English v. Seaboard Coast Line Railroad Co.

• Decision Date: 07 August 1972
• Docket Number: No. 71-3362.,71-3362.
• Citation: 465 F.2d 43
• Parties: William ENGLISH, Plaintiff-Appellant, v. SEABOARD COAST LINE RAILROAD CO. et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

465 F.2d 43 (1972)

William ENGLISH, Plaintiff-Appellant, v. SEABOARD COAST LINE RAILROAD CO. et al., Defendants-Appellees.

No. 71-3362.

United States Court of Appeals, Fifth Circuit.

August 7, 1972.

Fletcher N. Farrington, Jr., Savannah, Ga., Morris J. Baller, New York City, Peter A. Janiak, EEOC, Washington, D. C., Bobby L. Hill, Joseph Jones, Jr., Savannah, Ga., Jack Greenberg, William L. Robinson, New York City, John de J. Pemberton, Jr., Acting Gen. Counsel, Julia P. Cooper. Chief, Appellate Section, Philip B. Sklover, Atty., Equal Employment Opportunity Commission, Washington, D. C., for plaintiff-appellant.

Stanley M. Karsman, Malcolm Maclean, Savannah, Ga., Edward A. Charron, Jacksonville, Fla., James L. Highsaw, Jr., Washington, D. C., Charles A. Edwards, Mark M. Silvers, Jr., Savannah, Ga., Connerat, Dunn, Hunter, Houlihan, Maclean & Exley, P. C., Savannah, Ga., for Seaboard Coast Line Railroad Co.

Before JOHN R. BROWN, Chief Judge, and GEWIN and AINSWORTH, Circuit Judges.

GEWIN, Circuit Judge:

This is an interlocutory appeal under the provisions of 28 U.S.C. § 1292(b) from an order of the district court upon a "motion to dismiss for failure to join indispensable parties" made by Seaboard Coast Line Railroad Company (Seaboard), appellee.¹ The district court denied the motion but stayed the action until such time as the plaintiff files an amendment naming as defendant one or more of the white employees included in said class, whereupon this Court will pass an order pursuant to Rule 23(a) providing for service upon said class to show cause why they should not be joined as defendants.

English contends on appeal that the white employees are not parties to be joined if feasible under Rule 19(a) FRCP because the present union defendants adequately represent their interests. We reject that contention and affirm as modified and remand.

This employment discrimination suit was brought by the appellant William English, Jr., in behalf of himself and other similarly situated black employees of Seaboard against Seaboard and against the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees (BRAC), Local Number 5 of BRAC and Local Number 1586 of BRAC. English and the class he represents are members of BRAC. At the time the suit was brought black employees were members of one local and the white employees of the other. Since that time the two locals have merged by order of the district court.²

The complaint was filed under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Civil Rights Act of 1866, 42 U.S.C. § 1981.³ The gist of the complaint is that there is "across the board discrimination" by Seaboard and BRAC against English and his class. More specifically, the complaint alleges, "a racially segregated, dual system of jobs and lines of progression"; restriction of blacks to inferior jobs; unequal application of job requirements to blacks seeking traditionally white jobs; and a "lock-in" seniority system which perpetuates racially identifiable dual job categories. The complaint further alleges that BRAC has breached its duty of fair representation in that it has participated or acquiesced in Seaboard's discriminatory practices through collective bargaining agreements.

English and the members of his class are black employees of Seaboard in Waycross, Georgia; all employees and job classifications involved are within the BRAC craft unit for collective bargaining purposes. Within the craft unit there are two groups, Group 1 and Group 2, which English describes as "roughly corresponding to clerk's and laborer's jobs," respectively. Group 1 jobs pay better and are more prestigious than Group 2 jobs. The majority of whites hold Group 1 jobs, but there are no blacks in this group category.

Under the collective bargaining agreement between BRAC and Seaboard, Group 1 seniority and Group 2 seniority are kept separate. Group 2 seniority is not transferable to Group 1 in the event of transfer or promotion. In view of the fact that all blacks are in Group 2 no blacks have any usable seniority rights for Group 1 jobs. Seaboard seeks to join the white clerks in Group 1 whose seniority might be adversely affected should English prevail on the merits.⁴

The district court denied the motion to dismiss but stayed the action until such time as one or more white employees were joined. In doing so the court relied on one of its earlier decisions which reached a similar result, Hayes v. Seaboard Coastline R.R.⁵ The rulings of the district court in both the instant case and in Hayes were based largely on Banks v. Seaboard Coast Line R.R.⁶ In Banks the court ordered that if plaintiffs failed to join one or more of the white employees the motion to dismiss would be granted.

The district court felt that in the circumstances of this case the seniority rights of the absent white employees would be affected adversely if the requested relief was granted and that the union could not adequately and fairly represent the interests of both black and white members. We view these conclusions as a finding under Rule 19(a) (2) (i) that disposition of the case without the absent white employees who have an interest in the action may as a "practical matter impair or impede" their ability to protect their interests.

Obviously Seaboard cannot and does not advance a serious claim that the District Court lacks plenary authority to eradicate all remaining vestiges of racial discrimination which infect collective bargaining agreements relating to the transfer and promotion of its employees. The power to effect employer-union color-blindness is indisputable.⁷ Likewise, Seaboard recognizes that this Court has formulated or approved the implementation of decrees accomplishing that result in a number of cases in which individual white union members were not joined as representative defendants under Rules 19(a) and 23. United States v. Jacksonville Terminal Co., 5 Cir., 1971, 451 F.2d 418, cert. denied, 1972, 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815; Vogler v. McCarty, Inc., 5 Cir., 1971, 451 F.2d 1236; Local 189, United Papermakers and Paperworkers v. United States, 5 Cir., 1969, 416 F.2d 980, cert. denied, 1970, 397 U.S. 919, 90 S.Ct. 926, 25 L. Ed.2d 100. Consequently, there is no room now for an argument that in all circumstances in which the implementation of a remedy may conceivably affect the employment interests of white union members the District Court must find that the union alone does not adequately represent its white membership.

Even in circumstances in which the union cannot adequately represent both black and white members because the remedy ultimately devised may entail an irreconcilable conflict between the interests of those members, it is clear that Rule 19(a) has never required joinder in every case in which "interests" of white persons may be adversely affected by a court decree terminating racially discriminatory practices. For example, within the context of public school desegregation there are innumerable instances in which white children, parents and teachers will be deprived of "rights" (for example, the "right" to attend a neighborhood school) without ever having had the opportunity to participate directly in the judicial proceedings which divest them of those "rights." Moreover, when these adversely affected groups have themselves taken the initiative by seeking to intervene under Rule 24, we have frequently declined to permit it. St. Helena Parish School Board v. Hall, 5 Cir., 1961, 287 F.2d 376, 379, cert. denied, 368 U.S. 830, 82 S.Ct. 52, 7 L.Ed.2d 33; Horton v. Lawrence County Board of Education, 5 Cir., 1970, 425 F. 2d 735; Bennett v. Madison County Board of Education, 5 Cir., 1970, 437 F. 2d 554. We perceive no basis for the supposition that a union's representation of its membership is different in principle from a school board's representation of the community. In either case the defendant is being compelled to eliminate the consequences of unlawful racial discrimination by taking measures inimical to the traditional advantages of white persons having a vested interest in the status quo.

However, as a practical matter we must recognize that the elimination of racial discrimination in private employment frequently entails a much more involved, subjective accommodation of competing black-white interests because of the limited number of job vacancies and the direct, immediate impact on employee interests that results from any change in existing seniority levels.⁸ In such litigation the District Court may well regard individual white representation as insurance that the ultimate goal of terminating discrimination is accomplished in the most equitable and least disruptive manner possible. When an experienced Trial Judge reaches such a conclusion we cannot disregard it in the absence of compelling and persuasive justification, particularly in light of the Court's traditional broad discretion to order joinder under Rule 19. "While this discretion may not have the constrictions of a clearly erroneous rule, we must be mindful that the district judge is closer to the arena and is often in a better position to survey the practicalities involved in the litigation." Broussard v. Columbia Gulf Transmission Co., 5 Cir., 1968, 398 F.2d 885, 889.

We find no merit in the contention of English that since the white employees are not parties to the collective bargaining agreement they have no interest in this litigation. Black employees, not the company or the union, instituted this action. While the rights of employees may be affected adversely without their presence as a result of collective bargaining, a suit in federal court brought by black employees is simply a different situation. Rule 19 permits the joinder of employees under proper circumstances; there is no such rule which applies to collective bargaining.

The remaining issue raised by...