Notice: Fifth Circuit Local Rule 47.5.3 States That Unpublished Opinions Should Normally Be Cited Only When They Establish The Law Of The Case v. Mo.-pac. R.R. Co.

• Decision Date: 27 June 1973
• Docket Number: No. 71-3566.,71-3566.
• Citation: 6 Empl. Prac. Dec. P 8690,480 F.2d 924
• Parties: NOTICE: Fifth Circuit Local Rule 47.5.3 states that unpublished opinions should normally be cited only when they establish the law of the case, are relied upon as a basis for res judicata or collateral estoppel, or involve related facts. If an unpublished opinion is cited, a copy shall be attached to each copy of the brief.Boyd Peters et al., Plaintiffs-Appelleesv.Missouri-Pacific Railroad Company, Defendant-Third PartyPlaintiff-Appellant v. United TransportationUnion, Third Party Defendant.
• Court: U.S. Court of Appeals — Fifth Circuit

480 F.2d 924

6 Empl. Prac. Dec. P 8690

NOTICE: Fifth Circuit Local Rule 47.5.3 states that unpublished opinions should normally be cited only when they establish the law of the case, are relied upon as a basis for res judicata or collateral estoppel, or involve related facts. If an unpublished opinion is cited, a copy shall be attached to each copy of the brief.Boyd Peters et al., Plaintiffs-Appelleesv.Missouri-Pacific Railroad Company, Defendant-Third PartyPlaintiff-Appellant

v.United TransportationUnion, Third Party Defendant.

No. 71-3566.

United States Court of Appeals, Fifth Circuit.

June 27, 1973.

Before WISDOM, THORNBERRY and GODBOLD, Circuit Judges.

GODBOLD, C.J.

The opinion of this court entered April 10, 1973, is modified in the following respects.

(A) On page 5, line 6, the word "hired" is deleted and the word "employed" is substituted therefor.

(B) We delete that part of the opinion beginning at the bottom of page 6 with the paragraph which commences "in 1958 IARE * * * " and continuing through the paragraph ending in the middle of page 8 with the words " * * * Committeeman Stewart of Local 3." In lieu thereof we substitute the following:

In 1958 IARE, by letter, suggested to the Railroad that the mandatory retirement age for the blacks be reduced to 65. But in 1959 most of the railroads in the country served notice on most of the railroad unions under Section 6 of the Railway Labor Act⁷ that they wanted to change collective bargaining agreements so as to, in effect, eliminate all firemen on diesel locomotives. The IARE's age 65 request lay dormant while most of the nation's railroads and railroad unions fought over the status of firemen. This national dispute was finally settled in 1963 by Award 282 of a board of arbitration established by Congress. See Pub.L. No. 88-108, Sec. 2, 77 Stat. 132 (Aug. 28, 1963). Award 282 allowed the participating railroads (1) to terminate firemen with less than two years seniority; (2) to terminate firemen with more than two years seniority whose average monthly earnings for the last two years had not exceeded $200; (3) to terminate firemen with more than two years seniority who had not worked in two years; and (4) to "blank", i.e., leave open and unfilled, the jobs of firemen who retired after the effective date of the Award. Firemen who had 10 years seniority and whose average monthly earnings were in excess of $200 were protected by the Award.

The national dispute and Award 282 substantially altered the employment context of the Railroad's firemen by protecting the employment status and opportunities of some but destroying the status and opportunities of others. The Award would materially reduce the labor requirements of the Railroad on its DeQuincy Division, but only after it succeeded in having the terms of Award 282 included in the collective bargaining agreement it had with IARE as representative of the black firemen on that Division.^7A Thus, in May 1964, the Railroad proposed to IARE, as subjects of collective bargaining, the adaptation and application of the provisions of Award 282 to the black firemen of its DeQuincy Division and the reduction of the mandatory retirement age of the black firemen from 70 to 65. Discussion of these two subjects⁸ took place in separate meetings of the Railroad with President Whitaker of IARE and with Chairman Simpson and Committeeman Stewart of Local 3.

(C) We delete the full paragraph on page 9 and in lieu thereof substitute the following:

Award 282 affected equally the Railroad's black and white firemen who fell into these groups: those with less than two years seniority, those who had earned less than $4800 for the last two years, and those who had not worked at all in two years. Nevertheless, the interaction of 282 with the age 65 retirement agreement, once the latter became effective, placed an additional burden upon the black firemen. When the older black firemen were forced to retire, their jobs were "blanked" and no new blacks hired to replace them.¹⁰ This reduction in firemen's jobs held by blacks was accomplished without a corresponding elimination of firemen's jobs held by whites since white firemen, generally, were not forced to retire until age 70. Although blacks were being required to retire at age 65 on pensions, the court found that the black retirees were no less competent for firemen's jobs than their white counterparts.

(D) We delete the paragraph beginning on page 18 and continuing to the middle of page 19, and in lieu thereof substitute the following:

But Award 282, Whitaker testified, gave the black firemen and IARE the first intrinsic bargaining strength they ever enjoyed. Award 282's terms would not become effective on the DeQuincy Division until its provisions had been adopted and included in the collective bargaining agreement existing between the Railroad and IARE. Moreover, the Railroad would be able to...