Rock v Norfolk & Western Railway Company Proposed Findings and Conclusion
Public Court Documents
July 1, 1971

38 pages
Cite this item
-
Brief Collection, LDF Court Filings. Rock v Norfolk & Western Railway Company Proposed Findings and Conclusion, 1971. 94fe5fbd-c29a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/1d9d85fb-49d8-4de4-bd2c-986a7d9e12e9/rock-v-norfolk-western-railway-company-proposed-findings-and-conclusion. Accessed April 27, 2025.
Copied!
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