Rock v. Norfolk and Western Railway Company, 72-1777 to 72-1779.

• Decision Date: 13 February 1973
• Docket Number: No. 72-1777 to 72-1779.,72-1777 to 72-1779.
• Citation: 473 F.2d 1344
• Parties: Robert ROCK et al., Appellants, v. NORFOLK AND WESTERN RAILWAY COMPANY, a corporation, et al., Appellees. UNITED TRANSPORTATION UNION LOCAL NO. 974, AFL-CIO, an unincorporated association, et al., Appellees, v. UNITED TRANSPORTATION UNION LODGE NO. 550, an unincorporated association, United Transportation Union, an unincorporated association, Appellants. UNITED TRANSPORTATION UNION LOCAL NO. 974, AFL-CIO, an unincorporated association et al., Appellees, v. NORFOLK AND WESTERN RAILWAY COMPANY, a corporation, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

473 F.2d 1344 (1973)

Robert ROCK et al., Appellants, v. NORFOLK AND WESTERN RAILWAY COMPANY, a corporation, et al., Appellees.

UNITED TRANSPORTATION UNION LOCAL NO. 974, AFL-CIO, an unincorporated association, et al., Appellees, v. UNITED TRANSPORTATION UNION LODGE NO. 550, an unincorporated association, United Transportation Union, an unincorporated association, Appellants.

UNITED TRANSPORTATION UNION LOCAL NO. 974, AFL-CIO, an unincorporated association et al., Appellees, v. NORFOLK AND WESTERN RAILWAY COMPANY, a corporation, Appellant.

Nos. 72-1777 to 72-1779.

United States Court of Appeals, Fourth Circuit.

Argued November 1, 1972.

Decided February 13, 1973.

Morris J. Baller, New York City, and Robert Belton, Charlotte, N. C. (Victor J. Ashe, Norfolk, Va., Jack Greenberg and William L. Robinson, New York City, on brief), for Robert Rock and others, appellants in No. 72-1777, and appellees in Nos. 72-1778 and 72-1779.

James T. Turner, Norfolk, Va. (William C. Worthington and Williams, Worrell, Kelly & Worthington, Norfolk, Va., on brief), for appellee, Norfolk and Western Railway Co., in No. 72-1777, and for appellant, Norfolk and Western Railway Co., in No. 72-1779.

Willard J. Moody, Portsmouth, Va. (Walton G. Bondurant, Jr., and Moody, McMurran & Miller, Portsmouth, Va., on brief), for United Transportation Union and United Transportation Union, Lodge No. 550, appellees in No. 72-1777 and appellants in No. 72-1778.

Before HAYNSWORTH, Chief Judge, and WINTER and RUSSELL, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

These are three actions under the Civil Rights Act of 1964¹ instituted by the plaintiffs, both individually and as representatives of the class, and by their local union, to remedy alleged discrimination in employment at rail terminal yards operated by the defendant railroad at Norfolk, Virginia. Named as defendants along with the railroad are the local union representing the employees at the other terminal yard and the international union with which both locals are affiliated. It is the position of the plaintiffs that the defendant unions aided in the discrimination of which they complain.

At Norfolk, the railroad maintains two terminal yards, adjacent to one another. One is known as the Barney Yard and the other as the CT Yard. The plaintiffs are long-time black employees at the Barney Yard.² This yard, which covers a relatively small area of contiguous tracks, is exclusively concerned with the movement of loaded coal cars down an incline to certain mechanized dumpers which empty the coal into waiting vessels for transport abroad. The District Court found that there was no locomotive power and a minimum use of signaling connected with operations in this yard. On the other hand, the CT Yard, physically much larger than Barney and with a far more complex pattern of trackage, handles freight of every description, including coal. In that connection, its employees move rail traffic with diesel engines "in both directions into and out of a complex of industrial trackage, sidings, yards, stations, crossings, and the like".

So far as this litigation is concerned, the operating employees in both Norfolk yards are divided among brakemen, conductors, and car retarder operators. In both yards, the entering job is that of brakeman, with the opportunity to advance successively, according to ability and seniority within the particular yard, to the job of conductor and car retarder, at increasing rates of pay. The hourly or daily rates of pay have always been the same for Barney Yard and CT Yard employees. The employees in both yards are members of, and are represented by, the same international union and the conditions of their employment are governed by a single collective bargaining agreement. They are, however, grouped in separate union locals. Their seniority rights, also, attach only to the yard in which they were originally employed and are not exercisable in the other contiguous yard. Thus, an employee in the Barney Yard has seniority rights in that yard, dating from the time of his employment in that yard, but has no seniority rights in the CT Yard.

As a result of the employment practices followed by the defendant railroad, prior to 1965, the two yards were racially identifiable. To illustrate: In July, 1965, of the 176 brakemen employed at the Barney Yard, only 3 were white; on the other hand, but 3 brakemen out of the 302 employed at the CT Yard were black. This situation resulted from the "nepotistic" employment practices followed by the railroad at the two yards in the pre-1965 period. These practices were described in the findings of the District Court in these words:

"The few jobs that opened up were quickly filled without any active recruitment. Any Barney Yard job opening would be first known to the predominately black work force, which would provide black applicants, often relatives, immediately. The pay was good, the work relatively stable, and generally, railroad employment was prestigious in the community.

"The same hiring conditions also pertained in the CT Yard, where a predominately white work force provided white job seekers, again mostly family relatives, for scarce job openings.

"Such a nepotistic hiring provided two things. For the Railway, it supplied employees particularly interested in railroad work, employees grounded in railroading through long family connections with the industry. Such attributes were likely to provide, and did, a loyal, interested work force. For the Negroes, it provided a steady, prestigious job of equal pay to their white counterpart.

"As a somewhat vicarious result, it also provided the Railroad with a black and white work force in about equal percentage to the surrounding population — a result which, in most respects, might suit the general purport of the Civil Rights Act of 1964, except in one particular, that work force as to these `brakemen\' was largely segregated into blacks in the Barney Yard and whites in the CT Yard."

The plaintiffs contended that since 1965 there had been no substantial change in the hiring pattern followed by the defendant railroad and that the racial identification of the two yards had been, for that reason, substantially maintained. It was further their contention that the work at the CT Yard was more desirable and profitable than that in the Barney Yard. To remedy the disparity and discrimination in employment opportunities existing between the two yards by reason of the racial classification of the two yards, the plaintiffs asked the merger of the seniority rosters in the two yards as well as the merger of the two locals, along with back-pay relief and attorneys' fees.

The District Court, in a carefully prepared memorandum opinion, found that the defendant railroad had violated the Act by "the continued use of a hiring and job assignment procedure after 1965 which would tend (tended) to perpetuate the pre-1965 discrimination" and that it had taken no steps to correct the discriminatory results inherent in such hiring procedures. It further found that "to a degree there is discrimination in the barrier erected which now prevents promotion of Barney Yard men to certain higher job categories" and locked therein "with no access" to positions leading to that "of assistant yardmaster and yardmaster". It found, however, that the work in the Barney Yard was not, as plaintiffs argued, "dirtier or more menial" and concluded that the work in the two yards had such "small vestiges of similarity" as to constitute "an entirely different trade".

On the basis of such findings, it ordered the railroad to discontinue its "word-of-mouth" hiring practices and to establish a single employment office for both yards. To correct any prejudice sustained by black brakemen in the Barney Yard in promotion rights, it provided a means whereby such employees could qualify for promotion to conductor in either yard. It further ordered that the seniority rosters of the two yards be merged by "topping and bottoming" the two rosters and that the two union locals be merged. It concluded by denying back-pay and by granting attorneys' fees to plaintiffs' counsel in the sum of $15,000, payable two-thirds by the railroad and one-third by the defendant union.

All parties have appealed. The railroad and union attack the finding made against them of a violation of the Act. The union, also, complains that the special seniority rights granted the Barney Yard brakemen in qualifying for the conductors' roster discriminates unfairly against CT Yard brakemen who have qualified for such roster. The plaintiffs, on the other hand, by their appeal, object to the merging of the seniority rosters on a "topping and bottoming" basis as inadequate, and complain of the failure to grant any back-pay relief and of the inadequacy of the allowance by way of attorneys' fees.

I.

The findings by the District Court that, in its hiring practices, the defendants had violated the Act, though challenged by the defendant railroad and the defendant union is not clearly erroneous and is accordingly affirmed.

II.

There seems to be no dispute among the parties that, if the finding of a violation of the Act is sustained, some form of merger of the seniority rosters at the two yards is a proper remedy. The real issue in the appeal revolves about the manner in which, accepting such finding of a violation, the seniority rosters at the two yards should be merged. The District Court ordered what has been described in the record as a "topping and bottoming" merger. In this type of merger, each employee would retain his existing position on the seniority roster of the yard where he is presently employed and would be placed at the bottom of the roster in the other yard as of the date of the merger. This would mean the continuance of two seniority rosters, with each employee having...