Sears v. Atchison, Topeka & Santa Fe Ry. Co.

• Decision Date: 14 June 1978
• Docket Number: Civ. A. No. W-4963.
• Parties: Joe Vernon SEARS, an Individual, in person and for all other persons similarly situated, Plaintiffs, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, and United Transportation Union, a successor to Brotherhood of Railway Trainmen, a labor organization, Defendants.
• Court: U.S. District Court — District of Kansas

454 F. Supp. 158

Joe Vernon SEARS, an Individual, in person and for all other persons similarly situated, Plaintiffs, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, and United Transportation Union, a successor to Brotherhood of Railway Trainmen, a labor organization, Defendants.

Civ. A. No. W-4963.

United States District Court, D. Kansas.

June 14, 1978.

Terry G. Paup, Wichita, Kan., Hinson & Hinson, Houston, Tex., Chester Lewis, of Lewis & Davis, Wichita, Kan., for plaintiffs.

Thomas R. Conklin, J. B. Reeves, Law Dept., Topeka, Kan., Thomas J. Fitzgerald, Chicago, Ill., for Atchison, Topeka & Santa Fe Ry. Co.

Payne H. Ratner, Jr., Wichita, Kan., Charles R. Judge, William C. Maier, of Dubail, Judge, Kilker and Maier, St. Louis, Mo., for United Transp. Union.

MEMORANDUM OF DECISION

WESLEY E. BROWN, District Judge.

BACKGROUND

This is an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Title VII or the Act. Plaintiffs and class members¹ charge The Atchison, Topeka and Santa Fe Railway Santa Fe and the United Transportation Union UTU, successor to the Brotherhood of Railway Trainmen BRT and the Order of Railway Conductors and Brakemen ORC&B, with having engaged in a policy and practice of discrimination on account of race in their dealings with plaintiffs and other black train porters employed by Santa Fe, in violation of Title VII.

The plaintiffs are black male Americans who at any time were employed by Santa Fe as train porters, also known as porter-brakemen, and who have been employed by Santa Fe, in any capacity, during the period from July 2, 1965, to the present. The Brotherhood of Sleeping Car Porters BSCP, an unincorporated labor association certified to represent train porters since April 5, 1946, is also a party plaintiff. The BSCP was merged with the "System Division" of The Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees BRAC, effective April 1, 1978. Because of the merger, the appropriate division of BRAC is a party plaintiff, but all relevant actions were taken by the BSCP, and any judgment rendered by this Court will be as to the BSCP, subject to later action if necessary.

The defendant Santa Fe is a Delaware corporation which conducts interstate transportation by railroad. Santa Fe rail lines extend from Chicago, Illinois, west to San Francisco, California, and south to Houston, Texas.² At all times material, Santa Fe was organized for operating purposes into three subdivisions: Eastern Lines, operating in Illinois, Iowa, Missouri, Kansas, Oklahoma, Colorado, and New Mexico; Western Lines, operating in Kansas, Oklahoma, Texas, Louisiana, and New Mexico; and Coast Lines, operating in New Mexico, Arizona, and California.

The UTU is an unincorporated labor union consisting of an International union, local unions, and intermediate bodies. The UTU or its predecessors, BRT and ORC&B, are and have been the certified bargaining representatives for brakemen and conductors since the 1920's. The BRT and ORC&B merged into the UTU, effective January 1, 1969. The UTU and its predecessors, BRT and ORC&B, have represented, in labor matters, some members of the crafts of brakemen and conductors since 1868. From 1868 until 1966 the Santa Fe was an "open shop" employer and membership in a union was not a condition of employment. Since 1966, the Santa Fe has been a "union shop" employer and membership in a union, certified to represent the employee craft by the Railway Labor Act, 45 U.S.C. § 151 et seq., is required within thirty days of employment. The parties have stipulated that the UTU is capable of being sued and is properly being sued in this action.

Plaintiff Joe Vernon Sears filed a Complaint against Santa Fe and UTU with the Kansas Commission on Civil Rights KCCR on March 8, 1966, alleging that Santa Fe and UTU had denied and were denying him and other Santa Fe train porters their rights under Title VII by reason of race. Sears filed a Complaint with the Equal Employment Opportunity Commission EEOC on October 4, 1966, setting forth the same charges as brought before the KCCR, and the EEOC asserted jurisdiction over Sears' complaint. On October 7, 1972, Sears was notified by the EEOC that he was entitled to file suit against defendants under Title VII. Several other plaintiffs also filed Complaints with the EEOC and were notified of their right to sue. The parties have stipulated that the jurisdictional requirements to bring suit under Title VII have been satisfied by plaintiffs and class members, and that venue is proper in this district.

On August 4, 1975, the Court entered an Order pursuant to Rule 23, Fed.R.Civ.P., that this action is maintainable as a class action under Rule 23(b)(2), on behalf of a class composed of the plaintiffs and all other black train porters employed by Santa Fe, in any capacity, during the period from July 2, 1965, to the present. Thereafter, on September 8, 1976, the Court, following notice to all class members, entered an Order Approving Compromise and Dismissal of Back Pay and Attorneys' Fees Claim Against Defendant Santa Fe, with respect to plaintiffs and class members except Criscell Kemp, A. M. Bennett, A. L. Woolfolk, T. C. Luckey, and W. W. Seymour. On December 29, 1976, January 3, 1977, and January 4, 1977, plaintiffs Kemp, Bennett, Woolfolk, Luckey, and Seymour each entered into Covenants Not to Sue with Santa Fe, and compromised and dismissed their respective back pay and attorneys' fees claims against Santa Fe. As a result, all plaintiffs and class members have compromised and settled their back pay and attorneys' fees claims with defendants Santa Fe.

On January 16, 1978, the BSCP was joined as a party plaintiff. Trial of this matter was had to the Court by means of a joint presentation of stipulated facts, subject to objections of relevancy and materiality, filed February 8, 1978. In connection with this presentation, each party also filed numerous exhibits. Memorandum briefs and reply briefs were subsequently filed by each party. The record before the Court is complete. The parties are agreed that this action will be bifurcated into a liability and a damage stage, the latter to follow only if liability is found. We now turn our attention to the question of the liability of defendants.

THE ISSUES

Plaintiffs contend that the Santa Fe, and UTU, and the UTU's predecessors have, for over three quarters of a century, engaged in a systematic campaign and practice of excluding blacks, and more particularly, black train porters, from employment as brakemen, conductors, and supervisory or management personnel with Santa Fe. Plaintiffs claim that they have suffered disparate treatment because Santa Fe denied employment opportunity to blacks by employing and retaining blacks in the traditionally Negro crafts of train porter and chair car attendant. Plaintiffs also claim that the seniority systems for the relevant crafts, entered into and maintained through collective bargaining agreements between Santa Fe and the BRT and ORC&B, have had a discriminatory impact upon them by locking them into the crafts of train porter and chair car attendant. Plaintiffs contend that the result of the seniority system is to perpetuate the effects of prior discrimination, establishing a Title VII violation even though the actual discriminatory acts may have occurred before the effective date of Title VII pre-Act. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) Griggs. Plaintiffs contend that the seniority system is not bona fide within the meaning of International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) Teamsters. In part, plaintiffs assert that the seniority system is not bona fide under Title VII because of the defendant unions' failure to eradicate discrimination, alleging that the unions had a duty to plaintiffs to eradicate discrimination against them. Plaintiffs further contend that their rights should be governed by Title VII rather than the Railway Labor Act, 45 U.S.C. § 151 et seq., so that defendants cannot defend their conduct by asserting that such conduct was immunized by the Railway Labor Act. Plaintiffs seek equitable and injunctive relief against Santa Fe and UTU whereunder the plaintiffs and all class members are granted seniority rights as brakemen and conductors retroactive to July 2, 1965, the effective date of Title VII. In addition, plaintiffs seek to recover from the UTU, on behalf of themselves and all other class members, an award of back pay and their reasonable attorneys' fees and costs incurred herein. It is stipulated that plaintiffs have settled all damage and attorneys' fees claims with the Santa Fe.

Both Santa Fe and the UTU contend that plaintiffs have failed to make out a case of discrimination. Defendants assert that the discriminatory conduct, if any, was in hiring plaintiffs as chair car attendants and train porters rather than as brakemen, acts which were done before the effective date of Title VII, and that under the doctrine of United Airlines Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977) Evans, the effect of discriminatory hiring is not a continuing violation past the effective date of the Act. In the alternative, defendants claim that even if plaintiffs have established racial discrimination perpetuated into the period covered by Title VII by a seniority system, the seniority system is bona fide pursuant to § 703(h) of Title VII and Teamsters, and therefore there can be no violation of Title VII.

Santa Fe contends that it in no way discriminated against plaintiffs in violation of Title VII, either pre-Act or post-Act. The railroad asserts that under § 703(j) of the Act, it is not required to grant preferential treatment to a group because of race. Santa Fe contends that it is bound by the provisions of the Railway Labor Act. Accordingly,...