Peters v. Missouri-Pacific Railroad Company

• Decision Date: 05 November 1973
• Docket Number: No. 71-3566.,71-3566.
• Citation: 483 F.2d 490
• Parties: Boyd PETERS et al., Plaintiffs-Appellees, v. MISSOURI-PACIFIC RAILROAD COMPANY, Defendant-Third Party Plaintiff-Appellant, v. UNITED TRANSPORTATION UNION, Third Party Defendant.
• Court: U.S. Court of Appeals — Fifth Circuit

483 F.2d 490 (1973)

Boyd PETERS et al., Plaintiffs-Appellees, v. MISSOURI-PACIFIC RAILROAD COMPANY, Defendant-Third Party Plaintiff-Appellant, v. UNITED TRANSPORTATION UNION, Third Party Defendant.

No. 71-3566.

United States Court of Appeals, Fifth Circuit.

April 10, 1973.

As Modified on Denial of Rehearing and Rehearing June 27, 1973.

Certiorari Denied November 5, 1973.

Tracy Crawford, Tyler, Tex., James P. Simpson, Dallas, Tex., for plaintiff-appellant.

Franklin Jones, Jr., Carl Roth, Marshall, Tex., for plaintiffs-appellees.

John de J. Pemberton, Jr., Acting Gen. Counsel, Margaret S. Rogers E.E. O.C., Washington, D. C., for amicus curiae.

William S. Reeves, Tyler, Tex., for other interested parties.

Before WISDOM, THORNBERRY and GODBOLD, Circuit Judges.

As Modified on Denial of Rehearing and Rehearing En Banc June 27, 1973.

Certiorari Denied November 5, 1973. See 94 S.Ct. 356.

GODBOLD, Circuit Judge:

This case presents the question of whether the defendant Missouri-Pacific Railroad violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. A. § 2000e-2(a)(1970),¹ by entering into and enforcing a collective bargaining agreement providing for retirement at age 65 for firemen on its DeQuincy Division, all of whom were black. The agreement was made with International Association of Railway Employees (IARE), the union representing the firemen on the DeQuincy Division. The entire membership of IARE Local Lodge 3 was composed of the DeQuincy Division firemen. When the agreement in question was made substantially all firemen on the Railroad's other divisions were white. The white firemen were represented by unions other than IARE² and, except for the firemen on one division, were subject to separate collective bargaining contracts setting compulsory retirement at age 70.³ The retirement provision for black firemen was signed June 26, 1964, prior to passage of the Civil Rights Act of 1964, but by agreement did not become effective until December 31, 1966, subsequent to the Act's effective date, July 2, 1965.

Plaintiffs are six black members of Local 3 formerly employed as firemen by the Missouri-Pacific on the DeQuincy Division. Pursuant to the 1964 agreement, and because they were over 65, five of them were retired on January 4, 1967 and the sixth on October 5, 1968. Upon retirement they began receiving pensions smaller than their wages would have been had they continued working. The plaintiffs sued under 42 U.S.C.A. § 2000e-5(e) and (f)(1970) alleging that the Railroad had discriminated against them by forcing their retirement solely because of their race, in violation of 42 U.S.C.A. § 2000e-2(a). The Railroad answered and brought a third party complaint against BLF&E, the then bargaining representative of the DeQuincy firemen, and four local union officials who were sued as representatives of the "class of persons holding seniority as Locomotive Firemen" on the DeQuincy Division. The court granted the Railroad's motion to maintain the third party action against this class, and notice was given to the Railroad's employees constituting the class.^3A

Sitting without a jury, the District Court found that the earlier retirement age for the black firemen violated 42 U. S.C.A. § 2000e-2(a)(1970) because their white counterparts, under separate agreements, were permitted to continue working to age 70. The court awarded all plaintiffs back wages for the time they could have worked⁴ but for the age 65 retirement agreement, ordered reinstatement for two plaintiffs not then age 70, and awarded attorney fees to plaintiffs' counsel. The Railroad appeals. We affirm.

I. The history.

The record fully supports the findings of the District Court that prior to 1964 the Railroad classified, separated and segregated its employees on the basis of race, and that this resulted in the racial composition of Local 3 of IARE.⁵ Black and white firemen worked in different geographical areas and, as we have pointed out, were represented by different unions.⁶ Black firemen received inferior rates of pay and fringe benefits and worked longer hours than their white counterparts. The Railroad employed only blacks to work as firemen on the DeQuincy Division and only whites as firemen elsewhere.

In 1956, shortly after Missouri-Pacific took over the small lines and their black firemen, the Railroad received a request from H. W. Simpson, Chairman of IARE Local 3, asking that firemen on the DeQuincy Division be mandatorily retired at age 70. Prior to that time there had been no mandatory retirement age for any of the Railroad's firemen. According to oral testimony given at trial, Simpson had been elected as the candidate of younger firemen, displacing a chairman who favored the older men. The written request made by Simpson to the Railroad included these stated reasons:

Such an agreement would be an asset to the Carriers economically, and would increase the efficiency and safety in the performance of duties. It would give some of the twenty-five furloughed firemen a chance to work. There are some men with more than twelve years of service who have not worked in years. Young men with families have no hope of entering the service unless some form of compulsory retirement is agreed upon. We have firemen who are over seventy years of age hardly physically fit to remain in the service.

President Whitaker of IARE testified that Chairman Simpson had reasoned that, although older firemen would be put out of work by mandatory retirement, they would still draw pensions, whereas the younger nonworking firemen, who had exhausted their unemployment benefits, were presently without means of support. The Railroad agreed to Local 3's 1956 request.

White firemen first became subject to compulsory retirement in 1959, when an agreement was negotiated with unions representing some of them providing for retirement at 70. In 1963 most of the remaining whites became subject to mandatory retirement at 70.

In 1958 IARE, by letter, suggested to the Railroad that the mandatory retirement age for the blacks be reduced to 65. But in 1959 most of the railroads in the country served notice on most of the railroad unions under Section 6 of the Railway Labor Act⁷ that they wanted to change collective bargaining agreements so as to, in effect, eliminate all firemen on diesel locomotives. The IARE's age 65 request lay dormant while most of the nation's railroads and railroad unions fought over the status of firemen. This national dispute was finally settled in 1963 by Award 282 of a board of arbitration established by Congress. See Pub.L. No. 88-108, § 2, 77 Stat. 132 (Aug. 28, 1963). Award 282 allowed the participating railroads (1) to terminate firemen with less than two years seniority; (2) to terminate firemen with more than two years seniority whose average monthly earnings for the last two years had not exceeded $200; (3) to terminate firemen with more than two years seniority who had not worked in two years; and (4) to "blank", i. e., leave open and unfilled, the jobs of firemen who retired after the effective date of the Award. Firemen who had 10 years seniority and whose average monthly earnings were in excess of $200 were protected by the Award.

The national dispute and Award 282 substantially altered the employment context of the Railroad's firemen by protecting the employment status and opportunities of some but destroying the status and opportunities of others. The Award would materially reduce the labor requirements of the Railroad on its DeQuincy Division, but only after it succeeded in having the terms of Award 282 included in the collective bargaining agreement it had with IARE as representative of the black firemen on that Division.^7A Thus, in May 1964, the Railroad proposed to IARE, as subjects of collective bargaining, the adaptation and application of the provisions of Award 282 to the black firemen of its DeQuincy Division and the reduction of the mandatory retirement age of the black firemen from 70 to 65. Discussion of these two subjects⁸ took place in separate meetings of the Railroad with President Whitaker of IARE and with Chairman Simpson and Committeeman Stewart of Local 3.

Pursuant to an understanding reached at these meetings, the Railroad prepared two written agreements, one applying the terms of Award 282 to the black firemen and the other providing for their mandatory retirement at age 65, and sent them for execution to IARE, the certified bargaining representative. President Whitaker signed both on June 19, 1964, and, according to IARE's intraunion agreement with Local 3, sent them to Chairman Simpson. Simpson and Local Committeeman Miller added their signatures on June 22, 1964, and returned the agreements by mail to the Railroad, which received them June 25, 1964.⁹ The Railroad's director of labor relations executed the agreements for the Railroad on June 26, and inserted that date in the blank spaces provided for execution dates. By its terms the agreement regarding Award 282 became effective retroactively on June 1, 1964, but the effective date of the age 65 agreement was delayed by its terms until December 31, 1966.

Award 282 affected equally the Railroad's black and white firemen who fell into these groups: those with less than two years seniority, those who had earned less than $4800 for the last two years, and those who had not worked at all in two years. Nevertheless, the interaction of 282 with the age 65 retirement agreement, once the latter became effective, placed an additional burden upon the black firemen. When the older black firemen were forced to retire, their jobs were "blanked" and no new blacks hired to replace them.¹⁰ This reduction in firemen's jobs held by blacks was accomplished without a corresponding elimination of firemen's jobs held by whites since white firemen, generally, were not forced to retire until age 70. Although blacks were being required to retire at age 65 on pensions, the court...