United Transp. Union Local No. 974, AFL-CIO v. Norfolk & W. Ry. Co.

• Citation: 532 F.2d 336
• Decision Date: 19 April 1976
• Docket Number: No. 74-1788,AFL-CIO,74-1788
• Parties: 11 Fair Empl.Prac.Cas. 410, 10 Empl. Prac. Dec. P 10,398 The UNITED TRANSPORTATION UNION LOCAL NO. 974,, an unincorporated association, Plaintiff, Robert Rock et al., Appellants, v. NORFOLK AND WESTERN RAILWAY COMPANY, a corporation, et al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 336

532 F.2d 336

11 Fair Empl.Prac.Cas. 410,

10 Empl. Prac. Dec. P 10,398

The UNITED TRANSPORTATION UNION LOCAL NO. 974, AFL-CIO, an unincorporated association, Plaintiff, Robert Rock et al., Appellants, v. NORFOLK AND WESTERN RAILWAY COMPANY, a corporation, et al., Appellees.

No. 74-1788.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 4, 1975.

Decided Sept. 22, 1975.

Certiorari Denied April 19, 1976.

See 96 S.Ct. 1664.

Morris J. Baller, New York City (William T. Mason, Jr., Norfolk, Va., Robert Belton, Charlotte, N. C., and Jack Greenberg, New York City, on brief), for appellants.

James T. Turner, Norfolk, Va. (Williams, Worrell, Kelly & Worthington, Norfolk, Va., on brief), for appellee Norfolk and Western Railway Co.

Walton G. Bondurant, Jr., Richmond, Va. (Willard J. Moody, Moody, McMurran & Miller, Portsmouth, Va., and Robert Hart, Cleveland, Ohio, on brief), for appellees United Transp. Union Lodge No. 550 and United Transp. Union.

Before WINTER, CRAVEN and WIDENER, Circuit Judges.

WINTER, Circuit Judge:

In a previous appeal, Rock v. Norfolk and Western Railway Company, 473 F.2d 1344 (4 Cir.), cert. denied, 412 U.S. 993, 93 S.Ct. 2754, 37 L.Ed.2d 161 (1973), we affirmed the district court's conclusion that the railroad (N & W) and the unions had engaged in hiring practices illegal under the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., at the mostly black Barney Yard and the mostly white CT Yard in Norfolk, Virginia. We remanded the case, however, with directions to the district court (a) to prepare a plan for merger of the seniority rosters of each of the yards into a single seniority roster, (b) to consider defendants' liability for back pay, and (c) to make an allowance for attorneys fees. On remand, plaintiffs sought to raise, as an additional issue, the contention that minimum wage guarantees made to certain N & W employees when Nickel Plate Railroad was merged with N & W should be extended to them.

The district court declined to consider an upward adjustment of plaintiffs' monthly guarantees by reason of the Nickel Plate merger plan on the ground that since the claim was not asserted until final argument of the case on remand, the assertion was untimely. It ruled that plaintiffs were not entitled to back pay and it formulated a plan for merging seniority rosters. ¹ Plaintiffs appeal a second time, challenging the correctness of the denial of back pay, the merger of the seniority rosters for conductors, and the refusal to give effect to the Nickel Plate merger agreements. We find merit in plaintiffs' several assertions of error, and therefore we vacate the judgment in the respects it is challenged and remand the case for further proceedings.

I.

Because of the full statement of facts in the appeal previously reported, we proceed directly to the legal issues, reciting only such additional facts as are necessary for their full understanding. We consider first plaintiffs' claim to back pay.

Discrimination in hiring and employment practices has already been established in this case. Under the rule of Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975):

(G)iven a finding of unlawful discrimination, backpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination. (Footnote omitted.) 422 U.S. at 421, 95 S.Ct. at 2373.

See also Robinson v. Lorillard Corp., 444 F.2d 791, 803-04 (4 Cir.), cert. dismissed, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971).

The district court advanced four reasons for denying back pay. They were: (a) that the rate of pay for each classification at the Barney and CT Yards was identical; (b) in 1968, N & W offered to dovetail the rosters of the two yards, but this offer was refused by the unions and must have been known and acquiesced in by plaintiffs; (c) while promotions to higher paying positions came more slowly to Barney Yard employees than to CT Yard employees, the disparity resulted from objective employment needs and personal choice on the part of Barney Yard employees; and (d) the two yards are separate and distinct.

With the possible exception of extension of the N & W minimum wage guarantees, we think that a general application of any or all of the district court's reasons for denying back pay would frustrate the eradication of discrimination and would prevent the victims of discrimination from being made whole for their injuries. Therefore, we think back pay must be awarded.

Although rates of pay at the Barney and CT Yards are identical, it is total income, not rate of pay, by which discrimination in compensation is measured. Rate of pay is only part of the equation which produces total income. The record reflects that there was significantly less opportunity for work and for promotion, and significantly greater possibility of layoff at Barney than that at the CT Yard. Such opportunities and possibilities are among the "terms and conditions" of employment. When they are unequal and one racially identifiable group is favored over another, racial discrimination in fact has been practiced.

That no Barney Yard men applied for CT Yard jobs does not disprove discrimination or foreclose the back pay remedy. Since Barney Yard men had no seniority rights to exercise in applying or bidding for CT Yard jobs, 473 F.2d at 1346, a Barney Yard employee would be required to forfeit his accumulated seniority in order to obtain employment at the CT Yard. A refusal to commit seniority suicide is not an acceptable reason to deny back pay. Victims of discrimination should not be required to forfeit wage and security benefits accruing because of their seniority in order to remain eligible for purely speculative future back pay relief. A general rule requiring such action would frustrate the central purposes of Title VII.

Even if N & W did offer to dovetail seniority rosters in 1968, the fact is that dovetailing was not accomplished. Mere bona fides on the part of an employer, not translated into an actual eradication of discrimination, provides no defense to a claim for back pay. Albemarle Paper Co., 422 U.S. at 422, 95 S.Ct. 2362; Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). In any event, the record does not support the district court's suggestion that plaintiffs knew of the merger offer in 1968. There was affirmative testimony by representatives of the affected class that they had neither seen nor heard of the offer, and a union official testified that it had not been communicated to the black union or its officers. Under Albemarle Paper Co., this purported justification is not a good defense.

The district court found that the disparate promotion rate between the two yards did not justify the back pay remedy. But as a result of "nepotistic" hiring practices, mostly blacks were hired at Barney and mostly whites at CT, and the system of seniority tended to lock blacks into Barney. See 473 F.2d at 1346. In light of the racial pattern of employment at the two yards, the disparate promotion rate, regardless of the identity in pay rates for identical classifications at the yards, made employment at the Barney Yard unlawfully discriminatory.

Nor does the record support the explanation that black Barney employees did not seek promotion and remained at the Barney Yard as a matter of personal preference. The evidence shows that a substantial group of Barney employees accepted promotions at Barney Yard when vacancies occurred. More significantly, the record fails to show that any Barney Yard employee declined a promotion at Barney Yard when an opportunity for promotion arose. Because successful bidding on a job at CT Yard by a Barney Yard employee inevitably meant a loss of seniority, the failure to make such a bid by a Barney Yard employee could hardly be treated as a considered choice. In short, we see no reason to conclude that, if the promotion opportunities open to CT Yard men had been fairly available to Barney Yard men, the latter would have failed to take advantage of them.

Although the two yards are indeed separate and distinct operations, this fact is irrelevant to the back pay issue. At each yard the same general work is performed and both have the same job classifications, employment qualifications, and rates of pay. But because they are racially identifiable and less attractive employment opportunities are presented at the mostly black Barney Yard, there is unlawful discrimination warranting an award of back pay.

Of course we do not decide that each Barney employee is necessarily entitled to an award of back pay. The statistical evidence in the record tended to prove that certain Barney Yard employees fared better economically than their counterparts at CT Yard, and other Barney Yard employees, worse.

We approve the approach to the back pay computation developed in Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1379-80 (5 Cir. 1974); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 259-63 (5 Cir. 1974); and Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437, 443-45 (5 Cir.), cert. denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974). These cases hold that to justify an award plaintiffs must prove that there is a class whose members suffered economic loss as a result of discrimination. Such proof would establish a prima facie claim to back pay for each member of the class.

The objective of an award of back pay is "to make persons whole for injuries suffered on account of unlawful employment discrimination." Albemarle Paper Co., 422 U.S. at 418, 95 S.Ct. at 2372. In the case at bar, therefore, the district court must calculate the economic consequences of hypothetical employment at the CT Yard, compare it with the economic consequences of actual employment at the...