Norman v. Missouri Pacific Railroad

• Decision Date: 16 July 1969
• Docket Number: No. 19433.,19433.
• Citation: 414 F.2d 73
• Parties: John W. NORMAN, William McClendon, Ardes Hervey, William Fairchild, Oscar T. Kennedy, L. L. Royston, James Lane, Freddie Wroten, J. W. Jones and L. A. Evans, Appellants, v. MISSOURI PACIFIC RAILROAD, a Corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

414 F.2d 73 (1969)

John W. NORMAN, William McClendon, Ardes Hervey, William Fairchild, Oscar T. Kennedy, L. L. Royston, James Lane, Freddie Wroten, J. W. Jones and L. A. Evans, Appellants, v. MISSOURI PACIFIC RAILROAD, a Corporation, Appellee.

No. 19433.

United States Court of Appeals Eighth Circuit.

July 16, 1969.

Robert L. Carter, Barbara A. Morris, New York City, George Howard Jr., Pine Bluff, Ark., for appellants.

Herschel H. Friday, Little Rock, Ark., for appellee, W. J. Smith and G. Ross Smith, Little Rock, Ark., on the brief.

David R. Cashdan, Atty., Equal Employment Opportunity Commission, Washington, D. C., for amicus curiae, Daniel Steiner, Gen. Counsel, Washington, D. C., and Russell Specter, Asst. Gen. Counsel, on the brief.

Before BLACKMUN, GIBSON and BRIGHT, Circuit Judges.

FLOYD R. GIBSON, Circuit Judge.

This case represents another chapter in the long arduous litigation of the train porters against the railroads, and at times against railroad unions, in an attempt to preserve the train porters' position against adverse changes in the operation of passenger trains and predatory raids by their alleged white counterparts, the railway brakemen. The plaintiffs in this case are Negro employees of the defendant Missouri Pacific Railroad serving in the capacity of train porters.¹

Plaintiffs allege violation of Title VII of the Civil Rights Act of 1964, 42 U.S. C. § 2000e et seq. by the defendant Railroad in classifying them as train porters because of their Negro race and allege that by reason of such classification they are denied equal employment opportunities, compensation and advancement as compared with their alleged white counterparts, the brakemen. Plaintiffs contend they are tested for and perform the same functions as white brakemen employed by the Railroad and that the class or craft of "train porter" represents an unlawful racial classification set up historically, and presently operating, to discriminte against them. They seek to enjoin the Railroad from maintaining the alleged unlawful racial classification, practice, custom and usage of limiting and interfering with their rights to equal employment opportunities secured by Title VII of the Civil Rights Act of 1964 and seek attorneys' fees and other unspecified relief.²

The District Court sustained a motion to dismiss the complaint for lack of jurisdiction.³

The trial court viewed the issue as a disputed question of reclassification of the craft of train porters into or with the craft of brakemen and held in view of the decisions in Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283 (1952); Howard v. St. Louis-San Francisco Railway Co., 361 F.2d 905 (8 Cir.1966), cert. denied 385 U.S. 986, 87 S.Ct. 598, 17 L.Ed.2d 448 (1966); UNA Chapter Flight Engineers v. National Mediation Board, 111 U.S.App.D.C. 121, 294 F.2d 905 (1961), cert. denied 368 U.S. 956, 82 S.Ct. 394, 7 L.Ed.2d 388 (1962), and Nunn v. Missouri Pacific Railroad Co., 248 F.Supp. 304 (E.D.Mo.1966), that only the National Mediation Board under the Railway Labor Act had jurisdiction over the matters alleged in the complaint and that Title VII of the 1964 Civil Rights Act did not revise or change existing law relating to the Railway Labor Act.

The trial court pointed out that the defendant Railroad was obligated to deal with the certified representative of a craft or class as provided in 45 U.S.C. § 152, Ninth and that the defendant cannot reclassify train porters as brakemen and transpose them into the brakemen's seniority roster without the concurrence of both unions and the National Mediation Board. It viewed the difference and disparity in employment conditions of train porters and brakemen as resulting from the fact that they are represented by different bargaining agents and are protected by different collective-bargaining agreements. The trial court did not find, but intimated, there was a defect in parties under Rule 19, Fed.R.Civ.P.

The litigation between the train porters and the railroads and the unions or brotherhoods representing the brakemen commenced in 1946 in Howard v. Thompson, 72 F.Supp. 695 (E.D.Mo. 1947), was appealed in Howard v. St. Louis-San Francisco Railway Co., 191 F.2d 442 (8 Cir.1951), and reviewed on grant of certiorari in Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283 (1952); it was again dealt with in Howard v. St. Louis-San Francisco Railway Co., 215 F.2d 690 (8 Cir.1954); Howard v. St. Louis-San Francisco Railway Co., 361 F.2d 905 (8 Cir.1966), cert. denied 385 U.S. 986, 87 S.Ct. 598, 17 L. Ed.2d 448 (1966) and Nunn v. Missouri Pacific Railroad Co., 248 F.Supp. 304 (E.D.Mo.1966). The general controversy is outlined in the above cases and we will rely upon the factual disclosure of those cases and only relate the facts necessary for a consideration of the issues presented in this appeal.

The craft of train porter has been recognized since 1918 and only Negroes have been employed as train porters. The essential work performed by train porters is the necessary braking work on the head end of passenger trains, which tasks are also performed by brakemen. The latter's scope of work is greater as the brakemen historically and jurisdictionally work on both passenger and freight trains while train porters are confined to head end braking duties on passenger trains.⁴

In Railroad Trainmen v. Howard, supra, this Court and the Supreme Court saved the train porters' position with the St. Louis-San Francisco Railway from a predatory raid of the brakemen represented by the Brotherhood of Railroad Trainmen. The white brakemen had forced the Railroad by threat of a strike to discontinue the train porters' jobs and replace them with white brakemen. The Supreme Court made two significant pronouncements: first, the Railway Labor Act prohibits brakemen's agents from destroying Negro workers' jobs in favor of white workers and the District Court had jurisdiction to protect Negro workers from racial discrimination, second, exclusive jurisdiction was not placed under the Railway Labor Act either (a) under the Railroad Adjustment Board since this was not an interpretation of a bargaining agreement or (b) under the National Mediation Board, as a question of proper craft classification.

In Howard v. St. Louis-San Francisco Railway Co., 361 F.2d 905 (8 Cir.1966), this Court denied relief to the train porters seeking as a class to be classified as brakemen with preservation of seniority rights and security in job assignments. Our holding there was twofold: (1) that only the Mediation Board had power to make class or craft determination, citing a list of cases, headed by Railroad Trainmen v. Howard, supra, and (2) that absent a change in classification the issues between the parties represented a minor dispute under the Railway Labor Act which should be determined by administrative procedures available for minor disputes under that Act with final jurisdiction resting in the Railroad Adjustment Board.

In Nunn v. Missouri Pacific Railroad Co., supra, the train porters were unsuccessful in fighting abolition of train porter positions on ten passenger trains of the Missouri Pacific Railroad. The United States District Court for the Eastern District of Missouri held that this constituted a minor dispute subject to the ultimate jurisdiction of the Railroad Adjustment Board. No appeal was taken from this decision. In Neal v. System Board of Adjustment (Missouri Pacific Railroad), 348 F.2d 722 (8 Cir. 1965) Negro employees of the Railroad working in the St. Louis terminal and represented by the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees alleged racial discrimination in the abolition of existing positions and the establishment of new positions in the terminal operation. Summary judgment against them was sustained by us for failure to exhaust administrative procedures available in the Union before seeking equitable relief against the Union or its officers in the federal courts.

Judge Johnsen in the original Howard case, 191 F.2d 442 (8 Cir.1951) attempted to resolve the dispute between the train porters and the brakemen by viewing the collective-bargaining agreement between the brakemen and the Railroad, allowing the brakemen to take over the train porters' head end braking duties, as calling for a merger of the crafts of train porter and brakeman. This would protect the displaced train porters by preserving their functional operations and seniority rights. Then under the doctrine of Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944) the bargaining agent for the brakemen, as the surviving craft, could not discriminate against minority groups in carrying out representational duties under the Railway Labor Act.⁵ However, the Supreme Court, though affirming the original Howard decision on certiorari by holding that the racially oriented and predatory bargaining agreement forced by the Brakemen's Union on the Railroad should be enjoined, cautioned, "that disputed questions of reclassification of the craft of `train porters' are committed by the Railway Labor Act to the National Mediation Board. Switchmen's Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 supra." at 775 of 343 U.S. at 1026 of 72 S.Ct.

Therefore, insofar as plaintiffs might have sought relief by way of merger or reclassification of their craft, they were foreclosed from any judicial relief by the holding in Railroad Trainmen v. Howard, supra; we recognized this in Howard v. St. Louis-San Francisco Railway Co., 361 F.2d 905 (8 Cir.1966), holding that the District Court had no jurisdiction to reclassify or place the class or craft of train porter into the class or craft of brakemen, stating that jurisdiction rests in the National Mediation Board.

It appears clear, however, that even though train porters are...