Rehearing and Rehearing En Banc Denied November 18, 1971.
DYER, Circuit Judge:
Once again Jacksonville Terminal Co. has accepted a challenger's gauntlet and renewed battle in this interminable litigation
The Attorney General filed a § 707 complaint
316 F.Supp. at 615-616. Having imposed this burden, the District Court then concluded that the Government had not adequately borne it. The court held that the Government had neither shown specific discriminatory acts nor manifested a discriminatory pattern or practice pursued by any defendant. Conversely, the court concluded, the Terminal and the Unions had established the complete lack of discriminatory activity at the Terminal. Accordingly, the District Judge dismissed the suit with prejudice and taxed costs against the Government.
Here the Government contends, in essence, that the existence of a pattern need not be manifested by the identification of each specific thread used to weave it: i. e., the Government was not required to present a multitude of post-Act discriminatory incidents to establish its case. Moreover, the Government argues that the District Court misconstrued the evidentiary time-frame pertinent to Title VII litigation; it avers that the court's repeated references to plaintiff's failure to prove discrimination "at any material time" suggest that the District Judge has mistakenly treated pre-Act discriminatory acts or practices as without continuing consequences and therefore irremediable under Title VII, rather than as not having occurred at all. Based on these general premises, the Government challenges the District Court's findings of fact and conclusions of law. In this regard, the Government's quarrel is not so much with the empirical facts actually found by the trial judge as with his selectivity regarding pertinent facts which merited consideration. Because of his conservative misconceptions as to his proper factfinding role and as to the extent of the Government's burden of proof, the Government argues, the judge's perspective was too myopic. Further, he allegedly erred in his findings of "ultimate" fact (such as conclusory statements that particular acts, or series of acts, did not establish the existence of discrimination or discriminatory intent as defined in Title VII), as well as his legal conclusions derived from the factual milieu. Insofar as the Government's attack is predicated on these grounds, the "clearly erroneous" rule is not a bulwark
With these thoughts in mind, we proceed to consideration of the physical environment framing this case. Initially we shall review the general employment situation at the Terminal, then examine the specific areas where the Government allegedly has uncovered discrimination. Finally we shall evaluate the parties' arguments, as well as the District Court's decision, in light of applicable statutory and decisional authority.
Owned by three major railroads,
Concomitant with the contracting volume of operations, as well as expanding mechanization, the Terminal has substantially reduced its work force. In 1953 the Terminal employed approximately 1200 people; in 1967 only 650 personnel remained. As of August 6, 1969, the Terminal employed approximately 532 individuals, of whom 275 were white and 257 were black. (This total does not include those on leave of absence or furloughed who did not remain active.) Some fifty of the 532 employees did not work full time; they filled vacancies or performed limited assignments.
Active employees occupied 102 separate job categories. Seventy-nine of these categories—termed "contract jobs" —are within the crafts
Whites predominated in fifty-nine contract job categories. In August 1969, 247 of the Terminal's 275 whites occupied these positions; eight of the Terminal's 257 blacks held such jobs. Four of the eight received promotions to these positions after June 24, 1968, when the Government filed this suit.
The parties stipulated regarding the number of employees, by race, who worked in each of the contract jobs, the department in which each job exists, and the Union representing employees who held each of the jobs at the Terminal.
Management practice has been to employ the "best qualified" person available at the time of a job vacancy. Terminal officials are familiar with, and assertedly have attempted to comply with, Title VII, as well as pertinent Executive Orders and United States contract requirements.
Having weighed conflicting evidence, the District Court concluded that the Terminal had not discriminated in making initial job assignments. It found that "all applicants for jobs were informed of all vacanices for which they might have possessed the requisite qualifications and were considered therefor upon the basis of qualifications alone." Id. at 580. (emphasis added). The court took cognizance of the fact that five of twenty-five black witnesses had affirmatively responded to the question whether each was "assigned" to the first job he held at the Terminal. Nevertheless, the District Judge also considered the fact that the personnel file for each of these five blacks indicated that he had received the position for which he had applied. Also, he noted that no black had complained about initial assignments, which could have been accepted or rejected. He did not deem black qualifications enhanced merely by graduation from high school—an educational level which some whites in higher-paying jobs had not attained. Nor did he mention that some jobs traditionally held by whites require no prior experience. (As examples, the Government cites: Apprentice in the Mechanical Department, Carpenter Helper in the Maintenance of Way Department, and Telegrapher and Switchman in the Transportation Department.)
In promotion and transfer as in hiring, the Terminal's policy has been to recognize "the best qualified person available with consideration being given to the rights of any employees possessing seniority entitling them by contract to bid upon the vacant job." Id. at 581. In transfer situations, collective bargaining agreements forbid retention of accumulated, Terminal, craft or class, or industry seniority. Moreover, employee transfer rights are limited. Ordinarily seniority acquired on one of the Terminal's thirty-five seniority rosters cannot be used for bidding on a job vacancy on another roster.
The engine service crafts, however, present a paradox. In these crafts there are three separate seniority rosters: Firemen and Hostler Helpers, Hostlers, and Engineers. Individuals on the seniority rosters for these crafts fill positions in engine service. The basic collective bargaining agreement provides craft seniority in the crafts of locomotive Engineer and Locomotive Fireman. Employees accumulate seniority in each craft separately. However, firemen promoted into the Engineer craft retain their Fireman's seniority rights, and "hired" Engineers (those who have had engine service experience on other railroads) also are placed on the Fireman's seniority roster. This arrangement provides
An employee possessing seniority in a particular craft or class is entitled, as a matter of contract right, to be provided with notice (through bulletin for an appropriate period in a designated location) of all vacancies or newly created positions within his craft and class; to bid on the vacancy or new position; to be awarded the position if the bidder has enough fitness and ability and is the senior eligible bidder; to be subject to involuntary layoff only after all those junior to him in his craft or class; and to select under some circumstances preferred working hours, off days, vacations, and other privileges based upon length of service. According to collective agreements between the Terminal and the Unions, seniority usually begins when the employee starts work in the craft and class to which he is regularly assigned. One who holds a temporary job (such as Christmas rush hires) or an emergency position (such as World War II trainmen and firemen or "set up" shopcraft helpers) remains vulnerable to replacement by a qualified applicant or an employee with contract rights to bid on the particular job. He accumulates no seniority and acquires no subsequent contract right to bid on any position in the craft or class where he performed temporary or emergency service. Union-management agreements proscribe inter-craft seniority transfers, both because few railroad crafts are functionally related and because each craft is controlled by a single contract negotiated by a specified labor representative. As noted earlier, however, the general proscription does not apply to some employees, who circumvent it by retaining seniority on separate craft rosters. Moreover, the collective agreements normally prohibit inter-class seniority transfers within a single craft, preventing employees from "rolling back" into lower positions.
Within the limitations imposed by collective bargaining agreements, the Terminal is responsible for employee promotions. We have no reason to doubt the Unions' contention in this regard, and the District Court ostensibly accepted it as a postulate. Of course, if contract rights are applicable, the Terminal offers the vacant position to the senior qualified bidder. However, if no applicant possesses a contract right to bid for the position available, the Terminal chooses the "best qualified" individual who can fill the vacancy at that time. The Terminal has always posted notices concerning job openings in accordance with pertinent provisions of applicable collective bargaining agreements. Those provisions have usually dictated where the notice must be posted, what the notice is to state, and how long the notice should be posted. The agreements require only that such bulletins be published to the craft or class of employees possessing contract rights to
Id. at 581-582 (footnote omitted). The court also held that certain employment tests utilized by the Terminal to assess qualifications for particular positions were nondiscriminatory. The Terminal asserts, and the District Court agreed, that racial discrimination has not been a motivational factor in promotion decisions at any material time either before or after Title VII's effective date.
Having reconstructed this backdrop, we turn to the specific departments, policies, and practices which the Government presents as the cynosures in this litigation.
A. Baggage and Mail Department
On August 6, 1969, approximately 108 employees (seventeen white and ninety-one black)
However, Terminal records do not disclose that any black was hired into a group 1 job in this or any other department within the BRAC's work jurisdiction; indeed, all blacks in the Baggage and Mail Department began their employment tenure in the group 3 job of Porter. Of the nine black employees in this department called as witnesses by the Government during presentation of its case, five (four of whom were hired before July 2, 1965) testified that they had not applied for any particular jobs at the Terminal. All five had, at least, graduated from high school. A sixth, who had had experience as a Mail Room Supervisor in the Air Force, applied for
According to Terminal records, twenty-three of the twenty-eight whites working in the department as of December 1, 1969, began their employment in group 1 jobs. Of the remaining five, whose beginning jobs in the department were as group 3 Porters, four were hired after July 2, 1965. The fifth became a Porter in 1938 and advanced to Apprentice Assistant Foreman, a group 1 position, in 1939. Other than clerical aptitude, the Terminal ostensibly demands no formal educational prerequisite for group 1 jobs.
To rebut any inference as to racially discriminatory job assignments in this department, the Terminal presented evidence and testimony purportedly explaining the substantial concentration of blacks in group 3 mail handling positions. A Terminal witness testified that general economic conditions in the Jacksonville area are an important factor in determining the source of mail handling manpower for his department. Blacks have come to, and remained at, the Terminal because it offers better pay and job security than are otherwise available in the vicinity. Their employment applications uniformly show no educational background or prior work experience warranting employment in skilled jobs, i. e., group 1 positions. Whites who possess similar qualifications and who are hired to work as group 3 mail handlers remain only temporarily because better opportunities exist in other industries and perhaps because they do not enjoy the manual labor required in mail handling. Contributing to this "unavoidable" concentration of blacks in group 3 is the fact that, although both whites and blacks are hired "on an approximately equal basis" for the annual Christmas mail rush, only blacks apply for post-rush permanent employment as extra-board Porters, the job classification of all Christmas extra help. "No one applies for a Group 3 job; they come in and say they want a job," the department head stated. However, blacks have been hired as Porters—because, as the Terminal emphatically argues, in many cases the applicant had previously worked for the Terminal in the same job "for which his then current application was made." Signed employment applications in Terminal files indicate that blacks have "applied" for the lower paying group 3 jobs, arguably supporting the Terminal's contention that no one has taken a particular position involuntarily. Further, the Terminal avers, the Government failed to show that vacancies in group 1 have existed at any material time.
The Terminal also points out that it has given certain black employees mail handling work as a favor to relatives who are employees. An example is Roderick Gray, who applied at the behest of his step-father Henry Young. Young asked the Terminal management to hire Gray to "help straighten him out" and stated in a minor's work release that his step-son was an applicant for the job of Porter. Young's action, the Terminal concludes, manifests that Gray sought work with his step-father and of the same type as that in which he had prior experience, i. e., as a freight handler. The District Court agreed, concluding "from the demeanor and testimony of the witnesses and the content of pertinent exhibits that Mr. Gray actively sought the job he received and had no qualifications for any other job." Id. at 580. As to Young, the Terminal notes that although he testified he had been assigned to the job of Porter, he also
With respect to promotions in the department, the Government has argued that there are racially separate lines of progression. Of the seventeen whites hired before July 2, 1965, who were working in the department as of December 1, 1969, sixteen began in group 1 jobs. Depending on their entry positions, the whites have advanced from Apprentice Assistant Foreman to Assistant Foreman to Foreman and finally to General Foreman, all of which are group 1 jobs. The seventeenth white was hired as a Porter in 1938 and became an Apprentice Assistant Foreman in 1939. Conversely, all blacks have begun in the group 3 Porter job. From there they have advanced to Loader, Tractor Driver, and Separator. Since 1962 three blacks have been promoted to Assistant Foreman or Foreman. Prior to their promotions, they worked from fourteen to sixteen years in group 3 jobs.
Rule 4 of the agreement between the BRAC and the Terminal provides that covered employees shall be in line for promotion. Until the rule was amended on November 21, 1962, group 3 employees (all blacks) were specifically excluded from its scope of applicability. Blacks were aware that the pre-amendment rule precluded advancement in group 1 positions.
As we mentioned earlier, after amendment of the rule, three blacks have been given group 1 positions. The first was promoted in 1964, the second in 1966, and the third in 1967. The District Judge concluded that the pre-1962 rule
Id. at 585 (footnotes omitted).
On April 4, 1967, the Terminal began administering a personnel test to those seeking group 1 jobs in the department; personnel already holding group 1 positions were exempted from the examination. The Terminal's Chief Baggage and Mail Agent and his Chief Clerk developed the test along with a suggested grading scale. Currently, however, there is no minimum passing score. Moreover, there is no manual explaining administration or scoring. The District Court found that the test "relates to actual job requirements and was designed by professional railroad personnel. * * * The record shows that it was developed to screen employees to determine who might possess the clerical qualifications necessary for Group 1 job classifications. Test scores were but one of a number of factors considered in determining which employees might be qualified for work in Group 1 jobs." Id. at 583. In making this finding, the court necessarily chose between contradictory testimony delivered by two industrial psychologists, neither of whom evidently participated in the test's development or administration.
The Government challenges this finding because the test allegedly has been correlated to anticipated rather than actual job performance in group 1 positions. According to the Government, this measure of validity is inadequate;
After the test had been developed, the Terminal, by posted notice, invited all group 3 employees interested in group 1 jobs to take it. Apparently this notice was the first ever inviting group 3 employees to apply for group 1 jobs. Group 1 positions generally involve clerical work; the initial prerequisite listed on the notice was "qualified typist." Since group 3 workers were aware that the group 1 jobs of Utility Clerk, Assistant Foreman, Foreman, and General Foreman involve no, or very limited, typing, the Government concludes that group 3 employees became apprehensive concerning the notice's sincerity.
During April fifteen blacks holding group 3 positions took the examination. None was promoted to a group 1 job after taking the test. Between May 1967 and August 1968, at least nine group 1 jobs were filled, all by newly hired whites who had scored higher than the blacks tested. One black testified that the department head had told him he failed the test, and others stated that they had never been informed of the results. The General Baggage and Mail Agent advised group 3 Separator Henry Young to review his arithmetic. Young scored five points higher on the arithmetic part than did J. A. Boswell, a white who became a Utility Clerk one month after Young took the test. Boswell, however, scored ten points more than Young on the whole test. Moreover, he entered the department with substantial clerical experience that Young did not possess.
Several Terminal officials responded to the Government's contentions by pointing out that the test was not the sole criterion for group 1 work; it has been given only to ascertain an individual's ability to read, write, and do basic arithmetic. For instance, Roger Stamper, a black group 3 employee, scored forty-nine on the test during his group 1 probationary period. Nevertheless, the department head concluded for other reasons that Stamper would be a satisfactory Assistant Foreman, and Stamper subsequently acquired regular group 1 status. To validate the test by comparison with actual job performance would allegedly have been impractical: the Terminal would have become an experimental station for employees that might not have the ability to do the work. Finally, the Terminal asserts that group 3 employees are not required to take the test and pass, or otherwise achieve an acceptable score, to hold a group 1 job. Thus the test cannot be a term or condition of employment imposed on blacks but not on their white contemporaries.
B. Accounting and Purchasing and Ticket Departments
In August 1969, approximately twenty-five employees (eighteen white and seven black) performed fifteen different contract jobs in these two departments. Thirteen jobs are group 1 and two are group 3. As of December 1, 1969, all blacks hired into the departments have become group 3 Store Helpers or Store Laborers; all whites, except one, have begun in group 1 positions, such as Stockman or Apprentice Clerk. The sole white exception has been S. C. Woodward, who was hired as a Store Helper in 1938 then became a group 1 Ticket Seller in 1939.
Both departments are within the work jurisdiction of the BRAC. Consequently blacks have been subject to the group 3-group 1 transfer or promotion restrictions contained in the agreement, discussed supra in regard to the Baggage and Mail Department. Terminal records disclose that no black received a promotion from group 3 to group 1 until June 1969, when Nathaniel Sears became a Stockman. The District Court stated:
Id. at 586.
C. Transportation Department
As of August 1969, approximately 116 employees (ninety-four white and twenty-two black) worked in the department. Among the contract jobs in this department are those in engine service (Engineer, Hostler, Hostler Helper, and Fireman) and in Train service (Conductor and Switchman).
Blacks completely filled two departmental positions, Red Cap-Station Cleaner and Red Cap Captain. Only one black, Jessie Nesmith, worked in any of the other fifteen jobs. At the time this suit was filed, Nesmith was a Switchman; later he became a Conductor.
Formerly blacks shared the jobs of Fireman and Hostler Helper as well as that of Switchman. Partly because of agreements with certain Unions, the Terminal ceased hiring blacks for these positions. Later BLF & E agreements, to which the Terminal was a party, provided that no more than 50 percent of Fireman and Hostler Helper jobs could be filled by blacks. Steele v. Louisville & Nashville R. R., 1944, 323 U.S. 192, 195, 65 S.Ct. 226, 89 L.Ed. 173; see Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 1944, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187. While Steele and Tunstall questioned the spirit of a 1941 BLF & E agreement, the letter did not succumb by judicial fiat until the Supreme Court decided Graham v. Brotherhood of Locomotive Firemen & Enginemen, 1949, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22. From 1932 until 1967, the Terminal hired no blacks as permanent Firemen or Hostler Helpers. One black became a Hostler Helper in 1967. The District Court found that "[t]he employee with the lowest position on the fireman hostler-helper seniority roster who is presently working has a seniority date of 1951. * * * [A]ll of these employees hired since 1964 have subsequently left engine service because of a lack of work. Three employees have worked in emergency as firemen hostler-helpers since 1965. These white employees did not acquire seniority for this temporary emergency service." 316 F. Supp. at 605-606. The court further said: "The Government also referred to terms of ancient collective bargaining agreements of the former BLF & E covering the craft of firemen, dating from 1930 and 1935 which were completely canceled in 1949. The Court specifically finds that there has been no effect or application of these agreements since they were canceled in 1949 and they are not relevant to any issue in this action." Id. at 607. (footnote omitted).
D. Mechanical Department
Approximately 149 employees (eighty-seven white and sixty-two black) held thirteen different jobs in the Mechanical Department as of August 6, 1969. Blacks filled five of the jobs, while
Blacks employed in the department have begun in the jobs of Car Cleaner, Ice and Waterman, and Laborer. As of December 1, 1969, every black had entered the department in one of these positions.
Whites, except those hired as journeymen, have begun work in the department as Carman Apprentice, Machinist Apprentice, Electrician Apprentice, or Electrician Helper. Since the collective agreement between the Terminal and the shopcraft unions comprising System Federation No. 50 became effective in 1939, only one black has been hired into any of these jobs: he became a Carman Apprentice but progressed no further.
As in the other departments, blacks and whites have traveled different promotion paths. The former have been promoted from Car Cleaner or Ice and Waterman to Carman Helper and from Laborer to Fuel Oil Pumper or Machinist Helper. The latter, other than those hired as journeymen, have risen from Carman Apprentice to Carman, from Machinist Apprentice to Machinist, and from Electrician Apprentice or Electrician Helper to Electrician. White journeymen have also been promoted to Foreman. The record indicates that the qualifications prerequisite to employment as Carman Helper and Machinist Helper, jobs held by blacks, are substantially the same as those necessary for employment as Electrician Helper, a position filled by whites.
Pursuant to a 1942 upgrading agreement between the Terminal and the Federation Shop Crafts represented by System Federation No. 50, Electrician Helpers have been permitted to learn the skills of and be promoted to Electricians. Within certain limits the agreement permits Electrician Helpers to retain and accumulate Helper seniority while employed as Electricians. All affected employees have been white.
Under a 1969 upgrading agreement, Carman Helpers and Machinist Helpers, have been permitted to train as and be promoted to Carman and Machinist. Previously promotion had been precluded by Rule 24 of the collective agreement between the Terminal and System Federation No. 50, which restricted use of welding equipment to Mechanics (shopcraft journeymen) and their Apprentices. Consequently blacks, who were neither Mechanics nor Apprentices, could not acquire the training or experience necessary to qualify for more skilled positions. The 1969 agreement ostensibly remedied this problem. Its terms concerning seniority, however, are more restrictive than those in the 1942 agreement pertaining to the electrical craft.
Of the eight blacks called as government witnesses, "[n]one testified that he should have been hired initially in any job other than the one he obtained, and the record contains no evidence that any was qualified for any other job." Id. at 592-593 (footnote omitted). Although each witness expressed his desire for promotion, none would make the effort at the risk of losing seniority. The court determined that those who had applied for higher paying jobs were either unqualified, not as qualified as the white who received the positions, or not entitled by seniority to bid for the jobs. While some blacks testified that they had been "assigned" to their initial jobs, others indicated that race was not a factor in promotion.
E. Maintenance of Way Department
On August 6, 1969, approximately twenty-six employees (thirteen white and thirteen black) worked in twelve different contract jobs. Blacks filled two of these jobs, and whites filled nine others. The remaining position, Welder Helper, was held by one white and one black; until 1966 it had been filled exclusively by whites.
No black has been hired for any job other than Laborer in this department. Only one has been promoted to a higher position: he became a Welder Helper on a temporary basis in 1966 and achieved permanent status in 1969.
The BMWE has represented all employees in this department. Rule 2 of the collective agreement provides for bulletining notices of vacancies and new positions. Until March 1969, the Terminal did not post such notices on bulletin boards assigned to Laborers, who have been totally black for years. The District Judge concluded:
Id. at 587 (footnote omitted). Once again, the court found that no government witness questioned his initial job assignment; instead each expressed a desire for promotion. In every case, the District Judge stated that the best qualified man available at the time had gained the open position.
F. Signal Department
Eight employees (all white) held three different jobs in this department on August 6, 1969. Terminal records disclose that no black has ever been hired for or transferred into this department. No black employee has ever been a member of the BRS, which has work jurisdiction over jobs in the department. The District Court concluded that no evidence of racial discrimination in the department
G. Racially Segregated Locals
Terminal employees who are members of the BMWE belonged to one of two local lodges at the time of trial. Local 539 has been comprised of whites; Local 2029 has been comprised of blacks. When Local 2029 was chartered in 1937, the BMWE constitution and by-laws provided for "allied" Negro locals, which were to be represented by delegates selected from white locals. The Union repealed these provisions in 1946, but evidently the news has been slow in reaching Jacksonville. The BMWE has not consolidated Locals 539 and 2029; it has recognized both as functioning components of its organization, even though all members of these locals are subject to the same collective bargaining agreement.
The Seaboard Federation of the BMWE has retained jurisdiction over Union members employed by the Terminal. At the Federation convention, every delegate casts one vote for each member of the lodge or lodges which he represents. According to a provision in the Federation's by-laws since 1955, the delegate representing both Locals 539 and 2029 votes for all members of these lodges during the convention. A member of Local 539 represented all BMWE Terminal employees at the two most recent conventions of the Federation. This delegate was elected solely by members of Local 539, the all-white group, C. L. Winstead, late General Chairman of the BMWE, testified that, to his knowledge, this has always been the situation at Federation conventions.
The District Court found no evidence that black BMWE members had attempted to terminate the existence of their lodge or to merge with the white local. In fact, Local 2029 members recently voted against merger with Local 539. Moreover, the court discerned no situation in which specific lodge membership affects employment opportunities: there are no local hiring halls or referral systems, and the General Chairman of the Federation customarily handles grievances. Besides, in the "Seaboard Federation Negro employees have superior voting power both from the point of view of number of locals on (sic) the Federation and number of members, and votes are cast on the basis of the total membership in each local lodge." Id. at 614.
At the time of trial, Terminal employees represented by the BRAC belonged to one of two lodges, Local 1014 or Local 1575. All members of Local 1014 held group 1 jobs, and all members of Local 1575 held group 3 positions. Of the sixty-six members of Local 1014, sixty-three were white and three were black. Of the 204 members of Local 1575, 202 were black and two were white. No black joined Local 1014 until July 1968, and no white became a member of Local 1575 until June 1967. Although a racial qualification for local membership was eradicated in 1947, the BRAC has not consolidated Locals 1014 and 1575; both remain functional. Prior to March 1969, only the Local Chairman of Local 1014 received Terminal notification of group 1 openings, presumably because only incumbent group 1 employees have had contract rights to bid for such positions. In January 1970, the first black to be elected District Chairman of the two locals began handling grievances. His tenure commenced long after the Government had initiated the litigation sub judice.
Finding that neither the BMWE nor the BRAC had violated Title VII, the District Judge said:
Id. at 615.
H. UTU Local 624-T and Black Yardmen
Formerly known as the BRT, the UTU represents all Terminal Yardmen (a category comprised of Switchmen and Conductors). All regularly employed Yardmen—except Jessie Nesmith, a black Conductor—belonged to UTU Local 624-T at the time of trial. Although the Union has alleged in its brief that there are now black UTU members working at the Terminal, no current or former black Terminal employee had ever gained UTU membership when litigation began.
Since 1957 the BRT-UTU and the Terminal have had a union shop agreement. Nevertheless, Local 624-T has required only white Yardmen to join its ranks. Prior to 1960 the reason for the local's selectivity was obvious: the BRT, by constitutional provision, prohibited Local 624-T from admitting blacks. Three blacks, who had been Yardmen at the Terminal, testified that their membership applications were rejected at unspecified times.
After 1960 Local 624-T's General Chairman did not ask blacks to join, allegedly because of the monetary requirements imposed by its funeral benefit fund. Stated in 1956, the fund required everyone over fifty who joined the Union to pay two dollars a month for every month that he was past fifty. In May 1969, fund membership for such employees were made optional. However, the General Chairman testified that he had not invited Nesmith to join. The trial court found the Union's failure "to force Negro Switchmen to become members does not operate to discriminate against them because of their race or to adversely affect their employment opportunities. The Court further finds that membership in the UTU local is available to such Negro employees and they have not sought to become members." Id.
I. Toilet, Locker, and Shower Facilities
At the time of trial, the Terminal maintained thirty-two different toilet, locker, and shower facilities for its employees. Some of these facilities have been internally partitioned; their utilization on a craft basis ostensibly has resulted in the segregation of blacks from whites. For example, one facility located at the repair track has been divided by a wall: Carman Helpers, all black, have utilized one side; while Carmen, all white, have used the other.
Separate facilities in the same areas have been segregated, assertedly by craft. Thus, of two facilities 100 to 200 feet apart, one has been used only by black Car Cleaners and Ice and Watermen; the other has been utilized only by white Carmen and Electricians. All these employees have worked in the same general area at the Terminal.
The Government contends that the arrangement is indicative of racial discrimination. The Terminal denies any racial intent or motivation. After a personal visit, the District Judge found that many facilities are used by both
Our extraordinary regurgitation of evidentiary data has been necessary for two reasons. First, there is no pertinent precedent in this industry: the Government has never before applied Title VII to a railroad facility, where a multitude of interested parties further complicate already complex problems of proof. Second, and more important, this is a "pattern or practice" suit, the resolution of which primarily depends on facts and the vantage point from whence they are perceived. Factual and legal events deemed relevant for one purpose or another span five decades of railroad history. The perspective chosen is all important in ascertaining which, if any, of these events elucidate the current employment situation at Jacksonville Terminal. Augmenting the decisional difficulties here is the fact that the industry is subject to the Railway Labor Act, 45 U.S.C.A. §§ 151-163, a statutory scheme which defendants contend precludes, or at least severely circumscribes examination of pivotal seniority issues under Title VII.
Undeniably blacks, as a class, at the Terminal occupy the lowest pay plateaus at that facility. Undeniably, too, the Terminal, like other railroads and connected facilities, remains in a period of reduced employment; consequently even the most beneficent employer would find elevation of qualified blacks into higher paying, more substantial positions an onerous task. Certainly in this regard, the Terminal must continue to protect the jobs of incumbent whites. Assuming arguendo for the moment that past or present racially discriminatory conduct has occurred, white employees need not suffer displacement, layoff, or furlough merely to satisfy some court-imposed quota or black/white ratio. In light of this record, no one could argue that the Terminal has failed to zealously perform this aspect of its duty to employees.
Assuredly rigid craft and class seniority systems, which give persons already in a particular craft or class contract rights to bid on new and vacant positions in that craft or class, have impeded minority transfers and promotions. Blacks, who generally remain outside the higher paying crafts and classes at the Terminal, must stand in line to apply for jobs for which they have rarely been judged qualified.
Given these employment realities, however, the ultimate legal question remains: have either the Unions or the Terminal, or both, engaged in racially discriminatory activities after the Act's effective date, or within a reasonable period of time before that date, the consequences of which continue? Unless the answer to this question is affirmative, Title VII will not support judicial intervention or relief.
Naturally, the Government has contended that employer-union discrimination has been and continues to be rampant at the Terminal. To substantiate this charge, the Government has utilized both pre- and post-effective date conduct, all of which is allegedly discriminatory, and Terminal employment statistics. It asserts that the relevance of pre-Act conduct is assured partly because railroad employment is declining: decisions and agreements made many years ago arguably affect job competition after Title VII's effective date.
The Terminal and the Unions counter with the explanation that necessary business decisions in an historically determined setting have culminated in the current employment situation. A corollary argument is that employees have voluntarily chosen to enter or to remain in their positions; and thus the Government is acting as an officious intermeddler, trying to enforce changes for which there has been no demand. The Terminal suggests in passing that dissatisfied black employees may pursue other, presumably more palatable courses of action: appearance before the Terminal's
In Title VII, as in other civil rights legislation, Congress did not intend that the words "pattern or practice" be esoteric or enigmatic in meaning. See United States v. West Peachtree Tenth Corp., 5 Cir. 1971, 437 F.2d 221, 227; United States v. Mayton, 5 Cir. 1964, 335 F.2d 153, 158-159. Under section 707(a) of the 1964 Civil Rights Act, 42 U.S.C.A. § 2000e-6(a), the Attorney General may file suit if he "has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of" discrimination. Certainly the Attorney General must bear the burden of proving his allegations. However, where as here the Attorney General has alleged that prima facie neutral policies and practices have been the instruments of perpetuating racial discrimination, the District Court may not limit its consideration to "specific acts of racial discrimination in employment since the effective date of the Act." In this respect we share the Fourth Circuit's view:
United States v. Dillon Supply Co., 4 Cir. 1970, 429 F.2d 800, 804; see Jones v. Lee Way Motor Freight, Inc., 10 Cir. 1970, 431 F.2d 245, 247-248, cert. denied, 1971, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237; Local 189, United Papermakers & Paperworkers v. United States, 5 Cir. 1969, 416 F.2d 980, 988, cert. denied, 1970, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 108; United States v. Hayes International Corp., 5 Cir. 1969, 415 F.2d 1038, 1040-1044. The Supreme Court recently signified its approval of such evidence. In Griggs v. Duke Power Co., 1971, 401 U.S. 424, 430, 91 S.Ct. 849, 853, 28 L.Ed.2d 158, the Court stated:
(Emphasis added.) Ordinarily the relevance of pre-Act racial discrimination, unlike the taste of good wine, decreases with age. Thus in one case, a district judge, drawing an admittedly arbitrary line, limited an EEOC discovery demand
Neither Georgia Power Co. nor Dobbins controls the case sub judice with respect to determining whether pre-Act conduct or practices occurred within a "material time" of the Act's effective date. To remove post-Act events from an historical vacuum, both district judges chose time-frames encompassing representative samples of employment activity. They sought the proper perspective from which they might ascertain whether allegedly innocuous activity was in fact so. The conclusion to be drawn from these and the other decisions cited is manifest: each case must depend on its own facts. Nevertheless, "reasonable" or "material" time cannot be so restricted as to distort the factfinder's perspective. In some cases, the trial judge must travel to the pre-Act source of post-Act conduct, so that he can accurately assess its implications.
Application of this principle in the present factual context yields the conclusion that the District Judge unnecessarily constricted the relevant time-frame. A careful reading of the court's opinion discloses that the judge's definition of "material time" connoted, at most, a few years prior to Title VII's effective date and all years after that date but before delivery of his findings of fact and conclusions of law. In the normal case, such a limitation regarding relevancy of pre-Act conduct would be permissible. Presumably a significant number of personnel changes and policy applications would occur during this period. Here, however, the general rule cannot apply. Events occurring at the Terminal in 1963, 1964, or 1965 do little to elucidate any underlying policy, pattern, or practice of discrimination—or nondiscrimination. Employment in the industry generally, and at this facility specifically, has declined for many years. Workers who have been furloughed from jobs in particular crafts or classes often use contract rights gained by seniority to bid for subsequently opened positions in those crafts or classes. Workers in other crafts or classes have fewer opportunities to gain these jobs than do those in expanding industries or facilities. It is a truism that, as the Terminal has commented, there are no "new" jobs in the industry. Analysis of events occurring within a few years of Title VII's effective date results in the obvious findings that the industry is reducing employment, that workers in higher paying crafts and classes do exercise seniority contract rights to gain other jobs in those same crafts and classes, and that the conjunction of these factors necessarily limits opportunities for new hires and incumbents in lower paying crafts and classes—an overwhelming majority of whom happen to be black. Of course, new hires and incumbents in higher paying crafts and classes—nearly 100 percent of whom happened to be white when the Government's complaint was filed—can no longer transfer or upgrade themselves as freely as they did in more halcyon days. Thus all employees are locked into present crafts and classes —albeit on different levels, each of which may be statistically defined as racially homogeneous. Since everyone regardless of race has suffered substantially the same type fate, racial discrimination must be nonexistent.
Within the purview of Title VII, the conclusion that racial discrimination does not exist cannot be founded on a finding that all employees are presently locked into certain categories. See United States v. Dillon Supply Co., supra. The District Judge's simple, reasonable
For instance, crucial to the Government's case was the showing that formal and informal agreements negotiated between the Terminal and the BLF & E during the 1930s and 1940s required the exclusion of blacks from Fireman and Hostler Helper jobs and that such segregation has continued, with one brief exception, to the present day. Prior to effectuation of these overtly discriminatory Terminal-Union compacts, blacks had shared the positions on a percentage basis. In 1949 the Graham Court finally held the agreements invalid and enjoinable, ostensibly eliminating them as relevant pre-Act conduct. Subsequent events demonstrate, however, that what had been overt merely became covert. At the time of trial, the lowest position on the Fireman-Hostler Helper seniority roster was occupied by a white with a 1951 seniority date. No black was included on the roster, nor was any hired for the Fireman's job until 1967. Even in the railroad industry, there can be no realistic explanation for the fact that no black was hired for this position until 1967, eighteen years after Graham and sixteen years after the most recent seniority date on the roster. Assuming arguendo that blacks who had shared jobs governed by the roster moved to greener pastures prior to Graham, the conclusion that discriminatory agreements continued in spirit after that decision, and even after the Act's effective date, remains strong. Certainly the facially valid seniority system, complicated by addition of Engineers to the Fireman-Hostler Helper roster, does not detract from such an interpolation. Saddled with a seniority handicap, at least a generation of blacks have evidently been foreclosed from these jobs. (The black hired in 1967 does not appear on the active roster.) The time-span between the agreements and the trial is indeed great; yet the Government's proposition that the agreements and the current employment situation are causally connected— the perpetuating catalyst being the seniority roster—deserved serious consideration.
Also exemplifying the past's pertinence to the present is the black-white disparity in the Baggage and Mail Department. Before 1965 blacks occupied group 3 positions, while whites held group 1 jobs. Granting that a functional dichotomy between the two groups of jobs does exist, it is interesting and relevant to note that only one black could bridge the gap prior to the Act's effective date. Two others attained group 1 status after 1965. To substantiate its charge of racial discrimination in the department, the Government proffered evidence and testimony pertaining to the history of the Terminal-BRAC agreement. If the Government's view of the facts is accepted, what had been de jure policy excluding blacks from group 1 positions under the pre-1962 BRAC agreement as construed at the Terminal ostensibly became do facto practice after revision of that agreement. If the Terminal's view is accepted, any possible discrimination ended in 1962, ostensibly pretermitting consideration of pre-Act conduct. The Terminal contends that between 1962 and 1969, either incumbent whites have exercised contract
In dismissing these and other examples of pre-Act discriminatory conduct proffered by the Government, the trial judge unnecessarily limited the scope of his inquiry; he disregarded proof of relevant antecedents influencing or explaining present practices. Manifestly, then, the District Judge misconceived the applicability of Title VII to prima facie neutral practices carrying forward discriminatory conduct. His conclusions that past events or practices have no probative value here and that, practically speaking, facially neutral present practices are irrebuttably nondiscriminatory were erroneous. See, e.g., United States v. Sheet Metal Workers Local 36, 8 Cir. 1969, 416 F.2d 123, 131-132; Local 189, United Papermakers & Paperworkers v. United States, supra 416 F.2d at 988; Quarles v. Philip Morris, Inc., E.D.Va.1968, 279 F.Supp. 505. Deprived of an historical overview in these situations, Justice would surely be blind.
Just as individual acts and policies must be judged in the proper historical perspective, those acts and policies must be examined in the context of the total employment picture. In a Title VII "pattern or practice" case, an employer's failure to hire or promote one black may prove nothing. Once the single or isolated incident barrier is passed, determination of the existence vel non of a racially discriminatory pattern or practice must depend on the quantum of proof presented in each case. No precise mathematical formulation is workable, nor did Congress intend to impose any racial constants. Certainly, however, an employer's failure to hire or promote all or the great majority of blacks while he concurrently hires or promotes whites may well indicate racial discrimination. To clarify its contentions sub judice, the Government compiled statistical evidence and exhibits pertaining to the racial composition of total employment at the Terminal, of the various departments, and of jobs held in these departments. Based on both pre- and post-Act Terminal employment records, these figures remain undisputed; and we adverted to them in our description of the Terminal departments. Although the statistics do not establish a prima facie case of discrimination, they do prove that employment at the facility is approximately equally divided between whites and blacks, that whites generally occupy the higher paying positions, and that blacks hold the lower
The District Court, however, rejected this evidence. Instead, the court relied heavily on testimony of Terminal and union officials, who averred that post-Act employment decisions have been racially neutral. The District Judge noted with scant explanation that Terminal officials hired or promoted the best qualified persons available for the particular jobs which they wished to fill. We cannot accept the assumption that the Government's statistics have no probative force: i. e., "[t]he Government's failure or refusal to undertake a comparative evaluation of the entitlement to job vacancies of competing Negroes and whites, upon the basis of individual qualifications, leaves the record without probative evidence to support [the contention that black employees were not even considered for jobs to which whites were promoted or for which they were hired]." 316 F.Supp. at 581. The trial judge's pronouncement cannot function as a general rule. It becomes valid only when the employer or union evidentially demonstrates that objective criteria pertinent to the particular job are the determinants of who is "best qualified." Thus, momentarily reserving discussion of the weight to be given statistical evidence in specific situations, we hold that the court erred in failing to evaluate the witnesses' protestations of racial neutrality in light of the total employment picture at the Terminal.
Finally, the District Court properly placed the onus of proving "intent" on the Government. To initiate a "pattern or practice" suit, the Attorney General must have "reasonable cause to believe * * * that the pattern or practice is of such a nature and is intended to deny the full exercise of [Title VII] rights. * * *" 42 U.S.C.A. § 2000e-6(a); see United States v. International
Local 189, United Papermakers & Paperworkers v. United States, supra, 416 F. 2d at 996-997; see Clark v. American Marine Corp. E.D.La.1969, 304 F.Supp. 603-607; Dobbins v. Local 212, International Brotherhood of Electrical Workers, supra, 292 F.Supp. at 448; Quarles v. Philip Morris, Inc., supra, 279 F. Supp. at 517-518.
In sum, we agree with the District Court's delineation of the burden of proof insofar as it required the Government to produce a preponderance of the evidence establishing a pattern or practice of racial discrimination after Title VII's effective date. However, having considered the record and the findings of fact and conclusions of law, we are convinced that the District Judge unnecessarily limited the scope of relevancy, and thus saddled the United States with an impossible burden of proof in this case. Manifestly every hiring, promotion, or transfer decision consummated after the Act's effective date is a specific intentional act. Whether such an act is racially discriminatory cannot be determined merely by analysis of the subjective motivations of the decisionmakers. Here Title VII demands that post-effective date events be considered in light of relevant employment history and the total employment picture. Only in this manner can the court ascertain whether assertedly objective employment decisions have been in fact nondiscriminatory. Moreover, the Act proscribes facially neutral practices perpetuating the effects of past discrimination. If the practices have racially determined effects, proof of subjective intent to discriminate is unnecessary; the Government must show only that the defendant intended to perform the discriminatory act. Having established these premises, we turn to consideration of the trial court's specific conclusions of law.
As the Terminal has argued, the Government did not challenge actual hiring decisions by Terminal officials. Nevertheless, the Government did charge that initial job assignments were uniformly made on a racially discriminatory basis. The District Court held the Government failed to prove "[t]hat race formed any basis for the Company's initial job assignment policies. * * *" 316 F. Supp. at 616. In reaching this decision, the court found that the Termiinal has employed the best qualified person available at the time of a job vacancy, that all applicants for jobs were informed of all vacancies for which they might have possessed the requisite qualifications, that blacks were not assigned to specific jobs but applied for them, and that black employees have been employed in the best jobs available at the time of employment for which they qualified. Furthermore, the District Judge determined that the Terminal had promulgated a nondiscriminatory hiring policy prior to the Act's effective date and had publicized its position as an Equal Opportunity Employer.
According to the statistics, the Terminal hired no blacks between October 1, 1965, and June 30, 1967. During that period, the employer hired forty-two whites. The list of positions which these new employees filled is extensive; it clearly covers a broad spectrum of employment responsibilities, pay levels, and promotion opportunities at the Terminal. Messengers, Telegraph Operators, Carmen and Carman Apprentices, Hostler Helpers, and a President and General Manager—to enumerate a few—were hired during these post-Act months. In the third quarter of 1967, the Terminal hired its first four new blacks; all became Baggage and Mail Porters. During that same quarter, it employed nine whites—two Carmen, six Baggage and Mail Clerks, and one Baggage and Mail Porter. Later that year the employer hired four more blacks; they too became Porters. It also hired three whites— one Stockman, one Welder Helper in the Roadway Subdepartment, and one Helper in the Bridge and Building Subdepartment. Further specification would be superfluous. It is enough to mention, as we did earlier, that the Terminal employed eleven blacks between October 1, 1965, and December 31, 1968. All were assigned to Porter jobs. During the same period, the Terminal employed sixty whites, of whom only three began their Terminal careers as Baggage and Mail Porters.
To refute the inference thus established and to buttress its own claim that post-Act hiring has been predicated on only two factors—existence of a vacancy and intention to assign the best qualified individual available to that position, the Terminal produced testimony of supervisory officials, who verbally reviewed the resumes and job performance of whites hired after the Act's effective date. In this respect it is important to recognize that job opportunities in the railroad industry, and at this facility, have not been abundant in recent years. Indeed, total employment has declined. Consequently workers furloughed or layed-off from jobs at one railroad-oriented facility would naturally apply for identical or similar jobs at other facilities. This condition is continuing. Thus, at any given time, there may be more experienced railroad workers searching for jobs in the industry than there are job openings. Furthermore, we are cognizant of the District Judge's finding that
316 F.Supp. at 582. Finally, we are aware that the Terminal considers itself an Equal Opportunity Employer and has advertised this claim in the black community.
In light of employment realities and the employer's stated policy, the issue which most concerns us is the actual
However, Terminal witnesses have propounded a more substantial reason for the job assignments. Those responsible for hiring and initial assignments recounted many instances in which they had given the "best qualified" individual available a certain job. Often these officials were able to place in skilled jobs persons who had had experience in those same positions, either on the railroads or in other industries. Sometimes they hired individuals who had no experience in the particular job but who had experience in helper or apprentice-type jobs in the same craft or class. In other cases, particularly for clerical positions, Terminal officials chose new personnel who had no work experience but who had attained a certain educational level. For example, applicants who had gained typing or shorthand training in business schools were deemed more qualified for clerical positions than those who could show merely a high school diploma. Considered as a whole, the testimony reveals that supervisory personnel believed they were assessing applicants' qualifications in terms of job-related attributes, not race, after the Act's effective date.
All of the persons so hired were white. In a stable or expanding industry, this fact would be damning, especially in regard to unskilled or semiskilled positions. Nevertheless, in the railroad industry, there is a plausible racially neutral explanation for the post-Act predominance of white workers in these jobs. The continuing decline in total employment compels many white workers experienced in skilled jobs to take employment in related unskilled or semiskilled positions, or face unemployment. For instance, a Welder may find work as a Welder Helper, while he hopes that employment will again increase and he can regain his old job. Naturally this rollback tendency handicaps applicants who do not possess the skilled worker's qualifications. Manifestly the applicants who suffer most in competition for these jobs are black. Having been excluded from any but the most menial tasks in pre-Act years, they remain outside in post-Act times. Job assignments previously based on racial considerations are now founded on legitimate qualifications, but the result is the same.
That blacks are disadvantaged in job competition does not, however, constitute a Title VII violation per se. Although Congress did not intend to freeze an entire generation of Negro employees into discriminatory patterns that existed before the Act, it certainly did not desire to melt job qualifications having no racially discriminatory ingredient or controlling pre-Act antecedent. In light of Title VII's legislative history, ascribing such an altruistic yet impractical purpose to that legislative body would surely be erroneous—"reverse discrimination" of the most blatant sort. See, e.g., Quarles v. Philip Morris, Inc., supra 279 F.Supp. at 516-517; 42 U.S.
Rather than attempt to contradict this testimony by showing that qualifications were not job related or that whites were preferred over blacks possessing equal or superior qualifications, the Government chose to stand on statistics elucidating post-Act employment disparities. According to the Terminal's post-1965 seniority rosters, only Roderick Gray among the Government's principal witnesses was in a position to and did give testimony concerning a specific post-Act hiring and initial job assignment decision. In light of the Terminal's business rationales offered in rebuttal, his testimony alone cannot suffice to substantiate the allegation that the employer's post-Act initial job assignment decisions were part of a pattern or practice of racial discrimination. Once Terminal officials proffered justifying explanations for their actions, the Government should have shown that stated policies and assignment realities did not coincide after July 2, 1965.
To make such a showing, the Government must have proved that whites received job assignments denied blacks, that the jobs were available when the blacks applied, and that the blacks' qualifications were equal or superior to the hired whites'. The United States, as well as individual complainants, has successfully shouldered this burden in the past. In some situations, when blacks have been excluded from white jobs for no apparent reason, statistics have carried the day. Because blacks were denied certain jobs regardless of qualifications, little or no corroborating evidence revealing specific instances of post-Act exclusion was necessary. Most cases in this category have involved facially neutral transfer and promotion systems influenced by pre- or post-Act discrimination. See Bing v. Roadway Express, Inc., supra; Jones v. Lee Way Motor Freight, Inc., supra, 431 F.2d at 247-248; United States v. Dillon Supply Co., supra, 429 F.2d at 803-804; United States v. Hayes International Corp., supra; Quarles v. Philip Morris, Inc., supra. Others have concerned discriminatory union referral or seniority arrangements. See United States v. International Brotherhood of Electrical Workers Local 38, 6 Cir. 1970, 428 F.2d 144, cert. denied, 400 U.S. 943, 91 S.Ct. 245, 27 L. Ed.2d 248; United States v. Sheet Metal Workers Local 36, supra; Local 189, United Papermakers & Paperworkers v. United States, supra; Local 53, International Association of Heat & Frost Insulators & Asbestos Workers v. Vogler, 5 Cir. 1969, 407 F.2d 1047. None supports the proposition that employment statistics outweigh a defendant's evidence manifesting a "business necessity" for job assignment decisions. Moreover, no transfer and promotion system described in these cases is analogous to the Terminal's post-Act imposition of a "best qualified" hiring standard. All involved qualification factors found extraneous to the particular job, and thus violative of Title VII. Consequently we do not consider any of these decisions dispositive of the initial job assignment issue sub judice.
More pertinent are the few hiring and initial job assignment cases decided by this and other courts. As in the transfer and promotion situations, plaintiffs have demonstrated that employer perversion of ostensibly objective hiring policies after the Act's effective date discouraged any blacks from applying for, or precluded them from gaining, "white"
In the evidentiary posture of this case, the importance of choosing the latter, more difficult method of proof—i. e., presenting specific evidence of blacks' qualifications for jobs denied them— cannot be overstressed. In Local 189, supra, 416 F.2d at 988, Judge Wisdom posed the hypothetical of an employer demand that typing skills be a qualification for secretarial positions. Writing for this Court, he stated:
Likewise, in Dobbins, supra, 292 F.Supp. at 445 n. 15, Judge Hogan noted that "[t]here is no such thing as an `Instant Electrician'—by Court decree or otherwise." Concerning the burden of proof, he concluded: "To make out a prima facie case for class purposes, as distinguished from individual purposes, the plaintiff has the burden of showing the existence of a significant number of members of the group possessing the basic skill in the particular trade involved." Id. at 445-446. In Quarles, supra, 279 F.Supp. at 510, Judge Butzner indicated that consonant with Title VII an employer may impose reasonable qualifications for supervisory positions—as long as discrimination is not a factor in their conception or implementation. Commenting that plaintiffs had failed to show any instance of a qualified Negro being denied employment or promotion to a supervisory position, he denied relief on this issue. Recently Chief Justice Burger uttered what may be the last word on this issue. In Griggs v. Duke Power Co., supra, 401 U.S. at 430, 91 S.Ct. at 853, he said:
In the record before us, we find substantial evidentiary support for the contention that the Terminal has discriminated in favor of neither the stork nor the fox in making initial job assignments. Given the legitimate nondiscrimminatory business justifications presented in individual cases, we conclude that the Terminal has passed the "business necessity" test—at least insofar as general policy and practice governing initial job assignments are concerned.
In charging that the Terminal's promotion and transfer policies and practices contravene Title VII, the Government stands on more stable ground. Unlike initial job assignments, promotions and transfers at the Terminal are governed partly by factors antedating July 2, 1965. The craft and class seniority systems in use at the Terminal comprise one such variable: the Government has specifically cited these systems, which influence most promotions and transfers, as having a discriminatory impact on blacks. Ubiquitous in the railroad industry, these systems were in principle identical throughout; yet the Government contends that they are not in fact the same. In pre-Act times, the Government argues, the systems were yoked with discriminatory hiring practices to achieve racial inequality in the higher paying crafts and classes at the Terminal. Consequently the Government here asserts that continued post-Act application of these facially neutral systems, mandated by collective bargaining agreements
Considered in the abstract, the trial court's conclusion upholding the seniority systems in effect at the Terminal is reasonable. Nevertheless, in light of relevant employment history and present racial dichotomies among the crafts and classes at that facility, the court's holding was erroneous. In this respect we need not quarrel too much with the District Judge's actual findings of fact, for it is clear that he unduly limited these findings to a period contemporaneous with that of Title VII. Even a cursory glance at Terminal seniority rosters discloses that employees in the higher paying, skilled crafts and classes have pre-Act seniority dates. On some rosters the most junior employee now active began serving in the craft or class in the early 1950s. Furthermore, evidence and testimony indicate that the great majority of these employees are white; almost all were white before the Government initiated this litigation. It may well be true, as the Terminal and the Unions have argued, that whites and blacks similarly situated enjoy the same contract rights and endure the same transfer restrictions. In reality, however, precious few whites and blacks are—or have been for many years—similarly situated at the Terminal.
Manifestly post-Act utilization of the seniority systems' inter-craft and interclass transfer impediments, while benefitting the employer and those already at higher pay levels, perpetuates this racial disparity. Although he recognized the dichotomy, the District Judge, shackled by belief that any possible pre-Act discrimination was too remote in time and therefore irrelevant, declined to seek its source. Having limited the span of "material time," the court evidently rejected the Government's proof of pre-Act racially discriminatory agreements between the Terminal and several Unions. Moreover, the District Judge failed to consider statistical evidence corroborating the hypothesis that all Unions, with the employer's cooperation, had engaged in pre-Act racial discrimination and that the facially neutral seniority systems have perpetuated such discrimination whenever they have influenced post-Act promotion and transfer decisions.
Having reviewed the record, we conclude that pre-Act racial bias has effectively excluded blacks from higher paying crafts and classes at the Terminal. In reaching this conclusion, we find that the pre-Act connotation given by the Terminal and the Unions to the term "promotable," which appears in several collective bargaining agreements, necessarily included racial bias. Five decades of employment history at this facility contradict the District Court's finding that the words "promotable" and "qualified" have been synonymous at all material times. While post-Act definitions of the terms may be interchangeable, it is obvious that—judged by any objective, non-racial standard—this has not always been so.
That the Terminal and the Unions engaged in pre-Act racial discrimination appears obvious. There can be no reasonable justification for the absence of blacks from all but the most menial craft and class seniority rosters. Nor is there any plausible nonracial explanation for the disappearance of blacks from jobs which they formerly shared and from which they might have progressed; no one has argued that blacks were inherently incapable of performing such jobs or that blacks as a race naturally recoiled from the work. Certainly the post-World War II employment recession in the railroad industry hastened the forced black exodus. Thus Jessie Nesmith, a black whose seniority dates from 1925, now seems curiously isolated in the all-white train service crafts. Uncounted other blacks have not shared Nesmith's good fortune in retaining at least a foothold in the higher paying crafts and classes; gradually their names have been eradicated from the Terminal's seniority rosters.
To show pre-Act racial discrimination without evidencing post-Act effects does not establish a per se violation of Title VII. This was the underpinning for our holding in regard to the Terminal's initial job assignments. When seniority becomes an issue, however, the past becomes more important. The Terminal systems are illustrative. At the Terminal contract rights give employees the power to bid on vacant positions in their own crafts and classes; such rights also protect against encroachment by occupants of other crafts and classes. By virtue of the collective bargaining agreements in effect, the senior eligible bidder retains the right to be awarded any vacant position in his craft or class, if he possesses sufficient fitness and ability. Seniority, then, often becomes the ultimate determinant of promotions and transfers. If a member of a particular craft or class bids on a vacant position in his craft or class, his seniority precludes any outsider from gaining the job. Each time seniority functions as a factor in post-Act promotion and transfer decisions at the Terminal, pre-Act racial discrimination effectively handicaps the worker who has been the subject of such bias. Local 189, United Papermakers & Paperworkers v. United States, supra, 416 F.2d at 988. Judicial recognition of the fact that even facially neutral seniority systems can serve to perpetuate racial discrimination has prompted modification of such systems under Title VII, E. g., Jones v. Lee Way Freight, Inc., supra; United States v. Dillon Supply Co., supra; Local 189, United Papermakers & Paperworkers v. United States, supra; Local 53, International Association of Heat & Frost Insulators v. Vogler, supra; Quarles v. Philip Morris, Inc., supra. "The Act proscribes not only overt discrimination but also practices that are fair in form but discriminatory in operation." Griggs v. Duke Power Co., supra, 401 U.S. at 431, 91 S.Ct. at 853.
The only distinction between the seniority systems in effect at the Terminal and those found discriminatory in the cases cited above is the former's tendency to permanently perpetuate the status quo.
The Terminal, however, argues that the seniority systems, and transfer and promotion restrictions, as presently operated, are business necessities. See Griggs v. Duke Power Co., supra, 401 U.S. at 431, 91 S.Ct. 849 ; Jones v. Lee Way Motor Freight, Inc., supra, 431 F.2d at 249 ; Local 189 United Papermakers & Paperworkers v. United States, supra, 416 F.2d at 989. We have no doubt that the seniority systems and restrictions currently in force at the Terminal contribute to its safe and efficient operation. Nevertheless, as the Second Circuit most recently explained,
United States v. Bethlehem Steel Corp., 2 Cir. 1971, 446 F.2d 652, 662 . In other words, management convenience and business necessity are not synonymous. Thus the Terminal was required to prove not only that the seniority systems and restrictions promote safe and efficient operation but also that they are essential to these goals. Crucial to its justification was proof of the unstated predicate—that current occupants of a class or craft are necessarily the only employees qualified to fill vacancies in that craft or class. Otherwise, while inter-craft and inter-class transfer restrictions, as well as the seniority systems, comprise one method for promoting safe and efficient operation of the Terminal, they may not be the only feasible or practical modus operandi. Though convenient, they may not be necessary, and consequently must yield to Title VII remedial relief.
In propounding its argument here, the Terminal has implicitly de-emphasized the District Court's finding that there are no mandatory lines of progression at the facility—i.e., no job requires, as a condition precedent, service in a lower job classification. The conclusion derivable from this finding is that craft or class seniority is not determinative of job qualification. To buttress its case,
316 F.Supp. at 579. From this limited exception, the Terminal inductively concludes that all seniority systems and restrictions at the Terminal are necessary because they ensure that railroad-trained employees will fill vacancies in their own crafts or classes, despite the fact that no job requires service in a lower job classification. Thus, paradoxically, craft or class seniority becomes equated with job qualification—presumably the most senior worker in a particular craft or craft being the "best qualified" to fill a vacancy in that craft or class.
The inherent fallacy in this argument lies in one of the premises upon which seniority systems are based. Assuming that an individual is "qualified" for a certain position or class of positions, further inquiry concerning the degree of his skill becomes unnecessary. Longevity rather than qualification becomes the critical factor : the most senior qualified worker receives the job desired. Realistically, then, in seniority hierarchies established by collective bargaining agreement, comparative and superlative adjectives are superfluous : qualification, like perfection, is an absolute. The systems and their concomitant promotion and transfer restrictions protect those with work experience in particular crafts and classes but do not ascertain whether these are the only individuals qualified or the "best qualified" to hold positions in those crafts and classes.
In Local 189 we examined "job seniority" in light of Title VII. The agreement there in force gave the most senior qualified employee in the next lower job slot the right to fill any vacancy in the position immediately above. Prior to Title VII's effective date, the employer had utilized racially segregated lines of progression, so that blacks would not bid on "white" jobs. When the separate lines later merged, the formerly "black" category became the bottom of the single line of progression. As a result, few blacks did, or could, benefit from the merger. Although the "job seniority" system was facially neutral, we concluded that it use was racially discriminatory and approved limited judicial modification. We explained :
Here we confront "craft and class" seniority systems and transfer restrictions. In many respects the definitional terms are analogous to "job seniority," and the practical effects of their utilization are certainly identical. Under neither system, job or craft and class, does the incumbent black enjoy equal opportunity, if prior racial discrimination has forced him into a subservient work category. In competition between a black and a white for a certain job, in a craft or class once populated exclusively by whites, the white, who may have greater craft or class seniority but who may have toiled fewer years in the industry, necessarily wins. Moreover, any black who does qualify for and gain a position in a higher paying craft or class must face the fact that current collective bargaining agreements at the Terminal generally prohibit retention of seniority in his former craft or class. If furloughed from his new position because of employment reductions, the black finds himself jobless.
We hold that continued use of the craft and class seniority systems to restrict the transfer and promotion opportunities of incumbent black employees at the Terminal is neither bona fide nor a business necessity : such systems necessarily exclude blacks from jobs for which they might otherwise qualify. 42 U.S.C.A. § 2000e-2(a), (c). The Act imposes upon employers—with the assistance and cooperation of labor representatives—an affirmative duty to devise and implement pertinent objective criteria for determining what applicants for promotion or transfer are qualified to fill particular vacancies. Here, although previous experience in a particular job or type of jobs can be a crucial determinant of qualification, the employer's evaluation cannot be confined to railroad experience.
We recognize that some railroad jobs may be unique, that there may be no analogues in other industries. Insofar as these few jobs are concerned, experience gained in other industries may be irrelevant. The Terminal has alleged but not proved this possibility. Therefore, upon remand, the Terminal shall bear the burden of proving that one of the necessary qualifications for a particular job is experience in the same or a related position in the railroad industry. Cf. Marquez v. Omaha Dist. Sales Office, Ford Motor Co., 8 Cir. 1971, 440 F.2d 1157, 1162-1163. In light of the District Court's findings quoted above, and the functional differentiations among jobs even in the same craft or class, the proof proffered should involve very few Terminal positions.
In many respects the Unions' arguments in favor of the status quo echo the Terminal's. Implicit in their briefs, however, is the additional in terrorem prediction that imposition of Title VII remedies would precipitate the demise of the craft and class seniority systems, which had their genesis in General Order No. 27 and have been nurtured through a half century by myriad collective bargaining agreements. These labor representatives fail to perceive that their pre-Act discriminatory policies, practices, and "understandings"— whether formal or informal—have compromised the racially neutral integrity of that venerable Order and its interpretative supplements. Moreover, "[n]o problem so vast and intricate as that of doing practical justice to the * * * railroad employees of the country can be regarded as completely settled and disposed of by one decision or order * * *." General Order No. 27, "Preamble" (May 25, 1918). At the Terminal today, blacks continue to experience the effects of pragmatic injustice; certainly this situation contravenes the avowed purpose of the Order and the Railway Labor Act. Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, supra, 323 U.S. at 213, 65 S.Ct. 235 ; Steele v. Louisville & Nashville R.R., supra, 323 U.S. at 199-204, 65 S.Ct. 226 ; see Conley v. Gibson, 1957, 355 U.S. 41, 42, 78 S.Ct. 99, 2 L.Ed.2d 80.
That hoary collective bargaining agreements now mandate perpetuation of past aberrations from the governmental policy does not affect the propriety of judicial action. See Local 53, International Association of Heat & Frost Insulators & Asbestos Workers v. Vogler, supra, 407 F.2d at 1054. Such agreements do not, per se, carry the authoritative imprimatur and moral force of sacred scripture, or even of mundane legislation. "A contract may be fair and impartial on its face yet administered in such a way, with the active or tacit consent of the union, as to be flagrantly discriminatory against some members of the bargaining unit." Conley v. Gibson, supra, 355 U.S. at 46, 78 S.Ct. at 102. Under the Railway Labor Act, federal courts have had the power to protect employees against invidious discrimination. Conley v. Gibson, supra at 42, 78 S.Ct. 99 ; see Czosek v. O'Mara, 1970, 397 U.S. 25, 27-28, 90 S.Ct. 770, 25 L.Ed.2d 21; Glover v. St. Louis-San Francisco Ry., 1969, 393 U.S. 324, 328-329, 89 S.Ct. 548, 21 L.Ed.2d
When the current effects of past—and sometimes present—racial discrimination in entities subject to the National Labor Relations Act have come to our attention, this Court has unhesitatingly required affirmative remedial relief. E. g., Local 189, United Papermakers & Paperworkers v. United States, supra; United States v. Hayes International Corp., supra; Local 53, International Association of Heat & Frost Insulators & Asbestos Workers v. Vogler, supra; see Culpepper v. Reynolds Metals Co., 5 Cir. 1970, 421 F.2d 888, 891. Compare Taylor v. Armco Steel Corp., 5 Cir. 1970, 429 F.2d 498 (post-Act), with Whitfield v. United Steelworkers Local 2708, 5 Cir. 1959, 263 F.2d 546, cert. denied, 360 U.S. 902, 79 S.Ct. 1285, 3 L.Ed.2d 1254 (pre-Act). As Local 189 and Vogler demonstrate, such relief often proves detrimental to whites' competitive seniority status, and consequently to their transfer and promotion expectations.
Certainly the railroads and their support facilities present the courts with complex factual situations and difficult practical problems not often encountered in other industries. Nevertheless, the railroads' rules and agreements governing employment relations are no less susceptible to perverse interpretation and utilization than those found in other industries. Thus, in a Title VII legal context, the railroad world is not a "state within a state." Mr. Justice Harlan's caveat regarding analogies between this industry and any other must remain inapposite. See Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 1969, 394 U.S. 369, 383, 89 S.Ct. 1109, 22 L.Ed.2d 344. In the instant case, neither the Terminal nor the Unions have justified immunity to remedial relief. It should be self-evident that our decision with respect to seniority rights and transfer and promotion restrictions applies only to their use at this single facility, not to the whole railroad world.
The supervisor-devised personnel test currently in use in the Baggage and Mail Department has been a factor in both initial job assignment and transfer decisions since April 1967. New-hires and group 3 incumbents desiring group 1 positions have been permitted, and advised, to take the examination. "Validation" has been accomplished by correlating supervisors' estimations of each group 3 employee's group 1 job potential with his test scores. The examination's influence on individual job assignment and transfer decisions vacillates: test scores are criteria, but their value seems ad hoc. Allegedly no "passing" score is necessary, nor has one been determined. Indeed, the Terminal avers that taking the test is not prerequisite to attaining group 1 status. However, no group 3 black employees have reached group 1 since the test was developed. All persons holding group 1 jobs prior to April 1967 have been exempted from the examination.
Clearly, even prior to Griggs, the Terminal could have properly assessed the value of its examinations. Evidence that it did so, however, is absent here ; for test scores have been compared only with predicted, not actual, job performance of blacks. The Terminal did not even bother to use those persons holding group 1 positions at the time the test was devised as a control group, so that a demonstrable correlation—or lack thereof—between test scores and group 1 job performance could have been ascertained. Thus, although the Terminal's examination is assertedly and apparently "related" to qualifications for clerical positions, it is not demonstrably any more accurate a predictor of job performance in specific group 1 positions than the intelligence tests rejected in Griggs. The Supreme Court has summarized:
Id. at 436, 91 S.Ct. at 856. The Government cannot prove that the test used here is a controlling force, primarily because the Terminal has conceded that its overall influence remains nebulous. Nevertheless, since no group 3 black has attained group 1 status after April 1967, the inference that test scores are important factors in the selection of group 1 employees becomes conclusive. The test's use violates section 703(h) of the Act, 42 U.S.C.A. § 2000e-2(h). We hold that the District Court erred in upholding the validity of the personnel test and in refusing to enjoin its use, as well as in failing to order remedial action alleviating the present effects of its past influence.
Also fatal to the test utilized in this instance, and a problem to be avoided in the future, is the discriminatory exemption of group 1 employees, the great majority of whom are white, from taking the examination. Hicks v. Crown Zellerbach Corp., E.D.La.1970, 319 F.Supp. 314, 321 ; 42 U.S.C.A. § 2000e-2(h). If test scores and job performance are truly concomitant, those performing satisfactorily
Finally, finding no job-related objective criteria for specific group 1 jobs in the department, we conclude that the Terminal must ascertain and publicize such qualifications, which shall be applicable to all employees, group 1 incumbents as well as candidates. Griggs v. Duke Power Co., supra; Hicks v. Crown Zellerbach Corp., supra, 314 F.Supp. at 321.
The Government's contentions with regard to the post-Act segregation of locals represented by the BMWE and BRAC and the UTU local's failure to recruit blacks for membership require only limited discussion. If the BMWE and the BRAC locals are not segregated in principle, they certainly are in fact. Conceding that recent good faith efforts by Union members have resulted in token integration of the formerly all-white and all-black locals, there appears no valid justification for preservation of these locals as separate entities. The record clearly discloses that the existence of "separate but equal" locals has had, and may continue to have, post-Act deleterious effects on blacks.
The BMWE Seaboard Federation represents all employees in collective bargaining with the Terminal. Terminal delegates to the Federation convention, where union policy presumably is debated and determined, have always come from the all-white local but have cast one vote for each member of both locals. These delegates have been elected exclusively by members of the white local. Thus we must conclude, and the Union has not disproved, that black BMWE members at the Terminal have had no voice in their bargaining agent's councils. Here, at least, black influence in Federation affairs remains nonexistent.
With regard to the BRAC, the rationale for separate locals is based on the fact that group 1 employees are members of one local, while group 3 employees are members of the other. However, the same bargaining agent represents both locals in negotiations with the Terminal. Until March 1969, when the Terminal began posting notices of all job openings on all bulletin boards and in all bulletin books at the facility, notices concerning group 1 openings have reached only incumbent group 1 employees. Although a great majority of BRAC members at the Terminal have been black, a black was not elected District Chairman until January 1970, long after the Government initiated this suit.
Contrary to the allegations made by the Unions, we find that their locals are not mere "social clubs," having no influence in national union policy or practice. We conclude that the District Court erred in refusing to hold that the failure to consolidate the locals violates section 703(c) of the Act, 42 U.S.C.A. § 2000e-2(c). See United States v. Sheet Metal Workers Local 36, supra, 416 F.2d at 127-129 ; Local 53, International Association of Heat & Frost Insulators & Asbestos Workers v. Vogler, supra, 407 F.2d at 1051-1055; United States v. International Longshoremen's Association, D.Md.1970, 319 F.Supp. 737, 741-742; Hicks v. Crown Zellerbach Corp., E.D.La.1970, 310 F.Supp. 536; United States v. Local 189, United Papermakers & Paperworkers, E.D.La. 1969, 301 F.Supp. 906, 919, aff'd, 5 Cir., 416 F.2d 980.
The UTU's justification for failing to recruit blacks which it represents at the bargaining table is chimerical. While the Union's current effort to extend membership to blacks is commendable, its failure to recruit Nesmith remains unexplained. Moreover, the total absence of black members in the local for at least four years after the Act's effective date clearly indicates a perpetuation,
The parties can easily resolve the disagreement sub judice concerning possible segregation of toilet, shower, and locker facilities. Certainly the Terminal can notify workers of the fact that its toilet facilities are available to all who have a need. Reasonable nonracial rules restricting use of such facilities to the vicinity of the employee's work area can be formulated. The segregated shower and locker problem seems a vestige of pervasive discrimination in the crafts and classes of employment. Here, too, the Terminal can easily assure integrated facilities. See United States v. Medical Society of South Carolina, D.S.C. 1969, 298 F.Supp. 145, 156.
In light of our conclusions, it becomes clear that remedial action is essential to effectuate the aims of Title VII in the case sub judice. Under the District Court's careful supervision, the parties should work together in developing effective antidotes for the racial discrimination which we perceive at the Terminal. The District Court bears the ultimate responsibility for fashioning such relief: it is not limited to simply parroting the Act's prohibitions but is required to order such affirmative action as may be appropriate. Local 53, International Association of Heat & Frost Insulators & Asbestos Workers v. Vogler, supra, 407 F.2d at 1051-1052; accord, United States v. Sheet Metal Workers Local 36, supra, 416 F.2d at 132 & n. 18 ; see United States v. Dillon Supply Co. supra, 429 F.2d at 804 ; United States v. Hayes International Corp., supra, 415 F.2d at 1044-1045 ; 42 U.S.C.A. § 2000e-5(g). The specific modifications shall conform to the following guidelines:
1. Before filling any vacancy,
A. The Terminal shall continue to post notices of all job openings or vacancies in any contract job in any department on all bulletin boards and in all bulletin books maintained for employees.
B. Each notice of a job opening or vacancy shall set forth a brief description of the job, its rate of pay, the minimum requirements for the position, a notation of any other terminal job prerequisite to the vacant position, and a statement of the nature and extent of any training which will be provided to the successful bidder.
C. Vacancies in any job shall be filled in the following manner:
D. Whenever a member of the affected group bids for and is awarded a job in accordance with the procedure delineated in sub-part C supra, he shall establish as a seniority date in his new job or on his new seniority roster the oldest seniority date which he holds on any of the Terminal's seniority rosters in effect at the time of the District Court's decree. The date thus set shall be the only date used in determining the employee's right to promotion, demotion, layoff, furlough, or any other right affected by seniority in his new craft or class, as set forth in the collective bargaining agreement covering workers in that craft or class.
E. If the vacant job is a job for which there is some other necessarily prerequisite job at the Terminal or in the railroad industry, the category of persons eligible to bid shall be limited to those persons who have held the prerequisite position for enough time to qualify for the vacancy.
G. If no member of the affected group bids for a vacant job, that position shall be filled in accordance with the applicable collective bargaining agreement or by utilization of the Terminal's "best qualified" standard.
2. The Terminal shall discontinue use of its Baggage and Mail department personnel test as a factor in determining the qualifications of any current or prospective employee to hold group 1 positions until the examination has been properly validated. The Terminal shall not reinstitute the test or require any other test for members of the affected group hired prior to the District Court's decree, unless white employees hired prior to the decree are also required to pass the same test, properly validated, to retain group 1 positions.
The Terminal shall ascertain and publicize job-related, objective qualification criteria for each group 1 position.
3. Every member of the affected group who is working in any job at the time the District Court's decree is entered pursuant to this Court's mandate shall be allowed to remain in such job and transfer his Terminal seniority date to that job or the pertinent seniority roster.
4. The District Court shall order consolidation of the BRAC and BMWE locals. The court shall prescribe a reasonable consolidation procedure and provide for the equitable representation of all Union members during and after any necessary transition period.
5. The UTU shall invite any black Yardmen working for the Terminal at the time of, and subsequent to, the District Court's decree to become members.
6. The Terminal shall take reasonable steps to ensure the complete desegregation of its toilet, locker, and shower facilities. It shall immediately notify all employees that these facilities may be utilized without regard to race or color.
7. The District Court's final decree shall be posted in prominent places on Terminal property. The Terminal shall ensure that its provisions are explained to all employees.
8. The District Court shall impose record-keeping requirements sufficient to assess compliance with Title VII by the Terminal and the Unions.
9. The District Court shall provide that the Attorney General's, or his designated representative's, costs and disbursements in the aktion sub judice shall be taxed jointly and severally to the defendants.
Affirmed in part, reversed in part, and remanded with directions.
COLEMAN, Circuit Judge (dissenting).
With all deference for the prodigious labor and the prolonged consideration which went into the production of the majority opinion, I respectfully dissent.
Of course, I do not disagree with all that is said in the opinion. Yet, I see nothing worthwhile to be achieved by further lengthening matters by a prolonged catalog of my agreements and disagreements.
Realizing that the opinion of the Court must ultimately stand or fall on its own merits, I shall touch only upon the "high spots" of my views.
1. The majority, for whom I have the most profound personal and professional respect, has examined every chip in the woodyard for the purpose of demonstrating that the trial findings of fact are clearly erroneous. With deference, it seems to me that the effort results in the substitution of appellate findings for those of the only man with the authority to make them, i. e., the District Judge. I think the findings below are supported by substantial evidence. I definitely do not have the conviction that they are manifestly wrong. Hence, I would not interfere with them.
I shudder to consider that by this decision the Fifth Circuit now undertakes to oversee the operation of railroads, railroad terminals, labor unions, and the handling of the United States Mail. That is what is involved in hiring and promoting those who are to do the actual work.
3. I feel that this case should be decided in its true context, which is that we are here concerned with a railroad terminal with a long history of union labor contracts, standardized throughout the Nation. Those contracts cannot be unwritten as to days long gone past. If God cannot change yesterday then we judges can hardly be expected to do it. The majority holds, as I understand it, that there has been no racial discrimination in hiring since the effective date of the Act. The discrimination, they say, is in promotions. Are we going to eliminate that discrimination by destroying the seniority of those who for years, under contract, in good faith worked to earn it? That, to me, is substituting one form of discrimination for another.
4. Assuming that remedial action is needed, I think we should accomplish it by directing the District Judge to enter appropriate injunctive orders after a full hearing and upon mature consideration.
I respectfully dissent.
ON PETITIONS FOR REHEARING AND PETITIONS FOR REHEARING EN BANC
The Petitions for Rehearing are denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure ; Local Fifth Circuit Rule 12) the Petitions for Rehearing En Banc are denied.
42 U.S.C.A. § 2000e-6(a).