Rock v Norfolk & Western Railway Company Proposed Findings and Conclusion

    IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF VIRGINIA 

NORFOLK DIVISION

xROBERT ROCK, et al.,
Plaintiffs,

v.

NORFOLK & WESTERN RAILWAY COMPANY, et al., .
Defendants. :

—      x

CIVIL ACTION 
NO. 2 55-69-N

PLAINTIFFS' PROPOSED FINDINGS OF FACT 
_______ AND CONCLUSIONS OF TAW

VICTOR J. ASHE
Suite 702, Plaza One 
Norfolk, Virginia 23510

ROBERT BELTON
237 West Trade Street 
Charlotte, North Carolina 28202

JACK GREENBERGMORRIS J. BALLER 
10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs



Page
I N D E X

Proposed Findings of Fact 
Parties ..............
Description of Pertinent Facilities and Jobs...
History and Perpetuation of Segregated Yards...
History and Perpetuation of Segregated Local Unions .................
Similarities in Nature and Requirements of Jobs m  Both Yards ...............
Disparities in Benefits and Advantages of Jobs m  Respective Yards .....

1

1

3

8

13

15

17

Physical difficulty.............
Variety of work ........!!!!!!!!!!!!**
Regularity and availability of*work*"**Furlough disparities .............
Opportunities for promotion 
Air hose arbitrary allowance Economic loss ............

Defendants' Resistance to Attempts to Obtain Merger .............

17
18 
18 
19 
22 
26 
27

27

Feasible and Appropriate Remedy 29

Jurisdictional Facts 30

Proposed Conclusions of Law
Certificate of Service 35



A note on abbreviations used in the text.

The following abbreviations are used in plaintiffs
proposed findings of fact and brief in support thereof:

Stip. - Stipulation contained in Pre-trial Order filed April 1, 1971
P/X - Plaintiffs' Exhibit
D/X - Defendant Company's Exhibit
Tr. - Transcript of proceedings held April 13-16, 1971.
N & W - Defendant Norfolk and Western Railway Company.
UTU - United Transportation Union (Norfolk & Western proper)
BRT - Brotherhood of Railway Trainmen.

Local 974 - Local Lodge No. 974 (now 1889), UTU.
Local 550 - Local Lodge No. 550 (now 678), UTU.



IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

NORFOLK DIVISION

ROBERT ROCK, et al., X

Plaintiffs, :
V. : CIVIL ACTION

NORFOLK & WESTERN RAILWAY COMPANY, et al., : NO. 255-69-N

Defendants. •
X

I* PLAINTIFFS' PROPOSED FINDINGS OF FACT
Parties

1. Plaintiffs Robert Rock, Ezell Johnson, and 
Russell c. Walker have been employed by defendant N & W 
and have been members of defendant UTU on and after July 2, 
1965. They are proper representatives of the class of black 
Barney Yard workers employed by N & W on or after July 2, 
1965 and Black CT Yard workers formerly in the Barney Yard.

2. The defendant Norfolk & Western Railway Company 
("N & W") is incorporated under the laws of the State of 
Virginia. it is engaged at Norfolk, Virginia, in the 
business of transporting coal, merchandise, and other goods



■*"n interstate commerce by rail, and employs more than 
100 persons.

3. Defendant United Transportation Union ("UTU") is 
a labor organization having more than 100 members engaged 
in an industry affecting commerce, and exists in part for 
the purpose of dealing with N & W concerning rates of pay, 
rules, and terms and conditions of employment of certain 
N & W employees. At N & W's Norfolk facilities, UTU 
represents over 500 employees in the craft of Yardmen.
Since January 1, 1969, UTU has succeeded to all the rights 
and agreements formerly held at Norfolk by the Brotherhood 
of Railroad Trainmen ( "BRT")

4. Plaintiff Local Lodge 974 is a local affiliate of 
defendant UTU existing wholly within N & W's Norfolk Terminal

• Since May 1, 1970, Local 974 has been renumbered 
Local Lodge 1889. Local 974 had on January 1, 1971 approxi­
mately 140 members. Local 974's membership includes all 
yardmen holding seniority rights in the Barney Yard.

5. Defendant Local Lodge 550 is a local affiliate of 
UTU existing wholly within N & W's Norfolk Terminal facilities. 
Since May 1, 1970, Local 550 has been renumbered Local Lodge 
678. Local 550 had on January 1, 1971 in excess of 360 
members. The Local 550 charter with BRT antedates 1940.
Local 550's membership includes all yardmen holding seniority 
rights in the CT Yard.

2



6. On behalf of all N & W Yardmen employed at Norfolk 
Terminal, UTU has entered into the following pertinent 
collective bargaining agreements with defendant N & W:

(a) Rates of Pay and Regulations for Brakemen, 
etc., Represented by BRT, effective January 1,
1954 (P/X 4 ) ;

(b) Five-Day Work Week Agreement for Yardmen, 
etc., Represented by BRT, effective December 1,
1955 (P/X 5 ) ;

(c) Rates of Pay and Regulations for Brakemen, 
etc., Represented by UTU-T, effective January 1,
1970 (P/x 6)?

(d) Five-Day Work Week Agreement for Yardmen, 
etc., Represented by UTU-T, effective January 1,
1970 (P/x 7 ) .

Additionally, utu has entered into certain pertinent memorandum 
agreements which are referred to hereinafter.

Description of Pertinent Facilities and Jobs

7. The pertinent facilities of N & W at Norfolk Terminal 
include the following yards:

(a) The CT Yard, of which portions are located 
at Lamberts Point, Sewells Point, and the Portlock 
facility;

3



(b) The Barney Yard at Lamberts Point, 
contiguous to the CT Yard Lamberts Point 
section.

The principal activities and functions of all yard facilities 
listed above include the movement of cargo-bearing railroad 
cars through the terminal yard for storage and loading of 
cargoes onto waterborne vessels at adjacent piers. The 
CT Yard operations involve cargoes of coal, wheat, manu­
factured goods, and a variety of merchandise (Tr. 128, 377, 
475). The only cargo passing through the Barney Yard is 
coal, plus an infrequent cargo of sand (Tr. 50, 475).

8. The pertinent job categories are the following:
(a) in the CT Yard, Yard Brakeman, Yard Conductor, 
and car Retarder Operator. Yard Brakeman is the 
entry job in the yardmen's line of progression
and promotion is to Yard Conductor and then to 
Car Retarder Operator (Stip. p. 5, P/x 34, 
pp. 5-6).
(b) In the Barney Yard, Brakeman, Conductor, and 
Car Retarder Operator. Prior to August 15, 1966, 
Barney Yard Brakemen were formerly known as Car 
Riders; they are also known as Helpers. Brakeman 
is the entry job in the line of progression and 
promotion is to Conductor and then to Car Retarder 
Operator (Id.). Prior to August 15, 1966 Barney 
Yard Conductors were known as Foremen.

4



All job categories listed above are in the UTU craft of 
Yardmen (Stip. p. 6). Yard Brakemen and Barney Yard Brakemen 
are members of a single UTU class of employees, as are Yard 
Conductors and Barney Yard Conductors and car Retarder 
Operators in both yards (Id.). Brakeman1s seniority is 
retained when an employee qualifies for promotion to conductor, 
and conductor's seniority is likewise retained upon promotion 
to car retarder operator (Stip. p. 5).

9. Within each such class of employees, the daily basic 
pay rate for both jobs is, and at all pertinent times has 
been, identical (Stip. p. 3). As of December 7, 1970, brakemen 
were paid $29.26 per regular shift; conductors, $31.50 per 
shift; CRO's, $32.66 per shift (P/x 34, pp. 5-6). Pay

ferentiaIs of this general magnitude have existed at all 
times relevant to this action.

10. Seniority rights acquired in Barney Yard service 
are applicable only to Barney Yard jobs (Stip. p. 6).
Seniority rights acquired in CT Yard service are applicable 
only to CT Yard jobs (Id_. ) . Seniority may not in either 
case be exercised outside the Yard where applicable (Id.). 
Seniority rights may not be transferred between two yards

) • Pursuant to this dual seniority system, defendant 
company and defendant UTU recognize two separate seniority 
districts within Norfolk Terminal, one for the CT Yard and 
one for the Barney Yard (Id., p.  7). Separate seniority 
rosters are maintained for each district and are compiled

5



Theseas of January 1 and July 1 of each year (Id.) 
rosters and the seniority rights they list govern employees1 
choice of job assignments, displacement from jobs, forced 
assignment to jobs, furlough and layoff, and allocation of 
emergency and overtime work (p/x 6, p/x 7). Seniority is 
also an important factor in determining promotions (Id.,
Tr. 942-943).

11. A separate seniority roster is maintained within 
the CT Yard seniority district for former Virginian Railway 
yard employees, all of whom are white, pursuant to 1959 and 
1960 merger agreements (Stip. p. 7, p/x 11, p/x 21, P/x 29). 
Such employees are guaranteed opportunities to hold one- 
third of the jobs available in the CT Yard and are members 
of Local 550 enjoying seniority rights from their original 
date of hiring by the Virginian Railway (P/x 11, Tr. 643- 
648) .

-̂2. Yard jobs in Norfolk Terminal are assigned pur­
suant to the provisions of the collective bargaining 
agreements in effect between UTU and N & W. Actual 
assignment to jobs depends upon the availability of work 
in the yard. Some employees holding seniority rights are 
regularly assigned to positions on a designated shift with 
a weekly work schedule. Generally, employees with the most 
seniority hold these positions. The number of such positions

6



fluctuates, but typically there are far more regularly 
assigned positions in the CT Yard than in the Barney Yard 
(P/X 22, p/x 23). Regularly assigned employees work unless 
the entire shift to which they are assigned is "cut" 
(eliminated) for lack of work. with the exception of certain 
persons holding "protected" positions as a result of merger 
agreements, employees' jobs in both Yards may be annulled 
or cut on three hours' notice for lack of work (Tr. 52—53 
554, 588-589).

13. Yardmen not permanently or regularly assigned to 
positions work off the "extra board." Such employees are 
subject to call to service on three hours' notice at any 
time, regardless of date or shift and subject only to 
seniority rights and the provisions established by the 
collective bargaining agreement (Tr. 216, 241-242). Extras 
are only called to service when there is work for them to do, 
on a first-in, first-out basis (Tr. 51). Most employees 
prefer the regularity and certainty of a regularly assigned 
position to the uncertainties and variations inherent in 
extra board status, provided that their seniority status is 
sufficient to assure steady work in the regular position.

14. Yardmen may also sign up to work on an emergency 
basis, in periods of high demand for labor, subject to 
collective bargaining agreement provisions. Seniority governs 
the award of emergency job assignments (p/x 6, p. 40).

7



History and Perpetuation of Segregated Yards

15. In the Barney Yard, the overwhelming majority of 
yard workers have historically and traditionally been blacks. 
In the CT Yard, the overwhelming majority of yard workers 
have historically and traditionally been whites. This pattern 
of segregated yards has continued to the present time. The 
racially identifiable character of the respective yards is
the result of long-standing, deeply engrained policies and 
practices of racial discrimination and segregation by company 
and union defendants. These practices were open and explicit 
prior to 1965; since that date their effects have been 
perpetuated by the defendants' hiring and seniority systems.

16. In the Barney Yard prior to 1940 the vast majority 
of all workers were black. Nevertheless, all the foremen 
and supervisors were white (Tr. 293-294, 301). instead of 
promoting qualified black brakemen to Barney Yard foremen,
N & W promoted white CT Yard brakemen (with less yard 
seniority than many Barney Yard brakemen, Tr. 317-318, 445- 
446) to the Barney Yard supervisory positions. This promotion 
of white clerks was ended in about 1940 by virtue of protests 
by the BRT against promotions of members of a different 
craft (Tr. 315-316). Thereafter white yardmen only, including 
some from the CT Yard, became foremen, until in about 1953 
the first blacks were so promoted (Tr. 313).

8



17. In 1940 the N & W planned to "phase out" all 
black employees from the Barney Yard, as was being done in 
the CT Yard. The reason for this policy was purportedly 
that blacks were not "promotable" employees. in keeping 
with this overall plan, a large number of whites were hired 
in about 1940, many of them directly as foremen (Tr. 314, 
317-318, 445-446). However, litigation which compelled 
abandonment of the union’s "non-promotable" clause forced 
an end to exclusion of blacks from Barney Yard hiring.-^ 
After this episode, only blacks were hired in the Barney 
Yard until after 1965 (Tr. 314-315, 209, 262, P/x 15,
P/X 20).

18. Prior to 1940 a small number of blacks worked 
as brakemen in the CT Yard. These blacks had been hired 
long before 1940 (Tr. 348). No new blacks were hired in the 
CT Yard for approximately 30 years, until 1965, when the 
number of black yard brakemen dropped to three (Stip. p. 8). 
No blacks held CT Yard supervisory positions prior to 1940, 
nor did any attain such positions until the 1960's (P/x 17).
All CT Yard supervisory personnel were white throughout this 
period (id.).

1/ See, e.g., Tunstall
Firemen and Engineers. 323v. Brotherhood of Locomotive U.S. 210 (1944). -------

9



19. The world war II period saw a severe labor shortage 
in the CT Yard. As a result, black Barney Yard brakemen were 
frequently assigned to work in the CT Yard, for periods of 
several months to more than a year (Tr. 294-295, 297, 306).
No Barney Yard man was granted any CT Yard seniority for 
this work (Tr. 302, 306, 336).

20. When N & W merged with the Virginian Railway 
m  1959, a number of former Virginian yardmen were employed 
by N & W pursuant to merger agreements between BRT and the 
respective railroad companies. The white Virginians who 
came to N & Wwere placed in the CT Yard with full seniority 
rights from their Virginian hiring date (as well as 
protected jobs) (P/X 11, 21). The only two black Virginians 
who came to N & W were placed in the Barney Yard and were
g'ven no seniority credit for their prior work (p/x 35, p/x 15; 
Tr. 154, 157-158).

21. The racially segregated character of both yards 
has been perpetuated since the effective date of Title VII 
and at present remains nearly as dramatic as ever. The 
following tabulation lists the racial composition of the
work force in each yard and job classification at various 
dates since July 1, 1965.

10



January 1, 1971 - (p/x
Barney Yard Brakemen 
Barney Yard Conductors Barney Yard CRO's
CT Yard Brakemen 
CT Yard Conductors CT Yard CRO's

January 1, 1970 - (p/x
Barney Yard Brakemen 
Barney Yard Conductors Barney Yard CRO's
CT Yard Brakemen 
CT Yard Conductors CT Yard CRO's

January 1, 1969 - (p/x
Barney Yard Brakemen 
Barney Yard Conductors Barney Yard CRO's
CT Yard Brakemen 
CT Yard Conductors CT Yard CRO's

July 1, 1967 - (p/x
Barney Yard Brakemen 
Barney Yard Conductors Barney Yard CRO's
CT Yard Brakemen 
CT Yard Conductors CT Yard CRO's

July 1, 1965- (P/x
Barney Yard Brakemen 
Barney Yard Conductors Barney Yard CRO's
CT Yard Brakemen 
CT Yard Conductors CT Yard CRO's

P/X 21)

black 9 white
i i 2 I I

i i 2 I I

i i 363 l l

i i 209 H

II 23 l l

P/X 21)
black 6 white

l i 2 l i

i i 2 i i

l i 320 l i

l l 208 i i

l l 14 l i

P/X 21)
black 2 white

I I 2 l l

l l 2 I I

I I 334 I I

l l 194 I I

l l 16 I I

P/X 17)
black 2 white

H 2 M

l l 2 l l

l l 320 l i

l l 187 l l

l l 14 • l

P/X 17)
black 3 white

l l 2 l l

l l 2 l l

l l 299 l l

l l 193 l l

l i 18 I I

2 0,
131
36
29
15
1
0

19,
137
32
29
9
2
0

18,
133
34
33
8
20

16,
132
35
33
6
2
0

15,
173
37
17

3
0
0

11



Under these circumstances, each yard and job classifi­
cation in Norfolk Terminal is racially identifiable.

22. The N & W's practices and policies with respect to 
hiring have contributed to the existence of these racially 
identifiable yards and to the perpetuation of their racial 
identifiability. Separate hiring offices are maintained for 
the Barney Yard and for the CT Yard. It is well known in the 
black community of Norfolk that most blacks hired by N & W 
as yardmen work in the Barney Yard, and equally well known 
that most of the whites so hired work in the CT Yard (Tr. 88- 
8 9 ) .  The N & W in the past relied on its current employees 
to spread work of job openings in their respective yards 
(Tr. 511 -512 ) .  Employees tended to recruit friends and 
relatives who were of the same race; thus the new hirees 
in each yard perpetuated the racially identifiability of 
the yard (Tr. 88-89, 104-105, 166, 182, 205-206, 208, 251-252,

7 1 9 ). Job applicants were and are requested to indicate their 
personal contacts among present employees within each yard 
(Tr. 512, P/X 34, IX D ). Newspaper advertisements and other 
forms of objective recruitment procedures have been adopted 
only in the past 2-3 years, at most, and then only sporadi­
cally (Tr. 478, 512 ) .  This partial change occurred after the 
filing of EEOC charges, and after it was recommended in 1966 

by the federal contract compliance office (D/x 5, p. 4 ) .

12



23. Post-1965 hiring statistics prove how effectively
N & W has perpetuated the segregated, or racially identifiable 
character of each yard by means of its recruitment system.
The following table dramatically demonstrates that N & W's 
hiring has continued to place employees on a discriminatory
basis since July 1, 1965 (Stip. p. 8).

Number of Number
Period Yard whites hired blacks i

7/1/65-7/1/67 Barney 0 0
CT 13 2

7/1/67-1/1/69 Barney 0 5
CT 22 3

1/1/69-1/1/70 Barney 4 13
CT 12 4

1/1/70-1/1/71 Barney 3 9
CT 53 6

This recent hiring has slightly increased the racial mix in 
each yard, but has not altered the basic image of one white 
and one black yard.

History and Perpetuation of Segregated Local unions

24. The two local unions affiliated with defendant 
UTU have historically and traditionally been racially 
characterized. Local 550 has always been a "white" union, 
and Local 974 has throughout its short existence been the 
"black" union in Norfolk Terminal. The existence of separate, 
racially characterized unions is the result of long-standing,

13



deeply engrained policies and practices of racial discrimination 
and segregation by company and union defendants. Whereas 
formerly this segregation was open and explicit, since 1965 
it has become veiled but hardly less complete.

25. Prior to World War II and continuing until 1957, 
all white yardmen at Norfolk Terminal were members of BRT 
Local 550 (Tr. 456, 744). This included CT Yard and Barney 
Yard workers. During this period no blacks were members of 
Local 550 (Tr. 747). Black employees from both yards were 
members of the Colored Railway Trainmen, Locomotive Firemen 
union (Tr. 320, 457). The BRT was the bargaining agent for 
Barney Yard workers, although they were not permitted to 
become members of a BRT affiliate (P/x 4, P/x 5).

26. The BRT contracts with N & W before World War II 
gave hiring and assignment preferences to "promotable" 
employees, and tended to exclude "non-promotables" (Tr. 337). 
This clause was found to be a mechanism for the exclusion of 
blacks from employment and was judicially voided (Tr. 337, 
Tunstall v. Brotherhood of Locomotive Firemen and Engineers,
323 U.S. 210 (1944)).

27. The Constitution, ritual, and tradition of BRT 
excluded blacks from membership (Tr. 351-352, 735-736, 884- 
885, 928, p/x 43, p. 72). A "white male only" clause 
restricting application for membership was not removed from

14



the Brotherhood Constitution until I960 (p/x 43, p. 72 
Tr. 352-353).

28. Blacks were permitted to join BRT in Norfolk 
m  1957 (Tr- 54>' I^cal 974 was organized as a separate, 
predominantly black lodge (Tr. 54-55). However, the few 
white Barney Yard brakemen became members of Local 974 
(Id.). The few blacks working in the CT Yard were admitted 
to 550 some time thereafter (Tr. 746-747). Since 1957 
the two locals have remained segregated to the same extent 
as the two seniority districts which form their respective 
jurisdictions (Stip. p. 6).

29. The racial composition of each local before and 
since the effective date of Title VII corresponds exactly 
to the racial composition of the respective yards. Thus, 
defendant uru and defendant N & w continue to recognize and
perpetuate the existence of two separate, parallel 
identifiable local unions.

racially

Similarities in Nature and Requirements of Jobs — _________  in Both Yards ______

30. The nature of the corresponding jobs in the 
respective yards is essentially similar. Basically the 
same skills, equipment, techniques, and training are necessary 
for performance of duties as Brakemen, Conductor, or Car 
Retarder Operator in either yard. Hand brakes, hand signals,

15



electronic signals, switching mechanisms, safety rules, and 
work rules, and many operating procedures which are required 
for the performance of Barney Yard duties are closely similar 
or identical to those in use on the CT Yard (Tr. 95, 97-98, 
138, 149, 150, 175-176, 189-190, 212-214, 254, 299, 323-324, 
329-330, 508, 521-522, 543). Some knowledge as to trackage, 
local yard conditions, and certain particular operational 
procedures is necessary for jobs in the respective yards; 
however, this knowledge may be relatively easily and quickly 
acquired through work on the job. New hirees satisfactorily 
learn their jobs in this matter (Tr. 503-505).

31. Although defendants endeavor to keep the two 
seniority districts strictly separate, on frequent occasions 
from 1941 to 1971 Barney Yard brakemen have been called by 
N & W to temporary service in the CT Yard. At least five 
witnesses testified to having performed such work personally 
(Tr. 167—169, 187, 210-212, 252, 294-297) and stated on 
personal knowledge that numerous other Barney Yard men 
had also been required to work in this manner (Tr. 167-169, 
191, 211, 294-297, 306-307). These incidents have occurred 
when the regular CT Yard work force is inadequate to perform 
pressing work there (Tr. 210, 252, 295, cf. 393). Recently 
such temporary assignments have usually lasted only one day, 
but in the past they have lasted over periods of months 
(Tr. 294-297, 306-307). No CT Yard seniority rights are

16



acquired by such temporarily assigned employees. No special 
training, skills, equipment, or instruction is provided to 
Barney Yard brakemen assigned to CT Yard jobs. The work 
performed on many temporary assignments has been closely 
similar to that ordinarily performed in the Barney Yard 
by the same employees. The skills acquired by Barney Yard 
employees on their jobs ha^e enabled them to perform these 
temporary duties to the satisfaction of N & W (Tr. 173, 189, 
214, 254-255). There is no evidence that CT Yard employees 
have ever been needed to supplement the Barney Yard work 
force in this manner.

Disparities in Benefits and Advantages of Jobs
_____________ in Respective Yards_____

32• Physical difficulty. Essentially all movement 
of train cars in the CT Yard is powered by diesel engines 
(Tr, 73, 130-132, 176, 255, 378, 868). (Pertinent yard 
crews do not, however, operate the engines.) No engine 
power is used in the Barney Yard by Barney Yard crews. All 
car movement in the Barney Yard is manual and mechanical 
(D/X 21, Tr. 48, 73, 95, 130, 176, 323). The ordinary 
range of duties in Barney Yard brakeman jobs is more 
physically strenuous than that of Yard Brakeman jobs. In 
particular, cars must be started by physical force applied 
through a heavy 'pinch bar,1 and cars on part of the Barney 
Yard are ordinarily stopped or slowed by application of hand 
brakes.

17



33. Variety of work. CT Yard employees may work 
throughout their yard, including Lamberts Point, Sewells 
Point, and Portlock (Stip. p.  4, p/x 3, Tr. 131, 500).
They may and do work on any of a variety of cargoes or in 
different areas, wherever work is available. Barney Yard 
employees work only on coal cars for loading into ships at 
dock (Tr. 50, 475).

34. Regularity and availability of work. Work in the 
Barney Yard is more irregular and variable as to quantity 
than CT Yard work (Tr. 135, 147, 151). if there is no ship 
at Pier 5 or Pier 6, as not infrequently happens, no work
is needed or performed in the Barney Yard (Tr. 52-53, 554,
588—589). Shifts may be immediately annulled and extras are 
not summoned to work (Id.). in the CT Yard, if one particular 
type of cargo or trade — such as coal — is inactive for any 
reason, employees may work on transportation of any other 
cargo passing through the yard (Tr. 552-553, 601-602). Work 
shortages in one trade may be compensated for, in terms of 
overall CT Yard labor demand, by sufficient work volumes 
in other areas or products.

35. The larger volume of work and larger number of 
jobs in the CT Yard in themselves contribute to the stability 
of CT Yard employment. Fluctuations in workload are smaller 
as compared to the total volume of work and size of the work 
force.

18



36. Tasks of car storage, switching, warehousing, 
and classification of cargoes - including coal - in the 
CT Yard make that Yard’s work less dependent than the 
Barney Yard on the presence of ships in port. Even among 
those employees assigned to work on coal cars, work may 
continue in the CT Yard for several days without the presence 
of a coal ship in port (Tr. 589, 592, 593-594, 598-599).

37. Furlough disparities. As a result of the preceding 
factors, Barney Yard brakemen are furloughed more frequently 
and for longer periods than CT Yard brakemen of the same or 
less seniority in their respective yards (P/x 28A, 28B). 
Moreover, Barney Yard employees are subject to furlough
much later in their service careers than are CT Yard employees,
who more quickly gain effective protection from the likelihood
of furlough (Id.). These disparate furlough effects have
been strongly felt before and since July 2, 1965 and continue
to the present. The following paragraphs' examples are
illustrative but not exhaustive.

(a) The following black Barney Yard Brakemen 
seniority dates of September 24 and 25, 1962 
and October 12, 1962, respectively: G. L.
Hines, C.A. Chapelle, J.L. Bazemore. The 
following white CT Yard Brakemen have 
seniority dates of February 6 and 7, 1963 
(after those of the other employees by six 
months): J.W. Dail, M.S. Halsey, T.H. Walsh
R.A . White. The Barney Yard employees were furloughed 1, 4, and 5 times, respectively, 
for a total of 10, 47, and 122 days, 
respectively, in 1966-1967 (P/x 28A). None 
of the CT Yard men listed was ever furloughed 
(P/X 28B).

19



(b) T.L. Hendricks, a black Barney Yard 
brakeman, with seniority date May 13, 1968 
was furloughed four times for a total of
55 calendar days in 1968 and 1969 (P/x 28A)
The following white CT Yard brakemen have seniority dates of May 16 or May 25, 1968 

than T.L. Hendricks' date): D.SShannon, j .r. Roberson, G.B. Kona. Each 
of these men was furloughed twice in 1968 
and 1969 for a total of 41 calendar days (P/X 28B). y
(c) J.H. Wiggins, a black Barney Yard 
brakemen with seniority date of September 15, 1963, was furloughed 7 times after 
July 2, 1965 for a total of more than 
one year (P/x 28A). The following white 
CT Yard brakemen with seniority dates of 
September 18, 1963 (later than Wiggins') 
were furloughed three times after July 2 1965 for a total of 27 calendar days:
J.L. Keeter, R.B. Scott (p/x 28B).
(d) r. wells and E.T. Howell are black 
Barney Yard brakemen with seniority dates 
of September 20 and 22, 1963, respectively.They were furloughed 8 and 9 times, 
respectively, after July 2, 1965, for a 
total of more than 20 months each (P/x 28A). J.E. Kershaw and J.R. Barker are CT Yard 
brakemen with seniority dates of October 14 and 
16, 1963, respectively (later than the other employees). They were furloughed 3 times
each after July 2, 1965 for a total of 30 and 32 days, respectively (p/x 28B).
(e) C.L. Jones, is a black Barney Yard
brakeman with seniority date of February 26 1963. Since July 2, 1965, he has been 
furloughed 9 times for a total of more than 
14 months (P/x 28A). The following men are 
white CT Yard employees with seniority dates of February 24, 1963 - two days earlier than
Jones’: M.B. Bain, G.W. Pitsenbarger,
J.V. Gallup, Jr. Mr. Gallup has never been 
furloughed since July 2, 1965. The other
two white employees were each furloughed once for four days (p/x 28B).

20



(f) S. Robinson, Jr. is a black Barney Yard 
brakeman with a seniority date of February 3,
1968. He has been furloughed 5 times, since being hired for a total of 70 calendar days (p/x 28A)
L. J. Batten, is a white CT Yard brakeman with seniority date of March 17, 1968 (later than 
Robinson's). He has been furloughed only 
twice since hiring, for a total of 39 calendar days (P/X 28B).
(g) Employees N. M. Bowman, W. M. Williams,
J. W. Jackson and H. W. Patrick, Jr., are 
black Barney Yark brakemen with seniority dates of February 9, 10, and 16, 1963. Since July
2, 1965, the employees named above have been 
furloughed 6, 8, 8, and 9 times, respectively, 
for a total of approximately 150, 220, 220 and
310 calendar days, respectively (P/X 28A).

Employees J. V. Gallup, Jr., G. W. Pitsenbarger, and M. B. Bain are white CT brakemen whose 
seniority dates are February 24, 1963 (later than the other employees 1). Two of these men were 
each furloughed once for a total of four days ; one 
has never been furloughed (P/x 28B).
(h) Employees W. Downey, Jr., E. F. Jordan,
M. M. Lomans, Jr., and Zeb Artis, Jr., are black
Barney Yark brakemen with seniority dates of 
February 2 5, 21, 17, and 27, 1968. Since July 2,
1965, these employees have been furloughed 5 times 
each (except Lomans, 4 times), for total periods ranging from 60 to 70 days (P/X 28A).

Employees L. J. Batten, L. W. Crocker, D. D. Sutherland, and S. L. Warren are white CT Yard 
brakemen whose seniority dates are in March and April, 1968 (later than the other employees').
The latter brakemen were furloughed two times each for a total of 39 calendar days (P/X 28B). (i)
(i) Employees W. E. Askew, L. Brown, and C. Gist are black Barney Yard Brakemen hired on October 
30, and November 2, and 6, 1969, respectively.
Each employee was furloughed two times in 1970 
for a total of 18 days (P/X 28A). Employees R. W. 
Hodges and E. C. Stamm, III, are white CT Yard 
brakemen hired after November 20, 1969. Neither

21



one had ever been furloughed as of March 15 1971 (p/x 28B).
(j) The following black Barney Yard brakemen
were hired in March, 1970: J.L. Turner,
N. Brown, H .E. Smith, R.L. Carter. Each such 
employee was furloughed for at least 3 months 
in the first nine months of employment (P/x 
28A). The following white Norfolk Terminal 
Yard brakemen, hired in April, 1970 (after 
the above-listed employees) were never 
furloughed at all during the first 9 months 
of employment: R.G. Mitchell, W.S. Gustavson,R.E. Fischer, A .L. Stokes (p/x 28B)I.
(k) W. Martin, Jr. is a black Barney Yard brakeman with seniority date of January 2, 1969. He has 
been furloughed 3 times for a total of 36 days
(P/X 28A). G.H. Funk, a white CT Yard brakeman with seniority date of July 11, 1969 (seven 
months after Martin's) has never been furloughed 
(P/X 28B). The following white CT Yard brakemen 
with seniority dates of September 27, 1969 (over
9 months later than Martin's) have also never 
been furloughed: D.K. Harmon, J.E. Lassiter,R.E. Poole, and J.D. Gilman (p/x 2 8 B ) . (l)

(l) No CT Yard brakeman hired between July 1,1969 and April 10, 1970 (about 45) was fur­
loughed before March 15, 1971 (p/x 28B). Of 
all Barney Yard brakemen hired during the same period (about 24), all but one have been 
furloughed one or more times (p/x 28A).

38. Opportunities for promotion. A greater number
and proportion of all jobs in the CT Yard are in promoted
positions, which are higher paying and more desirable than
brakeman jobs, than is the case in the Barney Yard. This
is explained by the fact that yard crews in the CT Yard
usually consist of one conductor and two brakemen each
(Stip. p. 5, P/X 5, P/X 7, Tr. 132-133, 137, 544). Barney
Yard crews generally have numerous brakemen, often seven to

22



ten, and only one conductor (Tr. 114-115, 265-266, 345, 522,
544). These disparities, reflected by the following data,

illustrative of the imbalance in opportunities.
(a) On a date (March 15, 1971) chosen effectively 
at random, the numbers of regularly assigned pro­moted positions were as follows:
CT Yard (P/X 23) Barney Yard (P/X 22)

83 Conductors 84 CRO' s 1287 Total 20
(b) The numbers of employees actually working in 
promoted positions on two dates (December 7, 1970 
and March 12, 1971) chosen effectively at randomwere as follows:
CT Yard (P/X 21) Barney Yard (P/x
(12/7/70) (3/2/71) (12/7/70) (3/12/71)

73 61 Conductors 9 53 3 CRO1 s 9 676 64 Tota 1 18 11

39. The much greater number of promoted positions in 
the CT Yard gives CT Yardmen more numerous promotion oppor­
tunities within the Yardman's craft. Accordingly, a much 
larger proportion of CT Yard brakemen have been promoted 
to Yard Conductor positions and hold Conductor seniority 
than is the case for Barney Yard brakemen. The following 
tabulation indicates the disparities, as of January 1,
1971:

CT Yard (p/x 21) Barney Yard (P/x 20)

378 Brakemen 140
210 Number Promoted to 38

Conductor
55.5% Percentage Promoted 26.8%

23



40. CT Yardmen typically achieve and enjoy the 
benefits of their promotions to conductor's jobs with 
much less seniority than those Barney Yard workers who 
achieve the same promotion. Thus, job advancement within 
the line of progression is far more rapid in the CT Yard 
than in the Barney Yard. The following data illustrate 
these disparities.

(a) As of January 1, 1971, the 
youngest Barney Yard Conductor (in 
terms of brakeman1s seniority date, 
or original hire date) was P. Smith, 
hired 3-18-56 and promoted 7/14/70 
or 14 years later (P/x  20). On the 
same date, the youngest Yard Conductor 
was E. T. Turner, Jr., hired 5-9-63 
and promoted 8-29-69 or 6 years later 
(P/X 21). There were 39 Conductors in 
the CT Yard with hire dates after 3-18- 
56, e.g., who were younger in seniority 
than any Barney Yard Conductor (id.).
(b) On December 7, 1970, the youngest 
Barney Yard Conductor actually working was J. H. Bond, hired 11-7-63 (P/X 24).
On the same day, the youngest Yard 
Conductor actually working on that date 
was J. N. Gurganus hired 5-9-63 and 
promoted 7-25-69, six years later (P/X 
25). There were 25 Conductors working 
in the CT Yard with hire dates after 
11-16-55, e.g., who were younger in 
seniority than any Barney Yard Conductor actually working on that date (id.).
(c) On March 12, 1971, the youngest 
Barney Yard Conductor actually working 
was R. Green, hired 5-12—51 and promoted 
3-25-63, 12 years later (P/x 24). The 
youngest CT Yard Conductor actually working 
was J. L. Keeter, hired 9-18-63 and promoted 
after 1-1-71, 8 years later (p/x 25). There 
were 40 CT Yard Conductors actually working on that day with seniority dates after 
5-12-51, e.g., who were younger than any

24



Barney Yard Conductors actually working 
on that date (Id.).
(d) On March 15, 1971 the youngest 
regularly assigned Barney Yard conductor 
was H. R. Holley, Sr., hired 1-13-56 and 
promoted on 7-14-70, 14 years later
(P/X 22). The youngest regularly assigned 
CT Yard Conductor was J. L. Keeter, hired 
9-18-63 (P/X 23). There were 43 regularly 
assigned CT Yard Conductors with seniority 
dates after 1-13-56, e.g., who were younger 
than any regularly assigned Barney Yard 
Conductors (Id.).
(e) As of the time of trial, the five most recently promoted Barney Yard Con­
ductors had all been hired in 1955 or 
1956 and promoted 14 years later, in 1970 
(Tr. 943-944, P/X 20). The most recently 
promoted CT Yard Conductors had been hired 
in 1963 and promoted 8 years later (P/X 21).
(f) Two Barpey Yard brakemen testified 
who were hired on or about August 30, 1961, 
but were never promoted (Tr. 186, 945).
Two CT Yard brakemen testified who were 
hired on January 24, 1961 and August 31,
1961 and were both promoted to conductor in 
January, 1964 (Tr. 845, 855).

41. Promotion from the ranks of yardmen to the 
managerial position of Yardmaster occurs far more frequently 
in the CT Yard ranks than in the Barney Yard. Of 18 regular 
Yardmasters at the present time, 9 men, all of them white, 
worked in the CT Yard as brakemen prior to their promotion 
to management (P/X 21, Tr. 550-551). Only one Yardmaster 
was promoted from the Barney Yard, in 1968 (P/X 20), follow­
ing prolonged protests on the part of black yard employees 
over a period of several years (P/X 31-1). The remaining 
Yardmasters are all former clerks and are all white (Tr. 551- 
552). Thus, CT Yard employment offers greater opportunity 
for advancement to management positions than does Barney 
Yard employment.

25



42. Air hose arbitrary allowance. By Memorandum 
Agreement of November 3, 1953, an arbitrary allowance of 
$0.40 per shift was granted to all CT Yard brakemen and 
conductors in recognition of purportedly special duties 
performed on the job (D/X 1). This agreement was embodied 
in Article 41, Section 4 of the 1954 union contract (P/X 5, p 
88). By the terms of the agreement, Barney Yard workers 
were not accorded the arbitrary allowance. Although Barney 
Yard workers were not contractually required to perform 
the duties for which the arbitrary was awarded, their 
supervisors, foremen, and yardmasters customarily ordered 
Barney Yard men to perform these tasks (Tr. 277, 331). As 
a matter of fact, Barney Yard men frequently did perform 
many of these duties as part of their regular jobs (Tr. 41,
43, 44, 270).

43. Beginning in 1959, shortly after Local 974's 
founding, 974 began to petition through the grievance 
machinery for application of the arbitrary "air hose" 
allowance to Barney Yard brakemen (P/x 30-1, Tr. 638-639, 
810-812). Officers of 974 repeatedly listed those aspects 
of Barney Yard work which entitled Barney Yard men to 
receive the air hose arbitrary under its terms (P/x 30-3,
P/X 30-8). UTU processed these grievances in a purely 
perfunctory manner, several times withdrawing the request 
or grievance (P/X 30-2, P/x 30-5), and N & W resisted the 
grievances (p/x 30-7). On February 16, 1968, the provision

26



was applied to Barney Yard workers effective March 1, 1968 
(P/X 10), in apparent recognition of the correctness of 
974's position. No provision for back pay lost through 
denial of the arbitrary was made (Id.. Tr. 94).

44. Economic loss. By virtue of the disparities 
seen in (i) the availability of assigned, extra, and 
overtime work, (ii) the frequency and severity of furloughs, 
(iii) the opportunities for promotion, and (iv) the appli­
cation of the air hose provision, Barney Yard workers have 
been subjected to significant economic disadvantages in 
comparison to CT Yard workers.

Defendants' Resistance to Attempts _____to Obtain Merger__________
45. Because of their dissatisfaction with segregated 

work groups and the disparities in terms, conditions, and 
advantages of employment between the two yards, Barney Yard 
employees and Local 974 officers began to press BRT for 
changes in the Norfolk Terminal seniority arrangements 
shortly after the organization of Local 974 (Tr. 56-57).

efforts were directed toward being able to exercise 
seniority rights throughout the Norfolk Terminal Yards, by 
merger of the seniority districts. Until 1967 neither BRT 
nor N & W showed any willingness to consider any such changes 
seriously. Local 550 refused even to discuss any change in 
seniority with Local 974, and opposed any initiative from 
BRT or N & W to consider changes (P/X 31-3, 31-8, Tr. 222-223, 
842-844).

27



46. Following an apparent change in N & W policy 
during 1967 and 1968, N & W indicated willingness to 
consider changing the seniority system, including merger 
either by dovetailing or topping and bottoming of rosters 
(P/X 31-9), but deferred to BRT and Local 550 before 
actually seeking concrete changes (Tr. 75, 650-651, 656, 
661-662, 699-700). BRT officials failed to discuss N & W's 
proposals with plaintiffs or Local 974, in spite of the 
fact that they held a number of meetings on the subject with 
Local 974 officers (Tr. 82-83, 231, 935). For its part,
N & W expected that union opposition would prevent serious 
consideration of merger, and took no further actions to 
effectuate or even negotiate any merger of yards, seniority 
districts, or local unions (Tr. 656, 710-711, 714-716). One 
proposal for merger by topping and bottoming was jointly 
presented to Local 974 by UTU and N & W. Local 974 rejected 
this proposal as inadequate, for lack of two necessary 
conditions to its implementation (Tr. 813-816, P/x 44).

Both of these conditions concerned allowing Barney Yard men 
under certain conditions to make up time lost due to lack 
of work by obtaining temporary jobs in the CT Yard (Id.).
As such they postulated a fundamental departure from the 
existing dual seniority system (id.). Local 550 refused to 
negotiate or consider any proposals for merger with 974 
whatsoever. UTU and, consequently, N & W therefore seized 
this excuse to cease any efforts to promote any change in 
the seniority structure at Norfolk Terminal (Tr. 806-807).

28



47. Late in 1969 (Tr. 826-827, 833-834) N & W concluded 
a new collective bargaining agreement with UTU, effective 
January 1, 1970 (P/x 6, P/x 7), which perpetuated the 
existing seniority system, leaving it unchanged in almost 
every pertinent detail (p/x 5, P/x 7, Tr. 934). Although 
65 bargaining sessions were held over a period of several 
years both before and after Local 974's request for merger, 
its EEOC charge, and the filing of this action, neither 
side proposed or discussed any changes or merger in the 
Norfolk Terminal seniority system (Tr. 827, 836). Since 
July 2, 1965, and continuing to the present, N & W and 
UTU have jointly and severally made decisions based on 
the existing seniority system and rosters with respect to 
furloughs, layoffs, job assignments, promotion, advancement, 
and other terms and conditions of employment. Both N & W 
and the unions are required to make these decisions in 
conformity with the existing seniority system and the 
applicable terms of the collective bargaining agreement, 
as long as the seniority system is not changed (P/x 4, 5, 6, 
7). Thus, all defendants have continued to implement the 
same seniority system that prevailed in 1955.

Feasible and Appropriate Remedy
48. The evidence shows that two possible methods 

exist for merging the two seniority districts: "topping-
and-bottoming" and "dovetailing." The former method would 
place employees in each Yard at the bottom of the seniority 
roster in the other Yard. These employees would then have

29



lower seniority status than all prior employees in the 
other Yard, but would have greater seniority than all 
subsequent hirees. By the latter method, the rosters would 
be integrated on a hiring-date basis regardless of in which 
Yard the employee was hired. Duly authorized Company 
officials have indicated their willingness to accept merger 
by either method (P/x 31-9, Tr. 618), and have stated as a 
matter of Company policy that either method would be 
feasible and otherwise acceptable from the Company's view­
point (Tr. 619, 652, 657, 659). Union representatives 
expressed a preference for the topping-and-bottoming method. 
Plaintiffs reject that method as inadequate to protect 
their rights and redress their grievances.

49. A carefully drawn plan of merger on a hiring date 
basis ("dovetailing”) is both feasible and appropriate.
The evidence shows that no legitimate business reasons 
stand in the way of such merger. Existing methods of job 
training and distribution of experienced workers may be 
effectively adapted to facilitate dovetailing.

Jurisdictional Facts.
50. On May 15, 1967, plaintiff BRT Local 974, and 

plaintiffs Rock and Johnson filed an EEOC charge of discrimi­
nation against the defendants charging substantially the same 
discrimination alleged in this action (p/x 36). On June 12, 
1969, plaintiff Local 974 and plaintiff Rock filed a further 
charge of discrimination against the same defendants (P/x 37) 
This action was timely filed in this Court on June 2, 1969.

30



11 * PLAINTIFFS' p r o p o s e d c o n c l u s i o n s of l a w

1* Thls Court has jurisdiction of this action under 
provisions of Section 706(f) of the Civil Rights Act of 
1964, 42 U.S.C. §§2000e-5 (f).

2. The defendant Norfolk and Western Railway Company 
is an employer within the meaning of Section 701(b), 42 
U.S.C. §2000e(b). The defendants United Transportation 
Union and its local affiliate, Local Lodge 550, are labor 
organizations within the meaning of Section 701(d), 42 
U.S.C. §2000e(d).

3. The plaintiff United Transportation Union Local 
1889 (formerly Brotherhood of Railroad Trainmen, Tidewater 
Lodge 974) has standing to represent the interest of its 
members and to be a party to this action. International 
Chemical Workers Union v. Planters Manufacturing Co.. 259
F. Supp. 365 (N.D. Miss. 1966). See Torochio v. Chamberlain 
Manufacturing Co., 51 F.R.D. 517 (W.D. Pa. 1970).

4. This action is properly maintained as a class action 
under Rule 23(b)(2) of the Federal Rules of civil Procedure. 
The affected class consists of (1) all black persons employed 
in the Barney Yard as of, and subsequent to July 2, 1965; (2) 
all black persons formerly employed in the Barney Yard who 
have been employed in the CT Yard and did not receive credit 
for seniority accrued in the Barney Yard, and (3) all black 
persons who may hereafter be employed at the facilities here 
involved who may be affected by the racially discriminatory 
practices of the defendants.

31



5. The defendants have an obligation under Section 
703 of Title VII, 42 U.S.C. §2000e-2 not to discriminate 
against black persons with respect to the compensation, 
terms, conditions and privileges of their employment because

race and further, the defendants have an affirmative 
obligation to eliminate the present effects of practices 
or policies which deprive or tend to deprive black persons 
of employment opportunities or otherwise adversely affect 
their status because of their race.

6. The hiring practices maintained by defendant 
Norfolk and Western limit, segregate and classify 
members of the affected class so as to deprive them of 
equal employment opportunities and adversely affect their 
status because of race in violation of Section 703(a)(1) of 
the Civil Rights Act of 1964, 42 U.S.C. §2000e-2(a)(1).

7. The maintenance of the separate seniority districts 
and rosters for Barney Yard and CT Yard employees by the 
defendants is a term, condition or privilege of employment 
within the meaning of Section 703 of the Civil Rights Act
of 1964, 42 U.S.C. §2000e-2.

8. The separate seniority districts and rosters main­
tained by the defendants limit, segregate and classify 
members of the affected class so as to deprive them or tend
to deprive them of equal employment opportunities and adversely 
offset their status as employees because of their race in 
violation of Sections 703(a) and (c) of the Civil Rights Act 
of 1964, 42 U.S.C. §§2000e-2(a) and (c).

32



9. The continuation of the separate seniority- 
districts and rosters of Barney Yard and CT Yard employees 
by the defendants in the Norfolk Terminal facilities 
constitutes racial discrimination against members of the 
affected class and is an unlawful employment practice in 
violation of Sections 703 (a) and (c) of the Civil Rights 
Act of 1964, 42 U.S.C. §§2000e-2(a) and (c).

10. The practice or policy of the defendants of 
denying members of the affected class the right to exercise 
full seniority throughout the Norfolk Terminal is a term, 
condition and privilege of employment that discriminates 
against members of the affected class on the basis of their 
race in violation of Sections 703(a) and (c) of the Civil 
Rights Act of 1964, 42 U.S.C. §§2000e-2(a) and (c).

11. The defendant United Transportation Union's main­
tenance of separate, racially identifiable local unions 
for black and white employees is a violation of Section
703(c)(2) of the Civil Rights Act of 1964, 42 U.S.C. §§2000e- 
2(c) (2) .

12. Under the authority of Section 706(g), 42 U.S.C. 
§2000e-5 (g), participation in the nature of black representa­
tion in the leadership of a merged union is appropriate.

13. Members of the affected class have suffered economic 
loss as a result of the maintenance and continuation of the 
separate, racially identifiable seniority districts by the 
defendants and are entitled to appropriate relief.

3 3



14. The defendants have intentionally engaged in and 
are intentionally engaged in the unlawful practices 
described herein within the meaning of Sections 706(g),
42 U.S.C. §§2000e-5(g).

15. None of the unlawful employment practices described 
herein results from a bona fide seniority or merit system 
within the meaning of Section 703(h), 42 U.S.C. §2000e-2(h), 
but rather the practices are the result of a seniority system 
that discriminates against members of the affected class.

16. This Court is authorized by Section 706(g), 42 
U.S.C. §2000e-5(g) to enjoin the discriminatory practices 
described herein and to order appropriate relief, including 
relief in the matter of back pay.

17. Plaintiffs are entitled to an award of counsel 
fees as part of their costs as provided in Section 706(k),
42 U.S.C. §2000e-5(k).

Respectfully submitted,

VICTOR J. ASHE
Suite 702, Plaza One 
Norfolk, Virginia 23510

ROBERT BELTON
237 West Trade Street 
Charlotte, North Carolina 28202

JACK GREENBERG
MORRIS J. BALLER

10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiffs

34



CERTIFICATE OF SERVICE

The undersigned certifies that copies of the fore­
going Plaintiffs' Proposed Findings of Fact and Conclusions 
of Law have been served on Willard J. Moody, Esq., 200 
Professional Building, Portsmouth, Virginia 23704, and 
William Worthington, Esq., 1700 Virginia National Bank 
Building, Norfolk, Virginia 23510, via United States mail, 
first class, postage prepaid, this _____ day of July, 1971.

Attorney for Plaintiffs