Rolax v. Atlantic Coast Line R. Co.

• Decision Date: 03 January 1951
• Docket Number: No. 6167.,6167.
• Citation: 186 F.2d 473
• Parties: ROLAX et al. v. ATLANTIC COAST LINE R. CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

186 F.2d 473 (1951)

ROLAX et al. v. ATLANTIC COAST LINE R. CO. et al.

No. 6167.

United States Court of Appeals, Fourth Circuit.

Argued November 21, 1950.

Decided January 3, 1951.

As Corrected on Denial of Rehearing February 23, 1951.

Joseph C. Waddy, Washington, D. C., and Oliver W. Hill, Richmond, Va., for appellants and cross-appellees.

Ralph M. Hoyt, Milwaukee, Wis., and Wm. G. Maupin, Norfolk, Va. (Harold C. Heiss and Russell B. Day, Cleveland, Ohio, on brief), for Brotherhood of Locomotive Firemen and Enginemen, appellee and cross-appellant.

Collins Denny, Jr., Richmond, Va. (J. M. Townsend, Petersburg, Va., on brief), for Atlantic Coast Line R. Co., appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

These are cross appeals in a suit instituted in the court below by Negro locomotive firemen employed by the Atlantic Coast Line Railroad Company against that company and the Brotherhood of Locomotive Firemen and Enginemen. The purpose of the suit was to have the court declare void the agreement of February 18, 1941, which was condemned by this court in Brotherhood of Locomotive Firemen and Enginemen v. Tunstall, 4 Cir., 163 F. 2d 289, 291, to enjoin the defendants from carrying out the terms of that agreement in violation of the seniority rights of plaintiffs and to recover damages on account of violations of seniority rights which had already occurred. The District Judge dismissed the suit on the ground that plaintiffs had shown themselves unwilling to do equity in that they had joined with others in obtaining an interlocutory injunction in a suit pending in the District of Columbia restraining the defendants from negotiating an agreement which would apply the principle of forced promotion or discharge to all Negro firemen working for the defendant railroad. See 91 F.Supp. 585. He taxed in favor of plaintiffs and against the Brotherhood costs, including attorney's fees, incurred by plaintiffs in prosecuting the suit up to the time of obtaining the restraining order. Plaintiffs appeal from the dismissal of the suit, the Brotherhood from the portion of the order taxing costs against it.

In so far as the validity of the agreement of February 18, 1941, is concerned, the case is governed by our decision in the Tunstall case. The fact that this case was heard on oral evidence, whereas the Tunstall case was heard by affidavit on motion for summary judgment furnishes no valid ground of distinction; for the facts were fully explored in the Tunstall case and the questions raised as to the validity of the agreement and the discrimination practiced against the Negro firemen are the same notwithstanding that bargaining between the Brotherhood and different railroads is involved. The facts out of which the controversy arises are, except as to one or two minor matters, precisely the same as those which were before us in the Tunstall case and were stated there as follows:

"The Brotherhood represents all locomotive firemen employed by the defendant railway company for purposes of collective bargaining under the Railway Labor Act, having been selected as bargaining agent by a majority of the craft. Negro firemen, who constitute a minority of the craft, are not admitted to membership in the Brotherhood, but, nevertheless they must accept it as their bargaining representative, since it is the choice of the majority. Matters of great importance to locomotive firemen in the realm of collective bargaining are seniority rights and the right to promotion to the more highly paid position of locomotive engineer. Upon seniority depends the right to the more desirable runs and upon the right to promotion depends the possibility of advancing to the position of engineer. No railway company of the United States has ever employed a Negro as a locomotive engineer and the Negro firemen are recognized as nonpromotable to that position. Other firemen, if they possess the requisite mental and physical qualifications, are given opportunity to stand examinations for promotion to engineer, but not Negro firemen; and, because they are not promoted, Negroes serve for long periods as firemen and the seniority thus acquired enables them to obtain some of the best paid and most desirable runs in the company's service.

"The Brotherhood, as bargaining agent for all locomotive firemen in the Southeast, obtained from defendant railway and other Southeastern carriers, over their protest, contracts which had the effect of denying to a large number of Negro firemen desirable runs to which they were entitled by seniority and of giving these runs to white firemen. The Brotherhood accomplished this by contracts distinguishing between promotable and nonpromotable firemen. On March 28, 1940, it made a demand on the defendant railway company and other Southeastern carriers to modify existing working agreements so that only `promotable' men would be employed as firemen. The carriers refused to agree to this, saying:

"`As we understand this proposal, it is that the carriers parties to the conference obligate themselves that they will in future hire no nonpromotable men. The effect of this would be to exclude from employment in our service perhaps a small number of white persons who, because of educational qualifications or physical handicaps, might not be promotable, and, in addition, would exclude from employment all colored persons, because, upon the properties represented by this committee, colored employees are not promotable to position of engineer. In our conference we endeavored to point out to you that we doubted the wisdom and fairness of making any such agreement as this, first because it would restrict the field from which we might draw employees in the event of a labor shortage, and, second, because we did not feel that such a large proportion of the population of the territory which we serve should be completely banned from employment as firemen upon our properties. As we said to you, these people are citizens of the country; it is necessary that they make a living; colored people are patrons of the railroads, and, in our opinion, we should not by agreement entirely exclude them from employment in positions which they have occupied and filled over the years.'

"Notwithstanding this protest of the railroads, the Brotherhood insisted upon its position, contending that it was in the interest of efficiency in the operation of the railroads that experience as fireman be acquired by men who could be advanced to the more responsible position of engineer, and that it was not fair to recently promoted engineers, to require that when they had to serve as firemen, as they frequently did, they take the less desirable runs. The Brotherhood finally succeeded, on February 18, 1941, in obtaining a modification of existing agreements to provide that the proportion of non-promotable firemen should not exceed fifty per cent in each class of service established as such on each individual carrier and that, until such percentage was reached on any seniority district, only promotable men should be hired and all new runs and vacancies should be filled by promotable men."

Not only does the record in the case before us fully sustain the foregoing statement, but it makes clear that the agreement of February 18, 1941, was obtained in the course of a campaign which had been conducted by the Brotherhood for a number of years to eliminate Negro firemen from the service of the railroads. Prior to 1919, when the first collective agreement was negotiated by the Brotherhood, at least 85% of the locomotive firemen on the defendant railroad were Negroes. Although there had been agitation by the Brotherhood prior to that time for the elimination of Negroes from the service, the agitation seems to have become more effective when the Brotherhood was recognized as bargaining agent, and in 1927 it secured an agreement that one-third of the firemen should be promotable or white firemen. Two years later, in 1929, this proportion was raised by agreement to 50%. Later, following a campaign openly designed to get rid eventually of all the Negro firemen, the agreement here complained of was negotiated; and today only 35% of the firemen in the service of defendant railroad are Negroes.

The Brotherhood attempts to distinguish the case before us from the Tunstall case in that we do not have here the agreement of May 23, 1941, in which it was agreed with the Norfolk Southern Railroad that "non-promotable" firemen as used in the agreement of February 18, 1941, should refer only to Negro firemen and that seniority of others should not be affected by failure to pass promotion examinations. There was no occasion for such an additional agreement with the Atlantic Coast Line Railroad, however; for the evidence shows that, on that railroad, the only non-promotable firemen were Negro firemen and that the term "non-promotable firemen" was understood to refer to them, and to them alone. Furthermore, there is evidence of intent on the part of the Brotherhood to practice racial discrimination here with respect to the service of firemen that was not present in the Tunstall case. It appears that in the war year 1942, the Coast Line, being in need of additional firemen, arranged to take on a number of students, forty or fifty of whom were Negroes. The Brotherhood immediately demanded that these Negroes be discharged and took a vote authorizing a strike if this were not done. The matter was compromised at the urgent request of governmental authorities who were anxious to avoid a strike which would have hindered the war effort; and, as a result of the compromise, only fourteen of the student firemen, those who had already been given employment status, were retained. The others, who had not acquired an employment status at the time but merely that of students, were discharged because of the Brotherhood's protest. The strike threat was held over the company,...