Bing v. Roadway Express, Inc., 30414.

• Decision Date: 29 June 1971
• Docket Number: No. 30414.,30414.
• Citation: 444 F.2d 687
• Parties: William E. BING et al., Plaintiffs-Appellants, v. ROADWAY EXPRESS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

444 F.2d 687 (1971)

William E. BING et al., Plaintiffs-Appellants, v. ROADWAY EXPRESS, INC., Defendant-Appellee.

No. 30414.

United States Court of Appeals, Fifth Circuit.

June 29, 1971.

W. M. Mathews, Jr., Atlanta, Ga., for plaintiffs-appellants.

Charles Kelso, Fisher & Phillips, Atlanta, Ga., for defendant-appellee.

Before THORNBERRY and GODBOLD, Circuit Judges, and BOOTLE, District Judge.

THORNBERRY, Circuit Judge:

William E. Bing, on behalf of himself and other Negroes similarly situated, instituted this action against Roadway Express, Incorporated, alleging that Roadway violated Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq., by maintaining a "no-transfer" rule that restricts and penalizes job transfers between the jobs of "city driver" and "road driver." After a non-jury trial the district court entered a judgment in favor of Roadway and dismissed the action. Bing appeals; we reverse and remand.

Roadway Express, Incorporated, a motor freight company serving the eastern United States, is a member of a nation-wide multi-employer bargaining unit that operates under national, area, and local union agreements with the International Brotherhood of Teamsters. Pursuant to these agreements, Roadway maintains separate collective bargaining contracts with, inter alia, (1) its long distance road drivers (road drivers), and (2) its dockmen, freight checkers, and local city drivers (city drivers). Employees accrue seniority and other job rights pursuant to the particular contract under which they are working. Since 1958 Roadway, because of alleged problems created by transfers, has intentionally discouraged transfers between the collective bargaining units — particularly between the road driver unit and the city driver unit — through the application of a "no-transfer" rule. The rule, in effect, requires an employee who desires to transfer to another job to resign his present position and thereby forfeit the employment rights accrued under it. He must then apply for the new position as if he were a stranger to the Company, with no assurance from Roadway prior to resigning his job that he will be hired for the new position.

Appellant Bing, who entered Roadway's employ as a casual worker at its Atlanta, Georgia terminal in October of 1962, became a full-time city driver in April, 1964. In October of 1964 Bing requested to be transferred to a road driver position, a job considered superior to that of city driver, and was told that the Company was not currently hiring road drivers. In April of 1965 the Company denied Bing's second request for transfer to the road driver unit on the basis of the no-transfer rule.¹ Bing complained to the EEOC, which found reasonable cause to believe that the Company was engaging in unlawful employment practices. When voluntary compliance was not achieved, Bing brought the instant action.

Evidence adduced during the trial court proceedings indicated that although Roadway had hired 203 road drivers from the time it commenced business in its Atlanta terminal until January 1, 1965, and had employed approximately 90 road drivers between February and December of 1965, it had not hired a single Negro road driver. Instead, all Negroes hired as drivers were placed in city driver positions. All road drivers are, and always have been, white; all Negro drivers are city drivers, though not all city drivers are Negro. Bing contends that the aforementioned figures demonstrate that Roadway has engaged in discriminatory hiring practices by placing only white employees in road driver positions. He then asserts that the no-transfer rule serves to perpetuate discrimination by locking Negroes into the less desirable jobs for which they were initially hired. Rejecting Bing's argument, the district court determined, inter alia, that "the fact that the road unit of the defendant at its Atlanta terminal is composed entirely of white employees does not show racial discrimination, without any evidence of discriminatory hiring practices for that particular category * * *," and that "the defendant's policy of restricting transfers between city drivers and road drivers is a valid departmental operation which is not based on race, but established and maintained as a result of other bona fide business needs and justifications. * * *" The district court concluded that "* * * the plaintiff individually, and as a representative of the class * * *, has failed to carry the burden of establishing that the defendant maintains a policy of discrimination in the employment practices with respect to the plaintiff and to the said class * * *."

In support of its conclusions the district court relied very heavily upon Jones v. Lee Way Motor Freight, Incorporated, 300 F.Supp. 653 (W.D.Okl.1969), a case involving a fact situation almost identical to the instant controversy. Subsequent to the district court's decision in the case at bar, the Lee Way decision was reversed by the Tenth Circuit, Jones v. Lee Way Motor Freight, Incorporated, 10th Cir. 1970, 431 F.2d 245, cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971). Finding ourselves in agreement with the Tenth Circuit's decision, we reverse the judgment of the court below. We direct our attention, first, to Roadway's past hiring practices, and, secondly, to the Company's no-transfer policy.

ROADWAY'S HIRING PRACTICES

As noted above the district court determined that Roadway had not engaged in discriminatory hiring practices in staffing its driver positions. We believe the district court's conclusion was founded upon a misapprehension of the value of Bing's statistical evidence. As we noted in Alabama v. United States, 5th Cir. 1962, 304 F.2d 583, 586, affirmed, 371 U.S. 37, 83 S.Ct. 145, 9 L.Ed. 2d 112 (1962), "in the problem of racial discrimination, statistics often tell much, and Courts listen." See Jones v. Lee Way Motor Freight, Incorporated, 10th Cir. 1970, supra; United States by Mitchell v. Hayes International Corporation, 5th Cir. 1969, 415 F.2d 1038, 1043; United States v. Sheet Metal Workers, 8th Cir. 1969, 416 F.2d 123, 127, n. 7; Cypress v. Newport News General & Nonsectarian Hospital Association, 4th Cir. 1967, 375 F.2d 648, 654. We believe it evident that if the statistics in the instant matter represent less than a shout, they certainly constitute far more than a mere whisper. Clearly, the figures establish a prima facie case that during the period in question race was a factor in staffing the two driver categories. See Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970); Jones v. Lee Way Motor Freight, Incorporated, 10th Cir. 1970, supra. Once Bing, by establishing a prima facie case of discrimination, had carried his burden of proof, it was incumbent upon Roadway to come forward and refute his case with something more than mere conclusional statements that it had never discriminated against Negroes in hiring road drivers. Turner v. Fouche, supra; Jones v. Lee Way Motor Freight, Incorporated, supra; Dailey v. City of Lawton, 10th Cir. 1970, 425 F.2d 1037. Since the Company did not refute his prima facie case, Bing was entitled to a determination that at the time he was hired the driver categories were staffed along racial lines to the extent that no Negroes would be hired as road drivers.

ROADWAY'S NO-TRANSFER POLICY

We must now determine whether the application of the no-transfer rule to Bing and the members of his class constitutes an unfair employment practice in violation of 42 U.S.C.A. § 2000e-2 (a).² We believe the proper standard for measuring the validity of the policy is the test set forth in Local 189, United Papermakers and Paperworkers,...