Harvey by Blankenbaker v. United Transp. Union

• Decision Date: 16 June 1989
• Docket Number: No. 86-2445,86-2445
• Citation: 878 F.2d 1235
• Parties: 51 Fair Empl.Prac.Cas. 394, 50 Empl. Prac. Dec. P 39,104 George E. HARVEY, Sr., by his personal representative; John H. BLANKENBAKER; Leslie B. Calvin; Mose A. Covington; Alfred E. Lyons; Lonnie L. Moore; Victor Powell; William A. Smith; Martin H. Tuggle; T.F. Vanwinkle; Earl O. Walker; Green Junior Wallace; William H. Zanders; Homer Jackson; Eugene E. Bunch; and James G. Bunch, all other persons similarly situated, Plaintiffs-Appellants, Ray E. Landrum, Plaintiff-Intervenor-Appellant, v. UNITED TRANSPORTATION UNION; Atchison, Topeka & Santa Fe Railway Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1235

878 F.2d 1235

51 Fair Empl.Prac.Cas. 394,

50 Empl. Prac. Dec. P 39,104

George E. HARVEY, Sr., by his personal representative; John

H. BLANKENBAKER; Leslie B. Calvin; Mose A. Covington;

Alfred E. Lyons; Lonnie L. Moore; Victor Powell; William

A. Smith; Martin H. Tuggle; T.F. Vanwinkle; Earl O.

Walker; Green Junior Wallace; William H. Zanders; Homer

Jackson; Eugene E. Bunch; and James G. Bunch, all other

persons similarly situated, Plaintiffs-Appellants, Ray E. Landrum, Plaintiff-Intervenor-Appellant, v. UNITED TRANSPORTATION UNION; Atchison, Topeka & Santa Fe

Railway Company, Defendants-Appellees.

No. 86-2445.

United States Court of Appeals, Tenth Circuit.

June 16, 1989.

Rehearing Denied Sept. 14, 1989.

Gerrit H. Wormhoudt (John T. Conlee, Thomas D. Kitch, Gregory J. Stucky and Link Christin, of Fleeson, Gooing, Coulson & Kitch, Terry G. Paup, and Chester I. Lewis, of Lewis & Davis, on the briefs), Wichita, Kan., for plaintiffs-appellants.

Norton N. Newborn, Cleveland, Ohio (E.L. Lee Kinch, Wichita, Kan., Pamela D. Walker, Little Rock, Ark., and Shelly J. Venick and Barbara J. Barr, The Atchison, Topeka & Santa Fe Ry. Co., Chicago, Ill., with him, on the brief), for defendants-appellees.

Before LOGAN and MOORE, Circuit Judges, and BURCIAGA, District Judge. ^*

LOGAN, Circuit Judge.

This appeal requires us to reexamine the bona fides of a seniority system previously addressed in Sears v. Atchison, T. & S.F. Ry., 454 F.Supp. 158 (D.Kan.1978) (Sears I ), aff'd in part and rev'd in part, 645 F.2d 1365 (10th Cir.1981) (Sears II ), cert. denied, 456 U.S. 964, 102 S.Ct. 2045, 72 L.Ed.2d 490 (1982). In Sears II, we held that the Atchison, Topeka & Santa Fe Railway Company's (Santa Fe) seniority system violated Title VII of the Civil Rights Act of 1964 (Title VII or the Act), Secs. 701-718, 42 U.S.C. Sec. 2000e to 2000e-17, because it perpetuated the effects of pre-Act discrimination and was adopted and maintained with an intent to discriminate. We also held that the United Transportation Union's (UTU) role in creating and maintaining the discriminatory system subjected it to liability under Title VII. The class receiving relief in Sears was composed of black males who at any time were employed by Santa Fe as train porters, also known as porter-brakemen, and who were employed by Santa Fe in any capacity after July 2, 1965, the effective date of Title VII. ¹ Id. at 1368, 1370; Sears I, 454 F.Supp. at 160.

The class in the instant case initially was composed of black persons employed as chair car attendants any time after the effective date of Title VII and who never were train porters. Blankenbaker v. United Transp. Union, Nos. 82-1984 and 76-31-C6, slip op. at 2, 3 (D.Kan. June 9, 1986). ² The class subsequently was modified to exclude blacks employed as chair car attendants on the Santa Fe after March 23, 1971. Id. at 55. The case was tried based on the stipulated facts in Sears, as well as documentary and testimonial evidence before the court. Id. at 4. After trial but before judgment, Santa Fe settled the plaintiffs' claims for back pay and attorneys' fees. Thus, all that remained for the court were the plaintiffs' claims for back pay against UTU, and for injunctive relief in the form of retroactive seniority against UTU and Santa Fe.

The district court held that Santa Fe discriminated against members of the class "in job assignment on the basis of race" after the effective date of Title VII until March 23, 1971. Id. at 55. The court then formulated standards under which individual plaintiffs could receive retroactive seniority. The parties do not appeal this ruling. The district court also held that the "craft seniority system for the craft of brakeman-switchman, as it was applied to the chair car attendant craft, was bona fide, and that defendant UTU is immunized from liability for assessment of back pay" by Sec. 703(h) of Title VII, 42 U.S.C. Sec. 2000e-2(h). Id. Plaintiffs appeal this holding. ³

I Factual Background

UTU is an unincorporated labor organization formed by the merger of four labor unions on January 1, 1969. Since at least 1892, either the UTU or two of its predecessors, the Brotherhood of Railroad Trainmen (BRT) and the Order of Railway Conductors and Brakemen (ORC & B), have served as collective bargaining agents for brakemen, switchmen, and conductors on the Santa Fe. The Brotherhood of Sleeping Car Porters (BSCP) is an unincorporated labor organization certified in 1946 to represent train porters and chair car attendants on the Santa Fe. The BSCP, not a party to this litigation, merged in 1978 with a division of the Brotherhood of Railway, Airline and Steamship Clerks (BRAC).

During the time relevant to this appeal, the Santa Fe rail lines were divided into three "Grand Divisions" known as the Eastern, Western, and Coast Lines. The Eastern Lines operated in Illinois, Iowa, Missouri, Kansas, Oklahoma, Colorado, and New Mexico. The Western Lines operated in Kansas, Oklahoma, Texas, Louisiana, and New Mexico. The Coast Lines operated in New Mexico, Arizona, and California. Each line was subdivided into divisions. Until Santa Fe's rail passenger service was taken over by Amtrak in May 1974, Santa Fe operated both passenger and freight trains on its lines.

The operating crew on a Santa Fe passenger train generally consisted of the conductor, train porter or head-end brakeman, rear-end brakeman, fireman, and engineer. The duties of brakemen, also known as road brakemen, included "the inspection of train cars, the testing and use of hand and light signals for the movement of trains, opening and closing of switches, coupling and uncoupling cars, hose and chain attachments, [and] reporting to and receiving instructions from the trainmaster and the conductor." Blankenbaker, slip op. at 10. Switchmen, also known as yard brakemen, performed essentially the same duties as road brakemen on passenger or freight trains, but worked regular hours and only within the yard. Train porters, a position created by Santa Fe in 1899, performed head-end braking duties on passenger trains in addition to servicing passengers and maintaining the interior of the cars. Chair car attendants, part of the nonoperating crew, were service personnel who attended to passengers' needs and cleaned the interior of the cars.

A new hire began to accumulate craft seniority within a seniority district on the earliest date of continuous service on the Santa Fe in that particular craft within that particular district. An employee's seniority date is critical because it "determines promotional opportunities as well as his right to protect work within his craft and district." Sears II, 645 F.2d at 1369. The first known agreement creating seniority rights on the Santa Fe was in 1892 between Santa Fe and predecessors of the UTU. Until the formation of the UTU in 1969, the BRT represented brakemen and switchmen, and the ORC & B or a predecessor represented conductors on the Santa Fe. From at least 1938 to 1960, only whites could join the BRT. Blankenbaker, slip op. at 13-14. The ORC & B also limited its membership to whites from at least 1934 to 1966. Id. at 14.

During the time period covered by this suit, the entry level position for whites on the Santa Fe was either as a brakeman or switchman. With few exceptions, ⁴ until the mid- or late-1960s all brakemen and switchmen on the Santa Fe were white. Before dualization of the brakemen's and switchmen's rosters, see post at pp. 1240-41, a new hire began working off the "extra-board" for the craft in which he was hired. ⁵ After accumulating sufficient seniority, a brakeman, for example, could "bid" for a regular run on a freight or passenger train. ⁶ After meeting certain requirements, including years of freight service and/or mileage, brakemen were promoted to conductor, but continued to accumulate brakeman seniority as well as seniority on the separate conductors' roster. Sears II, 645 F.2d at 1376; Sears I, 454 F.Supp. at 166, 179; VI R. 923-26; VII R. 1117, 1120; VIII R. 1242-43; VIII R. 1253-54; IX R. 1432-33. Similarly, the line of progression in the yard was from switchman to engine foreman, also known as yard conductor. E.g., VII R. 1117, 1120. We assume that a newly promoted engine foreman continued to accumulate seniority on the switchmen's roster.

Traditionally, the entry level position for blacks on the Santa Fe was as a chair car attendant, although some blacks were hired directly as train porters. Until 1959, chair car attendants on the Santa Fe could be promoted to train porters after meeting certain requirements. A newly promoted train porter could continue to work and accumulate seniority as a chair car attendant and bid on the train porter's extra-board until he had sufficient train porter seniority to obtain a regular position. All train porters were black and members of the chair car attendant craft were exclusively black until the 1960s when Santa Fe began hiring whites, usually college students, as temporary help during holidays and the summers. See, e.g., III R. 66-67, 119; (white chair car attendants first hired in 1967 or 1968); III R. 153-54 (first hired in 1968 or 1969); VI R. 848-50 (first hired in 1959 or 1960).

Santa Fe's creation of the train porter craft ⁷ to perform head-end braking duties in addition to a service function led to numerous clashes with the brakemen's collective bargaining representative, the BRT. The use of train porters to perform braking duties was beneficial to Santa Fe because train porters were paid less than their white counterparts, Sears II, 645 F.2d at 1369; Blankenbaker, slip op. at 12, and performed passenger service functions that "would be distasteful" to the white brakemen, Sears I, 454 F.Supp. at 168. After World War I, ⁸ the BRT made several efforts to obtain for its own members braking work performed by black train porters. ⁹ These efforts included "letter requests, demands, legislative lobbying,...