United States v. St. Louis-San Francisco Railway Co.

• Decision Date: 13 June 1972
• Docket Number: No. 71-1247.,71-1247.
• Citation: 464 F.2d 301
• Parties: UNITED STATES of America, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY and United Transportation Union, Successor to Brotherhood of Railroad Trainmen, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

464 F.2d 301 (1972)

UNITED STATES of America, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY and United Transportation Union, Successor to Brotherhood of Railroad Trainmen, Appellees.

No. 71-1247.

United States Court of Appeals, Eighth Circuit.

Submitted May 8, 1972.

Decided June 13, 1972.

COPYRIGHT MATERIAL OMITTED

Robert T. Moore, Atty., Dept. of Justice, Washington, D. C., for the United States.

Paul R. Moody, St. Louis, Mo., for appellee, Railway.

Charles R. Judge, St. Louis, Mo., for appellee, United Transportation Union.

Before MATTHES, Chief Judge, and VAN OOSTERHOUT, MEHAFFY, LAY, HEANEY, BRIGHT, ROSS and STEPHENSON, Circuit Judges.

ROSS, Circuit Judge.

This is an action brought by the United States charging St. Louis-San Francisco Railway Company (Frisco) and United Transportation Union (UTU), successor to the Brotherhood of Railroad Trainmen (BRT), with having engaged in a policy and practice of discrimination on account of race, in their dealings with black train porters formerly employed by Frisco, in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.).¹ The Government seeks to have Frisco reclassify the former train porters as brakemen, and, by a merger of these two crafts, allow them to claim seniority accumulated as train porters in their new classification.

The trial court denied the request of the Government for a merger of the crafts and dismissed the action. United States by Clark v. St. Louis-San Francisco Railway Co., 52 F.R.D. 276 (E.D. Mo.1971). On appeal to this Court, a majority of the panel, which heard the case, affirmed on the basis of the opinion of the trial court. United States v. St. Louis-San Francisco Railway Co., No. 71-1247 (8th Cir. Feb. 22, 1972). The United States filed a petition for rehearing en banc, and it was granted. Upon rehearing en banc, we reverse and remand for further proceedings consistent with the views expressed in this opinion.

The essence of the claim of the United States is that from 1928 to 1966 Frisco discriminated against blacks in its hiring practices relating to brakemen; that black applicants for jobs with Frisco were forced to accept the lower paying job of train porter; that train porters performed head-end braking duties as well as duties relating to passenger care and maintenance on passenger trains; that when passenger trains were discontinued by Frisco, passenger brakemen were allowed to carry over all of their seniority to freight braking jobs; that even though train porters performed braking duties a substantial portion of the time they spent as train porters, they were not permitted to carry over any seniority to freight braking, but were required to start at the bottom of the seniority ladder; and that this denial of carryover seniority was a present discriminatory effect of past discrimination, preserved by an otherwise neutral current employment policy, which should be remedied under the Civil Rights Act of 1964.

The craft of train porter² had been recognized by Frisco since at least December, 1918; and it had been organized and represented for collective bargaining purposes since 1921.³ It had always been filled solely by blacks, and the black train porters were always paid lower wages than brakemen, except for a period during and shortly after World War I, when the railroads were under federal control and the crafts of train porter and brakeman were merged. Train porters and brakemen were always represented by separate bargaining units.

In 1928, Frisco and the BRT, which represented the brakemen, negotiated a collective bargaining agreement, which provided that "in the future hiring of employees in train, engine, and yard service but not including Train Porters, only white men shall be employed."⁴ Although this agreement was rescinded in 1949, no black person was hired as a brakeman until 1966, with one exception.⁵ Yet, during this period from 1949 until 1965, at least 750 white brakemen were employed by Frisco at the entry level. From 1966 until June, 1970, 63 black brakemen and switchmen were hired.⁶

Train porters assisted passengers, handled baggage, kept coaches clean, and performed head-end braking duties exclusively on passenger trains. The rear-end braking duties on the passenger train, as well as braking duties on both ends of freight trains, were performed by brakemen. The Government insists that throughout the period in question, train porters were relegated to that craft simply because of their race, and that this is borne out by the fact they performed essentially the same functions as the passenger brakeman.

Evidence given by individuals who had been train porters with Frisco revealed that their braking duties consisted of flagging blocks, throwing switches, watching for and repairing "hot boxes," setting out and picking up cars, setting and unsetting hand brakes, replacing broken knuckles (train couplings), coupling and uncoupling air and steam hoses, giving hand signals, using and maintaining lanterns, fusees, and other signaling equipment, receiving and carrying out orders, and otherwise assisting the conductor. Witnesses for the defendants acknowledged that the train porters did in fact perform these duties. There is, however, disagreement as to what percentage these braking duties assumed in the train porter's total work shift;⁷ the trial court found that the train porter's "primary" duty was to assist and care for the train passenger.⁸

Regardless of what was considered the train porter's primary duty, Frisco and UTU argue that the braking duties performed by train porters were significantly different from those performed by freight brakemen, and that on this basis there exists a functional distinction. The duties of freight brakeman include working in local freight, yard switching, and through freight, which involves "kicking" and "dropping" cars, where a car, moving under its own momentum, is controlled by the brakeman using a handbrake. A freight brakeman is also responsible for loading and unloading goods, switching, inspecting for equipment failures, and making necessary repairs. Many of these jobs involve long shifts, under hazardous conditions and in all types of weather. Some of the train porters stated, in their depositions, that they observed these freight duties while deadheading (riding to or from their starting or termination point) on freights, and that thereby they were acquainted with most of the duties.

Although a brakeman had a right to bid on any job, the usual progression was through the more dangerous and arduous freight service to the easier, high-priority passenger service, where the majority of the brakeman's time was spent riding. The entry level of the brakeman's craft is yard work. From there a brakeman generally progresses through local freight, through freight, and finally he will then bid on a position as conductor or, prior to 1967, as a rear-end brakeman on passenger trains. There is, however, no set job progression; if a brakeman had so elected, prior to 1967, he could have remained in yard work or local freight until he accumulated enough seniority to become a conductor or a passenger brakeman. By union contract, the assignment of all brakemen was done through bidding, based upon seniority as a brakeman. When a brakeman became a conductor he retained his seniority as a brakeman in case he wanted to give up his conductor classification and return to braking.

Passenger service was discontinued by Frisco in 1967. Consequently, the position of train porter was abolished and all of the black train porters were displaced.⁹ Frisco did, however, offer those train porters, who were still in service and who did not choose to retire, positions in other crafts; but less than half of that number accepted, because none were allowed to retain any of the seniority they had acquired as train porters.

After consideration of these facts, the trial judge dismissed the action and entered judgment for the defendants upon two basic findings. First, he concluded that the crafts of train porter and brakeman were distinct in that they were based upon functional differentiations, and that thereby train porters were not qualified to perform as freight brakemen. This finding was based upon testimony by defendants' witnesses that the train porter's primary function was that of looking after passengers, and that any braking was merely incidental. Second, he specifically found that the train porters had not been discriminated against since the enactment of the Civil Rights Act of 1964, and that therefore, no remedy was justified. He found that the train porters had been accorded adequate relief in the form of an offer of job preference as brakeman, but without carryover seniority, and that this was the only affirmative relief possible to remove the taint of past racial discrimination.

A majority of the original panel, of this Court, in affirming the trial court's decision on the basis of his opinion, stressed the applicability of the "business necessity" doctrine and that seniority carryover could occur only at the expense of safety and efficiency. On rehearing, neither the Government nor the defendants suggested any new alternative remedies that would adequately protect safety and efficiency and, at the same time, relieve the train porters of the continuing effects of past discrimination. The alternative recommended by the Government, which was urged by it and considered by the panel earlier, would accord qualified train porters full seniority carryover in bidding on future vacancies as brakemen. Thus, the only difference in that remedy from a complete merger of crafts is that there could be no displacement of incumbent brakemen; rather, advancement would be possible only when a vacancy occurs. The net long term effect of both, however, is the same.

We are convinced that a remedy is justified and that it is not impossible to fashion. First of all, it...