451 F.2d 418 (5th Cir. 1971), 30448, United States v. Jacksonville Terminal Co.

Docket Nº:30448.
Citation:451 F.2d 418
Party Name:UNITED STATES of America, Plaintiff-Appellant-Cross Appellee, v. JACKSONVILLE TERMINAL COMPANY, Defendant-Appellee-Cross Appellant, The Brotherhood of Railroad Trainmen et al., Defendants-Appellees.
Case Date:August 31, 1971
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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451 F.2d 418 (5th Cir. 1971)

UNITED STATES of America, Plaintiff-Appellant-Cross Appellee,

v.

JACKSONVILLE TERMINAL COMPANY, Defendant-Appellee-Cross Appellant,

The Brotherhood of Railroad Trainmen et al., Defendants-Appellees.

No. 30448.

United States Court of Appeals, Fifth Circuit.

Aug. 31, 1971

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John L. Briggs, U. S. Atty., Robert T. Moore, William B. Fenton, Attys., Dept. of Justice, Washington, D. C., Jerris Leonard, Asst. Atty. Gen., David L. Rose, Atty., Dept. of Justice, Washington, D. C., for plaintiff-appellant.

Luke G. Galant, Jacksonville, Fla., Harold L. Russell, Lloyd Sutter, E. Smythe Gambrell, William L. O'Callaghan, Jr., Atlanta, Ga., Dawson, Galant, Maddox, Boyer, Sulik & Nichols, Jacksonville, Fla., Gambrell, Russell, Killorin, Wade & Forbes, Atlanta, Ga., for Jacksonville Terminal Co.

William J. Donlon, Rosemont, Ill., for Brotherhood of Railway, Airline, and Steamship Clerks, etc.

Clarence M. Mulholland, Richard R. Lyman, Toledo, Ohio, William J. Hickey, Edward J. Hickey, Jr., Washington, D. C., William H. Adams, III, Guy O. Farmer, II, Jacksonville, Fla., for all appellees other than Jacksonville Terminal Co. and Brotherhood of Locomotive Engineers.

Donald W. Bennett, Harold A. Ross, Cleveland, Ohio, Delbridge L. Gibbs, Marks, Gray, Yates, Conroy & Gibbs, Jacksonville, Fla., for Brotherhood of Locomotive Engineers.

Robert Hart, Cleveland, Ohio, for United Transportation Union.

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Before COLEMAN, GOLDBERG and DYER, Circuit Judges.

DYER, Circuit Judge:

Once again Jacksonville Terminal Co. has accepted a challenger's gauntlet and renewed battle in this interminable litigation 1 involving management and employees. Surprising, however, and contrary to previous experience in this Court, the Terminal now occupies a single argumentative featherbed with several Union antagonists. 2 This uneasy union-management me›1‹salliance has been necessitated by the fact that a new adversary has appeared in the field: the United States has charged the Terminal and certain Unions with violating Title VII of the Civil Rights Act of 1964. After a lengthy trial, the District Court rejected the Government's contentions, drawing the battle-lines for this appeal. 3 We affirm in part, reverse in part, and remand.

The Attorney General filed a § 707 complaint 4 against the Terminal and the above-noted labor organizations on June 24, 1968. The Government alleged that the Terminal continued to engage in specified racially discriminatory practices; 5 that the Unions have negotiated collective bargaining agreements which

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tend to perpetuate the effects of these practices; and that the BRAC, the BNWE, and the BRCA maintain segregated locals. The complainant sought injunctive relief barring future discrimination and correcting the effects of past discrimination. 6 At the conclusion of the trial, the District Judge delivered an oral pronouncement-subsequently buttressed and expanded by written findings of fact and conclusions of law-that the Government had failed to prove its case by a preponderance of the evidence. To clearly establish its right to injunctive relief, the District Judge later wrote, the Government was required:

(a) to prove that defendants had committed specific acts and practices of racial discrimination in employment since the effective date of the Act (July 2, 1965); (b) to prove the commission of such acts and practices independently with respect to each and every allegation contained in the complaint; (c) to prove that such specific acts and practices were intentional and such as to constitute a pattern or practice of racial discrimination as opposed to mere isolated acts; and (d) to establish all essential elements of its case by a preponderance of the evidence. * * *

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

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hindering appellate review. E. g., Galena Oaks Corp. v. Scofield, 5 Cir. 1954, 218 F.2d 217, 219-220; see United States v. Singer Manufacturing Co., 1963, 374 U.S. 174, 194 n. 9, 83 S.Ct. 1773, 10 L.Ed.2d 823.

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.

I.

Owned by three major railroads, 7 Jacksonville Terminal handles passengers, freight, and United States mail; maintains Seaboard Coast Line rolling stock; and performs other tasks necessary for the safe, economical, and efficient operation of railway services. Like other facilities in the railroad industry, the Terminal has drastically reduced services and expenditures since World War II. Its annual passenger train volume has decreased from 35,000 in 1944 to 10,000 in 1969; annual operating expenses dropped from $4.9 million in 1960 to $2.3 million in 1969.

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 8 and classes 9 represented by the Unions. 10 Twentysix employees, all white, who were either Terminal officials or unrepresented by any labor organization, occupied the remaining twenty-three categories.

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.

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Of the other four, three were promoted to supervisory positions in the predominantly black Baggage and Mail Department beginning in 1964; and the fourth was a Switchman, a job which had been shared by blacks prior to reservation for whites. Blacks generally held eighteen of the contract jobs-all having been assigned to these categories when hired. Although job opportunities at the Terminal have not been abundant in recent years, management hired seventy-one individuals for contract jobs between October 1, 1965, and December 31, 1968; sixty where white, and eleven were black. Ostensibly the white-black assignment pattern has continued: all eleven blacks were hired as Baggage and Mail Porters. Only two whites held positions in predominantly black categories: one became a Welder Helper, and the other was a Baggage and Mail Porter. 11

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. 12 Moreover, they stipulated with respect to rates of pay: manifestly a significant pay disparity between predominantly black jobs and generally white positions does exist. 13 The District Court...

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