United States v. Chesapeake and Ohio Railway Company

• Citation: 471 F.2d 582
• Decision Date: 26 December 1972
• Docket Number: No. 72-1297,72-1298.,72-1297
• Parties: UNITED STATES of America, Appellant, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, a corporation, et al., Appellees. UNITED STATES of America, Appellee, v. LOCALS 268 AND 1130 OF the BROTHERHOOD OF RAILROAD TRAINMEN, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

471 F.2d 582 (1972)

UNITED STATES of America, Appellant, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, a corporation, et al., Appellees.

UNITED STATES of America, Appellee, v. LOCALS 268 AND 1130 OF the BROTHERHOOD OF RAILROAD TRAINMEN, Appellants.

Nos. 72-1297, 72-1298.

United States Court of Appeals, Fourth Circuit.

Argued October 4, 1972.

Decided December 26, 1972.

Certiorari Denied April 16, 1973.

COPYRIGHT MATERIAL OMITTED

David W. Allen, Atty., Dept. of Justice (Brian P. Gettings, U. S. Atty. E. D. Va., David L. Norman, Asst. Atty. Gen. of the United States, and Robert T. Moore and Richard S. Weil, Attys., Dept. of Justice, on brief), for the United States.

Joseph B. Geyer, Gen. Atty., Baltimore, Md. (Granger West, Newport News, Va., on brief), for The Chesapeake and Ohio Railway Co.

James L. Highsaw, Jr., Washington, D. C. (Highsaw & Mahoney, Washington, D. C., and William J. Donlon, Gen. Counsel, Rosemont, Ill., McGuire, Woods & Battle and William H. King, Richmond, Va., on brief), for Locals 362 and 1796 of The Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees.

Willard J. Moody, Portsmouth, Va. (Raymond H. Strople, Moody, McMurran & Miller, Portsmouth, Va., and Robert D. Hart, Gen. Counsel, Cleveland, Ohio, United Transportation Union, on brief), for Locals 268 and 1130 of The Brotherhood of Railroad Trainmen.

Before BOREMAN, Senior Circuit Judge, and WINTER and BUTZNER, Circuit Judges.

Certiorari Denied April 16, 1973. See 93 S.Ct. 1893.

BUTZNER, Circuit Judge:

The United States brought this action under Title VII of the Civil Rights Act of 1964¹ against the Chesapeake and Ohio Railway Company, Locals 268 and 1130 of the Brotherhood of Railroad Trainmen (now Locals 1307 and 1917 of the United Transportation Union), and Locals 362 and 1796 (now Lodge 349) of the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees.² The government alleged that the company and the unions engaged in discriminatory employment practices at the C&O's Newport News terminal, and that their collective bargaining agreements and the unions' segregated membership policies tended to perpetuate the effects of this discrimination.

The district court found no post-Act discriminatory hiring by the C&O. It ordered:

¶ the merger of two racially segregated BRAC clerks' locals;

¶ the merger of two racially segregated BRT brakemen's locals;

¶ the discontinuance of specified C&O employment qualification tests because they were not a measure of job performance;

¶ retention of jurisdiction for five years and the submission of compliance reports at stated intervals.

No party has appealed from these provisions of the decree.

The district court also found that the C&O had not engaged in pre-Act discrimination, and that it maintained bona fide seniority systems. Nevertheless, the court granted relief to facilitate progression of some employees to higher job classifications and to eliminate certain abrasive features of the seniority systems at the terminal. From these provisions of the decree, the government appeals, claiming that the evidence discloses pre-Act racial discrimination and asking for further relief to eliminate the unnecessary present effects of past discrimination. Specifically, the government contends that current seniority rosters and transfer policies, while racially neutral, perpetuate the effects of past discrimination by confining black employees to inferior, traditionally black jobs. The BRT locals cross-appeal from a provision of the court's decree that directs the utilization of company seniority to establish rank on the general yard conductor's roster.

In considering these appeals, we have the benefit of two cases — published after the opinion of the district court had been filed — that deal with racial discrimination in railway employment.³ Guided largely by these cases and other recent precedents, we grant substantially the relief which the government seeks and deny the BRT locals' cross-appeal.

Because the C&O has hired black brakemen and black clerks without discrimination since the effective date of the Act, the remedies that we order concern only black employees who were hired under the company's pre-Act employment policies. Parts I, II, and III of this opinion deal with the brakemen, conductors, and clerks, respectively, and Part IV considers the issue of "cross-craft" relief.

I

Brakemen work in one of two places, the general yard⁴ or the Barney yard. All general yard employees, which include brakemen and conductors, are members of BRT (white) Local 268; all Barney yard brakemen are members of BRT (black) Local 1130.

Before 1914, an all-black work force employed by an independent contractor loaded export coal on ships. In that year, after constructing a coal pier which is now a part of the Barney yard, the C&O hired the contractor's employees. Thus, the Barney yard was all-black from its inception. The general yard at that time was racially mixed, but it later became exclusively white.

In 1918 the Barney yard brakemen, through their yard committee, entered into an agreement with the C&O,⁵ which provided that Barney yard riders will be "classed and paid as yard brakemen," and that "seniority rights of the men on the Barney yard and on the general yard will be separate and distinct." Although this agreement made no mention of race and was designed to equalize the pay of brakemen, it was regarded by the C&O and its employees as a segregation agreement. Until 1957, when the company suspended hiring, white brakemen were hired only at the general yard and black brakemen only at the Barney yard. The racially identifiable pattern that emerged is illustrated by the seniority rosters for each yard. Prior to January 1, 1970, when the company resumed hiring brakemen, the 193 employees on the general yard were white, and the 164 Barney yard brakemen were black.

Opportunities for promotion are greater in the general yard than in the Barney yard. General yard brakemen can advance to yard conductor, assistant yardmaster, yardmaster, and management positions. None of those jobs are open to Barney yard brakemen. The senior Barney yard brakemen on each shift may operate the car retarder, a job which pays more than a brakeman's on either yard, and the senior man on each crew acts as foreman. There are no other avenues of advancement. Supervisors of the Barney yard are white.

Brakemen in both yards are paid on the same scale, although some Barney yard brakemen near the top of their seniority roster make larger annual salaries than general yard brakemen. Nevertheless, the average gross earnings of Barney yard brakemen are 20 per cent less than those of general yard brakemen because work is more irregular in the Barney yard than in the general yard.⁶

The company and the unions challenge the government's allegation that the C&O formerly discriminated on the basis of race. They argue that the government has failed to prove any overt act, agreement, or policy by the C&O in hiring and assigning new brakemen, that the government has failed to establish any "pattern or practice" of discrimination, and that mere statistical evidence of segregation does not establish discrimination. These arguments fail to perceive the impact of recent cases which hold that statistical evidence is sufficient to establish at least a prima facie case of discrimination in Title VII litigation.⁷ Since the employment statistics demonstrated that pre-Act hiring racially segregated both the general yard and the Barney yard, the burden shifted to the C&O to come forward with evidence to show that it had never discriminated in hiring black brakemen.⁸

The company, however, has failed to refute the government's prima facie case. Indeed, the C&O's answers to interrogatories proved that from 1918 until the effective date of the Act the company hired only white men at the general yard. The participation of the black brakemen through their yard committee and union in establishing the company's hiring policy and the acquiescence of the government in the segregation of the yards did not make the discrimination any less real.⁹ Moreover, evidence that the company practiced decentralized hiring for the yards and that vacancies were filled by referral from incumbents are indicia of discrimination that sustain rather than disprove the government's charge.¹⁰

We conclude, therefore, that the C&O's pre-Act hiring practices discriminated against black brakemen. Standing alone, however, pre-Act discrimination is insufficient to maintain a cause of action under Title VII; to be actionable, the proof must show present effects of the past discrimination.¹¹ The present mechanism of discrimination, the government asserts, is the company's practice, embedded in its collective bargaining agreements, of denying black Barney yard brakemen who were employed before the company reformed its hiring policies their company seniority should they seek employment in the general yard.

The evidence disclosed that the company maintains separate seniority rosters for each yard and that its collective bargaining agreements with the BRT prevent men in one yard from bidding on jobs in the other. The present effects of pre-Act discrimination are readily discernable. The Barney yard brakeman who was initially denied employment in the general yard because of his race cannot now take advantage of the more favorable working conditions in the general yard without forfeiting his company seniority. Because of the critical importance of seniority, a Barney yard brakeman is thus frozen or locked into a less desirable job than his white counterpart who was hired at the same time in the general yard.

The C&O and the union seek to justify their present regulations on two grounds. They contend first that the yard or departmental seniority system is validated by Section 703(h) of the Act.¹² The courts of...