Allen v. Amalgamated Transit Union Local 788
| Decision Date | 09 May 1977 |
| Docket Number | Nos. 76-1542 and 76-1551,s. 76-1542 and 76-1551 |
| Citation | 554 F.2d 876 |
| Parties | 14 Fair Empl.Prac.Cas. 1494, 14 Empl. Prac. Dec. P 7638 Ben ALLEN et al., Appellants, v. AMALGAMATED TRANSIT UNION LOCAL 788, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Burton Newman, Clayton, Mo., for Amalgamated Transit Union; William H. Bartley, Clayton, Mo., on brief.
Louis Gilden, St. Louis, Mo., for Ben Allen.
Lutz A. Prager, Office of Gen. Counsel, E. E. O. C., Washington, D. C., for amicus curiae, E. E. O. C.; Abner W. Sibal, Gen. Counsel, Joseph T. Eddins, Associate Gen. Counsel and Lutz A. Prager, Washington, D. C., on brief.
Before LAY and WEBSTER, Circuit Judges, and SMITH, * Senior district judge.
Plaintiffs Ben Allen and Aaron Rutlin, along with 13 other black members of the Amalgamated Transit Union Local 788 (Union), brought suit against the Union alleging racial discrimination under 42 U.S.C. §§ 1981, 1982, 1983 and 2000e et seq. Plaintiffs alleged that the Union failed to grant them seniority and other incidental rights guaranteed to them under various collective bargaining agreements. A second count alleged that the Union had breached its duty of fair representation under 29 U.S.C. § 185. 1
The district court, the Honorable H. Kenneth Wangelin, found the defendant guilty of racial discrimination against the plaintiffs in violation of §§ 1981 and 2000e et seq., and ordered, inter alia : (1) that each plaintiff be awarded $1,000 punitive damages; (2) that defendant reimburse each plaintiff his $100 initiation fee plus interest thereon from the date of its payment; (3) that plaintiffs be awarded back pay as limited by a five-year statute of limitations, pending a report by special master; (4) that defendant grant Ben Allen and Aaron Rutlin seniority dating from the date of their employment with the Consolidated Service Car Company (CSC); (5) that all other plaintiffs were barred from any relief (including seniority rights) prior to five years from the date of the filing of the complaint (July 5, 1974) under Mo.Rev.Stat. § 516.120 (1969), and that their seniority date should be determined by supplemental order, pending a report from a special master concerning back pay; (6) that defendant pay plaintiffs' attorney a $300 fee; and (7) that defendant be permanently enjoined from any further racial discrimination against plaintiffs.
The Union has appealed the grant of injunctive relief, urging that the trial court erred in finding racial discrimination and in granting any relief to the plaintiffs. The plaintiffs have cross-appealed asserting that the district court erred in limiting remedial relief under the five-year statute of limitations, and in awarding an inadequate attorney fee. This court has jurisdiction to review the grant of the injunctive relief under 28 U.S.C. § 1292(a)(1). We affirm in part, and reverse in part.
Facts.
Prior to 1963 several independent companies, including CSC, operated transit facilities in the metropolitan St. Louis area. In 1959 a report prepared for the City of St. Louis and the County of St. Louis (Gilman Report) recommended that all of the companies involved in transit operations be consolidated in three phases: (1) establishment of an area-wide integrated transit system; (2) examination of rapid transit possibilities; and (3) completion of the plan by acquiring the CSC operation and replacing it with bus service. In 1963 fifteen transit companies (excluding CSC) merged into one corporation, Bi-State Development Agency (Bi-State). Bi-State was managed by Transit Services Corporation (TSC) which handled personnel matters, including negotiating collective bargaining agreements.
Most of the employees of the 15 merged companies belonged to various unions. The defendant, which represented about 75 per cent of the merged employees, campaigned so that all the merged employees became members of Local 788. Bi-State, through TSC, recognized the Union without a labor election.
To attract employees in this "organizational drive" the Union agreed to waive the $100 initiation fee for the merged employees. Since it was the policy of the Union to dovetail seniority for the years of prior employment of individuals who brought their work and equipment with them, it was agreed that the seniority of the merged employees would be dovetailed into the two Union seniority rosters (one for maintenance employees and one for drivers). In addition a section in the bargaining agreement provided:
Seniority of each of the full-time operators covered by this Agreement shall be on a system basis. The years of service of each of the full-time operators with each of their predecessor transit companies shall be counted from date of last employment and given full credit in the seniority roster.
There is no evidence that either the waiver of the initiation fee or the dovetailing provision was presented to the Union "rank and file" membership for approval.
Two years later, in 1965, Bi-State purchased the certificates of convenience issued to CSC, and in November of that year it had the certificates revoked by the city. CSC was then liquidated. Bi-State, through TSC, gave priority in hiring to former CSC employees by waiving any age limitation, any written test and pre-employment investigation. CSC employees only had to appear at the Bi-State employment office, fill out a job application, and pass a physical exam to be employed, and Bi-State hired a total of 34 CSC employees (33 black drivers and 1 white maintenance man) in this manner. The drivers received approximately 30 days of training in areas of routes, transfers, making change and actual bus driving. Following a probationary period all CSC employees joined the Union. Each paid a $100 initiation fee and none was given seniority credit for his prior employment, i. e., seniority was "end-tailed."
The former CSC employees did not complain to Bi-State or the Union about alleged racial discrimination in their treatment as "new employees" in 1965 until at least three years later. They then filed complaints against both the Union and Bi-State with the NAACP and the Missouri Commission on Human Rights. Two, Ben Allen and Aaron Rutlin, eventually filed charges with the Equal Employment Opportunity Commission (EEOC) in March of 1971.
Between 1969 and 1974 Bi-State agreed to grant former CSC employees full seniority credit 2 for their employment with CSC, and paid them back vacation pay as if they had originally been credited for their years with CSC. The Union continued in its refusal to grant former CSC employees full Union seniority. 3 The Union president told the former CSC members that the matter of their seniority would have to be put to a vote before the "rank and file" Union membership. However, he refused to place the matter before the "rank and file," because such action might cost him his office at the next election.
In 1971, a motion was made at a Union meeting for full seniority rights for the former CSC employees. It was seconded, but not entertained by the Union president because of the charges filed by those employees still pending before the city, state and federal commissions.
On August 21, 1972, the EEOC issued a reasonable cause determination that the Union had engaged in unlawful employment practices in violation of Title VII by denying the charging parties (Ben Allen and Aaron Rutlin) their full seniority rights and by charging them the $100 initiation fee. The EEOC decision also stated that the Union made no valid attempt to set into motion the proper processes to obtain the seniority rights demanded by the charging parties.
On June 13, 1974, Ben Allen and Aaron Rutlin were issued notices of right to sue within 90 days. Joined by 13 other former CSC employees they filed this action against the Union on July 5, 1974.
Discrimination.
On appeal the Union challenges the district court's finding that it discriminated against plaintiffs in violation of §§ 1981 and 2000e et seq. It contends that it had legitimate business reasons for the differences in treatment of the employees involved in the 1963 merger and the plaintiff-employees involved in the purchase of CSC. It urges that CSC was not a transit company and therefore the provision of the bargaining agreements dealing with the grant of full seniority rights of the operators of predecessor transit companies was not applicable; that special training periods were necessary for the service car drivers; and that plaintiffs did not "bring their work and equipment with them" since CSC vehicles were not used by Bi-State. The Union also asserts that prior to the 1963 merger it represented approximately 75 per cent of the employees of the 15 merging transit companies and there existed a substantial continuity of interest to maintain that representation. In contrast it asserts there was no legal obligation for TSC to employ CSC drivers and no continuity of operations entitling the service car drivers to continuous service credit or Union seniority.
The district court, in rejecting these arguments, found they did not rebut the prima facie case of discrimination. 4 We find this decision not clearly erroneous.
The Gilman Report recommendations clearly indicate that CSC was considered an integral part of the then existing transit system. Furthermore, although Bi-State did not continue to operate the CSC vehicles, after the 1965 purchase it added 172 daily round trip bus routes to its system and bought new buses. The district court found this was the equivalent of plaintiffs bringing their work and equipment with them. In addition, there is testimony that some of the smaller front engine and horizontally opposed engine buses used by other merged companies were not used by Bi-State, but that did not affect the treatment of drivers of those buses. Finally, there was evidence that the drivers involved in the 1963 merger also received 30 days of...
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