Gamble v. Birmingham Southern R. Co.

• Decision Date: 16 June 1975
• Docket Number: No. 74-2105,74-2105
• Citation: 514 F.2d 678
• Parties: 10 Fair Empl.Prac.Cas. 1148, 9 Empl. Prac. Dec. P 10,223 Jack A. GAMBLE et al., Plaintiffs-Appellants, v. BIRMINGHAM SOUTHERN RAILROAD COMPANY et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 678

514 F.2d 678

10 Fair Empl.Prac.Cas. 1148,

9 Empl. Prac. Dec. P 10,223

Jack A. GAMBLE et al., Plaintiffs-Appellants, v. BIRMINGHAM SOUTHERN RAILROAD COMPANY et al., Defendants-Appellees.

No. 74-2105.

United States Court of Appeals Fifth Circuit.

June 16, 1975.

Demetrius C. Newton, Birmingham, Ala., Jack Greenberg, Robert Belton, Barry L. Goldstein, New York City, for plaintiffs-appellants.

Carol Lynn Green, EEOC, Washington, D. C., for amicus curiae.

James R. Forman, Jr., J. Frederic Ingram, Birmingham, Ala., for Birmingham So. R. R.

Clarence M. Small, Jr., Birmingham, Ala., for Union.

Appeal from the United States District Court for the Northern District of Alabama.

Before WISDOM and DYER, Circuit Judges, and KRAFT, ^* District Judge.

DYER, Circuit Judge:

This Title VII ¹ suit alleges racial discrimination in promotional opportunities. Plaintiffs are a class of black switchmen who are or might be employed by Birmingham Southern Railroad Company (Railroad). Defendants are the employer Railroad and the United Transportation Union (Union) and its Local 1887 (Local). The district court made findings of fact and concluded as a matter of law that defendants have had no post-Civil Rights Act policy or practice which denied black switchmen promotional opportunity, that plaintiffs have shown no racially discriminatory pattern, practice, or motive on the part of the defendants, and that therefore the plaintiffs are entitled to no relief. We reverse.

The record here fully documents the long struggle by the plaintiff class to vindicate its rights. Each named switchman has at least twenty, and some have more than thirty years' seniority with the Railroad. For over twenty years they have been seeking the right to promote to conductor. In 1966, one year after the Civil Rights Act gave them the legal tools to enforce that right, they filed a complaint with the Equal Employment Opportunity Commission. After the EEOC investigated the charges and attempted conciliation, it gave the switchmen a "right to sue" letter in January, 1968. They filed a complaint in October, 1968. But the laborious process had just begun. It was four and a half years until the trial took place, one year more until the district court entered judgment, and another year until this appeal was argued, making six and one-half years in litigation, nine years since the EEOC charge was filed.

I. The Background

The general historical pattern of racial discrimination at the Railroad parallels that in the railroad industry and is detailed in the district court's findings of fact. We summarize as much of this background and describe as much of the operation of the Railroad as is necessary for understanding the problem before us.

"Yard" work, the job of moving, switching, and handling railroad cars, both within the yard and on extended runs, is done by switchmen and conductors. "Switchman" is the entry-level job in the yard. Switchmen couple and uncouple cars, adjust and line up switches "settle" and "bleed" air from the brakes, and classify and identify cars for movement. A "conductor" is the leader or foreman of a switching crew (usually made up of two switchmen and a conductor) and, of course, he earns more money than a switchman. He learns his job by first serving as a switchman. The basic work of the two classes is the same, but the conductor has overall responsibility and, accordingly, does what paper work is required for the crew.

Switchmen and conductors are now considered one craft, yardmen, and are now represented by the same union, but the history has been one of segregation, both in the yard and in the union. Before 1935, the two jobs were strictly segregated by race; black employees were hired as switchmen and whites as conductors. After 1935, all yardmen were hired first as switchmen, but all whites, and only whites, were soon promoted to conductor. Thus, except for those white initiates among the switchmen, who moved up quickly, all switchmen were still black, all conductors white. This situation obtained until 1972, long after the institution of this suit, when the first blacks were promoted to conductor.

Until 1967, the two classes were represented by separate unions, switchmen by the United Association of Iron, Steel and Mill Workers, and then the United Steelworkers of America, and conductors by the Brotherhood of Railroad Trainmen (BRT). In 1967, the BRT became the authorized representative of both switchmen and conductors, and was succeeded by the United Transportation Union.

All conductors hold seniority as of their date of hire as switchmen. They also hold seniority as switchmen. Switchmen, however, have only their switchman seniority.

The work of the Railroad is done by crews, usually made up of two switchmen and one conductor. Crews work either on "regular" or on "extra" runs or assignments. The number of regular runs operating has averaged between thirty and forty over the past several years. One initially acquires a regular run by bidding on it in a manner prescribed by the collective bargaining agreement. The most senior man bidding is given the run. Of course, only one qualified as a conductor may bid on conductor openings. Runs are advertised for bidding when a vacancy occurs in an existing run, for example through retirement, death, or promotion, or when someone gives up a regular run for any reason.

In addition to regular runs, a considerable amount of the work of the Railroad is done by extra crews working on a temporary basis. Extra men are needed to fill temporary vacancies caused by illness or vacation. Also, during the period of advertisement for bids, a run is filled temporarily by extra men. Both conductors and switchmen have an "extra board," from which these temporary crews are established on a rotational basis. The need for extra crews and the resulting number of men needed for the extra board are evaluated each week by representatives of management and the union. One bids for a position on the extra board. A conductor may give up a regular assignment and exercise his seniority to displace someone from the extra board, but not from a regular assignment. A conductor, then, may work on regular assignment, or on the extra board. If there are no conductor jobs available he may also work as a switchman, the only restriction being that, under the collective bargaining agreement, he cannot bid on a switchman job if there are any conductor openings on which he could bid. This provision corrected a long-standing problem of conductors "rolling back" to exercise their seniority over switchmen while junior conductors were still working; thus, if work was short, all whites were working while more senior blacks were laid off.

The gravamen of the black switchmen's claim is that they have consistently been denied the right to qualify as conductors. The question of how a switchman goes about being promoted to conductor is therefore vital to this case. The collective bargaining agreement has provided since 1936 that switchmen shall be promoted in order of their seniority with the company. Until 1972, however, only whites were so promoted. When company officials decide to promote a switchman, they indicate such to him. He then takes a written test and is interviewed orally to qualify as a conductor. There is no dispute that at the time this suit was filed in 1968, and for four years after, no black had ever been allowed to take the conductor test. There is also no dispute here as to the ability of the black switchmen plaintiffs to do the work of conductor; indeed, there is no contradictory evidence in the record on this point. Of the original charging parties, all have at least twenty years of seniority with the Railroad. Many of these men have trained white switchmen who were then promoted over them to conductor. Regarding their ability, the district court made these comments:

Observation of the black switchmen who testified as witnesses at the trial of this case and consideration of their testimony has convinced the Court that their experience on the job has equipped them to perform the duties of a conductor.

Further, the switchmen do not seek automatic promotion to conductor; they merely want the opportunity to take the qualifying test.

II. The Law

The record exposes a long history of racial discrimination. Indeed, the district court stated that the pre-Act discrimination practiced by the Railroad was "crystal clear." The court went on, however, to find no post-Act discrimination, emphasizing the lack of discriminatory action or motive. It denied the switchmen any relief. In this it erred.

It is well settled that a classification born in segregation and freezing one racial class in an inferior position cannot stand. An employee has a present right not to be discriminated against on account of race. Local 189, United Papermakers and Paperworkers v. United States, 5 Cir. 1969, 416 F.2d 980, 988. This right is violated each time the "old racial classification reasserts itself, and the Negro suffers anew for his employer's previous bias," even if an employer has maintained racially neutral policies since the Act went into effect. Id. The Supreme Court has made it clear that:

(u)nder the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to "freeze" the status quo of prior discriminatory employment practices.

Griggs v. Duke Power Co., 1971, 401 U.S. 424, 430, 91 S.Ct. 849, 853, 28 L.Ed.2d 158.

Therefore, we need not look behind the Railroad's protestations of good motive; good motives are irrelevant if the black switchmen have been locked into a disadvantageous position resulting from past discriminatory practice. Pettway v. American Cast Iron Pipe Co., 5 Cir. 1974, 494 F.2d 211, 223; Rowe v. General Motors Corp., 5 Cir. 1972, 457 F.2d 348, 355. Our own review of the record reveals that as of the trial date, April, 1973,...