Wal-

lace; William H. Zanders; Homer Jackson; Eugene

E. Bunch; and James G. Bunch, all other persons

similarly situated, Plaintiffs-Appellants,

Ray E. Landrum,

Plaintiff-Intervenor-Appellant,

UNITED TRANSPORTATION UNION;

Atchison, Topeka & Santa Fe Railway

Company, Defendants-Appellees.

No. 86-2445.

United States Court of Appeals,

Tenth Circuit.

June 16, 1989.

Rehearing Denied Sept. 14, 1989.

Class of blacks employed as chair car attendants on

railroad filed race discrimination suit against railroad

and union. The United States District Court for the Dis-

trict of Kansas, Wesley E. Brown, J., found discrimination.

On appeal, the Court of Appeals, Logan, Circuit Judge,

held that: (1) plaintiffs waived issue preclusion claim by

failing to timely raise it, and (2) district court made legal

errors in its application of Stockhalm Valves factors and in

its failure to consider relevant evidence.

Vacated and remanded.

Gerrit H. Wormhoudt (John T. Conlee,. Thomas D.

Kitch, Gregory J. Stucky and Link Christin, of Fleeson,

Gooing, Coulson & Kitch, Terry G. Paup, and Chester I.

A-2 _

Lewis, of Lewis & Davis, on the briefs), Wichita, Kan., for

plaintiffs-appellants.

Norton N. Newborn, Cleveland, Ohio (E.L. Lee

Kinch, Wichita, Kan., Pamela D. Walker, Little Rock, Ark.,

and Shelly J. Venick and Barbara J. Barr, The Atchison,

Topeka & Santa Fe Ry. Co., Chicago, Ill., with him, in the

brief), for defendants-appellees.

Before LOGAN and MOORE, Circuit Judges, and

BURCIAGA, District Judge.”

LOGAN, Circuit Judge.

This appeal requires us to reexamine the bona fides

of a seniority system previously addressed in Sears v.

Atchison, T. & S.F. Ry., 454 FSupp. 158 (D.Kan.1978) (Sears

1), aff'd in part and rev'd in part, 645 F.2d 1365 (10th

Cir.1981) (Sears II), cert. denied, 456 U.S. 964, 102 S.Ct.

2045, 72 L.Ed.2d 490 (1982). In Sears II, we held that the

Atchison, Topeka & Santa Fe Railway Company’s (Santa

Fe) seniority system violated Title VII of the Civil Rights

Act of 1964 (Title VII or the Act), §§ 701-718, 42 U.S.C.

§ 2000e to 2000e-17, because it perpetuated the effects of

pre-Act discrimination and was adopted and maintained

with an intent to discriminate. We also held that the

United Transportation Union’s (UTU) role in creating and

maintaining the discriminatory system subjected it to lia-

bility under Title VII. The class receiving relief in Sears

was composed of black males who at any time were

employed by Santa Fe as train porters, also known as

porter-brakemen, and who were employed by Santa Fe in

* The Honorable Juan G. Burciaga, United States District

Judge for the District of New Mexico, sitting by designation.

A-3

any capacity after July 2, 1965, the effective date of Title

VII.? Id. at 1368, 1370; Sears I, 454 F.Supp. at 160.

The class in the instant case initially was composed

of black persons employed as chair car attendants any

time after the effective date of Title VII and who never

were train porters. Blankenbaker v. United Transp. Union,

Nos. 82-1984 and 76-31-C6, slip op. at 2, 3 (D.Kan. June 9,

1986).2 The class subsequently was modified to exclude

blacks employed as chair car attendants on the Santa Fe

after March 23, 1971. Id. at 55. The case was tried based

on the stipulated facts in Sears, as well as documentary

and testimonial evidence before the court. Id. at 4. After

1 The Sears class was divided into two subclasses as fol-

lows: (1) plaintiffs who had train porter seniority prior to April

20, 1942, and who still were employed as train porters on the

effective date of Title VII; and (2) plaintiffs who had train

porter seniority after April 20, 1942, were reclassified as chair

car attendants as a result of Award 19324, discussed post at pp.

1240-41, and who still were employed as chair car attendants

on the effective date of Title VII. Sears 11, 645 F.2d at 1370.

2 The original Blankenbaker class was part of the Sears

litigation, but was severed from that action on October 29,

1974. Blankenbaker, slip op. at 5. Thereafter, two other cases

were consolidated with Blankenbaker to complete this class

action. One was brought by plaintiff George H. Harvey on

behalf of himself and a class of chair car attendants. Harvey

had settled his claim against Santa Fe in 1973, and his remain-

ing claims against UTU were consolidated with the Blanken-

baker action. Id. at 5-6. The second action involved claims by

plaintiff Ray E. Landrum, who intervened in Sears. Landrum

later was excluded from the Sears class and settled his claims

against Santa Fe in 1976. Id. at 6. His claims against UTU were

consolidated in this action. Id.

A-4

trial but before judgment, Santa Fe settled the plaintiffs’

claims for back pay and attorneys’ fees. Thus, all that

remained for the court were the plaintiff’s claims for back

pay against UTU, and for injunctive relief in the from of

retroactive seniority against UTU and Santa Fe.

The district court held that Santa Fe discriminated

against members of the class “in job assignment on the

basis of race” after the effective date of Title VII until

March 23, 1971. Id. at 55. The court then formulated

standards under which individual plaintiffs could receive

retroactive seniority. The parties do not appeal this rul-

ing. The district court also held that the “craft seniority

system for the craft of brakeman-switchman, as it was

applied to the chair car attendant craft, was bona fide,

and that defendant UTU is immunized from liability for

assessment of back pay” by § 703(h) of Title VII, 42 U.S.C.

§ 2000e-2(h). Id. Plaintiffs appeal this holding.?

Factual Background

UTU is an unincorporated labor organization formed

by the merger of four labor unions on January 1, 1969.

Since at least 1892, either the UTU or two of its prede-

cessors, the Brotherhood of Railroad Trainmen (BRT) and

3 Plaintiffs also specifically challenge the district court's

finding that UTU’s agreement to the Seniority Modification

Agreement, discussed post at p. 1241, was unnecessary for the

Agreement to be fully implemented. We conclude that this

finding was clearly erroneous, see post at p. 1250, but do not

decide, whether UTU’s failure to sign the agreement has any

significance independent of the seniority system issue.

cute eee

we ee

fo Ate el

A-5

the Order of Railway Conductors and Brakemen (ORC &

B), have served as collective bargaining agents for brake-

men, switchmen, and conductors on the Santa Fe. The

Brotherhood of Sleeping Car Porters (BSCP) is an unin-

corporated labor organization certified in 1946 to repre-

sent train porters and chair car attendants on the Santa

Fe. The BSCP, not a party to this litigation, merged in

1978 with a division of the Brotherhood of Railway, Air-

line and Steamship Clerks (BRAC).

During the time relevant to this appeal, the Santa Fe

rail lines were divided into three “Grand Divisions”

known as the Eastern, Western, and Coast Lines. The

Eastern Lines operated in Illinois, lowa, Missouri, Kan-

sas, Oklahoma, Colorado, and New Mexico. The Western

Lines operated in Kansas, Oklahoma, Texas, Louisiana,

and New Mexico. The Coast Lines operated in New Mex-

ico, Arizona, and California. Each line was subdivided

into divisions. Until Santa Fe’s rail passenger service was

taken over by Arntrak in May 1974, Santa Fe operated

both passenger and freight trains on its lines.

The operating crew on a Santa Fe passenger train

generally consisted of the conductor, train porter or head-

end brakeman, rear-end brakeman, fireman, and engi-

neer. The duties of brakemen, also known as road brake-

men, included “the inspection of train cars, and testing

the use of hand and light signals for the movement of

trains, opening and closing of switches, coupling and

uncoupling cars, hose and chain attachments, [and]

reporting to and receiving instructions from the trainmas-

ter and the conductor.” Blankenbaker, ship op. at 10.

Switchmen, also known as yard brakemen, performed

A-6

essentially the same duties, as road, brakemen on pas-

senger or freight trains, but worked regular hours and

only within the yard. Train porters, a position created by

Santa Fe in 1899, performed head-end braking duties on

passenger trains in addition to servicing passengers and

maintaining the interior of the cars. Chair car attendants,

part of the nonoperating crew, were service personnel

who attended to passengers’ needs and cleaned the inte-

rior of the cars.

A new hire began to accumulate craft seniority

within a seniority district on the earliest date of contin-

uous service on the Santa Fe in that particular craft

within that particular district. An employee’s seniority

date is critical because it “determines promotional oppor-

tunities as well as his right to protect work within his

craft and district.” Sears II, 645 F.2d at 1369. The first

known agreement creating seniority rights on the Santa

Fe was in 1892 between Santa Fe and predecessors of the

UTU. Until the formation of the UTU in 1969, the BRT

represented brakemen and switchmen, and the ORC & B

or a predecessor represented conductors on the Santa Fe.

From at least 1938 to 1960, only whites could join the BRT.

Blankenbaker, slip op. at 13-14. The ORC & B also limited

its membership to whites from at least 1934 to 1966. Id. at

14.

During the time period covered by this suit, the entry

level position for whites on the Santa Fe was either as a

brakeman or switchman. With few exceptions,‘ until the

4 For example, Donald Tousant, a black, was hired as a

brakeman/switchman on the Coast Lines in 1962. Blankenbaker,

(Continued on following page)

A-7

mid- or late-1960s all brakemen and switchmen on the

Santa Fe were white. Before dualization of the brake-

men’s and switchmen’s rosters, see post at pp. 1240-41, a

new hire began working off the “extra-board” for the

craft in which he was hired.5 After accumulating suffi-

cient seniority, a brakeman, for example, could “bid” for

a regular run on a freight or passenger train.© After

(Continued from previous page)

slip op. at 27, 32. Jerry Brown, a black, was hired as a switch-

man in the Chicago Terrninal in 1965. Id. at 32. The first black

hired as a brakeman on the Eastern Lines was in 1968. Id. at 31.

The first black brakeman on the Colorado Division was hired

in 1971. IV R. 470; V R. 700. The major exception to the all-

white, pre-Act composition of the brakemen/switchmen work

force was in the Silsbee, Texas, Seniority District. According to

the trail court in Sears I, this 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.” 454 F.Supp. at 166 n.9.

5 In Sears I, the district court explained how the extra-

board system worked as follows:

“Working off the extra board generally meant

that the employee was available for call to tempo-

rarily 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.”

454 F.Supp. at 166 n.8.

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 advertisement got the job.” 454 F.Supp. at 166.

A-8

meeting certain requirements, including years of freight

service and/or mileage, brakemen were promoted to con-

ductor, but continued to accumulate brakeman seniority

as well as seniority on the separate conductors’ roster.

Sears II, 645 F.2d at 1376; Sears I, 454 FSupp. at 166, 179;

VI R. 923-26; VII R. 1117, 1120; VIII R. 1242-43; VIII R.

1253-54; IX R. 1432-33. Similarly, the line of progression in

the yard was from switchman to engine foreman, also

known as yard conductor. E.g., VII R. 1117, 1120. We

assume that a newly promoted engine foreman continued

to accumulate seniority on the switchmen’s roster.

Traditionally, the entry level position for blacks on

the Santa Fe was ana chair car attendant, although some

blacks were hired directly as train porters. Until 1959,

chair car attendants on the Santa Fe could be promoted to

train porters after meeting certain requirements. A newly

promoted train porter could continue to work and accu-

mulate seniority as a chair car attendant and bid on the

train porter’s extra-board until he had sufficient train

porter seniority to obtain a regular position. All train

porters were black and members of the chair car atten-

dant craft were exclusively black until the 1960s when

Santa Fe began hiring whites, usually college students, as

temporary help during holidays and the summers. See,

e.g., II] R. 66-67, 119; (white chair car attendants first

hired in 1967 or 1968); III R. 153-54 (first hired in 1968 or

1969); VI R. 848-50 (first hired in 1959 or 1960).

Santa Fe’s creation of the train porter craft? to per-

form head-end braking duties in addition to a service

function led to numerous clashes with the brakemen’s

? The defendant's expert witness testified that the train

porter craft was unique to the United States. IX R. 1459-60.

ee a ee tty

A-9

collective bargaining representative, the BRT. The use of

train porters to perform braking duties was beneficial to

Santa Fe because train porters were paid less than their

white counterparts, Sears II, 645 F.2d at 1369; Blanken-

baker, slip op. at 12, and performed passenger service

functions that “would be distasteful” to the white brake-

men, Sears I, 454 F.Supp. at 168. After World War 1,8 the

BRT made several efforts to obtain for its own members

braking work performed by black train porters.? These

8 During the war, the federal government took over

administration of the nation’s railroads. The Director General

of Railroads issued General Order 27, which provided that

“lelffective 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.” Sears I, 454

F.Supp. at 163 n. 4. Subsequent interpretations of this order

made it clear that it was intended to equalize wages paid to

black train porters who performed the same duties as white

brakemen. See Brotherhood of R.R. Trainmen v. Howard, 343 U.S.

768, 771, 72 S.Ct. 1022, 1024, 96 L.Ed. 1283 (1952); Plaintiffs’

Trial Exh. V, contained in Addendum to Brief of Appellant, vol.

I, tab A-8 at 19, 46.

® According to the district court, “[t]he animosity directed

toward black train porters by BRT was well-documented in the

annals of judicial opinions.” Blankenbaker, slip op. at 14; see,

e.g., Howard v. Thompson, 72 F.Supp. 695, 698-99 (E.D.Mo.1947),

aff'd in part and rev'd in part sub nom., Howard v. St. Louis-S.F.

Ry., 191 F.2d 442 (8th Cir.1951), aff'd sub nom. Brotherhood of R.R.

Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283

(1952); Randolph v. Missouri-K.-T. R.R., 68 F.Supp. 1007

(W.D.Mo.1946), 7 F.R.D. 54 (W.D.Mo.1947), rev'd and remanded,

164 F.2d 4 (8th Cir.1947), cert. denied, 334 U.S. 818, 68 S.Ct. 1082,

92 L.Ed. 1748 (1948), on remand, 78 F.Supp. 727 (W.D.Mo. 1948),

85 F.Supp. 846 (W.D.Mo. 1949), aff'd 182 F.2d 996 (8th Cir.1950),

209 F.2d 634 (8th Cir.1954) (affirming trial court on merits).

A-10

efforts included “letter requests, demands legislative

lobbying, proceedings before the Train Service Board of

Adjustment, the National Railroad Adjustment Board,

First Division” (Board), and were the subject of federal

court actions. Sears I, 454 F.Supp. at 167, cited in Blanken-

baker, slip op. at 14. In 1939, the BRT filed a protest with

the Board concerning Santa Fe’s use of train porters to

perform head-end braking duties. The Board upheld the

protest in Award 6640 and ruled that these braking duties

“should be performed by brakemen holding seniority as

such on the Santa Fe brakemen’s seniority roster.” Id. at

168. Award 6640 was challenged in federal court based on

lack of notice to the train porters of the proceedings.'°

Ultimately, the case was remanded to the Board. In

Award 19324, issued on October 14, 1959, the Board ruled

that train porters with seniority dates prior to April 20,

1942, the date of Award 6640, could continue to perform

braking duties on the Santa Fe. Those train porters with

seniority dates after April 20, 1942, were demoted to the

position of chair car attendant. None of the plaintiffs in

the instant case ever served as train porters on the Santa

Fe.

The district court found that although the brakemen

and switchmen “craft functions and duties were the

same,” there was a historical demarcation between road

(brakemen) and yard (switchmen) work evidenced by

these crafts’ separate seniority rosters. Blankenbaker, slip

10 See Hunter v. Atchison, T. & S.F. Ry., 78 F.Supp. 984, 988

(N.D.IH.) (order granting temporary injunction), aff'd, 171 F.2d

594 (7th Cir.1948), cert. denied, 337 U.S. 916, 69 S.Ct. 1157, 93

L.Ed. 1726 (1949), 188 F.2d 294, 302 (7th Cir.1951) (reversing

and remanding order for permanent injunction).

ee ee he eT

A-11

op. at 15. As the level of yard work began to decrease,

switchmen sought to obtain rights as brakemen, Begin-

ning in 1959 and continuing through the early 1970s, the

separate seniority rosters for brakemen and switchmen

were dualized on sections of the Santa Fe. Id. at 16.

Dualization involved placing the yard roster under the

road roster and vice versa (called “topping and bottom-

ing”), so that the most senior brakeman would be placed

on the switchmen’s roster under the most junior switch-

man, but the brakeman would retain his seniority on the

brakemen’s roster. Id. at 15-16. Likewise, the most senior

switchman would become the most junior brakeman. Id.

Some dualizations were one-way; the switchmen’s roster

would be placed under the brakemen, but the brakemen

would have no corresponding rights to switchmen

seniority. See IV R. 889. Although the railroad industry is

almost completely dualized, there still are some brake-

men’s and switchmen’s rosters on the Santa Fe that

remain distinct. VI R. 893.

On February 7, 1965, Santa Fe and other carriers

reached an agreement, commonly referred to as the “Feb.

7” agreement or protection, with five unions, not includ-

ing the BSCP, BRT, or ORC & B. The BSCP and Santa Fe

agreed in 1966 to extend Feb. 7 protection to chair car

attendants. In general, this agreement guaranteed quali-

fied chair car attendants a certain level of income if the

employee was furloughed or worked in a job that paid

less than the guaranteed amount. Feb. 7 protection, along

with accumulated chair car seniority, would be forfeited

if the chair car attendant voluntarily became a brakeman

or switchman and assumed his place at the bottom of the

appropriate seniority roster. See, e.g., Sears 1, 454 F.Supp.

A-12

at 169-70; V R. 746; Plaintiffs’ Trial Exh. BH, contained in

Addendum to Brief of Appellant, vol. II, tab A-20.

As employment opportunities for blacks on the Santa

Fe expanded in the late 1960s, the BSCP sought to obtain

an agreement with Santa Fe whereby its members could

transfer into better paying jobs with promotional oppor-

tunities without losing their Feb. 7 protection or accumu-

lated chair car seniority. On March 23, 1971, the BSCP and

Santa Fe executed a “Cross-Craft” agreement, which,

somewhat like the brakemen/switchmen dualizations,

permitted chair car attendants to transfer to other crafts,

including braking and switching, without losing their

Feb. 7 protection or accumulated seniority. Thus, while a

transferring chair car attendant could not carry over or

“dove-tail” his chair car seniority into the new craft and

would start as a new hire on that craft’s seniority roster

regardless of his years as a chair car attendant, he could

continue to work as a chair car attendant, or receive Feb.

7 payments until he had sufficient seniority to obtain

regular work in his new craft.

In 1976, in an effort to eliminate the lingering effects

of past discrimination, Santa Fe, along with other car-

riers, signed a Seniority Modification Agreement entered

into by the National Carriers’ Conference Committee and

various unions.'! Blankenbaker, slip op. at 23; V R. 729-30;

"! The district court’s opinion, see Blankenbaker, slip op. at

23, can be read to infer that the only union signatory to the

agreement was the Brotherhood of Railroad Signalmen. But see

VIII R. 1164-65 (union signatories included the Brotherhood of

Railroad Signalmen, Railroad Yardmasters of America, the

Brotherhood of Maintenance of Way Employees, and BRAC).

A-13

VIil R. 1162-65. This agreement allowed certain female

and minority employees who transferred into crafts rep-

resented by signatory unions to carry over previously

accumulated seniority into their new craft and retain

their seniority in the old craft. Blankenbaker, slip op. at

23-24. UTU was not a signatory union. Thus, chair car

attendants who transferred to the brakemen’s or switch-

men’s rosters could not carry over previously accumu-

lated seniority.

Seniority System

Section 703(a), (c) of Title VII, 42 U.S.C. § 2000e-2(a),

(c), provides in relevant part: :

“(a) It shall be an unlawful employment

practice for an employer -

(1) to fail or refuse to hire . . . any

individual, or otherwise to discriminate

against any otherwise to discriminate

against any individual with respect to his

compensation, terms, conditions, or privi-

leges of employment, because of such indi-

vidual’s race... ; 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 employment

opportunities or otherwise adversely affect

his status as an employee, because of such

individual’s race... .

practice for a labor organization -

A-14

(1) to exclude or to expel from its mem-

bership, or otherwise to discriminate

against, any individual because of his

We .. «23

(2) to limit, segregate, or classify its

membership or applicants for membership,

or to classify or fail or refuse to refer for

employment any individual, in any way

which would deprive or tend to deprive any

individual or employment opportunities, or

would limit such employment opportunities

or otherwise adversely affect his status as

an employee or as an applicant for employ-

ment, because of such individual’s race .. . ;

(3) to cause or attempt to cause an

employer to cause an employer to discrimi-

nate against an individual in violation of

this section.”

This section prohibits practices or procedures, even if

neutral, that “operate to ‘freeze’ the status quo of prior

discriminatory employment practices.” Griggs v. Duke

Power Co., 401 U.S. 424, 430, 91 S.Ct. 849, 853, 28 L.Ed.2d

158 (1971). Thus, practices or procedures “that are fair in

form, but discriminatory in operation,” id. at 431, 91 S.Ct.

at 853, violate Title VII even in the absence of an intent to

discriminate, because “Congress directed the thrust of the

Act to the consequences of employment practices, not sim-

ply the motivation.” Id. at 432, 91 S.Ct. at 854 (emphasis

in original).

Seniority systems that operate to “lock in” the effects

of pre-Act discrimination would seem to fall under the

Griggs “disparate impact” rationale were it not for

§ 703(h) and its subsequent interpretation by the Supreme

Court. That section provides that

A-15

“it shall not be an unlawful employment prac-

tice for an employer to apply different standards

of compensation, or different terms, conditions,

or privileges of employment pursuant to a bona

fide seniority . . . system, . . . provided that such

differences are no! the result of an intention to

discriminate because of race.”

42 U.S.C. § 2000e-2(h). The Supreme Court has held that

because of this section “an otherwise neutral, legitimate

seniority system does not become unlawful under Title

VII simply because it may perpetuate pre-Act discrimina-

tion.” International Bhd. of Teamsters v. United States, 431

U.S. 324, 353-54, 97 S.Ct. 1843, 1864, 52 L.Ed.2d 396

(1977).12 Thus, “the fact that a seniority system has a

discriminatory impact is not alone sufficient to invalidate

the system; actual intent to discriminate must be proved.”

American Tobacco Co. v. Patterson, 456 U.S. 63, 65, 102 S.Ct.

1534, 1535, 71 L.Ed.2d 748 (1982); see also Trans World

Airlines, Inc. v. Hardison, 432 U.S. 63, 82, 97 S.Ct. 2264,

2275-76, 53 L.Ed.2d 113 (1977) (“absent a discriminatory

purpose, the operation of a seniority system cannot be an

unlawful employment practice even if the system has

some discriminatory consequences” ).

Although the Supreme Court has not provided spe-

cific guidelines by which lower courts should guidelines

12 Later cases have found that § 703(h) immunizes bona

fide seniority systems that perpetuate post-Act discrimination,

see United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52

L.Ed.2d 571 (1977), explained in Teamsters, 431 U.S. at 348 n. 30,

97 S.Ct. at 1861 n. 30, and “makes no distinction between

seniority systems adopted before its effective date and those

adopted after its effective date,” American Tobacco Co. v. Patter-

son, 456 U.S. 63, 76, 102 S.Ct. 1534, 1541, 71 L.Ed.2d 748 (1982).

A-16

by which lower courts should evaluate seniority systems,

the Fifth Circuit has distilled the following four factors

from the Teamsters case:

“(1) whether the seniority system operates to

discourage all employees equally from transfer-

ring between seniority units;

(2) whether the seniority units are in the same or

separate bargaining units (if the latter, 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.”

James v. Stockham Valves & Fittings Co., 559 F.2d 310, 352

(Sth Cir. 1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54

L.Ed.2d 781 (1978); see Teamsters, 431 U.S. at 355-56, 97

S.Ct. at 1864-65. We previously have approved use of the

Stockham Valves factors to guide the district court’s

inquiry under § 703(h). See Firefighters Inc. for Racial

Equality v. Bach, 731 F.2d 664, 668 (10th Cir. 1984); Sears II,

645 F.2d at 1372 & n.5. The district court here applied the

Stockham Valves factors to the facts and concluded that

“the creation and maintenance of a separate seniority

system for the chair car attendant craft was based on

legitimate business reasons.” Blankenbaker, slip op. at 38.

Plaintiffs attack this holding on two separate

grounds. First, they claim that principles of collateral

estoppel preclude the trial court from holding bona fide

here the seniority system found illegal in Sears. Second,

plaintiffs argue that the trial court applied erroneous

A-17

legal standards in examining the seniority system. We

will address these contentions in turn.

Collateral estoppel, or issue preclusion, is a judge-

made rule that prevents relitigation of issues “actually

and necessarily determined” in a prior suit on a different

claim, which involved a party to the subsequent litiga-

tion. Montana v. United States, 440 U.S. 147, 153, 99 S.Ct.

970, 973, 59 L.Ed.2d 210 (1979); see also Lombard v. Axtens

(In re Lombard), 739 F.2d 499, 502 (10th Cir.1984); Restate-

ment (Second) of Judgments, §§ 27, 29 (1982). Here, plain-

tiffs assert that defendants are precluded by our decision

in Sears II from contending that the seniority system is

bona fide. We hold that plaintiffs waived this issue pre-

clusion claim by failing to invoke it timely.

The issue preclusion claim never was raised formally

until May 15, 1986, in Plaintiffs’ Supplemental Memoran-

dum in Support of Their Proposed Findings of Fact and

Conclusions of Law, I R. tab 268, at 2-3. This memoran-

dum was filed with the court approximately one year and

four months after the trial and less than one month before

the district court issued its opinion. This simply is too

late. Although the use of issue preclusion by plaintiffs’? is

not subject to Fed.R.Civ.P. 8(c),4 the rationale for

13 This commonly is referred to as offensive collateral

estoppel — “a plaintiff is seeking to estop a defendant from

relitigating the issues which the defendant previously litigated

and lost against another plaintiff.” Parklane Hosiery Co. v. Shore,

439 U.S. 322, 329, 99 S.Ct. 645, 650, 58 L.Ed.2d 552 (1979).

4 Rule 8(c) provides that “liJn pleading to a preceding

pleading, a party shall set forth affirmatively .. . es-

toppel, ... res judicata, ... and any other matter constituting

an avoidance or affirmative defense.”

A-18

requiring a party to plead defensive issue preclusion

pretrial applies to offensive use as well'S — to provide

“the opposing party notice of the plea of estoppel and a

chance to argue, it he can, why the imposition of an

estoppel would be inappropriate.” Blonder-Tongue Labora-

tories, Inc. v. University of Ill. Found, 402 U.S. 313, 350, 91

S.Ct. 1434, 1453, 28 L.Ed.2d 788 (1971) (defendant

asserted issue preclusion); see Southern Pac. Communica-

tions Co. v. American Tel. & Tel. Co., 740 F.2d 1011, 1018

(D.C.Cir.1984) (plaintiff asserted issue preclusion).

Although this notice requirement was established in a

case approving defensive use of issue preclusion, it has

even more force for offensive use, when, as here, plain-

tiffs seek to benefit from litigation to which they were not

parties. See Parklane Hosiery Co. v. Shore, 439 U.S. 322,

329-31, 99 S.Ct. 645, 650-52, 58 L.Ed.2d 552 (1979); Jack

Faucett Assocs., Inc. v. American Tel. & Tel. Co., 744 F.2d

118, 124-25 (D.C.Cir. 1984), cert. denied, 469 U.S. 1196, 105

S.Ct. 980, 83 L.Ed.2d 982 (1985). Moreover, allowing issue

preclusion claims to be raised post-trial does nothing to

vindicate two primary policies behind the doctrine, con-

serving judicial resources and protecting parties from

“the expense and vexation” of relitigating issues that

15 The rule that issue preclusion must be raised pretrial

obviously would give way when, for instance, cases are tried

simultaneously or nearly so. See Harbeson v. Parke Davis, Inc.,

746 F.Ed 517, 520 (9th Cir. 1984) (defendant asserted issue

preclusion). Plaintiffs can make no such argument here. The

district court entered its decision in Sears I on June 14, 1978, we

affirmed that decision in Sears II] on March 11, 1981, and the

Supreme Court denied certiorari on May 3, 1982.

A-19

another party previously has litigated and lost. Montana,

440 US. at 153-54, 99 S.Ct. at 973-74; see also Parklane

Hosiery, 439 U.S. at 326, 99 S.Ct. at 649.

Plaintiffs direct our attention to the pretrial confer-

ence order where they contend the issue of collateral

estoppel was raised. II R. tab 105. Careful review of this

document, which does not specifically mention issue pre-

clusion or collateral estoppel, and the entire trial record

establishes that the plaintiffs intended to rely on our

finding in Sears II, not for its preclusive effect, but as

precedential authority and as a reference point for the

present case. In addition, because the basic function of

issue preclusion is to “take[] the place of evidence” at

trial, R. Casad, Res Judicata 267 (1976), plaintiffs’ trial

conduct reveals a willingness to try the bona fides of

Santa Fe’s seniority system and a lack of reliance on the

preclusive force of Sears II.

On the merits, plaintiffs contend that the district

court based its § 703(h) determination on erroneous legal

standards. Specifically, plaintiffs complain that the court

misapplied the Stockham Valves factors to its factual find-

ings. Whether a seniority system reflects an illegal intent

to discriminate is a “pure question of fact” that we review

under the clearly erroneous standard of Fed.R.Civ.P.

52(a). Pullman-Standard v. Swint, 456 U.S. 273, 287-88, 102

S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982); Anderson v. City of

Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84

L.Ed2d 518 (1985) (factfinding clearly erroneous when

reviewing court, based on entire record, has “definite and

firm conviction that a mistake has been committed”)

(quoting United States v. United States Gypsum Co., 333

U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)).

A-20

Whether the district court failed to consider or accord

proper weight or significance to relevant evidence are

questions of law we review de novo. See Swint, 456 U.S. at

291, 292, 102 S.Ct. at 1791, 1792; United States v. Georgia

Power Co. (Georgia Power II), 695 F.2d 890, 892 (5th Cir.

Unit B 1983). Even when we discern such errors of law,

however, “a remand is the proper course unless the

records permits only one resolution of the factual issue.”

Swint, 456 U.S. at 292, 102 S.Ct. at 1792.

We reverse and remand the district court’s deter-

mination that the seniority system in issue was bona fide

because we conclude the court made legal errors both in

its application of the Stockham Valves factors and in its

failure to consider relevant evidence. The key element of

a bona fide seniority system under § 703(h) is its lack of

purposeful discrimination. See Gantlin v. West Va. Pulp &

Paper Co., 734 F.2d 980, 990 (4th Cir.1984); Terrell v. United

States Pipe & Foundry, 644 F.2d 1112, 1118 (5th Cir. Unit B

1981), vacated sub nom. on other grounds International Ass'n

of Machinists & Aerospace Workers v. Terrell, 456 U.S. 955,

102 S.Ct. 2028, 72 L.Ed.2d 479 U.S. 955, 102 S.Ct. 2028, 72

L.Ed.2d 479 (1982); United States v. Georgia Power Co.

(Georgia Power I), 634 F.2d 929, 934 (5th Cir. Unit B 1981),

vacated sub nom. Local 84, Int'l Bhd. of Elec. Workers v.

United States, 456 U.S. 952, 102 S.Ct. 2026, 72 L.Ed.2d 477

(1982), on remand, Georgia Power II, 695 F.2d 890 (affirming

prior decision). In deciding whether purposeful discrimi-

nation exists, a court must examine the totality of circum-

stances surrounding the creation and operation of the

seniority system. See, e.g., Teamsters, 431 U.S. at 345, 97

S.Ct. at 1859-60; Gantlin, 734 F.2d at 992. In particular, a

finding of discriminatory intent can be based on indirect,

A-21

circumstantial evidence including evidence of discrimina-

tory impact, Swint, 456 U.S. at 289, 102 S.Ct. at 1790, and

pre-Act discrimination, Evans, 431 U.S. at 558, 97 S.Ct. at

1889; Pitre v. Western Elec. Co., 843 F.2d 1262, 1267 (10th

Cir.1988).

The district court concluded that the craft seniority

system as applied to chair car attendants was bona fide

because it “was based on legitimate business reasons,”

Blankenbaker, slip op. at 38, 51. The court’s focus on legiti-

mate business reasons pervades its analysis of each Stock-

ham Valves factor. See, e.g., id. at 47. But a defendant’s

legitimate business reasons for adopting and maintaining

a seniority system are relevant only insofar as they reflect

the existence or lack of discriminatory intent. That ratio-

nal business reasons could be forwarded to explain the

adoption or operation of the system does not eliminate

the possibility of purposeful discrimination. That the dis-

trict court may have assumed to the contrary is one factor

in our decision to remand of the case for further

consideration.

Moreover, to the extent that the district court did

focus on the presence or lack of discriminatory intent, it

applied some incorrect legal standards and appears to

have disregarded relevant evidence. In applying the first

Stockham Valves factor,'© the district court found that the

16 The district court stated the first factor as follows:

“Does the seniority system apply equally to all races, discour-

aging transfers of all employees, whites as well as blacks,

between crafts?” Blankenbaker, slip op. at 41 (emphasis added).

The Stockham Valves court stated the factor as “whether the

(Continued on following page)

A-22

“Santa Fe seniority system for brakemen-switchmen was

equally applicable to all applicants regardless of race.” Id.

at 45. This finding appears to focus on facial neutrality.

As we noted in Sears II, 645 F.2d at 1372-73, however, the

Teamsters Court took this line of inquiry beyond facial

neutrality by examining the seniority system’s impact in

practice. See 431 U.S. at 355-56, 97 S.Ct. at 1864-65. In

Teamsters, blacks and Hispanics were hired only as city

drivers or servicemen. The generally superior or “target”

jobs were as line drivers. The Court found that “[t]he city

drivers and servicemen who are discouraged from trans-

ferring to line-driver jobs are not all Negroes or Spanish-

surnamed Americans; to the contrary, the overwhelming

majority are white.” Id. at 356, 97 S.Ct. at 1865. Thus, the

Supreme Court examined the seniority system’s effect on

employees seeking transfers from the job classifications

into which discriminatees were placed to the “target”

jobs. Here, the craft into which discriminatees were

placed was that of chair car attendant. The “target” job

was that of brakeman/switchman. Unlike the situation in

Teamsters, all chair car attendants discouraged from trans-

ferring to the more desirable jobs of brakemen/switch-

men were black.

(Continued from previous page)

seniority system operates to discourage all employees equally

from transferring between seniority units.” 559 F.2d at 352,

quoted in Sears II, 645 F.2d at 1372 n. 5 (emphasis added).

Plaintiffs allege that the district court’s substitution of “crafts”

for “seniority units” was legal error. We do not agree. In this

case, “crafts” and “seniority units” are synonymous.

A-23

Apparently addressing this fact, the district court

noted that Sears II involved a stipulation that the brake-

men’s and switchmen’s rosters were dualized in 1960.

Considering evidence presented at trial here, the district

court found that this stipulation was factually incorrect. It

then found because the brakemen’s and switchmen’s ros-

ters were not completely dualized before 1971, “the Santa

Fe seniority forfeiture rules on entry-level jobs have

always worked to discourage not only black employees,

but also white brakemen or switchmen from moving to

another craft.” Blankenbaker, slip op. at 43-44.

Although we do not question the district court’s find-

ing on this point and note that it is proper to examine the

transfer policies of jobs other than those into which dis-

criminatees were placed, this alone is not sufficient to

support a finding of neutrality in operation. The inquiry

must move beyond facial neutrality into disparate impact

- does the system affect whites and blacks equally? See

Swint, 456 U.S. at 289, 102 S.Ct. at 1790; Teamsters, 431

U.S. at 356, 97 S.Ct. at 1865 (seniority system bona fide in

part because it applied “equally to all races”). An exam-

ination of the system’s disparate impact is necessary

because a facially neutral system simply may be a “mask

for the gross inequality beneath.” Georgia Power I, 634

F.2d at 935.

For instance, the district court did not comment

upon, and thus appears not to have considered, the dif-

ferences in pay and promotional opportunities available

to the two groups. Switchmen essentially are brakemen in

the yard, e.g., Blankenbaker, slip op. at 10, 15, are paid

more than chair car attendants, e.g., III R. 249; IV R. 322,

357; VIII R. 1293, and are in a line of progression to

A-24

engine foreman, e.g., VII R. 1117, 1120. Chair car atten-

dants do not perform any braking duties, Blankenbaker,

slip op. at 10, 50, are paid less than brakemen and switch-

men, and after 1959 had no hope of promotion, Sears II,

645 F.2d at 1376; Blankenbaker, slip op. at 11, 14. Equating

the seniority system’s effect on chair car attendants with

its effect on switchmen, who occupy a job that is as much

a “target” job for attendants as road brakemen, is like

finding that the system is neutral in operation because

conductors would be deterred by loss of their conductor

seniority from transferring to the chair car craft. That

whites in other job classifications also are deterred from

transferring may be evidence of the system’s facial neu-

trality, but the all black composition of the most deterred

craft — chair car attendant — is countervailing evidence of

discrimination that the district court must consider.

On remand, the district court should consider the

chair car attendant craft’s racial composition and evi-

dence of the seniority system’s disparate impact. See Gan-

tlin, 734 F.2d at 990-91 & n. 17 (“under some

circumstances it is permissible to infer that a racially

discriminatory motive exists if a seniority system’s pre-

dominant effect is to confine blacks to lower-paying,

menial jobs”) (citing Georgia Power I); Terrell, 644 F.2d at

1119 (reversal of finding of bona fideness in part because

district court erred in not considering seniority system’s

disparate impact); Georgia Power I, 634 F.2d at 935 (same).

Although evidence of disparate impact alone is not suffi-

cient to invalidate a seniority system under § 703(h),

Swint, 456 U.S. at 277, 102 S.Ct. at 1784; Patterson, 456 U.S.

at 65, 102 S.Ct. at 1535-36, it may be highly probative

evidence of a defendant’s purposeful discrimination. See,

A-25

e.g., Swint, 456 U.S. at 289, 102 S.Ct. at 1790; Teamsters, 431

U.S. at 356, 97 S.Ct. at 1865 (Court considered racial

composition of disadvantaged craft and effect of system

on that craft); Sears II, 645 F.2d at 1372-73 (same); Terrell,

644 F.2d at 1119, vacated sub nom. International Ass'n of

Machinists & Aerospace Workers v. Terrell, 456 U.S. 955, 102

S.Ct. 2028, 72 L.Ed.2d 479 (1982), on remand, 696 F.2d 1132,

1134 (5th Cir. Unit B 1983) (per curiam) (remanded to trial

court to consider “the disparate impact of

the . . . seniority system on black employees”) (footnote

omitted); Georgia Power I, 634 F.2d at 935 (“seniority sys-

tem here did not operate equally on the races but had a

disproportionately heavy negative impact on blacks.”); cf.

Taylor v. Mueller Co., 660 F.2d 1116, 1122-23 (6th Cir.1981).

As to the second Stockham Valves factor,’” the district

court found that “legitimate business reasons” justified

“the craft and seniority distinction preserved between

chair car attendants on the one hand and operating

employees, such as brakemen and switchmen on the

other,” and that such distinctions were “rationally based

upon functions and duties of [the] respective crafts and in

17 The district court stated this factor as follows: “Is the

separation of bargaining units rational and in accord with

general industry practices?” Blankenbaker, slip op. at 45. The

Stockham Valves court referred to this factor as “whether the

seniority units are in the same or separate bargaining units (if

the latter, whether that structure is rational and in confor-

mance with industry practice).” Stockham Valves, 559 F.2d at

352, quoted in, Sears II, 645 F.2d at 1372 n. 5. Because in the

instant case the relevant seniority units, chair car attendant

and brakemen/switchmen, were separate bargaining units, the

district court’s paraphrase of this second factor was correct.

A-26

accord with industry pracrtices [sic].”'® Blankenbaker. slip

op. at 47. Aside from the district court’s undue reliance

on legitimate business reasons, see ante p. 1244, it also

failed to consider whether the separation of collective

bargaining representatives was rational or based on racial

considerations.

The BRT, the bargaining representative for brake-

men/switchmen, limited its membership to whites until

1960. Blankenbaker, slip op. at 13-14. There may be a

nonracial explanation for the separation of chair car

attendants and brakemen/switchmen into separate bar-

gaining units, but there may be no reason in fact for their

separate representation other than that one union prohib-

ited black members. See Gantlin, 734 F.2d at 989 (bona fide

seniority system “bargained for by a unit representing

both black and white employees”). For instance, the BRT

represented dining car stewards, a nonoperational craft

that for many decades was exclusively white and whose

duties are analogous to those of chair car attendants. IX

R. 1439; III R. 11; III R. 48; II R. 139.19 Although the

18 The district court reached this conclusion because bra-

kemen and switchmen are operating personnel and chair car

attendants performed a nonoperating function. Blankenbaker,

slip op. at 45-46. The district court also noted that in “nations

of homogeneous race, e.g., Japan and Mexico, [the] chair car

attendant craft has always been operated as a separate craft

and maintained under a separate seniority system form [sic]

those operating employees.” Id. at 46 (citing IX R. 1468).

19 For a discussion of the dispute between the BRT-led

stewards and the all-black craft of “waiters-in-charge” which

bears an eerie resemblance to the circumstances surrounding

(Continued on following page)

A-27

district court’s inquiry, the rationality of the separate

crafts of chair car attendant and brakeman/switchman,

certainly is a proper one, its formalistic application of this

factor appears to have led it to impermissibly disregard

evidence of possible discriminatory intent.

In analyzing the third Stockham Valves factor,?° the

district court found, contrary to its finding in Sears I, 454

F.Supp. at 179-80, that the seniority system did not have

its genesis in racial discrimination. Blankenbaker, slip op.

at 47-49. In Sears II, we stated that a seniority system has

its genesis in racial discrimination if it is created when

discrimination is the “ ‘standard operating procedure’ ”

of the employer. 645 F.2d at 1378 (quoting Sears I, 454

F.Supp. at 180); accord Larkin v. Pullman-Standard Div., 854

F.2d 1549, 1577 (11th Cir.1988); Terrell, 644 F.2d at 1118;

Georgia Power I, 634 F.2d at 936. We recognize that this is a

narrower view than that taken by some other courts, see

Gantlin, 734 F.2d at 989; Taylor, 660 F.2d at 1122-23. The

approach of Gantlin and Taylor, which would discount

evidence of the employer’s racially discriminatory prac-

tices at the time a seniority system was adopted, actually

has the effect of excluding potentially relevant evidence,

the error for which we are reversing the district court

(Continwed from previous page)

Award 19324, see Allain v. National R.R. Adjustment Bd., 120

F.Supp. 453 (N.D.III. 1953), aff'd sub nom. Allain v. Tummon, 212

F.2d 32 (7th Cir. 1954); Dwellingham v. Thompson, 91 F.Supp. 787

(E.D.Mo.1950), aff'd sub nom. Rolfes v. Dwellingham, 198 F.2d 591

(8th Cir.1952); Plaintiffs’ Trial Exh. AA, H. Northrup, Organized

Labor and the Negro 96-97 (1944), contained in Addendum to

Brief of Appellant, vol. II, tab A-9 at 156 [hereinafter Plaintiffs’

Trial Exh. AAJ].

20 The district court stated this factor as “[d}id the brake-

men-switchmen seniority system have its genesis in racial dis-

crimination?” Blankenbaker, slip op. at 47.

A-28

here. Our narrower approach, in contrast, does not fore-

close consideration of other circumstances surrounding

the creation of the particular seniority system. A seniority

system’s genesis in a racially discriminatory environment

is only one factor in analyzing whether the system is

bona fide, i.e. adopted and maintained without an intent

to discriminate. Consideration of all the surrounding cir-

cumstances may lead the court to conclude that the cre-

ation and maintenance of the system was

nondiscriminatory even if it arose out of, or had its

“genesis” in, a discriminatory environment.

Under Sears II, then, application of the “genesis”

factor entails an examination of the conditions out of

which the seniority system arose to determine if those

conditions include racially discriminatory practices by

the employer. If so, the seniority system has its genesis in

racial discrimination. Here, the district court did not have

before it any evidence contrary to its own finding in Sears

I that the seniority system in question was created when

“segregation was standard operating procedure on the

Santa Fe.” 454 FSupp. at 180. Thus, the district court’s

finding that the seniority system at issue did not have its

genesis in racial discrimination, which resulted from a

misapplication of Sears II, is clearly erroneous.

In reaching its conclusion, the district court focused

on two facts, both of which it firmly rejected in Sears | as

a basis for finding the system bona fide. See 454 F.Supp. at

179. First, the district court noted that the first known

collective bargaining agreement with seniority provisions

between brakemen/switchmen and Santa Fe was exe-

cuted in 1892, seven years before the creation of the train

porter craft. Blankenbaker, slip op. at 48. Based on this fact,

sss ih cla md i eeh andes ices ae oan naman nnmmmeesll ls

ln lls

A-29

the court found “that the origin in establishing different

crafts and seniority systems in the railroad industry gen-

erally was not motivated by racial animus.” Id. Next, the

district court found that historical evidence adduced at

trial demonstrated that the “organization of the brake-

men/switchmen craft and its seniority system was a

direct countervailing response to protect its members

against favoritism and nepotism in personnel manage-

ment.” Id. at 49. Neither of these findings affects the

conclusion that the seniority system had its genesis in

racial discrimination; rather, they merely support the dis-

trict court’s finding that the separate craft and seniority

systems for chair car attendants and brakemen/switch-

men were rational.

In its discussion of the fourth Stockham Valves fac-

tor,?! the district court never expressly stated whether the

brakemen/switchmen seniority system had been main-

tained or negotiated with the intent to discriminate. The

court only noted that, unlike Sears, the plaintiffs here

never had performed braking duties and there was no

evidence that the BRT had ever sought to obtain chair car

work for its own members or to force Santa Fe to fire the

black attendants. Id. at 50.

First, we note that in finding in Sears | that Santa Fe’s

seniority system was negotiated and maintained with

illegal purpose, the district court made the following

observations:

21 This factor was formulated by the district court as fol-

lows: “Was the system negotiated and has it been maintained

free of any illegal purpose?” Blankenbaker, slip op. at 49.

A-30

“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. . . .The unions

which maintained the seniority system through

negotiations and collective bargaining with the

Santa Fe had clauses in their Constitutions

which limited membership to white males-

. .. Since blacks were not eligible for member-

ship in the unions, they could not be employed

as brakemen or conductors, and they could not

be eligible for the economic protection of the

seniority systems in question. . . . The seniority

system was used by the unions to deprive

blacks of their train porter positions.”

454 FSupp. at 180. We upheld this finding on review

because the BRT had used the seniority system as a

weapon against blacks on the Santa Fe by actively seek-

ing to transfer braking duties to its white-only member-

ship. Sears II, 645 F.2d at 1374. None of these facts have

changed, and the district court identified no additional

facts that would justify a contrary result. Instead, focus-

ing on the differences between the present class and that

in Sears, the court found “no evidence that ‘he seniority

system for brakernen and switchmen was negotiated and

maintained for the purpose to banish the employment of

black chair car attendants from such craft position on

Santa Fe, nor is there any evidence that BRT also made

such a demand in its protest for braking duties before the

[Board] in 1939,” which resulted in Award 19324. Blanken-

baker, slip op. at 50.

This finding appears to be based on an argument we

rejected in Sears Il. In attempting to avoid liability in

Sears II, the UTU contended that its efforts culminating in

A-31

Award 19324 “were simply ‘lawful resort’ to administra-

tive agencies to regain the disputed head-end braking

duties,” and that there was no evidence that “ “UTU

demanded that blacks be hired only as Chair Car Atten-

dants or Train Porters.’” 645 F.2d at 1375 (citation omit-

ted). We rejected this contention because the “net effect of

UTU’s actions was that it gained control of most braking

work, and it allocated the work to its white members

only.” Id.

The district court's finding that the BRT did not seek

to acquire chair car work for its own members or force

Santa Fe not to hire blacks is not clearly erroneous, but is

not dispositive of the fourth Stockham Valves factor. That

the BRT did not seek to prevent blacks from working as

chair car attendants does not mean that the seniority

system was negotiated and maintained with no intent to

discriminate and does not change the effect of Award

19324 on blacks working on the Santa Fe. The import of

our review in Sears II of the circumstances surrounding

Award 19324 was that it was an example of the inten-

tionally discriminatory use of the seniority system.?? See

22 Award 19324 is not the only example of the BRT’s use of

a seniority system to discriminate against blacks. In Central of

Ga. Ry. v. Jones, 229 F.2d 648 (Sth Cir.1956), the BRT and the

railroad entered into a contract in 1952 whereby blacks were

excluded from holding certain jobs even though they were

represented by the BRT. Under the agreement, blacks could use

accumulated seniority to avoid layoffs or bid on vacancies or

new runs in their crafts, but “negroes [were] not to be used as

conductors, flagmen, baggagemen or yard conductors.” Id. at

649 n. 1. In Brotherhood of R.R. Trainmen v. Howard, 343 U.S. 768,

72 S.Ct. 1022, 96 L.Ed. 1283 (1952), the employer, under threat

(Continued on following page)

A-32

id. at 1369, 1374, 1375. This example of discrimination is

highly relevant in this case even though the class here has

never performed braking duties. As in Sears II, the practi-

cal result of Award 19324 was that, through the efforts of

the BRT;-blacks on the Santa Fe were denied the one

promotional opportunity they enjoyed. See id. at 1376;

Blankenbaker, slip op. at 10, 14. Since 1956, no blacks on

the Santa Fe have been promoted from chair car attendant

to train porter, id. at 14, and, with few exceptions, no

blacks with seniority dates after April 20, 1942, formally

performed braking or switching duties until after the

passage of Title VII, thus making them ineligible for

promotion to conductor or engine foreman. In sum, the

effect of Award 19324 was that, until the late 1960s and

early 1970s when Santa Fe began hiring blacks in posi-

tions that were part of promotional lines of progression, a

black hired on the Santa Fe would begin his career as a

(Continued from previous page)

of a strike, agreed with the BRT to fire black train porters on its

lines and replace them with white brakemen. The Supreme

Court held that the Railway Labor Act “prohibits bargaining

agents it authorizes from using their position and power to

destroy colored workers’ jobs in order to bestow them on white

workers.” Id. at 774, 72 S.Ct. at 1025. The Supreme Court noted

that “these train porters are threatened with loss of their jobs

because they are not white and for no other reason,” id. at 773,

72 S.Ct. at 1075, and that “for more than a quarter of a century

the [BRT] and other exclusively white rail unions had continu-

ally carried on a program of aggressive hostility to employ-

ment of Negroes for train, engine and yard service.” Id. at 771,

72 S.Ct. at 1024.

A-33

chair car attendant and end it as a chair car attendant.

On remand, the district court should consider this dis-

criminatory use of Santa Fe’s seniority system in making

its ultimate finding under § 703(h).

Quite apart from our concerns with the substance of

its inquiry, the district court’s failure to consider other

relevant evidence under this fourth Stockham Valves factor

is reversible error. For instance, there was evidence in this

record from which the district court could find demon-

strable manipulation of or deviation from the seniority

system, which is particularly strong evidence of the oper-

ation or maintenance of the system with an intent to

discriminate. See, e.g., Wattleton v. International Bhd. of

Boiler Makers, 686 F.2d 586, 590-91 (7th Cir.1982) (only

whites were successful in transferring based on plant

seniority to jobs under defendant union’s jurisdiction),

cert. denied, 459 U.S. 1208, 103 S.Ct. 1199, 75 L.Ed.2d 442

(1983); Scarlett v. Seaboard C. L. R.R., 676 F.2d 1043,

1051-52 (Sth Cir. Unit B 1982) (§ 703(h) not availiable to

defendants, including UTU, because of consistent disre-

gard of seniority-based promotional miles when applied

to blacks). For example, in the Silsbee, Texas, Seniority

23 For example, plaintiff Martin Tuggle testified that he

was hired as a chair car attendant on the Santa Fe in 1948. III R.

40. When Amtrak took over passenger rail service in 1974, he

joined Amtrak and remained as an attendant until he retired in

1982. Id. at 62. Thus, he worked 26 years on the Santa Fe

without a promotion. Plaintiff William Zanders was hired as a

chair car attendant on the Santa Fe in 1947. Id. at 129. He

transferred to Amtrak in 1974 and retired in 1981. Zanders

worked on the Santa Fe for 27 years without a promotion. Id. at

130.

A-34

District, the only place where Santa Fe hired blacks as

brakemen in any numbers before 1965, see ante n. 4, there

were no black conductors before the effective date of Title

VII, although promotion to conductor was mandatory for

white brakemen to remain on the Santa Fe. Sears I, 454

F.Supp. at 166 n. 9, 172; Plaintiffs’ Trial Exh. BR, Response

of Defendant UTU to Plaintiffs’ Request for Admissions,

Stipulation of Facts, exh. C at 21, contained in Addendum

to Brief of Appellant, vol. I, tab A-1 [hereinafter Plaintiffs’

Trial Exh. BR]. Apparently, the BRT and Santa Fe’s

seniority based promotional rules for white brakemen

were not applied to black brakemen in the Silsbee district.

Although no member of the plaintiff class was employed

in that district, the treatment of these black brakemen

may be evidence of the manipulation of the seniority

system with the intent to discriminate.

UTU’s failure to execute the 1976 Seniority Modifica-

tion Agreement also may be evidence of maintenance of

the seniority system with an intent to discriminate. The

district court found that UTU’s “endorsement” of this

agreement was not necessary to make it effective. Blan-

kenbaker, slip op. at 24. This finding has no support in the

record and is clearly erroneous. The testimony cited by

the district court reveals that these witnesses were dis-

cussing the 1971 “Cross-Craft” agreement. See VI R.

803-10, and VI R. 914-15, cited in Blankenbaker, slip op, at

24. Other testimony cited by the court actually indicates

that UTU’s signature was necessary for the agreement to

become effective as to the brakemen’s and switchmen’s

rosters. V R. 732, cited in Blankenbaker, slip op. at 24; see

also VIII R. 1308-09. On remand the district court should

— oe ee

A-35

consider this discriminatory use of Santa Fe’s seniority

system in making its ultimate finding under § 703(h).

Finally, the district court did not discuss whether the

partial dualization of the brakemen’s and switchmen’s

seniority rosters was evidence of an intent to discrimi-

nate. The dualization effort was in response to the con-

cerns of white switchmen about declining yard work. VI

R. 887-88; VII R. 1065-68. Dualization did not occur at all

in those areas where it was opposed by switchmen, VII R.

1080, and was only one-way where brakemen were not

interested in reciprocal rights, id. at 1074-75, 1076. The

effect of the dualization of some brakemen’s and switch-

men’s seniority rosters was to dilute the seniority of

blacks newly hired or transferred into the brakeman craft.

See IV R. 378-79. If this effect was intentional, it would be

strong evidence of manipulation of the seniority system

with an intent to discriminate.

The district court discussed only the four Stockham

Valves factors in deciding that the seniority system was

bona fide. But these factors are not talismanic indicators

of intent; instead, they serve as a partial means to an end,

not the end itself. See Gantlin, 734 F.2d at 990 (factors are

“nonexclusive list to aid in the determination of whether

a given seniority system is bona fide”). A district court

cannot mechanically tally the factors and determine a

winner. Cf. Georgia Power I, 634 F.2d at 935 (court declined

to decide whether a “seniority system may be found non-

bona fide on the basis of only one of the four” Stockham

Valves factors) (citing Sears I, 454 FSupp. at 179). The

Supreme Court was careful in Swint to note that the

passage in Teamsters upon which the Stockham Valves fac-

tors were based was “not meant to be an exhaustive list

A-36

of all the factors that a district court might or should

consider in making a finding of discriminatory intent.”74

456 US. at 279 n. 8, 102 S.Ct. at 1785 n. 8; see also Terrell,

644 F.2d at 1119; Pettway v. American Cast Iron Pipe Co.,

576 F.2d 1157, 1192 (5th Cir. 1978), cert. denied, 439 U.S.

1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979). Exclusive

reliance on the Stockham Valves factors may lead a court,

as here, to disregard or discount relevant evidence. The

district court must consider the totality of the circum-

stances and any evidence, direct or circumstantial, that

bears on the motives of the defendants, whether or not

such evidence is relevant to any of the Stockham Valves

factors. See Terrell, 644 F.2d at 1119 (district court’s failure

to consider additional factors resulted in reversal).

We must remand because our careful review of the

record shows that although the district court purported

to consider the “totality of the evidence,” Blankenbaker,

slip op. at 51, it failed to consider at least three factors,

which do not directly bear on any of the Stockham Valves

factors, but which might have led to a finding that the

seniority system was non-bona fide. First, the district

court did not appear to consider or give any weight to

cur decision in Sears that Santa Fe’s seniority system was

not bona fide. Although our determination in Sears I]

does not have preclusive effect here, see ante at pp.

1243-1244, and, as the district court noted, there are sig-

nificant differences between the plaintiff classes in the

respective cases, our finding that the seniority system

24 Thus, our prior opinions in Bach, 731 F.2d at 668, and

Sears II, 645 F.2d at 1372 & n. 5, cannot be read as an endorse-

ment of the exclusive use of the Stockham Valves factors.

os Sie ain a +

A-37

created “employment differences with the intention of

discriminating because of race,” Sears II, 645 F.2d at 1374,

has some independent significance in the instant case.

Second, the district court did not consider whether

the BRT’s efforts in favor of full crew laws was evidence

that it maintained the seniority system with an intent to

discriminate. Full crew laws on the Coast Lines in Ari-

zona and California, for example, required both freight

and passenger trains to carry either two brakemen or a

brakeman and fireman. Sears I, 454 F.Supp. at 163; Plain-

tiffs’ Trial Exh. BR, exh. B at 3. Evidence in the record

indicates that the BRT would not consent to inclusion in

these statutes of porter-brakemen or train porters, along

with brakemen, and took the position that these laws

prohibited the use of persons not holding seniority on the

brakemen’s roster. See Beal v. Missouri Pac. R.R., 312 US.

45, 46-47, 61 S.Ct. 418, 419-20, 85 L.Ed. 577 (1941)

(describing events in Nebraska where BRT filed com-

plaint with state commission alleging that railroad vio-

lated full crew law by employing train porters instead of

brakemen); IV R. 418; id. at 458-59, 462-63. These laws

had the effect of preventing blacks from serving as brake-

men in those states because Santa Fe did not hire blacks

as brakemen and the BRT did not allow black members.

Sears I, 454 F.Supp. at 163; IV R. 418; id. at 459; Plaintiffs’

Trial Exh. BR, exh. C at 22; see generally Plaintiffs’ Trial

Exh. AA at 52 (“[t]he hostility of the white trainmen

toward the Negro has also been a major reason for the

passage of many state ‘full crew’ laws”). Although the

plaintiffs here never performed any braking duties, the

district court did not evaluate to what extent this was due

to the BRT’s white-only membership clause, its actions in

A-38

obtaining Award 19324, and its actions in seeking full

crew laws. Neither did the court review the inferences

that might be drawn from collectively examining the

BRT’s aforementioned conduct. See Terrell, 644 F.2d at

1119-20 (district court erred in failing “to focus upon

additional factors, such as the avowedly racist policies of

the craft unions, and . . . to recognize the cumulative

effect of separate pieces of evidence of racial motives”).

Finally, the district court erred in not considering

Santa Fe’s promotional structure within craft divisions

and how the seniority system played a role in this struc-

ture. In Georgia Power I, the employer had assigned all

blacks to the lowest job classifications. 634 F.2d at 931.

These all-black jobs were placed into separate seniority

units. Id. Like Santa Fe’s seniority system, employees

transferring into new seniority units could not carry over

accumulated seniority, but seniority in the old unit was

retained in the event of layoffs. Id. The court of appeals in

Georgia Power I noted that

“{uJnlike other seniority units, which were part

of lines of progression and through which an

employee could advance as he accumulated

seniority, the [all black] job classifications were

not part of any line of progression. Thus, in

order for blacks to advance to a better, higher-

paying job, they had to forfeit their seniority.”

Id. After examining the disparate impact of the

employer’s seniority system, whose seniority forfeiture

rules “locked in” minority employees, the Fifth Circuit

stated that the discriminatory effect of the seniority sys-

tem “was compounded by the fact that blacks could not

progress except by forfeiting their seniority.” Id. at 935.

Although white employees were “locked in” to some

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extent because they also forfeited accumulated seniority

upon transfer, they could progress on the basis of

seniority within their units. The court held that “the

seniority system negotiated through the collective bar-

gaining process tracked and reinforced the purposefully

segregated job classification scheme maintained by the

company and the conclusion is inescapable that the

seniority system itself shared in that same unlawful pur-

pose.” Id. at 936.

Here, after the BRT succeeded in obtaining all brak-

ing work for its white members, chair car attendants had

“no chance to progress except by transfer to another

section with loss of seniority.” See id. at 931; compare

Gantlin, 734 F.2d at 985-88, 991-92. Although switchmen

and brakeman would forfeit accumulated seniority if they

crossed craft lines, they were able to move within their

crafts on the basis of seniority, switchmen to engine fore-

men and brakemen to conductor. If the placement and

retention of blacks in jobs without the possibility of pro-

motion was intentional, it would be strong evidence that

the system was operated with the intent to discriminate

on the basis of race.

The judgment of the district court is VACATED and

the case is REMANDED for further proceedings consis-

tent with this opinion.

A-40

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

JOHN BLANKENBAKER, et al.,

Plaintiffs, Case No.

82-1984

VS.

UNITED TRANSPORTATION UNION,

et al., Consolidated

Defendants. with

GEORGE E. HARVEY, SR.,

Plaintiff,

vs.

UNITED TRANSPORTATION UNION,

et al.,

Defendants. Case No.

and 76-31-C6

RAY E. LANDRUM, (Filed June 9,

Plaintiff, 1986)

vs.

UNITED TRANSPORTATION UNION,

et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

This is a continuation of a complex and difficult civil

rights litigation engendered from Sears v. Santa Fe Railway

Co., 454 FSupp. 158 (D.C. Kan. 1978); affirmed in part,

reversed in part, remanded, 645 F.2d 1365 (10 Cir.1981); see

A-41

also Sears, 779 F.2d 1450, 1456, (10 Cir. 1985). The Court in

this employment discrimination suit must decide the

issue of whether or not defendants, The Atchison, Topeka

and Santa Fe Railway Company (“Santa Fe”) and United

Transportation Union (“UTU”), are liable to plaintiffs and

the class members for back pay, injunctive and equitable

relief, costs and attorneys’ fees. Plaintiffs and the class

members were black railroad employees; many of them

began to work for Sante Fe in the late 1940’s. They bring

this action under Title VII of the Civil Rights Act of 1964,

42 U.S.C. Secs. 2000e to 2000e-17, as amended, on their

behalf and on behalf of all black male and female Ameri-

cans employed by Sante Fe as chair car attendants who

were never employed as train porters during any period

from July 2, 1965 to the present date. The gist of plain-

tiffs’ claims, as characterized by the Circuit Court, was

“generally more in the nature of a challenge to the pre-

vailing promotion system that prevented them from ever

obtaining the higher-paid brakeman/(switchman) jobs.”

Sears v. The Atchison, Topeka and Santa Fe Railway Co. and

United Transportation Union, No. 83-2117, Slip Op. at 5

(10th Cir. Dec. 21, 1984) (Unpublished Opinion). Liability

is premised upon the contentions of disparate treatment

and disparate impact from the defendants’ roles in estab-

lishing and maintaining a discriminatory employment

policy and a mala-fide seniority system against these

black chair car attendant employees in violation of 42

U.S.C. Sec. 2000e-2(a) and -2(c). Santa Fe denies liability

of the basis of-a certain seniority retention agreements it

entered into with the chair car attendants’ union that

these employees were not inhibited from transferring into

any of the higher paying positions within the railroad

A-42

—

company. Both defendants contend that the separately

maintained seniority system for the brakemen-switchmen

craft, as it was applied to the non-operating chair car

attendant craft, was bona fide, neither created nor main-

tained because of any intent to discriminate on the basis

of race, and that they were immunized from liability

under 42 U.S.C. Sec. 2000e-2(h). Defendants have also

reasserted their contention that plaintiffs’ claims are time-

barred because they failed to comply with the administra-

tive procedural of the Civil Rights Act, 42 U.S.C. Sec.

2000e-5(e).

In a Memorandum and Order dated September 6,

1984, the Court concluded that the claims by chair car

attendants, based on the factual antecedents in Sears,

supra, were preserved under the equitable tolling doc-

. trine. We also found that the plaintiffs have met the

requirements of Rule 23(a), F.R.Civ.P., and have allowed

this matter to proceed as a class action. The certified class

consists of

“the named plaintiffs and all other Negro

(black) male and female Americans employed

by The Atchison, Topeka and Santa Fe Railway

Company, at any time, as chair car attendants,

exclusive of the provisional employees during

summers and holidays, who were never

employed as train porters, during any period

from July 2, 1965 to the present date.”

In the Pre-trial Order, the parties agreed that the

stipulated facts in Sears v. Santa Fe Railway Company, 454

F. Supp. 158 (D.C. Kan. 1978), are submitted into evidence

as a part of the trial record in this case, subject to objec-

tions on relevancy and materiality. Of course, Rule 201,

A-43

F.R.Evid., allows the Court to take judicial notice of adju-

dicative facts, particularly those facts that are not in

dispute. Trial of this matter was to the Court. Shortly

after the trial was completed, the Court was advised that

the parties were contemplating settlement. Consequently,

disposition of this dispute by the Court was held in

abeyance pending the final outcome of the parties’ nego-

tiations. An agreement to settle claims for back pay, attor-

neys’ fees, and costs was reached between Santa Fe and

the plaintiffs and the class members whom they repre-

sent. This agreement, in a form of Consent Decree, has

been approved by the Court on January 14, 1986. How-

ever, Santa Fe, along with UTU, remains as a party-

defendant in this suit for the purposes of injunctive and

seniority relief determinations. The Court has considered

the testimony adduced at the trial, the documentary evi-

dence and the factual stipulations introduced into the

trial record, the briefs of the parties and the applicable

law in disposing of this litigation. This Opinion shall

constitute the Court’s Findings of Fact and Conclusions

of Law, as required by Rule 52(a), F.R.Civ.P.

Il. THE PARTIES

This litigation is a consolidation of three cases, John

Blankenbaker, et al. v. The Atchison, Topeka and Santa Fe

Railway Co., et al., Case No. 82-1984; George H. Harvey v.

United Transportation Union, Case No. 76-31-C6; and Ray

E. Landrum v. United Transportation Union. The Plaintiffs’

class claims are predicated upon allegations of discrimi-

nation in employment on the basis of race in violation of

the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq.

The plaintiffs in Blankenbaker are a group of black males

A-44

who were employed by Santa Fe as chair car attendants

until May 1974 when Santa Fe ceased its passenger ser-

vices. This group was originally a part of the Sears class,

but was severed from the class on October 29, 1974 by a

second amended complaint in Sears.' Sears, supra, No.

82-2117, Slip Op. at 2; Blankenbaker, Case No. 82-1984, Slip

Op. at 3-6 (D.C. Kan. Sept. 6, 1984).

Plaintiff Harvey filed a Title VII administrative

charge with the EEOC on November 9, 1972 — eight days

after Sears filed his class action complaint with the Court

- received his right-to-sue letter on October 31, 1975, and

filed suit on January 29, 1976. In this suit, Harvey brings

it “on behalf of himself as a former chair car attendant of

the Atchison, Topeka & Santa Fe Railway Com-

pany ... and on behalf of all other Negro Chair Car

Attendants who have been, are now, or were prior to May

1974, employed by Santa Fe... .” Harvey settled his

claims against Santa Fe on June 3, 1973. His remaining

claims against UTU are consolidated with the Blanken-

baker action.

' The fifteen class representatives in Blankenbaker are: John

H. Blankenbaker, Eugene Bunch, James Bunch, Leslie Calvin,

Mose Covington, Homer Jackson, Alfred Lyons, Lonnie Moore,

Victor Powell, William Smith, Martyne Tuggle, T. F. Van

Winkle, Earl Walker, Green Junior Wallace, William Zanders.

Although each of these class representatives filed an adminis-

trative grievance on various dates between March and October,

1976 with the EEOC and received their right-to-sue letters on

September 27, 1982 from it, we have concluded that the events

and proceedings in the early phase of the Sears litigation

equitably tolled the applicable limitations period on claims by

chair car attendants.

A-45

Plaintiff Landrum filed a Title VII charge with the

EEOC on February 7, 1973, obtained right-to-sue letter on

October 31, 1973, and intervened in the Sears action.

Upon a determination that he did not belong to the train

porter class in Sears, Landrum was excluded from that

suit. Landrum then settled his claims against Santa Fe on

July 27, 1976. His remaining claims against UTU are

consolidated with the Blankenbaker action. See Sears,

W-4613, Memorandum and Order (D.C. Kan. Aug. 8,

1983).

Santa Fe is a Delaware corporation engaged in inter-

state commerce. The Santa Fe railroad lines extend from

Chicago, Illinois, west to San Francisco, California and

south to Houston, Texas. At all times material in this suit,

the Santa Fe rail network was organized for operating

purposes into three “Grand” Divisions, which were called

the Eastern Lines, the Western Lines, and the Coast Lines.

The Eastern Lines operated in Illinois, lowa, Missouri,

Kansas, Oklahoma, Colorado, and New Mexico. The

Western Lines operated in Kansas, Oklahoma, Texas, Lou-

isiana, and New Mexico. The Coast Lines operated in

New Mexico, Arizona, and California. Sears, 454 F.Supp.

at 160, UTU Exh. No. 100; Murphy, Vol. V, 1061-1063.

UTU is an unincerporated labor union consisting of

an international union, local unions, and intermediate

bodies. UTU was formed by merger of four labor organi-

zations on January 1, 1969. UTU or two of its prede-

cessors, the Brotherhcod of Railway Trainmen (“BRT”)

and the Order of Railway Conductors and Brakemen

(“ORC&B”), have been the collective bargaining repre-

sentatives in labor matters for brakemen, switchmen and

A-46

conductors working for Santa Fe since 1892. Sears, id.;

Hart, Vol. IV, at 865.

The Brotherhood of Sleeping Car Porters (“BSCP”) is

an unincorporated labor association chartered by the

American Federation of Labor on May 8, 1929, and was

certified on April 5, 1946, by the National Mediation

Board to_represent the crafts of train porters as well as

chair car attendants employed by Santa Fe. BSCP merged

with the “System Division” of the Brotherhood of Rail-

way, Airline and Steamship Clerks, Freight Handlers,

Express and Station Employees (“BRAC”) on April 1,

1978. Although BSCP acted during the relevant period of

this class action suit as the collective bargaining represen-

tative of the chair car attendants, BSCP has not been

named as a party to this suit. Cf. Sears, id.; Santa Fe Exh.

No. 1 (BSCP and Santa Fe Collective Bargaining Agree-

ment, dated May 1, 1950); Santa Fe Exh. No. 144, Stipula-

tions No. 1(Z) and No. 4; Gossett, Vol. IV, at 836-837.

Ill. THE CLAIMS AND DEFENSES

The Circuit Court noted in Sears that the basis of the

chair car attendants’ claims does not involve “a situation

of equal pay for equal work.” Sears, 645 F.2d 1365, 1378

(10th Cir. 1981); see also No. 83-2117, Slip Op. at 5 (10th

Cir. Dec. 21, 1984). Rather, the gravamen of plaintiffs’

claims is that the employment system for promotion to

the crafts of brakeman/switchman, which was practiced

by and maintained through the collective bargaining

agreements in the post-Act period (July 2, 1965) between

Santa Fe and UTU, deprived chair car attendants the

opportunity to hire into these higher-paid craft positions

A-47

because of their race. Pre-trial Order, Jan. 8, 1985, Dkt.

105. The specific complaint by the plaintiffs of UTU’s role

in acting with Santa Fe to deny the chair car attendants’

opportunity to work as brakemen/switchmen is that UTU

has continued in the post-Act period to adhere to a craft

seniority system which has an adverse impact on them by

refusing to provide carryover or retroactive seniority to

an incumbent chair car attendant who desires to work in

a new craft as a brakeman/switchman based on his chair

car seniority date. Id., Appendix G.

Defendants do not deny the historical record

reflected in the findings in Sears that there was discrimi-

natory hiring by Santa Fe and membership practices by

UTU’s predecessors against black employees in the pre-

Act period. Defendants contend, however, that these pre-

Act discriminatory policies and practices did not con-

tinue subsequent to July 2, 1965. Santa Fe points out that

its company personnel records show that as early as 1962

Santa Fe was hiring blacks as brakemen/switchmen.

Santa Fe further argues that under the March 23, 1971

Agreement and the 1976 Seniority Modification Agree-

ment efforts were made to encourage chair car attendants

to transfer to operating crafts. Both defendants assert that

the separately maintained seniority systems, one for chair

car attendants and that other for brakemen/switchmen,

were valid under Section 703(h) of the Civil Rights Act,

which permits an employer to utilize bona fide seniority

systems even if such systems operate to perpetuate past

racial discrimination. Id., Appendix H, I.

A-48

IV. DIFFERENT CRAFTS IN SANTA FE

OPERATIONS

Until May 1974, Santa Fe operated both passenger

and freight services throughout various states west of the

: Mississippi River to the west coast. Functionally,

employees on Santa Fe passenger trains were categorized

into two groups. The “operating crew” consisted of a

conductor, a train porter (head-end brakeman), a rear-end

brakeman, a fireman, and an engineer. The “non-operat-

ing crew” consisted of service personnel. Braking duties

were performed by brakemen. Their duties included the

inspection of train cars, the testing and use of hand and

light signals for the movement of trains, opening and

closing of switches, coupling and uncoupling cars, hose

and chain attachments, reporting to and receiving

instructions from the trainmaster and the conductor.

Sears, supra, 454 F.Supp. at 160; Santa Fe Exh. No. 145, No.

1; Gamst, Vol. VII, at 1423-1428. The chair car attendants

belonged to the non-operating crew. Their primary duties

were to care for the passengers’ comfort and convenience,

and were generally limited to the interior of the pas-

senger trains. Sears, id., at 164; Gossett, Vol. IV, at 833;

Burns, Vol. VI, at 1283; Sante Fe Exh. No. 3.

Switchmen were also considered to belong to the

operating crew. They performed essentially similar brak-

ing and switching duties as brakemen did, except that the

switchmen worked in regular hours and within an

assigned geographical location. Easley, Vol. VI, at

1222-1223; Murphy, Vol. V, at 1064-1065.

A-49

The National Mediation Board classified railroad

employees into different crafts on the basis of their tradi-

tional work functions. Employees in a given craft were

generally organized as a labor unit with a certified repre-

sentative acting on their behalf to negotiate and to main-

tain agreements with the rail carriers under the Railway

Labor Act. See Sears, supra, 454 F.Supp. at 164 n. 5. The

conductors on Santa Fe were represented by the Order of

Railway Conductors some time in the middle of the Nine-

teenth Century. In 1926, following the enactment of the

Railway Labor Act, ORC was certified as the conductor

craft representative. In August 1954, this unincorporated

labor association was renamed as ORC&B. Similarly, both

switchmen and brakemen, generally known under the

generic name of “trainmen,” were represented by BRT,

one of UTU’s predecessors, since BRT was certified in

1926. Id. The train porters (head-end brakemen) and chair

car attendants were represented by BSCP, which was

certified as the representative for these two crafts in

separate proceedings in 1946. Id.

Train porters and full-time chair car attendant

employees of Santa Fe were designated as entry-level

positions for black males. Although there were a number

of instances between 1918 and 1959 in which Santa Fe

hired blacks as train porters, the plausible employment

position for which a black job applicant could apply was

that of chair car attendant. Until 1959, a chair car atten-

dant could be promoted to the position of a train porter

by taking a rules examination, passing a physical exam-

ination, and completing and required hours of road trips

on passenger trains. A newly qualified train porter, while

he would normally continue to work and to accumulate

A-50

his seniority as chair car attendant, could bid to work as

an extra-board train porter on a temporary basis.

By contrast, the entry-level for a white job applicant

during the same period was the brakemen position. The

qualifications for a brakeman applicant were essentially

similar to those for train porters, except a brakeman

obtained his actual work experience from train runs on

local freight. Before 1960, a newly hired brakeman began

as an extra to fill any temporary vacancy caused by

illness, vacation or otherwise. After accumulating suffi-

cient seniority, a brakeman could obtain a regular freight

or passenger braking job. As factually detailed in Sears,

supra, train porters performed comparable duties as

brakemen on passenger train runs, yet their wages and

employment benefits were far less favorable than those

given to brakemen.

V. SENIORITY STRUCTURE

Santa Fe has maintained seniority districts and pub-

lished seniority rosters for each craft within each district.

The seniority roster is the earliest date of continuous

service by an employee with Santa Fe in a particular craft

and within a particular district. Seniority standing in a

craft determines an employee’s promotion opportunities

as well as his right to protect work within his craft and

district. Generally, seniority is not transferable from one

seniority district to another or from one craft to another.

Sears, supra, 454 F.Supp. at 165.

The seniority date for a Santa Fe chair car attendant

began with his employment as a chair car attendant. The

same procedure applied to an employee who became

A-51

qualified as a train porter. A train porter, in addition to

accumulating seniority on the train porter roster, also

maintained his seniority standing on the chair car atten-

dant roster. The historical evidence shows that the first

collective bargaining agreement between BSCP and Santa

Fe was executed on May 1, 1950. It set forth the provi-

sions on seniority and various employment conditions for

chair car attendants. Santa Fe Exh. No. 1.

The seniority date for a Santa Fe brakeman or switch-

man began as of the date of his employment with Santa

Fe either as a brakeman or switchman. The seniority

system for these crafts, as well as for the conductors, was

established under the collective bargaining agreements

negotiated by BRT and ORC&B with Santa Fe. Until their

merger into UTU in 1969, BRT and ORC&B were separate

labor unions. Each was certified to represent its respec-

tive craft on Santa Fe. :

VI. HISTORY OF BRT AND ORC&B, AND AWARD

19324

Since 1938, and for many years, BRT was a labor

union whose Constitution governing membership admis-

sions provided that race was one of the membership

requirements. This requirement that a candidate who was

employed as a trainman for at least one month prior to

application for admission be white was retained by BRT

until 1960. Plaintiffs Exh. D. Similarly, from 1934 to 1966,

the Constitution of ORC&B also had an all white mem-

bership requirement. Plaintiffs Exh. J. The race require-

ment was not the only means by which BRT sought to

obtain all braking duties for its members. The animosity

A-52

directed toward black train porters by BRT was well-

documented in the annals of judicial opinions. Beginning

no later than 1920, BRT made several attempts, and was

successful to transfer head-end braking duties from black

train porters to white brakemen. See Sears, supra, 454

F.Supp. at 167-168. Upon remand from the district court

in proceedings known as the Hunter litigation, the

National Railroad Adjustment Board on October 14, 1959

held in Award 19324 that only those train porters (some

of whom were formerly chair car attendants) holding a

seniority date prior to April 20, 1942 could continue to

work on Santa Fe as head-end brakemen. All other train

porters with a seniority date subsequent to April 20, 1942

were demoted to the position of chair car attendant. It is

noted that since 1956 Santa Fe had not hired or promoted

any chair car attendants to the position of train porters.

The named plaintiffs and the class members whom they

represent in this action worked only as chair car atten-

dants on Santa Fe. None of whom were promoted to this

position of train porters, although some of the named

plaintiffs began to work as chair car attendants as early as

1943. See Santa Fe Exh. No. 147.

VII. DUALIZATION OF BRAKEMAN-SWITCHMAN

SENIORITY ROSTERS

As noted earlier, brakemen and switchmen per-

formed basically the same duties. The only difference

between them is that brakemen performed-their assigned

functions between train yards or terminals while switch-

men did so within the general confines of a yard or

terminal. While their craft functions and duties were the

same, for historical reasons relating to railroad operation

wee sd eee Ie

aX re? arena ened.

A-53

and technology, the yard and road work was performed

by two separate seniority rosters of employees with sepa-

rate yard and road seniority. Hart, Vol. IV, at 876-879.

Thus, for example, a yard switchman at the Santa Fe

Argentine Yard in Kansas City, Kansas would have no

seniority to work over the road east to west, into or out of

Kansas City Terminal. Conversely, a road brakeman who

held seniority rights into the Kansas City Terminal from

the east and west would have no seniority right to work

in the Argentine Yard. This mutually exclusive seniority

arrangement generally prevailed throughout the Santa Fe

system until 1960 when modifications to the seniority

agreements were made to dualize the rosters of these two

crafts. See generally Murphy, Vol. V, at 1065-1081.

“Dualization” of seniority rosters is a process by

combining road brakeman and yard switchman seniority

rosters and placing each one under the other as of the

date of the dualization agreement. Under this consolidat-

ing arrangement, the most senior road brakeman would

take a position on the yard switchman roster as a new

hire; and the first person on the yard switchman roster

would take seniority following the last person on the

road brakeman roster. Hart, Vol. IV, at 889. The earliest

dualization agreements on the Santa Fe system occurred

in 1959 on the Coast Lines. UTU Exh. 103-105. The first

dualization agreements on the Eastern Lines occurred

between 1960 and into 1970’s. The dualization process

between these two crafts were never fully implemented

in all seniority districts. In the Kansas City Division/

Eastern Division, the dualization process of the brakeman

and switchman crafts occurred April 1, 1971. UTU Exh.

No. 11; Murphy, Vol. V, at 1073-1079. It is said that only

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the rosters of the brakemen and switchmen were merged.

Hart, Vol. IV, at 890-891. However, under the April 1, 1971

Agreement, only those brakemen in the Eastern Division

hired after the effective date of the Agreement will hold

dual rights on both of the road and yard seniority rosters.

Those brakemen who had a seniority date prior to April

1, 1971 still would have to forfeit their existing seniority

if chosen to work as switchmen at the Argentine Yard.

Murphy, Vol. V, at 1077-1078.

VIII. BSCP AND SANTA FE AGREEMENTS

ENTERED BETWEEN 1950 AND 1973

The first written collective bargaining agreements for

chair car attendants entered into between BSCP and Santa

Fe was on May 1, 1950. Santa Fe Exh. No. 1; Burns, Vol.

VI, at 1288. Article III of the Collective Bargaining Agree-

ments sets forth the seniority provisions 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.

The next major agreements was known as the “Feb. 7

Agreement.” On February 7, 1965, Santa Fe entered into a

mediation agreement with five unions (not including the

BSCP, BRT & ORC&B). Santa Fe Exh. No. 4. A year later,

on February 8, 1966, BSCP and Santa Fe extended the Feb.

7 Agreement and their interpretations of this Agreement

2 But see Sears, 645 F.2d at 1379, where the Circuit Court

noted that “until the February 7 (, 1966) agreement the chair

car attendants had no collective bargaining agreement giving

them seniority protection.” We find the evidence in this case

here, as well as in Sears, 454 F.Supp. at 165, shows the contrary.

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to chair car attendants. Santa Fe Exh. No. 5. The Feb. 7

Agreement was characterized basically as an unemploy-

ment compensation provision. Tuggle, Vol. I, at 76. It

guaranteed a chair car attendant certain level of annual

income, $849.00 a month, if he was furloughed or worked

at a job paying lower than the guaranteed income. A

chair car attendant received protective payments under

this Agreement until he reached the age of 70 or retired,

failure to obtain a position available to him in the exercise

of his seniority, or in any period in which he occupied a

position not subject to the working agreement. See Sears,

supra, 454 FSupp. at 169; Burns, Vol. VI, at 1274-1277,

1297. Once a chair car attendant reached the age of 70,

retired, or resigned on his own, he received retirement

pay benefits. Burns, id., at 1276. Some chair car attendants

are still receiving the Feb. 7 Agreement payments. Burns,

id., at 1278.

With the steady decline in the business of passenger

services on the one hand and the increased efforts as a

Government contractor for postal service to comply with

the requirements of equal employment opportunity dur-

ing mid-1960’s, see Santa Fe Exh. No. 126-72, Santa Fe had

a business reason to place chair car attendants in other

positions because Santa Fe would have to pay the guaran-

teed income to these employees under the Feb. 7 Agree-

ment whether they were working as chair car attendants

or not. In this respect, Santa Fe would not have to pay

protective payments to a chair car attendant who worked

in a position with an income higher than that guaranteed

by Feb. 7 Agreement. Burns, Vol. VI, at 1294.

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In 1967, BSCP became concerned that some of its

members could unknowingly relinquish their Feb. 7 pro-

tections had they applied for and were accepted by Santa

Fe as brakemen or switchmen. Santa Fe Exh. No. 24. A

series of negotiations between BSCP and Santa Fe took

_place from 1967 to 1971. See Santa Fe Exh. Nos. 25, 26, 27,

28, 29, 30, 32, 33, 34, 35, 36-44, 38, 41, 45, 47, 48, 49, 50, 52,

55, 100-F. The main subject discussed in these exhibits

was on seniority retention and non-forefeiture of Feb. 7

protections for chair car attendants who chose to transfer

to another -craft. Local representatives of BSCP partici-

pated in these negotiations. Seymour, Vol. III, at 740-752,

Vol. IV, at 771-772. On February 17, 1971, the Vice-Presi-

dent of BSCP sent to each locai representative a draft of

the cross-craft agreement for approval at the local level.

Santa Fe Exh. No. 100-F, Shackleford Depo. Exh. 3; see also

Santa Fe Exh. Nos. 42, 44. With only one disapproval,

Santa Fe Exh. No. 100-F, at 55-56, Exh. No. 18, the essence

of the proposed cross-craft agreement received strong

support from the local representatives. Id., Shackleford

Depo., at 34-64, 69-70, Exh. No. 1 through 24.

The gist of the March 23, 1971 Cross-Craft Agreement

was that it permitted chair car attendants to transfer to

any position including but not limited to brakemen-

switchmen positions while maintaining their chair car

attendant seniority standing in the chair car attendant

craft. Santa Fe Exh. No. 7. Under this Agreement, a chair

car attendant who hired out before May 1, 1974 in a new

craft had the right to return to work as chair car attendant

and to claim his Feb. 7 protections if there was insuffi-

cient work in the new craft. Burns, Vol. VI, at 1293; Santa

Fe Exh. No. 7. The only requirement for a chair car

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attendant, who had transferred to but did not desire to

remain in a new craft, to return to his chair car attendant

position was to give a notice of such intention to Santa Fe

and BSCP. Santa Fe Exh. No. 7, Section (1)(b)(iii); Santa Fe

Exh. No. 145, Stipulation No. 82. It is said that the March

23, 1971 Agreement was a unique agreement at that time,

which did not exist for crafts other than chair car atten-

dant. Burns, Vol. VI, at 1292-1293.

There is testimony by named plaintiffs that they did

now know about the negotiations on the cross-craft

agreement or of its substances. Zanders, Vol. I, at 154;

Poweli, Vol. I, at 185; Jackson, Vol. II, at 326. The written

documents which refute this assertion have credibly dem-

onstrated that the proposed agreement was disseminated

and discussed at every local unit, however. See, Santa Fe

Exh. No. 100-F, Shackleford Depo. Exh. No. 1 through 24;

Rawlins, Vol. I, at 29-30. BSCP considered its effort in

obtaining the March 23, 1971 Agreement was an impor-

tant achievement because it would provide significant

employment benefits and protections for its union mem-

bers. Woolfolk, Vol. II, at 511. BSCP undertook steps to

publicize-and to implement this Agreement. Each chair

car attendant with a known address was sent a copy of

the Cross-Craft Agreement. Seymour, Vol. IV, at 787. In

addition, Santa Fe issued instructions to each of the head-

quarter points and divisions that a copy of the Cross-

Craft Agreement be given to each of the chair car atten-

dants. Gillmore, Vol. VII, at 1374. In the Middle Division,

at Newton, Kansas, the administrative clerk in that office

wrote a letter to each chair car attendant in that division,

in which he explained to the chair car attendants of their

rights under the Cross-Craft Agreement and encouraged

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them to “try to hire out as switchman/brakeman.” John-

ston, Vol. VI, at 1197. The Santa Fe management also

apprised the Superintendents who had the authority in

hiring employees into the operating crafts of the sub-

stances of the Cross-Craft Agreement. Santa Fe Exh. No.

126-72. To implement this Agreement, a Santa Fe mem-

orandum from H.D. Fish, Assistant General Eastern

Lines, dated March 30, 1971, instructed the hiring author-

ities that

“whenever it is anticipated it will be necessary

to hire new employees, chair car attendants

should be advised of the anticipated openings

and encouraged to apply for the positions for

which they could qualify. If such notifications

are made a matter of record they can be used to

support affirmative action on our part to

advance or promote members of a minority

group. The Agreement itself, having been con-

ceived and pursued to a conclusion by the Car-

rier, demonstrates our willingness to assist

minority groups to expand their employment

opportunities.”

Id., at No. 126-75; see also Lough, Vol. VI, at 1187-1188,

Santa Fe Exh. No. 126-29. Some chair car attendants, who

met the medical requirements and passed the necessary

rules examinations, transferred to the brakemen-switch-

men crafts under the Cross-Craft Agreement. Santa Fe

Exh. No. 100-F, at 105, Harvey, Vol. II, at 395; Woolfolk;

Vol. Il, at 493; Seymour, Vol. III, at 739. Other chair car

attendants on the Denver District also exercised the

opportunity to go into another crafts. See Woolfolk, Vol.

Il, at 500.

In anticipating the termination of its passenger rail

service, Santa Fe, based on a Congressional enactment,

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adopted the Appendix C-1, which provided arrange-

ments for those employees who would be affected by its

transfer of intercity passenger service to Amtrak. Santa Fe

Exh. No. 6; Burns, Vol. VI, at 1290-1291. Appendix C-1

was considered as an extra employment protective mea-

sure as applied to chair car attendants who intended to

go to work for Amtrak in that employment capacity.

Burns, id., at 1295. The essence of Appendix C-1 was

similar to that implemented under the March 23, 1971

Agreement. It reassured Santa Fe chair car attendants

who would become employees of Amtrak that they

would be allowed to exercise their existing protective

benefits and seniority rights. See Santa Fe Exh. No.

122-43, -43A, and -43B. A supplemental agreement to

Appendix C-1 entered into in 1973 further set forth the

conditions where employees affected by the takeover of

passenger service by Amtrak must meet in order to retain

the entitlements provided under the existing labor agree-

ments. Santa Fe Exh. No. 8; Burns, id., at 1296-1297.

IX. 1976 SENIORITY MODIFICATION

AGREEMENT

Amtrak took over the on-board passenger service on

May 1, 1974. While some plaintiffs of younger age

retained their employment with Santa Fe by working as

new-hired brakemen-switchmen, most of the plaintiffs

elected to go with Amtrak as service attendants. On

March 15, 1976, Santa Fe participated, along with many

other railroad carriers, in endorsing a Seniority Modifica-

tion Agreement entered into between the National Car-

riers’ Conference Committee and the Brotherhood of

Railroad Signalmen. Like the March 23, 1971 Cross-Craft

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Agreement designed for chair car attendants, this 1976

Agreement allowed the opportunities for minority and

female employees who had continuous employment on or

before August 31, 1971 with an endorsing railroad com-

pany to transfer to any crafts or positions within that

company if they met the conditions which they sought to

fill. Santa Fe Exh. No. 9. Under this Agreement, an

employee who transferred to a new craft under which a

vacant position otherwise was not filled by an incumbent

with the requisite seniority right to the position of that

craft, was allowed to carryover his or her previously

accumulated seniority credit to the new craft seniority

roster. Id., at Paragraph II. This employee was also

allowed to retain his previously established seniority for

a period necessary to acclimate himself to the new posi-

tion. If he decided to return to his old craft, he could

exercise his seniority standing to regain his former

employment position. Id., at Paragraph III.

It is undisputed that UTU and its predecessors did

not participate in any of these seniority retention agree-

ments, nor did any of these agreements require UTU or

its predecessors’ endorsement in order to fully implement

it. Seymour, Vol. III, at 732; Seymour, Vol. IV, at 803-810;

Hart, Vol. IV, at 914-915. On the other hand, Santa Fe has

been a “union shop” since 1966. A new employee work-

ing in a craft represented by a union is required to

become a member of that union within a certain period of

time. See Brown, Vol. V, at 950; Santa Fe Exh. No. 144,

Stipulation T; Rawlins, Vol. I, at 82-84.

“.

Pree

A-61

X. COMPARISON OF EMPLOYMENT AND LABOR

MARKET STATISTICAL EVIDENCE

In Title VII cases, plaintiffs generally present either a

disparate treatment or disparate impact theory, or both as

the chair car attendant plaintiffs are asserting here, of

discrimination. Under either theory, plaintiffs have the

initial burden of proving a prima facie case of discrimina-

tion by a preponderance of the evidence. This can be

accomplished by applying a given set of relevant statisti-

cal evidence to either theory. In a class action alleging

discrimination in promotion, plaintiffs must show that it

was the employer’s regular and standard practices in

selecting employees for promotion “in a racial pattern

significantly different from the pool of applicants.” Alber-

marle Paper Co. v. Moody, 422 U.S. 405, 425, 45 L.Ed.2d 280,

300-301 (1975). Absent a valid explanation, statistical

proof of a substantial and gross racial or ethnic imbalance

in the defendant’s work force “is often a telltale sign of

purposeful discrimination.” International Bhd. of Teamsters

v. United States, 431 U.S. 324, 339 n. 20, 52 L.Ed.2d 396,

418 n. 20 (1977). The same statistical evidence can be used

to demonstrate a prima facie claim of disparate impact

from employment practices or policies which, although

facially neutral in its treatment of different groups, in fact

result more unfairly on one group than another and can-

not be justified by legitimate business reasons. Hazelwood

School District v. United States, 433 U.S. 299, 307-308, 53

L.Ed.2d 768, 777 (1977); Teamsters, supra, at 339, and 335 n.

15.

The statistical analysis involves an evaluation of the pool

of individuals available and qualified for employment con-

sideration in a craft and the percentage of plaintiffs

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employed in that craft. Whether or not a sound inference of

discriminatory impact or purpose can be drawn based upon

the percentage of plaintiffs hired or promoted by defendants

depends upon the manner in which the experts select the

data to build a model of a proper labor market for statistical

comparison. The parties are in substantial disagreement on

this issue, and have presented contradictory expert opinions

based on irreconcilable empirical data. Plaintiffs contend that

the statistical evidence, together with the anecdotal testi-

mony by named plaintiffs, establishes a prima facie case of

discrimination. Defendants, on the other hand, assert that

plaintiffs’ statistical proof is inaccurate and that any

unevenhanded impact from a facially neutral seniority sys-

tem is based on a rational craft distinction in the nature of

the job functions performed by each craft.

Plaintiffs employed Professor William Terrell as their

expert witness who prepared the statistical studies and

testified both in Sears and this case. Plaintiffs have added

the employment statistics on the Coast Lines to Santa Fe

employment data for brakemen, switchmen, and conduc-

tors on the Eastern Lines and Western Lines as demon-

strated in Sears. Terrell, Vol. Ill, at 584-586. It is noted,

however, that the employment statistics between 1965

and 1973 on brakemen and switchmen on the Eastern

Lines and Western Lines differ from those repeated in the

district court Opinion in Sears, although all of these

exhibits compiled and sponsored by Terrell point to the

same information source supplied by Santa Fe. Compare

Plaintiffs Exh. BL, S-0, S-1 with Footnote 12, Sears, supra,

454 FSupp. at 170. Adding to these numerical irregu-

larities is Santa Fe’s belated claim that it discovered the

employment statistics it had supplied to Terrell in Sears

Dire

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were erroneous, because Santa Fe “has found in its

employ blacks who have been hired at least as early as

1962 in the operating crafts of brakemen/switchmen.” See

Case No. 82-1984, Dkt. 96. To support this assertion, Santa

Fe presented Donald Florez Tousant, a black male who

was employed by Santa Fe as switchman/brakeman at

the Los Angeles Terminal Division on the Coast Lines on

June 9, 1962. Tousant, Vol. V, at 933. He testified that there

were 10 student switchmen in his switchman training

class in 1962, five of whom were black. Id. By contrast

also, UTU’s exhibits present a different set of statistical

employment figures on the numbers of black brakemen/

switchmen on the Eastern Lines. It is not clear that the

employment data represented in UTU’s exhibits purport

to reflect this claim on newly discovered information. We

note, however, that these exhibits uniformly show that

there were 50 black brakemen-switchmen, 8 more than

those reported in Plaintiffs Exh. BL, employed by Santa

Fe among its four divisions on the Eastern Lines between

1968 and 1972. UTU Exh. No. 80, 84, 85; Petersen, Vol. V,

at 959, 1014-1015.

Both plaintiffs’ and defendants’ experts conducted

statistical studies to deduce on a mathematical basis

whether or not race was a probative factor in employ-

ment decisions. These analyses compare the actual per-

centage of blacks hired as brakemen-switchmen and the

expected percentage of blacks in the available labor pool.

This was used to evaluate any signifiicant [sic] deviation

from the probable statistical values extrapolated by a

random selection from this pool of the black labor force,

given the total number of employees hired. Terrell, Vol.

Ill, at 577-579; Petersen, Vol. V, at 957-964, 1028-1030.

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Plaintiffs Exhibit BL, Table S-2 is a year-by-year analysis

of the Santa Fe Lines system for brakemen-switchmen

and conductors between 1965 and 1973. Table S-3 uses the

same analytical format for chair car attendants. In Table

S-2, it shows that there was a gradual increase in the

percentage of black brakemen-switchmen, from 0.7844%

in 1965 to 3.5453% in 1973 with the highest being 3.6086%

in 1972, employed on all three Santa Fe Lines (including

the Silsbee District in Texas). Table S-2 also shows that the

percentage of blacks employed as conductors ranged

from 0% in 1965 to 1.4877% in 1973, 1.6270% being the

highest in 1972. Both this Table and Table S-0 represent

that during these years there were no black conductors

on the Coast Lines and Eastern Lines. Table S-3 indicates

that the percentage of blacks in the chair car attendant

craft varies from 100% to 77.8% during the same period.

Based on the census reports on major urban areas in

which there were at least 25,000 “non-whites,” see Table

C-2, or “negroes,” see Table C-1, amongst a population of

at least 250,000, Terrell constructed several comparative

labor market models? by selecting the statistics for the

number of blacks or non-whites who were 25 years of age

or over and had a high school and up to three years of

college education. Terrell computed that 8.6319% “non-

white” or 9.771% “negro” belonged to this hypothetical

labor pool, from which he believes that Santa Fe “could”

3 Table C-3 is developed by using state-wide statistics.

They covered Kansas, Illinois, Colorado, Texas, and New Mex-

ico. This table indicates that labor pool is 5.5591% for “non-

white” in 1960 and 6.9907% for “negro” in 1970. Terrell primar-

ily relied on Table C-1, C-2 to form the basis of his opinion.

Plaintiffs Exh. BL, at 8, Terrell, Vol. III, at 635-637.

eet

eS Sah Dee

A-65

draw its employees for the operating crafts. Terrell, Vol.

III, at 603. By comparing these statistics, Terrell suggested

that the disproportional distributions of black labor force

within Santa Fe indicate that “there was crowding into

the jobs of train porter and chair car attendant and exlcu-

sion [sic] from the jobs of conductor and brakeman.” /d.,

at 583. He was of the opinion that this anomalous

employment pattern developed over the years in question

“could not have occurred by chance in the sense of

chance operating impartially with respect to race.” Id., at

582.

Defendants’ expert, Professor David Petersen, chal-

lenges the accuracy and relevancy of Professor Terrell’s

statistical studies and the soundness of his conclusion.

Defendants assert that the selection of statistical data for

building a relevant labor market must reasonably relate

to the scope of the employer’s business and the geo-

graphical areas from which it draws applications and

employees. See Hazelwood, supra, at 310-312; Petersen,- Vol.

V, at 980-989, see generally Wright, Vol. VII, at 1320-1337.

Petersen discounts the validity of Terrell’s choice of using

the population ratio for just the urbanized areas of certain

cities. Petersen, Vol. V, at 982-999. By contrast, Petersen

presented studies on the geographical areas within the

four divisions on the Eastern Lines where the majority of

named plaintiffs either resided or worked. He examined

the actual hiring statistics on each division hiring point

and weighed each labor area on a county-wide basis by

the number of jobs actually in that area. Id., at 966-976;

UTU Exh. No. 81, 82, 84, 85. His numerical findings are

that the availability rates of blacks for employment

between 1968 and 1972 range from 1.37% to 2.26% on

A-66

Colorado Division, 4.40% to 5.96% on Eastern Division,

7.49% to 10.86% on Kansas City Division, and 1.70% to

2.22% on Middle Division. By comparing the hiring rate

of black brakemen-switchmen which occurred before July

2, 1965 and that recorded subsequent to the effective date

of the Civil Rights Act, Petersen pointed out in his

studies that the statistics from 1968 to 1972 show there is

no significant disparity between the percentage of blacks

placed into the brakemen-switchmen craft and the avail-

ability of blacks in the relevant labor market from which

Santa Fe might reasonably be expected to draw them to

fill these positions. Id., at 957-976, UTU Exh. No. 80, 84,

85. On the basis of the statistical data for the period and

the geographical areas studies and sponsored by

Petersen, defendants argue that no reasonable inference

could be drawn that race played an illegal role in employ-

ment decisions in placing qualified black applicants into

the brakemen-switchmen vacancies.

Contrary to the illusion of certainty which statistical

evidence may create and the degree of reliance which the

parties have placed on statistical analysis, it does not

dispose of the issues we are required to determine in this

case. This is a case which challenges the promotion sys-

tem maintained by Santa Fe. The fact that the plaintiffs;

statistics show that the first black appeared on the brake-

man rosters in 1968 on the Eastern Lines suggest that the

color-bar which had kept blacks from working in the

formerly all-white position was partially erased, if not

completely removed at that point in time. Non-quantifia-

ble variables such as self-interest, greed, predispositions

- human behavior, values and deeds that we often judge

in hindsight —- are not always manifestly predictable by

A-67

statistics. Inference drawn from disparate statistical proof

is usually inconclusive and must be tempered by other

evidence which breathes “the cold numbers convincingly

to life.” Teamsters, supra, at 339.

XI. INDIVIDUAL ANECDOTAL EVIDENCE

Outside the Silsbee District, Texas, where Santa Fe

employed blacks as brakemen from the early 1900's,

Santa Fe presented evidence that blacks were hired into

the operating crafts in other districts as early as 1962 and

throughout the 1960’s into the early 1970's. To prove this,

Santa Fe called a number of witnesses, including two

blacks who were hired as switchmen before the effective

date of the Civil Rights Act. Donald Tousant is a black

who was hired as a switchman at the Los Angeles Termi-

nal in June 1962. He recalled that when he hired out as a

switchman in 1962 there were five out of ten in his

switchman training class that were black. One of those

blacks was a transferring chair car attendant. Between

1962 and 1967, he recounted that Santa Fe hired approx-

imately 50 blacks at Los Angeles as switchmen-brakemen.

Tousant, Vol. V, at 933-936. Jerry Brown was the other

Santa Fe witness who has been employed by Santa Fe at

the Chicago Division as switchman since March 1965. At

trial, he reviewed Santa Fe Exhibit No. 106, a Chicago

Division switchmen seniority roster for 1965, and identi-

fied at least five blacks hired along with him at that time.

He recalled that there were blacks hired as switchmen at

the Chicago Division between 1967 and 1971. Brown, Vol.

V, at 940-941.

A-68

There is evidence to show that some chair car atten-

dants were aware that Santa Fe was offering jobs to chair

car attendants as brakemen and switchmen in 1967.

Indeed, the chair car attendant union, BSCP, protested in

its letter of November 16, 1967 to Santa Fe that its mem-

bers could unknowingly lose their Feb. 7 protection upon

transferring to a new craft. Santa Fe Exh. No. 25. Plaintiff

Homer Jackson knew of the Santa Fe job offers in the

brakemen-switchmen craft and several chair car atten-

dants in his district in Fort Worth, Texas transferred and

became brakemen-switchmen. Jackson, Vol. II, at 331-340.

Plaintiffs Powell and Walker were offered the oppor-

tunity to work as brakemen-switchmen in 1970; both of

them turned down the offer because a transfer to the

operating craft at that time would require forfeiture of

their chair car attendant seniority. Powell, Vol. I, 182,

194-197. Plaintiff Moore was hired by Santa Fe as a

switchman in 1969. His employment was terminated by

Santa Fe because he missed too many calls for work. He

was rehired by Santa Fe as chair car attendant in 1970,

transferred to the switchman position in 1971, and later

resigned from that position and returned to work as a

chair car attendant. Santa Fe Exh. No. 145, Stipulation

No. 103. Plaintiff John Blankenbaker, Sr., knew that Santa

Fe was hiring blacks as switchmen in 1968, because his

son became one in February 1968; and at the same time he

was also offered such a position by Santa Fe. Santa Fe

Exh. No. 100-N, at 32. Similarly shown in the deposition

testimony by plaintiffs E. Bunch, Smith, Walker,

Covington, each of whom was aware that Santa Fe was

hiring blacks into the brakemen-switchmen craft. See

Santa Fe Exh. Noi. [sic] 100-L, at 65; Smith, Nov. 16, 1983

A-69

Depo., at 21; Walker, Dec. 8, 1983 Depo., at 86; Santa Fe

Exh. No. 100-P, at 21-22. In summary, the Court finds that

there is substantial and credible evidence to conclude that

Santa Fe began in 1968 to recruit blacks into the brake-

man or switchman craft in various districts, and that by

1968 and thereafter such employment opportunities and

hirings were generally known to many plaintiffs and

class member chair car attendants. However, the Court

makes clear that this finding of any pre-existing patterns

or practices of discrimination on the basis of race no

longer systematically prevailed after 1968 does not mean

the Court would assume that there was no single instance

of discrimination ever occurring thereafter. For the pur-

pose of determining whether or not an outermost limit on

liability should be drawn, the Court believes that plain-

tiffs cannot assert a class claim for damages upon the

theory of disparate treatment beyond the period in which

they had equal access to promotion or to transfer to

better-paid jobs.

Plaintiffs also claim that the disparate economic

impact from the craft seniority system deterred them

from accepting jobs in the other crafts. The typical reason

given by plaintiffs that they and the class member chair

car attendants were generally unwilling to consider trans-

ferring to entry-level jobs in other railroad crafts in the

post-Act period is that they could not retain their chair

car seniority or carry-over their seniority to the new craft.

Tuggle, Vol. I, at 115; Zanders, Vol. I, at 137-138, 157, 172;

Jackson, Vol. II, at 353; Harvey, Vol. II, at 338; J. Bunch,

Santa Fe Exh. No. 100-M, at 48; Lyons, Santa Fe Exh. No.

100-R, at 59, 93; Smith, Santa Fe Exh. No. 100-U, at 14-15;

Van Winkle, Santa Fe Exh. # 100-W, at 58; Walker, Santa

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Fe Exh. No. 100-X, at 31; see also Shoemaker, Vol. II, at 447;

Woolfolk, Vol. II, at 499. In some cases, they did not want

to hire out in a new craft for an additional reason that

they wanted a preserve their Feb. 7 wage protection as

chair car attendants, which protection, until the March 23,

1971 Agreement, would have been forfeited along with

their seniority with a transfer out of their chair car atten-

dant craft. See e.g., Powell, Vol. I, at 208-209; Harvey, Vol.

II, at 389-392.

The use of the craft seniority system has been a

standard labor management practice in the railroad

industry. Under the craft system, an employee normally

would be required to forfeit any previously accumulated

seniority credits upon transferring from one craft to

another, even under the same employer. See generally

Gamst, Vol. VII, at 1439-1450. The chair car attendant

union, BSCP, sought to modify this seniority forfeiture

rule and was successful in obtaining financial protection

from Santa Fe in the March 23, 1971 Cross-Craft Agree-

ment. As noted above, this Agreement not only allowed

chair car attendants to transfer to any other crafts on

Santa Fe, not just limiting to switchmen-brakemen, and to

retain their chair car attendant seniority standings, but it

also provided that their entitlement right to guaranteed

monthly rates under the Feb. 7 Agreement remained

intact if they did transfer. Furthermore, if they were

unable to obtain work assignments regularly in the new

crafts, they could return to their chair car attendant craft

by exercising their standing seniority. Whatever undesir-

able economic effects plaintiffs claim such a craft system

might have had in deterring chair car attendants from

considering inter-craft transfer or promotion across craft

Sa nc Arie SNR

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lines to better jobs, the Cross-Craft Agreement relieved

those chair car attendants who chose to hire out in new

crafts of any anxiety in having had to “commit seniority

suicide.” By this Agreement of March 23, 1971, virtually

all reasonable economic risks that might have discour-

aged chair car attendant’s long-yearning desire to seek

better-paid jobs after 1968 was effectively and securely

eliminated. Indeed, chair car attendants had an advan-

tage after March 23, 1971 in competing with applicants

from other crafts for the same jobs. Whether the job offers

by Santa Fe after 1968 were unconditional or not, the

evidence shows without substantial dispute that even

after March 23, 1971 many chair car attendants, including

some of the plaintiffs here, refused to consider jobs for

which they had equal opportunity to apply. These jobs

were refused because they claim that they could not carry

their chair car seniority credits and “dovetail” them into

the new craft rosters. An employee cannot claim back pay

beyond the period in which he rejects an employment

offer to a position he originally sought, even without an

offer of seniority retroactive to the date of discrimination.

Ford Motor Co. v. EEOC, 458 U.S. 219, 73 L.Ed.2d 721

(1982). In Sears, we held that only those chair cax atten-

dants demoted from train porters who applied or would

have applied for switchmen-brakemen jobs before March

23, 1971 and were willing to give up their Feb. 7 protec-

tion and chair car seniority were entitled to back pay and

seniority relief. Sears, 19 FEP 1007, 1013-1014 (D.C. Kan.

1978). We hold that those chair car attendants who did

not apply for the switchman or brakeman positions, or

any other better-paid craft positions on Santa Fe, between

March 23, 1971 and May 1, 1974 when Amtrak took over

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the on-board passenger service are not entitled to any

relief, since a failure to apply where there were openings

in better-paid craft positions known and accessible to

chair car attendants indicates that they were uninterested

in diligently seeking these positions.

XII. VALIDITY OF SENIORITY SYSTEM

Plaintiffs claim that they and class member chair car

attendants were victims of the same discriminatory, nun-

bona fide seniority system found in Sears, under which

black train porters and demoted chair car attendants

unjustly suffered for several decades. We disagree that

the nature and substance of the seniority system for the

chair car attendant craft is similar to or comparable with

that of the train porter craft, which we struck down for

violating the Civil Rights Act. We found in Sears that the

creation and maintenance of a separate seniority system

for an all-black train porter craft was illegal and not

immunized from liability under Section 703(h) of the Act,

because these train porters (including those who were

later demoted to the chair car attendant position by

Award 19324) performed substantially similar operating

functions as, but received employment benefits and privi-

leges unequal to those brakemen-switchmen who

belonged to a predominately white-member union. We

believe that the creation and maintenance of a separate

seniority system for the chair car attendant craft was

based on legitimate business reasons. Any discrimination

in the employment of blacks in the chair car attendant

craft was in the initial selection and assignment of

employees to staff this “non-operating craft.”

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Under Title VII, the continuation of employment

practices or procedures which perpetuates the past effects

of racial discrimination is unlawful. Griggs v. Duke Power

Co., 401 U.S. 430, 28 L.Ed.2d 158, 163 (1971). But in

Teamsters, the Supreme Court recognized that Section

703(h) of the Act exempts bona fide seniority system from

Title VII liability even if the system operates to perpetu-

ate the disparate effects of past discrimination. 431 U.S. at

352, 52 L.Ed.2d at 426. In Pullman-Standard v. Swint, 456

U.S. 273, 276-277, 72 L.Ed.2d 66, 72 (1982), the Court

further stated that under Section 703(h) “a showing of

disparate impact is insufficient to invalidate a seniority

system.” A challenge to the lawfulness of a seniority

system under Title VII requires that a plaintiff to prove

the system was adopted with intent to discriminate. /d., at

277.

The procedures for analyzing whether or not a

seniority system is bona fide and thus comes under the

protective shelter of section 703(h) are set out in Firefigh-

ters, Inc. v. Bach, 731 F.2d 664 (10th Cir. 1984). It instructed

that a trial court should focus its factual assessments on a

seniority system being challenged as illegal on four par-

ticular factors.

“First, a court must determine whether the sys-

tem ‘operates to discourage all employees

equally from transferring between seniority

units.’ . . . Second, a court must examine the

rationality of the departmental structure, upon

which the seniority system relies, in light of the

general industry practice... . Third, a court had

to consider ‘whether the seniority system had its

genesis in racial discrimination,’ . . . by which it

meant the relationship between the system and

other racially discriminatory practices. . . .

a A-74

Finally, a court must consider ‘whether the sys-

tem was negotiated and has been maintained

free from any illegal purpose.’ ”

Id., at 668.

Before we proceed to examine the validity of the

separately created and maintained seniority systems for

the crafts of chair car attendants and brakemen-switch-

men according to the criteria as listed in Bach, the Court

will make a brief observation of the partisan experts,

Professor Herbert Hill for plaintiffs and Professor Fre-

derick Gamst for defendants, who offered their testimony

primarily as labor historians. It is not the diverging con-

clusions which these academics have reached that partic-

ularly concerns the Court. Rather, it is their reasonable

and objective interpretations, on the past as well as cur-

rent history of the labor relations that are valuable to the

Court for assessing the merits of the dispute. While each

of us may hold a different view in the reading and

interpretation of primary historical facts. Professor Hill’s

dogmatic teaching approach from a racist viewpoint on

the seniority and promotion system of the railroad indus- -

try is too far adrift from the mainstream of thought which

historians of this intellectual discipline have embraced.

This is not a say that there were never racial discrimina-

tion in the railroad industry employment. Defendants

have indeed admitted that they occurred in a time period

in-which people shared a different social, moral, political

and legal point of view on matters which we may find

repugnant to the values and beliefs we hold today. How-

ever, neither can we accept Professor Hill's indiscriminate

assertion that the patterns of racial discrimination cover-

tly remain intact today because the railroad industry

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continues to adhere to the practice in endorsing separate

seniority provisions for different crafts. Nor do we agree

with his vituperative view that the implementation of

various programs to achieve employment equality since

1965 is merely a “token” effort by the railroad industry

for claiming a basis in showing its compliance with the

law.

We now turn to examine the first factor of the four-

part analysis for testing the validity of a seniority system.

(1) Does the seniority system apply equally to all races,

discouraging transfers of all employees, whites as well as

blacks, between crafts? In Sears, the Circuit Court noted

on the basis of the stipulated facts that while porters and

chair car attendants were considered to belong to the

train crew performing related job functions as brakemen,

switchmen and conductors, only the seniority rosters of

the brakemen and switchmen were dualized which

“allowed all members of this operational crew - except

porters and chair car attendants - to transfer without a

loss of seniority.” Sears, supra, 645 F.2d at 1373 (emphasis

added). The Court thus concluded that the seniority sys-

tem failed to meet the “equally apply” criteria because

those employees who were discouraged by the seniority

forfeiture rules from transferring to another craft were

blacks. Id.

The Sears litigation was tried on stipulated facts, the

evidence in the Blankenbaker litigation, after a plenary

trial on all of the issues to the Court, establishes factual

matters which were not part of the stipulated facts pre-

sented to the Court of appeals for review in Sears. The

evidence shows that the “dualization ” of brakemen-

switchmen seniority rosters began on the Santa Fe Coast

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Lines in 1959. In the following years, this process in

merging these two crafts’ seniority rosters occurred in

some seniority districts, but was not fully completed and

implemented throughout the Santa Fe system. Thus, con-

trary to the found by the Circuit Court in Sears, supra, not

all brakemen and switchmen on the Santa Fe system were

allowed freely to make inter-craft transfers between these

two “similar” crafts without forfeiting their incumbent

seniority credits. There were brakemen-switchmen

groups, for example, in the Arizona Division and the

Chicago Division, whose seniority lists were never

dualized. See UTU Exh. No. 103; Murphy, Vol. V, at

1079-1080. In the Kansas City Division, switchmen in that

Division did not have the right to work in the brakemen

craft in the Easter Division before April 1, 1974, except to

work as new hires by forfeiting their yard seniority. Mur-

phy, id., at 1073-1079. On the other hand, only those

brakemen in the Eastern Division who were hired after

April 1, 1971 will hold dual seniority rights on the road

and yard rosters. Id., at 1076. Those Eastern Division

brakemen with a seniority date prior to April 1, 1971

would have to forfeit their seniority when they trans-

ferred to the switchmen craft at the Kansas City Argen-

tine Yard. Id., at 1077. Similarly, switchmen in the

Colorado Division-Denver Division did not have the

right to work as brakemen in that Division until Septem-

ber 2, 1975, and only then were they to work as a new

hire in the brakemen craft in that Division. See UTU Exh.

No. 11, at 152.

Both the switchmen and brakemen jobs are entry-

level positions on Santa Fe. Seymour, Vol. III, at 728;

Chesney, Vol. V, at 1116-1117. All employees hired into

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the entry-level positions are required to hire out as new

employees and to establish a date on the seniority roster

based upon their first date of employment. Thus, the

Santa Fe seniority forfeiture rules on entry-level jobs have

always worked to discourage not only black employees,

but also white brakemen or switc

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