Rock v Norfolk & Western Railway Company Brief for Appellants

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT 

No. 74-1788

ROBERT ROCK, EZELL B. JOHNSON,
RUSSELL C. WALKER, et al.,

Plaint if f s-.Appellants,
-  vs -

NORFOLK & WESTERN RAILWAY COMPANY, et al.,
Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF VIRGINIA 

NORFOLK DIVISION

BRIEF FOR APPELLANTS

WILLIAM T. MASON, JR.
147 Granby Street Norfolk, Virginia 23510

ROBERT BELTON951 S. Independence Boulevard 
Charlotte, North Carolina 28202

JACK GREENBERG MORRIS J. BALLER
10 Columbus Circle
New York, New York 10019

Attorneys for A,ppellants



INDEX
page

Statement of Questions Presented........ ............... 1
Statement of the Case.  ................................  2
Statement of Facts.....................................  6

4 A. Introduction........................ ............. 6
TB. Proof of Economic Loss by Barney Yard Workers.....  14

C. The Merger of Conductors' Rosters................. 21
D. Nickel Plate Merger Payments.....................  25

ARGUMENT
I. THE DISTRICT COURT ABUSED ITS DISCRETION BY 

DENYING BACK PAY TO THE PLAINTIFF CLASS FOR 
REASONS WHICH ARE UNFOUNDED IN THE RECORD 
AND INADEQUATE IN LAW............................ 28
A. Members of the Plaintiffs' Class 

Suffered Severe Economic Injury 
Due to Defendants' Discriminatory
Practices....................................  28

B. Controlling Principles of Law Require 
An Award of Back Pay in Typical
Discrimination Cases Like This One...........  31

C. None of the Reasons Stated By The
District Court Justifies the Denial 
of Class Back Pay Under Proper Legal 
Standards....................................  32
1. "Equal" pay rates and the separation

of Norfolk Terminal into two yards........  32
2. N&W's alleged bona-fide offer of

dovetailing..............................  35
3. The disparate promotion rate and its

causes...................................  39
4. The purportedly minor "degree" of

the discrimination.......................  42
D. Only Discrimination Can Explain the Economic

Disparities Shown by This Record.............  44

l



Pa^e

E. Back Pay and the Nickel Plate Merger
Payments.....................................  47

F. This Court Should Establish Proper 
Guidelines for the Computation of Back
Pay Due the Class Members on Remand..........  48

II. THE COURT BELOW ERRED IN MERGING THE 
CONDUCTORS' SENIORITY ROSTERS IN A 
MANNER THAT UNNECESSARILY PROLONGS THE
IMPACT OF PAST PRACTICES OF DISCRIMINATION......  49

III. THE DISTRICT COURT ERRED IN’REFUSING TO 
GRANT PLAINTIFFS AN UPWARD ADJUSTMENT IN 
THE NICKEL PLATE MERGER'S MONTHLY WAGE 
GUARANTEES.......................................  55

CONCLUSION.............................................  60

TABLE OF CASES
Baxter v. Savannah Sugar Refining Corp.,

495 F. 2d 437 (5th Cir. 1974)   36n,49
Bowe v. Colgate Palmolive Co., 489 F.2d 896

(7th Cir. 1973) .................................  32,57
Corning Glass Works v. Brennan, 42 LW 4827

(1974)............. ............................... . 33n
Duhon v. Goodyear Tire & Rubber Co.,

494 F. 2d 817 (5th Cir. 1974)....................... 32
Franks v. Bowman Transportation Co., __ F.2d

(5th Cir. No. 72-3239, June 3, 1974) ............  32,35
Griggs v. Duke Power Co., 401 U.S. 424 (1971).......  36,57
Griggs v. Duke Power Co., 420 F.2d 1225

(4th Cir. 1970)   57n
Hays v. Potlatch Forests, Inc., 465 F.2d 1081

(8th Cir. 1972) ...................................  57
Head v. Timken Roller Bearing Co., 486 F.2d 870

(6th Cir. 1973).......................... 31,32,35,37n
Johnson v. Goodyear Tire & Rubber Co.,

491 F.2d 1364 (5th Cir. 1974)......  32,33n,35,36n,43,49
Jurinko v. Wiegand Co., 477 F.2d 1038

(3rd Cir. 1973), vac'd & rem'd for further 
consideration 42 LW 3246 (1973), original
opinion reaff'd, __ F.2d __, 7 EPD 5 9215
(3rd Cir. 1974)...............................   34

ii



Page
Manning v. General Motors Corp., 466 F.2d 812

(6th Cir. 1972) 33n
Moody v. Albemarle Paper Co., 474 F.2d 134

(4th Cir. 1973) .......................  8n,31,32,33n,34n,35,36,
44,46,48,57n

Peters v. Missouri-Pacific Railroad Co.,
483 F.2d 490 (5th Cir. 1973), cert. denied
414 U.S. 1002 (1973).......................................  57

Pettway v. American Cast Iron Pipe Co.,
494 F. 2d 211 (5th Cir. 1974)..............  31,32,35,36n, 49, 60

Robinson v. Lorillard Corp., 444 F.2d 791 
(4th Cir. 1971), cert, dismissed 404 U.S.
1006 (1971)...........................  8n, 31,33n, 34n, 35,36,46,

49n,57n,58,59
Rock v. Norfolk & Western Rwy. Co.,

473 F. 2d 1344 (4th Cir. 1973).......................... 51n,54
Rosen v. Public Service Gas & Electric Co.,

477 F. 2d 90 (3rd Cir. 1973)...............................  57
Rosen v. Public Service Gas & Electric Co.,

409 F. 2d 775 (3rd Cir. 1969)..............................  59
Rowe v. General Motors Corp., 457 F.2d 348

(5th Cir. 1972)...........................................  43
Schaeffer v. Yellow Cabs, Inc., 462 F.2d 1002

(9th Cir. 1972)...........................................  33n
United States v. Chesapeake & Ohio Railway Co.,

471 F. 2d 582 (4th Cir. 1973)........................  8n, 52,57n
United States v. Dillon Supply Co., 429 F.2d 800

(4th Cir. 1970)...........................................  57n
United States v. Hayes International Corp.,

456 F. 2d 112 (5th Cir. 1972)..............................  59
United States v. Jacksonville Terminal Co., 451 

F.2d 418 (5th Cir. 1971), cert, denied 406
U.S. 906 (1972).......... ........................... 8n, 52,53nUnited States v. St. Louis-San Francisco R. Co.,
464 F.2d 301 (8th Cir. en banc 1972)........................  8n

Statute:
Railway Labor Act 45 U.S.C. §151, et seq. 38n



IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT 

No. 74-1788

ROBERT ROCK, EZELL B. JOHNSON,
RUSSELL C. WALKER, et al.,

Plaintiffs-Appellants,
- vs -

NORFOLK & WESTERN RAILWAY COMPANY, et al.,
Defendants-Appellees.

On Appeal From the United States District Court For 
The Eastern District of Virginia - Norfolk Division

BRIEF FOR APPELLANTS

Statement of Questions Presented

The issues presented in this Title VII case involving 
racial discrimination in employment are:

1. Did the district court err in denying back pay to the 
plaintiff class, where —

a. Appellants proved that appellees' discriminatory 
employment practices caused substantial economic loss to 
black employees; and



b. The district court's reasons for the back pay 
denial are unfounded in the record and discredited in 
the law?
2. Did the district court err in ordering merger of former­

ly separate seniority rosters for conductors in a manner that 
carries forward the promotional disadvantages imposed on black 
employees during past periods of 4iscrirnina"t-;'-on?

3. Did the district court err in refusing to correct 
presently continuing discrimination in monthly wage guarantees 
as part of appellants' entitlement topfull relief from the 
economic effects of appellees' discriminatory practices?

Statement of the Case
Appellants are here for the second time seeking full vindi­

cation of their right to be free and made whole from racial 
discrimination in their employment by appellees. They take this 
Title VII appeal from a final order entered May 17, 1974, by the 
United States District Court for the Eastern District of Virginia, 
MacKenzie, J., after proceedings on remand from this Court's first 
decision in their case, 473 F.2d 1344 (No. 72-1777, February 13, 
1973). This Court has jurisdiction over the appeal under 28 
U.S.C. Section 1291.

Plaintiffs-appeHants Rock, Johnson, and Walker ("plaintiffs" 
hereafter) embarked on the long road toward justice on May 15, 
1967, by filing an EEOC charge against defendant-appellee Norfolk 
& Western Railway Company ("N&W") on behalf of their then-local 
union, all-black Local 974. They amended their charge on June 12, 
1969, to include as respondents the predecessors of defendants-

-2-



appellees United Transportation Union ("UTU") and its virtually
1/all-white Local 550. Their charges alleged, and they have since

proved, comprehensive practices of employment discrimination by
the N&W, UTU, and Local 550.

Plaintiffs filed this class action suit under Title VII
on June 2, 1969 and filed an amended complaint on December 30,

2/1969 (A.I- 4a-10a). Their long road led to trial on the merits
held April 13-16, 1971, to a memorandum opinion by the district
court rendered January 20, 1972 (A.I. 32a-47a), and to a judgment

2/entered on April 28, 1972 (A.l. 66a-77a).
In that opinion, the district court found that N&W had 

practiced past and continuing hiring discrimination which led 
to the establishment of two racially segregated departments or 
yards within its Norfolk Terminal (A.i. 39a-42a). The court below 
failed, however, to hold defendants' lock-in seniority system, 
which perpetuated the departmental segregation, unlawful; it sim­
ply did not address the issue, believing it to be foreclosed by 
the court's finding that the black and white yards were "entirely
T T  At that time, the defendant international union was denomi­
nated Brotherhood of Railroad Trainmen ("BRT").
2/ Citations in the form "A.I.___" are to Volume I of the Appendix
filed by plaintiffs with this Court for their last appeal. Plain­
tiffs will not again reproduce materials in that appendix, but 
will refer to documents contained in those three volumes numbered 
I, II, and III in the form indicated. Plaintiffs have filed a 
Supplemental Appendix with documents relating to the remand pro­
ceedings that followed their first appeal. Citations to that 
appendix are in the form "App. ___. "
3/ The procedural history of this case to the point of the first 
appeal is set out in plaintiffs' Brief for that appeal, pp. 2-5.

-3-



different" (A.1. 42a-43a). In its decree, the court enjoined the 
hiring discrimination and, despite making no finding of seniority 
discrimination, modified defendants' seniority system in order to 
reduce "friction" (A.i. 45a). It ordered the separate, racially 
identified seniority rosters existing in the separate yards merged 
by "topping and bottoming," a partial and restrictive remedy (A.I. 
44a, 46a) . Plaintiffs had sought the far more rapid and effective 
remedy of merger by "dovetailing." The district court also sum­
marily denied plaintiffs back pay (A.I. 46a). Plaintiffs appeal-

1/ed.
This Court handed down its opinion on February 20, 1973, 473 

F.2d 1344 (App. 1-16). On the issue of seniority relief, the Court 
held that plaintiffs were entitled to a dovetailing order and 
remanded to the district court for implementation of such a plan 
(473 F.2d at 1349, App. 13-14). It neither reversed nor affirmed 
the district court's unexplained denial of back pay, but remanded 
for reconsideration and for certain findings on disputed factual 
and legal issues (473 F.2d at 1350, App. 15-16). In so ordering, 
the Court noted,

Since we have concluded that the plaintiffs are 
entitled to a more liberal form of merger of the 
seniority rosters, it will be appropriate for the 
district court to consider anew the issue of the 
right of the plaintiffs to back pay against either 
the railroad or the union, or both ...

After the filing and prompt denial of a Supreme Court petition
1/for certiorari by UTU (App. 17), the district court conducted full

IT  The district court also found that UTU had unlawfully maintained 
segregated local lodges and ordered their merger (A.I. 44a-45a).
This order was carried out and not appealed.
5/ The defendant unions in that petition urged that the district 
court had abused its discretion in fashioning certain detailed pro­
visions of its limited "topping and bottoming" plan. This Court had 
not even commented on the same contention when UTU raised it by 
cross-appeal (No. 72-1778) .

-4



remand proceedings.- It allowed the parties to conduct detailed
negotiations in an attempt to formulate an appropriate dovetailing
remedy for the seniority discrimination (App. 59, c_f. 473 F.2d at
1349, App. 14). The parties were able to narrow their differences
to a significant extent and left the Court with only a few specific
disputes to resolve in fashioning its dovetailing remedy (App. 59-
107). The court below received evidence and heard testimony

*
pertinent to these disputes, as well as to the back pay question, 
at a day-long remand trial held October 4, 1973 (App. 50-323).
After receiving post-trial briefs and hearing oral argument, the 
court below issued its Opinion and Order on May 17, 1974 (App. 18- 
47) •

The May 17 decision again denied the plaintiff class back pay 
(App. 23-26). This time the court gave four reasons in support 
of its denial: (1) that plaintiffs had not shown that black jobs
were lower paying than white jobs (App. 23-24); (2).that N&W
had made a good faith offer to merge the segregated seniority lists 
in 1968, which offer UTU rejected (App. 24); (3) that calculation
of damages resulting from discrimination would be "pure speculation" 
(App. 24-25) ; and (4) that the trial court had only found "a very 
bland discrimination" with which conclusion this Court had agreed 
in its decision (App. 26).

The court also rejected out of hand plaintiffs' request that 
the remedy include readjustment of discriminatory monthly wage 
guarantees resulting from a previous N&W merger (App. 19). Its 
only stated reason was that plaintiffs had not specifically raised 
this issue until the remand proceedings (id.).

-5-



The court entered a comprehensive dovetailing plan (App. 28- 
47). Most of the plan had been agreed to by the parties, but the 
court resolved five contested issues (App. 19-23). Of signifi­
cance to this appeal, the court resolved one of those disputes by 
ordering, in effect, a partial "topping and bottoming" (albeit
one which the court labeled "dovetailing") of the seniority rosters

6/
for conductors, denying plaintiffs' prayer for a more effective*
remedy (App. 20-22).

Plaintiffs filed their second notice of appeal on May 29,
1974 (App. 48). They seek full relief with regard to back pay, 
conductors' seniority, and monthly wage guarantees.

Statement of Facts
A . Introduction

The brief plaintiffs filed in their first appeal of this case
(No. 72-1777) contains a detailed statement of background facts
and information necessary to put the present issue into its full
context. See Appellants’ Brief filed July 31, 1972 (hereafter
"Br.") at 6-27. Rather than repeat that lengthy statement in full
here, we simply highlight the most basic facts and urge the Court
to refer back to the previous brief where greater detail is desired.

7/1. Background: A Pattern of Segregation.
N&W maintains two yards in its Norfolk Terminal. The

8/
larger is nearly all white and known as the CT Yard; the smaller,
—/ The second level position in the job sequence in both black and white yards, see p. 7 ,  infra.
7/ For a more detailed description, see Br. 6-14.
8/ The CT Yard was 96% to 99% white during the years pertinent to this record, 1965 to 1971 (A.I. 30a-31a).



the Barney Yard, is virtually all black (A.I. 40a). Local 48 of
UTU now represents all pertinent employees in both yards, but
prior to the district court's 1972 decree each yard was within the
jurisdiction of a separate, segregated local (A.I. 44a, 45a).

Within each yard N&W employs men in the three related jobs
of brakeman, conductor, and car retarder operator. Brakeman is
the entry level position; a brakeman may thereafter promote to
conductor and from there to car retarder operator. The three jobs

10/form a progression in wage rates. Men holding the same position 
in either yard earn the same daily pay (A.I. 31a). Most men in the 
CT Yard and a minority of men in the Barney Yard have regularly 
scheduled work assignments which are obtained by bidding on the 
basis of seniority, just like the typical manufacturing plant 
worker. The balance of the yardmen work from a rotating list, the 
"extra board," from which they are called on a "first in-first 
out" basis. So long as a man stays on the extra board his seniority 
is not a factor in assignments (A.I. 97a).

Plaintiffs have consistently maintained that jobs in the two 
yards are substantially similar, particularly at the brakeman 
level. The district court, mistakenly viewing this as the control­
ling factual issue in the case, ruled against that position. It 
found, "the work done in the two Yards is not the same, has only

!7 The Barney Yard work force was 92% to 98% black during the 
years in question (A.I. 30a-31a).
10/ Shortly before the time of trial, brakemen earned $29.26 per 
eight-hour shift, conductors $31.50, and car retarder operators 
$32.66. These disparities among the jobs are comparable to those 
existing throughout the pertinent period. See N&W's Further Answer 
to First Interrogatories, filed December 7, 1970, Nos. VI(A), (C);
IV (A), (C).

9/

-7-



small vestiges of similarity, and, in fact, is an entirely different 
trade" (A.I. 42a-43a). On appeal, however, after a careful reci­
tation of some of the evidence plaintiffs presented on this question, 
this Court rejected the district court's conclusion (473 F.2d at 
1349, App. 11-12).

N&W achieved the near-total segregation of its Norfolk 
Terminal Yards by a classically discriminatory pattern of hiring,

t
as the court below found and as this Court recognized (A.I. 39a-
42a, 45a; 473 F.2d at 1348, App. 9). It maintained separate hiring
offices in both of the segregated yards, with each office hiring%
for that yard only. Vacancies were never posted or advertised and
recruitment was carried out by word-of-mouth communication with the
respective segregated workforces of the two yards, quite naturally
resulting in referrals of "relatives and friends" of the incumbents
(A.I. 45a). This hiring system and its discriminatory results
remained in effect until the district court's injunction on May 1,

11/1972 (A.I. 41a-42a, 45a).

11/ cf- un-itpd States v. Chesapeake & Ohio Railway Co. , 471 F.2d 
582,~586 (4th Cir. 1973); United States v. Jacksonville Terminal 
Co., 451 F.2d 418, 448 (5th Cir. 1971), cert, denied 406 U.S. 906 
(1972); United States v. St. Louis-San Francisco R. Co., 464 F.2d 
301 (8th~Cir. en banc 1972); Robinson v. Lorillard Corp., 444 F.2d 
791, 794-5 (4th Cir. 1971), cert. dismissed 404 U.S. 1006 (1971); 
Moody v. Albemarle Paper Co., 474 F.2d 134, 137 (4th Cir. 1973).
In-all of these cases, the original hiring discrimination occurred 
only prior to the effective date of Title VII, July 2, 1965.

Post-1965 hiring under the discriminatory system was consider­
able. With deference to this Court's correct general understanding 
that "Railroad employment is contracting and the opening up of new 
jobs is becoming increasingly rare" (App. 10, 473 F.2d at 1348), 
we note that such is not the case here. Since July 2, 1965, N&W
had hired 115 new CT Yard brakemen (100 whites, 15 blacks) and 34 
new Barney Yard brakemen (27 blacks, 7 whites) by the trial of 
April, 1971 (A.I. 31a).

-8-



2. Defendants' Discriminatory Seniority System
As with most traditional seniority systems in the rail­

road industry, defendants' collectively bargained seniority 
arrangements (see A.III. 793a-802a) were designed to inhibit 
movement of employees between different seniority units and promote 
longevity and stability within seniority units. They succeeded.

At Norfolk Terminal, the Barney Yard formed one seniority 
unit and the CT Yard a separate unit (A.I. 29a). A yardman could 
transfer between units only at the price of forfeiting all his 
accumulated seniority in the original unit and starting over as a 
new man in the other unit (id.). Within each yard, separate 
seniority rosters were maintained for brakemen, for conductors, 
and for car retarder operators (A.I. 30a). N&W concedes that no 
business necessity justifies this system (see Br. 38).

Against its backdrop of segregated yards brought about 
by segregated hiring, defendants' arrangements form a familiar 
example of a seniority system made unlawful by Title VII. See Br. 
35-39. In its initial opinion the district court did not find the 
system unlawful, but only "abrasive" (A.I. 45a). it based this 
holding exclusively on the finding that work in the tv/o yards is 
not "the same, nor is one more menial than the other" (jLcL ; see 
also finding (9), A.I. 42a-43a). To eliminate the "friction" 
caused by separate, segregated rosters —  but not to remedy any 
unlawful seniority system —  the court below ordered the rosters 
merged by "topping and bottoming" (A.I. 45a-46a, see A.I. 66a-69a

12/-- For a more detailed statement, see Br. 8, 24-26, 38.

12/

-9-



and 77a-l-77a-4).
On appeal, this Court specifically rejected the basis for the

district court's ruling —  the finding of only "small vestiges of
similarity" between the yards —  noting inter alia that "it is
contradicted both by the prior conduct of the railroad and by its
admissions in the record that a 'dovetailing' of the seniority
rosters in the two yards was practical" (App. 11-12, 473 F.2d at 

1 3 /
1349). This Court held "topping and bottoming" inadequate as a
matter of law and ordered the court below to formulate a merger of

14/rosters by "dovetailing" (App. 14, 473 F.2d at 1349). On remand,
the district court entered a dovetailing decree (App. 19-23) from
which plaintiffs appeal in one respect involving the method of
consolidating the conductors' rosters. (See Argument II, infra).
This decree was to take effect on June 17, 1973.

15/3. The inequality of Economic Opportunity
Plaintiffs introduced a massive array of proof at the 

first trial showing that work opportunities in the two segregated 
yards were not only separate but also unequal. Defendants did not 
meaningfully rebut any of that proof, then or later, and conceded 
its major consequences (see infra). Since the main issue on this 
appeal involves back pay, we focus here on the proof of economic

— f  Once again on remand, the district court nevertheless stated, "we held that the two Yards were indeed separate and distinct.The appellate court agreed" (App. 26).
14/ The exact meaning and operation of both "topping and bottoming" 
and "dovetailing" are spelled out at Br. 25. This Court accurately 
summarized the differences at 473 F.2d at 134'8, App. 9-11.
15/ For a more detailed statement, see Br. 14-24. See also part B of this Statement of Facts, pp. 14- 21, infra.

-10-



disparities between the white and black yards, and the unlawful 
practices which caused those disparities.

CT Yard men enjoy opportunities for more regular, more
frequent, and more secure work than their Barney Yard counterparts.
This advantage reflects the greater availability of work in the CT
Yard both in terms of greater demand for work per man and greater
stability of work demand. Plaintiffs proved with specificity that
furloughs (lay-offs) visit Barney Yard men far more frequently
than comparable CT Yard workers. The evidence as summarized in
plaintiffs' first Brief shows that

Barney Yard men are furloughed far more frequently 
than CT Yard men of the same or less seniority (in 
their respective yards); Barney Yard men are on 
furlough status for a much greater number of days 
and weeks in the aggregate, and usually for much 
longer periods of time on particular occasions, 
than CT men of the same or less company seniority; 
and the danger of furlough continues until much 
later in the career of Barney Yard men than in that of their CT Yard counterparts.16/

Br. at 16-17. Counsel for N&W in open court admitted this dispar­
ity in the impact of furloughs (A.II. 775a).

At N&W as in most of American industry, when a worker is on 
lay-off, he earns no wages.

The district court made no mention of these undisputed and 
crucial facts in either of its opinions.

Further economic disparities result from differences between 
the two yards in the rate and frequency of promotion of brakemen

This summary is based not merely on witness testimony, but on an exhaustive study of the furlough records of CT and Barney Yard 
employees (A. III. 854a—904a) . Appendix A to the appellants' 
earlier Brief analyzes these records with telling effect (Br. A-l A—2) .

-11-



into the higher-paying positions of conductor and car retarder
operator. There are far more promoted positions in the CT Yard

17/
than in the Barney Yard. This fact is shown both by the propor­
tionately far greater numbers of CT Yard men holding seniority in

 ̂ ' 18/ promoted positions throughout the relevant years (A.I. 30a-31a),
and by the greater number of CT Yard men actually working or
regularly assigned to work in promoted positions on three randomly
. ’ 1 2 /  chosen dates just prior to trial (A.III. 824a-823a). N&W's counsel
also admitted this disparity between the yards in open court (A.II.

/ ” " ---------—  In large part this results from the composition of work crews 
in the two yards: one conductor normally supervises two brakemen 
in the CT Yard^ (A.I. 28a, 172a—173a, 177a; A.II. 514a); but a con­
ductor s crew in the Barney Yard may have anywhere from two to ten 
brakemen and averages six to eight (A. 1. 156a-157a; A.H. 492a,
514a). Thus at any one time a higher percentage of yardmen working the CT Yard are conductors.

Because of the nature of operations, there are slightly more 
car retarder operator positions in the Barney Yard than in the CT 
Yard (A. III. 824a-853a, see Br. 18, nn. 14-15 and Br. 19, n. 16). 
But the number of positions involved is insignificant compared to 
the number of conductor positions and combining the two still 
leaves a greatly disproportionate number of promoted positions on the CT side (id.).
18/ From 1965 to 1971, the proportion of CT Yard men who had been 
promoted above brakeman varied from 55.5% to 63.6%. The analogous 
proportion of Barney Yard men ranged between 22.2% and 27.6%. On 
the last date for which the record contains data, January 1, 1971, 
the figures were: CT Yard —  210 promoted of 378 total, 55.5% pro­
moted; Barney Yard —  38 promoted of 140 total, 27.1% promoted (A.I. 29a-31a; A.III. 805a-823a).
19/ The data is as follows (A.III. 824a-853a):

(i) December 7, 1970 (actually working) - 76 promoted CT men, 18 promoted Barney Yard men. Ratio (CT to Barney) 4.24 to 1.
(ii) March 12, 1971 (actually working) - 64 promoted CT men,11 promoted Barney Yard men. Ratio - 5.82 to 1.
(iii) March 15, 1971 (regularly assigned) - 87 promoted CT men, 20 promoted Barney men. Ratio - 4.35 to 1.

During this period, the ratio of all CT men to all Barney Yard 
men was only about 2.7 to 1 (as of January 1, 1971) (A.I. 30a).

-12-



776a).
Of course, when a man works in a promoted position at Norfolk 

Terminal, he earns several dollars per shift more than a brakeman. 
See p. 7, n. 10, supra.

The district court did not deal with these facts in its
January 20, 1972 opinion. In its opinion on remand, the court
acknowledged the smaller number of promoted positions and the
slower rate of advancement in the Barney Yard (App. 24, 25), but
dismissed the proof of lag in Barney Yard promotions as an example
of plaintiffs' "speculative statistics," or "pure speculation,"
or the Barney Yard men's "personal choice [not to promote] ... a

2 0/
matter of personal whim and not opportunity" (App. 22, 25).

Plaintiffs also proved disparities in the promotion of yardmen
to the management positions of assistant yardmaster and yardmaster

21/(Br. 20-21)’. On this point the court below found discrimination
"to a degree" in its first opinion, since Barney Yard men were
"blocked" from those jobs by N&W's whites-only recruitment policy
(A.I. 42a, 46a). The court reiterated this view in its remand

22/opinion (App. 25).

— ‘ These characterizations are utterly without basis in, and con­
trary to, the entire record (see pp. 40- 42, infra).
21/ Of 18 hourly workers promoted to management, 17 were whites, 
and one was black. Nine of the whites previously worked in the CT 
Yard; the one black came from the Barney Yard only in 1968 and only 
after years of pressure from Barney Yard men in support of his 
appointment (A.II. 519a-522a; A.III. 811a-812a, 915a).
22/ There the court remarks that "our view of the evidence indicates 
only three yardmasters in twenty-five years" (App. 25). This view 
is clearly erroneous and evidently reflects the court's misunder­
standing that the seniority date appearing opposite each yardmas­
ter ' s name on the brakeman's list (see, e.g., A.III. 811a-812a) is 
his date of promotion to yardmaster. In fact it is his date of 
initial hire by the Company. As the N&W official in charge of yard- 
masters explained at trial, all 10 of the yardmen elevated to manage­ment had been so promoted within the last 15 years, at least three 
of them since 1965 (A.II. 519a-521a).

13-



Finally, plaintiffs presented convincing evidence that N&W
had long denied then a $.40 per shift bonus payment (the "air hose
arbitrary") which it paid to CT Yard employees for performing

11/similar duties. See Br. 23. The district court has never entered 
any findings or conclusions in regard to this element of plaintiffs' 
economic injury.
B. Proof of Economic Loss by Barney Yard Workers

Plaintiffs proved at the initial trial that Barney Yard
employees had far more limited opportunities for income than CT
Yard employees because of differences in the nature of employment
in the respective yards (see A (3), supra). At the remand trial,
plaintiffs proved comprehensively and specifically the extent of
the losses thereby inflicted on Barney Yard men.

The source of the income disparities in this case is not any
differential in hourly or daily pay rates. As previously noted
(p. 7 , supra) and as stressed by the district court (App. 23), a
brakeman or conductor or car retarder operator in the Barney Yard
receives the same wage rate as his CT Yard counterpart in the same
classification. Plaintiffs have never contended or sought to prove

24/
otherwise at any stage of this litigation.

Plaintiffs have always insisted, and continue to insist, that 
notwithstanding the identity of base wage rate scales, CT Yardmen 
enjoy an enormous advantage over Barney Yard workers in terms of

HZ' After years of requests and negotiations, the "arbitrary" was 
extended to Barney Yard employees in 1968 (A.III. 804a). There was 
no change in their duties at this time (A.II. 555a).
24/ A minor exception amounting to $.40 per shift is the issue 
concerning the air-hose arbitrary, see n. 23, supra.

-14-



total income. At no stage of the litigation has any defendant or 
any court contended otherwise. These two uncontested facts are 
consistent with each other because plaintiffs proved, also without 
dispute, the major operative factors explaining the income dis­
parity: (i) the lesser amount of work per man in the Barney Yard,
and the consequently greater exposure of Barney Yard brakemen to
furlough; (ii) the Barney Yard's smaller number and percentage of»
promoted positions paying substantially above the brakeman rate,
and the consequently lesser and slower accessibility of promotions
to Barney Yard employees. See pp. 11- 13, supra.

Plaintiffs introduced comprehensive evidence detailing the
substantial disparity between Barney Yard (black) incomes and CT
Yard (white) incomes at the remand trial. This data went basically
unchallenged by defendants and unmentioned by the court below.

The principal proof of income disparities on remand took the
form of an extensive, detailed analysis comparing gross incomes for
all CT and Barney Yard employees, provided by N&W from its records

2 5/
during remand discovery (Pi.Ex. R-l, R-2). The results of that 
analysis are shown by a series of charts and tables, Pi.Ex. R-4 
through R-15, R-19 (App. 365- 411), which compare the gross earnings 
of Barney and CT Yard employees individually and in larger or 
smaller groups, mostly (but not entirely) in terms of average 
earnings for members of the groups, with breakdowns and statistical

•=iv These voluminous documents, while part of the record on appeal, 
are not reproduced in the Appendix. All information appearing 
thereon is concisely tabulated in Pi.Ex. 3-A and 3-B (App. 342- 
364, see App. 249- 251).

-15-



controls for seniority (year of hire), time period (earnings years, 
1965 through 1973), and part-time or part-year employment. See 
explanations at App. 248- 286.

These analyses show a consistent pattern. Running through 
them as an almost unvaried theme is proof that almost all CT Yard 
employees earned substantially more than almost all similarly 
situated Barney Yard employees invalmost every year from 1965 
through 1973. Further, they show that the difference in earnings 
between CT and Barney men of comparable seniority is substantial 
rather than marginal in most cases. They show on the whole and on 
the average a disparity of approximately $1,200 per man per year 
—  17% of the average Barney Yard man's total earnings —  between 
CT Yard incomes and Barney Yard incomes.

More specifically, these exhibits —  whose integrity and
26/accuracy were not contested below —  contain the following:

— In the following discussion of plaintiffs' statistical and 
graphic evidence, several concepts and terms are used as they were 
at trial. "Earnings year" refers to calendar years in which a 
particular employee or group of employees had income from N&W (App. 
253). "Year of hire" is the year in which the employee's brakeman 
seniority date falls (App. 254). "Seniority groupings" were twelve 
carefully and objectively selected sets of years of hire, chosen 
so that detailed comparisons could be made of men in the two yards 
who had approximately the same amount of company (brakeman) senior­
ity (App. 254). The twelve seniority groupings included, respec­
tively, years of hire (1) 1925-1941, (2) 1945-1949, (3) 1951-1953,
(4) 1954-1955, (5) 1956-1957, (6) 1960-1961, (7) 1962-1963, (8)
1965-1967, (9) 1968-1969, (10) 1970, (11) 1971, (12) 1972 (id.).
(In years not listed none were hired.) All averages are, of 
course, properly weighted averages (App. 265). "Partial earnings" 
were defined in such a way as to allow for exclusion from averaging 
of those employees who were not actively employed during the entire 
year in question (App. 274-277, Pi.Ex. R-15, App. 403-406). The 
employees were also tabulated on Pi.Ex. R-4 and R-5 according to 
a code which indicates racial identification (App. 255).

-16-



i

(1) PI. Ex. r-4 (App. 364- 373 ) is a set of distribution 
diagrams showing gross earnings of individuals in each year 1965- 
1973, broken down by Yard (CT or Barney), race, seniority classi­
fication (year-of-hire group), and income range (at $500 intervals). 
It does not show averages, but actual incomes. R-41s distribution
shows a remarkably consistent pattern, with CT Yard employees' 
incomes higher on the income range scale (farther toward the right) 
than those of Barney Yard men. To simplify (but not distort) this 
pattern, we may examine median incomes. The median income for 
each yard in each year fell into the following ranges:

Yd./Yr. 1965
CT $7000-7499 
BY $6000-6499

1970
CT $8000-8499 
BY $7500-7999

1966 1967 1968 1969
$7500-7999 $7500-7999
$6000-6499 $6500-6999

1971 1972

$7500-7999 $8500-8999
$6500-6999 $7500-7999

1973
$7000-7499 $9000-9499
$6000-6499 $8000-8499

$11,000-11,499
$9000-9499

With remarkable consistency, the range of the median CT Yard income 
exceeds that of the median Barney Yard income by $1,000.

A more detailed comparison of median incomes pits CT and 
Barney medians within seniority classifications against each other 
(where incomes exist within the classification for both yards).
The result may be expressed in tabular form (numbers refer to num­
ber of seniority classifications).

Year CT Median Higher BY Median Higher Same Median
1965 6
1966 7
1967 6
1968 6
1969 7
1970 8

1 0
0 0
1 0
1 1
1 0
1 0

-17-



1971 8 0 21972 7 1 11973 7 0 2
Total 62 6 6

"thus, almost without exception, the median incomes of CT men 
grouped by seniority classifications exceed those of their Barney 
Yard contemporaries.

(2) Pi.Ex. R—5 (App. 374 - 382 ) is merely a summary and sim­
plification of R-4 (App. 259 ). On it, the pattern of disparate 
incomes becomes so plain that on inspection it immediately strikes 
the eye.

(3) Pi.Ex. R-7 (App. 387 - 390 ), which summarizes and analyzes 
the more detailed information contained in PI.Ex. R-6 (App. 383 - 
386), compares average earnings of all CT and Barney Yard employees 
broken down by seniority classification and earnings years. It 
shows, again with remarkable consistency, that CT Yard employees 
earned more than their Barney Yard contemporaries. We may summarize 
the information contained in this table by the following chart. 
(Figures listed show numbers of different years in which employees
in the yard and seniority classification indicated had a higher 
income than their contemporaries in the other Yard.)

Seniority Classif1'n: 1925-41 1945-49 1951-53 1954-55 1956-57
CT Avg. Higher 4 8 9 9 9BY Avg. Higher 5 1 0 0 0

Seniority Classif1'n: 1960-61 1962-63 1968-69 1970 1971
CT Avg. Higher 9 9 6 4 2BY Avg. Higher 0 0 0 0 1

(No meaningful comparisons were possible for the 1965-67 or 1972
classifications.) Thus, in 69 of the 76 possible comparisons of

-18-



contemporaries, the CT men came out ahead. In the classifications 
including all men hired between 1951 and 1970 —  comprising 
almost 90% of the employees in Norfolk Terminal (App. 342- 364) —  
in no year did Barney Yard men earn as much as their CT Yard con­
temporaries .

(4) Pi.Ex. R-9 (App. 392), which summarizes and analyzes the 
more detailed information contained in Pi.Ex. R-8 (App. 391), 
studies income disparities between contemporaneously hired CT and 
Barney Yard employees not year-by-year (like R-6 and R-7), but as 
overall annual averages for the nine-year period. The results show 
that in every seniority classification but one (years of hire 1925- 
1941), CT Yard employees out-earned their Barney Yard counterparts 
by over $1,000 per man per year, and usually much more. The exact 
differences are summarized in tabular form below. (The numbers 
are differences between average CT income and average Barney 
income; the negative number indicates a higher average for the 
Barney Yard.)

Seniority Classif’n: 1925-41 1945-49 1951-53 1954-55 1956-57
Disparity —  $190 $1032 $2478 $1740 $1705

Seniority Classif'n: 1960-61 1962-63 1968-69 1970 1971
Disparity $1644 $2096 $1098 $1726 $1591

(Meaningful comparisons could not be made for classifications 1965- 
67 and 1972.)

(5) Pi.Ex. R—10, R—11, R-12, and R-13 (App. 393 - 401 ) contain 
exactly the same types of information as do R-6 through R-9, in 
the same format (App. 274, 280). The former series differs from

-19-



the latter only in that the averages were calculated "with partial 
incomes excluded" (see n. 26, supra). The patterns shown by these 
exhibits are precisely the same as the ones detailed above. In 
fact, the summary chart of the set, R-13 (App. 401) , shows an even 
more consistent and pronounced degree of CT Yard incomes' superi­
ority over Barney Yard incomes than does R-9.

(6) Pi. Ex. R—14 (App. 402) £ulls together the information 
contained in Pi.Ex. R-3 through R-9 and synthesizes it in the most 
general format (App. 283). It deals not with employees divided 
into different seniority classifications, but with all employees 
of whatever seniority in each yard. It shows a dramatic disparity 
in the overall average incomes of employees in the two yards in 
every year.

Average Earnings Comparisons (All Employees)
Year 1965 1966 1967 1968 1969CT Avg. Income $6957 $7994 $7818 $73 59 $8571BY Avg. Income 

Difference (CT- $5749 $5681 $6270 $6305 $6895
BY) $1208 $1813 $1548 $1054 $1676Ratio (CT/BY) 1.21 1.32 1.25 1.16 1.24
Year 1970 1971 1972 1973 1965-73CT Avg. Income $8026 $7332 $8594 $9662 $7978BY Avg. Income 

Difference (CT-
$7454 $6398 $7884 $8949 $6793

BY) $572 $934 $710 $713 $1185Ratio (CT/BY) 1.08 1.15 1.09 1.08 1.17

Year in and year out CT Yard men out-earned Barney Yard men '
average of $1,185 per man per year. Put another way, the average 
CT Yard income exceed the average Barney Yard man's income by 17% 
each year.

We feel compelled to engage in this detailed recapitulation of 
plaintiffs' evidence showing significant racially-identifiable

-20-



y

income differences because the district court made no findings
whatever on this evidence and it comes before this Court for
initial review. To the extent the court below made any finding
relating to the comparative earnings of Barney Yard and CT Yard2 7/
employees, it found that they were "exactly the same."
C. The Merger of Conductors' Rosters

In accordance with this Court's mandate, the court below 
on remand developed and decreed a lengthy and technical plan for 
the merger of seniority rosters by dovetailing (App. 28- 47).
Only one issue arising from that injunctive order is again before 
the Court: the basic form of the dovetailing required to eliminate 
past discrimination in promotions to conductor rank. Certain back­
ground facts must be presented to place this issue in context.

In both yards, brakemen gain the opportunity to qualify as 
conductors as N&W determines the need for additional conductors 
in the order of their brakeman seniority (A.III. 798a-799a). A
brakeman must pass a conductor's test to qualify, and may choose 

28/not to qualify; however, neither factor is an issue here. Con­
ductor's seniority is established at the time the examination is 
passed (id.). The crucial point is that the need for conductors 
in the particular yard determines the demand for promotion of 
brakemen, and thus the length of time brakemen must work before

27/ App. 23) (emphasis is original) . See p. 14, supra, for 
explanation.
28/ In this event, the seniority roster is marked "Relq Rights- 
Cond" next to his name (see, e.g., A.III. 805a-807a). Only thir­
teen Barney Yard men have so opted, but of these at least six had 
qualified for the higher position of car retarder operator (id. 
805a, 809a) so that their relinquishment may have been to maximize 
their access to the best job and at least does not indicate non- 
promotability.

-21-



gaining the opportunity to promote.
The record contains a large body of uncontradicted evidence

showing that CT Yard men gain the chance to promote to conductor,
2 9/and do so, far more rapidly than their Barney Yard counterparts.

Every CT Yard brakeman hired on or before September 18, 1963 had
by the time of the initial trial (April, 1971) been offered the
opportunity to move up to conductor (A.III. 811a-815a, cf. 818a-
821a and 829a, App. 195, 202) . In stark contrast, no Barney Yard
man hired after March 18, 1956 had by the same time had any oppor-

30/tunity to promote to conductor (A.III. 805a-806a, cf. 808a). At 
least 76 CT Yard employees who had been promoted to conductor had 
brakeman seniority dates later than that of the youngest (latest- 
hired) Barney Yard conductor (id.-), App. 409~410 )•

The disparate rate of promotion in the two yards reflects 
the same pattern. Most CT Yard brakemen hired before 1964 were 
promoted to conductor after 6-7 years as a brakeman (A.III. 811a- 
815a, cf. 818a-821a and 829a). Two who testified, both whites 
hired in 1961, had been promoted within three years of their hire 
(A.II. 708a, 718a). Three of plaintiffs' witnesses, blacks also 
hired in 1961, had never been promoted, even by the remand trial 
(A. 1. 207a; A. II. 768a, 771a; App. 181) , nor had another Barney

.29/ The court below entered no finding on this point in its initial 
opinion. In its remand decision it held that, "This may be true 
. . . . Progression may be slower in one Yard than another, but 
this is the nature of the work of the Yard, not the racial charac­
teristics of those laboring therein" (App. 24) .
30/ While not explicitly in the record, we might note that no 
other brakemen were promoted to conductor in either yard prior to 
the remand trial, when the situation therefore remained as before.

-22-



Yard witness hired in January, 1957 (App. 148). Most of the 
Barney Yard men who had received a chance to promote first had to 
wait a period of 8-15 years after hire (A.I. 84a-85a, 147a, 192a- 
193a, 198a, 360a; A.III. 805a-809a).

Because of the disparate rates and availabilities of access 
to promotions, Barney Yard brakemen in two categories suffer 
present disadvantage in terms of their conductor status, vis-a-vis 
their CT Yard contemporaries. (i) Those Barney Yard men (hired 
before March 18, 1956) who have been promoted carry a later senior­
ity date on the Barney Yard conductor roster than the date that the 
CT Yard brakemen hired at the same time carry on the other conductor 
roster; and (ii) Barney Yard men hired between March 18, 1956 and 
September 18, 1963 have never had the opportunity, as have CT 
employees hired during this period, to qualify for conductor and 
establish conductor's seniority.

At the remand trial, plaintiffs and the unions advanced con­
flicting proposals on the form of dovetailing of the separate 
conductors' rosters (App. 79-83). Plaintiffs proposed that the 
merger would recognize "terminal seniority" dates, e.g., dates of
initial hire (see App. 29) to eliminate the two disparities listed 31/
above. The unions argued for a straight combining of the two 
existing lists, carrying over onto the merged roster only the 
previously-established dates on the separate conductors' rosters.

— / Plaintiffs' proposal also contemplated giving an adjusted 
conductor's seniority date, based on terminal seniority date, to 
any Barney Yard employee not previously offered an opportunity to 
qualify as a conductor who did so successfully under other remedial 
provisions of the dovetailing plan, e.g., paragraph 2 (c)(v) (App.

-23-



The Company maintained a neutral position on the two proposals,
but eliminated any business necessity objection to either one
(App. 246 ). It stated to the court, by counsel,

If you dovetail on conductor seniority it is 
generally going to have the effect of younger 
CT men being above older Barney Yard men who 
are both conductors. If you dovetail by date 
of hire it will be a more even mix. But either 
way you do it is workable and acceptable to 
the company. (Id.) *

Plaintiffs introduced detailed evidence showing the difference 
in results between their proposal and the unions' (Pi.Ex. R-16,
App. 407- 410, explanation at App. 155- 159). As fairly representa­
tive examples of these results, we spell out what that evidence 
shows with respect to three Barney Yard men who testified. Plain­
tiff Robert Rock, hire date 9-4-47, would under the unions' pro­
posed dovetailing lose out in bidding competition to H. A. Green 
(white), hire date 10-29-55, and 55 other CT Yard men junior to 
Rock in terminal seniority but senior in conductor's seniority 
(App. 407- 410). Plaintiff Russell Walker, hire date 8-10-55, 
would under the unions' proposal lose competitions against F. E. 
Henderson (white), hire date 7-6-57, and 37 other CT men junior 
to him (id.). Witness Larry Walker (black), hire date 1-25-57 
(and never offered a chance to promote, App. 148), would not have 
any bidding rights as conductor, although 68 CT men hired after 
him would (App. 407- 410). These anomalies in moving from brake- 
man's to conductor's seniority in the context of a comparison of 
the two yards reflect, of course, the factors discussed in part 
A (3), supra, and at p. 21 above.

-24-



The district court, branding plaintiffs' proposal a plan
for "super-seniority" (App. 20, 22), ordered the conductors'
rosters merged on the basis of existing conductor seniority dates,
in accordance with UTU's wishes (App. 23).
D . Nickel Plate Merger Payments

In 1964 the N&W absorbed the Nickel Plate Railroad and its
employees through a merger (App. 223, 228, -233). As part of*
the merger agreement, N&W and UTU agreed on certain protective 
provisions for N&W employees affected by the merger, and the Inter­
state Commerce Commission adopted those provisions in approving the 
merger (App. 223, 228). These provisions amount to a wage 
guarantee agreement (App. 223).

Every yardman employed by N&W as of October, 1964 receives
a specified level of protection under this agreement (App. 233 ,

32/
304 ). The wage level guaranteed to each yardman reflects his 
average monthly earnings in the one year period immediately prior 
to the Nickel Plate merger (App. 224 ). The more a yardman worked 
—  and earned —  during that period, the higher will be his present 
monthly wage guarantee.

N&W's officials explained how wage claims under the protective 
plan operate. The yardman submits a claim form showing his pro­
tected wage level ("test period" wage) and his actual earnings for 
the month pertinent to the claim, and asserting his availability 
for more work had it been available and the amount consequently 
due him (difference between guaranteed wage and actual earnings)

-li/ Employees hired after October 16, 1964, the effective date of 
the merger, receive no wage protection under the plan (App. 233 ).

-25-



(App. 240 ). If the employee failed to accept or "protect" work 
that he otherwise would have received, the amounts he thereby 
failed to earn are deducted from the amount due, under the theory 
that he failed to mitigate losses (App. 114-115, 229-231, 240). 
Other than these elements of his claim, the claimant need submit 
no further evidence and the Railway may not interpose other issues 
(App. 240) . *

N&W regularly expends very considerable sums pursuant to the 
Nickel Plate merger agreement. It had made some payments every 
month for at least four years preceding the remand trial (App. 236) 
In 1972, about $3,000,000 was paid out over the entire N&W system 
(App. 224 ). At Norfolk Terminal alone, N&W paid $242,593 to 
yardmen in the period January 1, 1971 through August, 1973 for an 
average of roughly $7,500 per month (App. 411, 224-225)

Because of defendants' racially discriminatory employment
practices before 1965 and their pronounced effect on the relative
earnings of CT and Barney Yard employees during the 1963-1964 test
period, CT Yard employees presently carry far higher monthly wage
guarantees than comparable Barney Yard workers. An analysis of a
list showing protected income levels for CT and Barney Yard men
as of May, 1973 (App. 412-441) shows that CT Yard men carried
substantially larger monthly guarantees than Barney Yard men hired

33/
in the same year.

Several typical examples may be shown in tabular form
Year of Hire #CT Avg. CT #BY Avg. BY

1946 3 $1254 1 $10051947 2 $1092 3 $9921951 7 $1180 5 $8761955 12 $1031 10 $8681956 8 $989 12 $7781961 8 $911 9 $653
-26- (cont1 d)



The example of the individual employees who testified is also 
instructive. Eddie Wilson (white), who during the test period was 
a brand new brakeman in the CT Yard (seniority date 3-1-63, App. 
137 ), worked five days a week and achieved a protected rate now
fixed at $912 per month despite being near the bottom of his 
seniority list (App. 114 ). Wilson's protection level was by no 
means unusual for the CT Yard; on the contrary he testified that 
most CT Yard men carry an even higher guarantee (App. 143 ). Yet 
Wilson's rate is higher than that of witnesses Reid and Walker, 
both black Barney Yard men 7-8 years senior to Wilson (App. 148 , 
163), whose guarantees amount to $897 and $859.68 per month, 
respectively (App. 150 , 171 ). Black Barney Yard man Thornton,
more nearly Wilson's contemporary (although also his senior by 
18 months) had a guarantee of $300 less — $615.98 (App. 181 ,
182) .

33/ cont'd
1962 11 $900 6 $6541963 23 $897 4 $660

(Source: Pi.Ex. 25, App. 412 -441 ).
It is noteworthy that these averages correspond closely to 

the individual figures presented in witness testimony, see infra.

-27-



ARGUMENT
I. the district court abused its discretion

BY DENYING BACK PAY TO THE PLAINTIFF CLASS 
FOR REASONS WHICH ARE UNFOUNDED IN THE RECORD AND INADEQUATE IN LAW.

A. Members of the plaintiffs' Class Suffered Severe Economic 
Injury Due to Defendants' Discriminatory Practices.

The record conclusively proves that there were consistent and
massive differences between the tojtal income of CT Yard employees
and that of similarly .situated Barney Yard employees. See pp. 14-21,
supra. Given the racial composition of the yards, these are also
white-black differences. For a typical or average Barney Yard man,
these differences amounted to a loss of just under $10,000.00 in
personal income between the effective date of Title VII and the

34/date of the remand trial.
Plaintiffs' evidence as to disparate incomes stands unrebutted. 

N&W did introduce (without explanation) two admittedly incomplete 
and unsystematic documents purporting to show a few isolated cases 
in which some Barney Yard employees earned more than one or a 
few CT Yard contemporaries (N&W Ex. 2, 3, App.442- 455, explained 
at App. 305-307). This disproves nothing in plaintiffs' showing,

34/ We apply here the average annual disparity of $1,185.00 per 
man per year (App. 402, p.20 supra) to the period of 8 1/4 years.

With more individualized calculations, plaintiffs could show 
that many men actually had a lesser disparity, many had a greater 
disparity, and a few may have had little or no difference. These 
questions of individual calculation are not before the court, the 
district judge having reserved them for later proceedings if the 
court had reached the issue (A.i. 83a, App. 318-319 )•

-28-



since they never contended that every single Barney Yard Man earned
„ j yless than every single CT Yard man.

Beyond these minor quibbles, N&W attacked plaintiffs' proof 
as failing to account for employee variables other than seniority—  
factors such as military leave, sickness, willingness to work over­
time, etc.— which also determine a railroad worker's income (App. 
196-197/ 211/ 296)- All this might,, theoretically, be of some value 
(although we can only guess to which side)— if there were any indi­
cation in the record that these other variables would in fact have 
made any difference in the pattern of income disparity. But there 
is no such indication, statistical or otherwise. N&W did not 
even try to elicit testimony that Barney Yard workers were sick more 
often, and therefore accumulated less gross earnings; or that they 
were more often on military leave, or less available to work over­
time, etc., than whites. In fact, the available evidence indicates 
that if some of these factors were included, the income disparities
would be even greater. See Pi. Ex. R-10 through R-13, comparative

36/income averages with partial earnings excluded (App. 393-401 ).

We invite the Court to compare plaintiffs' exhibits R-3 
through R-15 with N&W Ex. 2 and 3 for thoroughness, reliability, 
and fairness. we note also that a number of N&W "examples" involve 
the few higher paid white Barney Yard workers and lower paid black 
CT Yard employees (App. 297 -299). These anomalies were themselves 
the product of racial discrimination.
36/ The exclusion of partial earnings would act as a control for 
such factors as military leave or long-term disability or illness, 
which would reduce incomes to the point where they did not figure 
in the calculations on these exhibits.

-29-



N&W's theory is thus at best "pure speculation" in the true sense; 
a hypothesis without attempted factual verification. And as a 
matter of common sense it is extremely dubious that N&W's hypothesis 
could account for any significant part of a disparity of nearly 
$1200 per man per year.

We have exhaustively detailed the sources of this income dis­
parity, rooted in the division between two yards with vast dif-

*ferences in opportunity for work, advancement and income (see pp.
10 - 14, supra). This Court has already recognized that the 
placement of the black segment of the Norfolk Terminal workforce 
into the inferior side of this division was racially discriminatory 
(App. 9, 473 F.2d at 1348). The seniority system that kept them 
there was likewise discriminatory and therefore required effective 
remedial modification (App. 9-14, 473 F.2d at 1348-9). The
economic losses suffered by black Barney Yard employees are inci­
dents of defendants' practices of discrimination in the "terms 
and conditions" of employment in violation of Title VII, 42 U.S.C. 
Section 2000e-2 (a), (c) .

The court below did not explain the import of its conclusion 
that "this is not the case of disparate wage levels in various 
departments. . . [or] in which white jobs paid more than black 
jobs; or . . . where Negro jobs were lower paying and less desirable"
(App. 23) . If this is a finding that blacks suffered no financial
disadvantage as a result of their confinement to the Barney Yard,
then it is clearly erroneous and must be reversed. If, on the 
other hand, it stands for the obvious fact that hourly and daily 
wage rates are equal for both yards, then it simply fails to address 
the issue framed by this case. in either event this Court must

-30



conclude that income loss of a type compensable under Title 
VII did occur, and consider whether to make the plaintiff class 
whole by an award of back pay.

B. Controlling Principles of Law Require An Award Of 
Back Pay in Typical Discrimination Cases Like This 
One.

Section 706(g) of Title VII, 42 U.S.C. Section 2000e-5(g),
provides the district courts with the power to frame appropriate

*remedies for employment discrimination "with or without back 
pay." The district courts do not, however, have uncontrolled 
and unreviewable discretion in exercising this choice. On 
the contrary, that exercise of discretion must serve the re­
medial purposes of Title VII and conform to standards announced 
by the appellate courts including this Court. Moody v. Albemarle 
Paper Co., 474 F.2d 134, 141-142 (4th Cir. 1973); see also 
Pettway v. American Cast Iron Pipe Co. (ACIPCO), 494 F.2d 211, 
251-253 (5th Cir. 1974); and Head v. Timken Roller Bearing Co., 
486 F.2d 870, 876-877 (6th Cir. 1973). In this Circuit the 
governing standard is that implicit in Robinson v. Lorillard 
Corp. , 444 F. 2d 791 (4th Cir. 1971), cert, dismissed. 404 U.S.
1006 (1971), and announced in Moody v. Albemarle Paper Co.,
supra at 142:

Because of the compensatory nature of a back pay 
award and the strong congressional policy embo<died 
in Title VII, a district court must exercise its 
discretion as to back pay in the same manner it 
must exercise discretion as to attorney fees under 
Title II of the Civil Rights Act . . . Thus, a
plaintiff or a complaining class who is successful 
in obtaining an injunction under Title VII of the 
Act should ordinarily be awarded back pay unless 
special circumstances would render such an award 
unjust. [citations omitted.]

-31-



This same standard, has now been firmly adopted by the Fifth
Circuit, Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364,
1375 (5th Cir. 1974), Pettway v. ACIPCO, supra at 252-253;
Duhon v. Goodyear Tire & Rubber Co., 494 F.2d 817, 819 (5th 
Cir. 1974); Franks v. Bowman Transportation Co., 495 F.2d 398, 
421-422 (5th Cir. 1974); and by the Sixth Circuit, Head v.
Timken Roller Bearing Co., supra at 876; and implicitly adopted 
and explicitly applied by the Seventh Circuit Bowe v. Colgate 
Palmolive Co., 489 F.2d 896, 902-904 (7th Cir. 1973), following 
its prior decision in the same case, 416 F.2d 711 (7th Cir. 1969).

Each of these cases ordered an award of class wide back 
pay in circumstances similar to, and in many instances far less 
compelling than, those presented here. The Moody principle 
supported by all these authorities requires a back pay award 
in this case unless this Court finds "special circumstances 
that would render such an award unjust". we turn next 
to the reasons advanced, by the court below for denying back pay, 
in light of this test.

C. None of the Reasons Stated By The District Court
Justifies the Denial of Class Back Pay Under Proper 
Legal Standards.

The district court advanced four groups of reasons in its 
remand decision for reaffirming its earlier unexplained denial 
of back pay. None of these reasons stands up under established 
legal principles and a review of the factual record.

1. "Equal" pay rates and the separation of 
Norfolk Terminal into two yards.

The first set of reasons stated by the district court for 
its denial of back pay is that Barney Yard jobs paid the same as

-32-



corresponding CT Yard jobs, that disparities in promotion rates
were characteristic of conditions in the two yards not of
the workers themselves, and that Barney Yard men had not
applied for CT Yard work (App. 23-24). The latter two reasons
amount to reliance on the fact that Norfolk Terminal contains
two different yards. The court erred in denying back pay for
these reasons. *

As discussed above, the court's conclusion regarding
relative pay in the two yards was either clearly erroneous or
wholly unresponsive to the issue here (seepp. 15-21.30,supra).
A railroad worker buys his family a home with his income, not
his hourly wage rate. As a matter of common sense and as a
matter of law, a loss of total income is just as much a loss
whether it results from diminished hourly pay in a particular
job ^ or from diminished hours of work at a given pay rate
(as here)— or from denial of equal opportunity to promote or

39/transfer into higher paying jobs (also as here). The court's
distinction has no substance.

This would be the typical Equal Pay Act case under 29 U.S.C. 
Section 206 (d). See, for example, Corning Glass Works v. Brennan,
42 LW 4827 (1974). It is far less common in Title VII situations.

—  cf. the female protective lav/ cases such as Manning v. 
General Motors Corp., 466 F.2d 812 (6th Cir. 1972), and 
Schaeffer v. Yellow Cabs, Inc., 462 F.2d 1002 (9th Cir. 1972). 
Those cases, in contrast to this one, involved a mandatory state 
statute presumed valid until held contrary to federal law. This 
case involves voluntary acts of private discrimination. Cf. 
Johnson v. Goodyear Tire & Rubber Co., supra at 1377.

2^/ The latter is the most frequent Title VII back pay sit­
uation, as in Robinson and Moody, but in no logical way dis­
tinguishable from the others.

-33-



The self-evident truth that slower Barney Yard promotion 
rates resulted from employment needs there, as opposed to 
mistreatment of Barney Yard employees as individuals, is like­
wise a distinction without operative meaning for this case.
The plaintiffs base their case on the inequality of "terms and
conditions" of employment, including number and rate of pro-40/
motions, between the two yards. To concede the difference as 
such can only strengthen— not rebut— the claim for back pay.

Finally, the court opined that no Barney Yard men applied 
for CT Yard jobs. This too blinks at the nature of the case.
As this Court has noted, Barney Yard men had no seniority rights 
to exercise in applying or bidding for CT Yard jobs (App. 5,
473 F.2d at 1346). Therefore to "apply" for such a job would 
require the Barney Yard employee to forfeit his accumulated 
seniority, which in this industry is regarded (as the court 
below elsewhere noted) with "sanctity" (App. 25). Refusal to 
commit seniority suicide under an unlawful seniority system 
obviously cannot disqualify Barney Yard men from receiving 
back pay. Cf_. Jurinko v. Wiegand Co. , 477 F.2d 1038 (3rd Cir. 
1973), vac1d and rem1d for further consideration 42 LW 3246 
(1973) , original opinion reaf f' d, ___F.2d ____, 7 EPD 5[9215

—  In this respect the instant case exactly fits the pattern 
of Robinson and Moody. There too the discrimination was not^ 
in maintaining lower paying jobs with less opportunity for ad­
vancement, but in assigning only blacks to them and preventing 
their movement to better jobs.



(3rd Cir. 1974).
More generally, the court below seems to have justified 

its decision by the fact that Norfolk Terminal is and will 
for a time remain divided into two distinct yards or depart 
ments (App. 26, 28-30). This is yet another distinction with­
out a difference. separate, segregated departments formed the 
factual context in Robinson, Moody, Head, Johnson, Pettway 
and Franks. Plaintiffs in a Title VII case need not prove 
that there should be only one operational unit in order to 
recover back pay. Economic discrimination can also exist be­
tween separate racially identified departments, as it does here.

2. N&Ws alleged bona-fide offer of dovetailing.
The court below next recited a set of reasons related to 

a purported offer by N&W to the defendant unions to negotiate 
a merger of rosters in 1968 (App. 24 , A.Ill- 926a).
Our most basic response is that such an offer is irrelevant 
to the back pay issue. In addition, the court1s factual 
assertions in this regard are without foundation in the record.

The court placed heavy stress on N&W's bona fides in mak­
ing the offer to negotiate a merger (A.I. 44a, App. 24). It 
placed no emphasis on the fact that nothing came of the offer 
and the rosters were merged, (by topping and bottoming) only in 1972

41/

^  The classes in Robinson and Moody, were of course _ in the
same situation. Applications for ^hlte^ ° ^ S. ^ i^ a^ 1p3y their seniority were not made an element of their back p y
claims.

-35-



at court order. This confounds the concerns of Title VII:
. . . good intent or absence of discriminatory
intent does not redeem employment procedures or 
testing mechanisms that operate as “built-in 
headwinds" for minority groups and are unrelated 
to measuring job capability. . . .
Congress directed the thrust of the Act to the 
consequences of employment practices, not 
simply the motivation.

Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971). It follows
that good faith intentions to alleviate discrimination— as
distinct from actual results— provide no defense to a back
pay award. This Court long ago held that,

. . . back pay it not a penalty imposed as asanction for moral turpitude; it is compensation 
for the tangible economic loss resulting from 
an unlawful employment practice. Under Title VII 
the plaintiffs’1 class is entitled to compensation 
for that loss, however benevolent the motives for 
its imposition.

Robinson, supra at 804; quoted with approval in Moody, supi.a
at 141. The Fifth Circuit has at least three times in recent
months vigorously rejected similar defenses based on good.
faith but ineffective efforts to clean house; the sixth Circuit 

42/agrees.
Even apart from the legal insufficiency of the "offer" as 

a back pay defense, the facts in this case argue strongly

——/ see Johnson, sup_ra at 1376; Pettway, supra at. 253; and.
Baxter v. Savannah Sugar Refining Corp. , 495 F.2d 437, 443 
(5th Cir. 1974). ' In Baxter the Court held bluntly,

Even assuming that Savannah has taken actions in 
good faith to dissipate its previous discriminatory 
conduct, such actions are of little consequence 
where, as the instant case reveals, economic loss 
has occurred in the past and discrimination presently

-36-



against reliance on it to defeat the relief sought. As the 
court below found, the proposal died because the union 
defendants refused to consider it (App. 24; see Br. 26-27).
The plaintiffs are innocent and bear no part of the re­
sponsibility for the failure of this purported initiative 
by the Company.

The court however intimated, without so finding, that 
plaintiffs knew of the merger offer in 1968 (App. 24). The 
record refutes that guess. At trial, Robert Rock, the lead 
plaintiff and in 1968 the chairman of the black local (A. I 
100a), testified that he had never seen or heard of N&W's 
letter to UTU (BRT) offering a merger of rosters (id. 127a- 
129a). Maurice p. Haynes, in 1968 President and in 1971 acting 
Local Chairman of the black union (A.I. 221a) likewise had no 
knowledge of the offer (id. 247a). The International Vice 
President of UTU in charge of the "offer" confirmed that it

42/ (Cont'd)
continues which results in financial deprivation to 
a company's black employees. Whether ah employer 
is beneficent or malevolent in implementing its 
employment practices, the same prohibited result, 
adheres if they are discriminatory; economic loss 
for the class of discriminatees. In Title VII 
litigation, neither benign neglect nor activism will 
be judicially tolerated if the outcome of such prac­
tices is racially discriminatory and results in mone­
tary loss.

Id. In all three cases, the employer had actually implemented. 
changes beneficial to black employees-not, like N&W, just brief­
ly talked about them.

Accord; Head v. Timken Roller Bearing Co., supra at 877.

-37-



had not been communicated to the black union or its officers 
(A.II. 763a-764a). Nobody testified that it had. The record 
in fact contains nothing to support the district judge's 
intuition of awareness on the part of Barney Yard leaders, 
but on the contrary only unrebutted evidence to the contrary.

The trial court concluded its reasoning on the point by 
presuming (without any reference to or foundation in the facts 
of record) that plaintiffs had chosen to reject the dovetail­
ing offer in 1968 (when as shown above they knew nothing 
about it)(App. 24). This is of course pure speculation: no
party ever offered or even discussed a dovetailing merger with 
plaintiffs at any time. indeed, the same international Union 
Vice President., after denying that there had been any communi­
cation of the company's offer to the black local, testified,

It is entirely possible and may be probable that 
Brother Rock or Peanort or Haynes said, "let's 
talk about dovetailing." It may have been, but 
if they would I would have immediately discouraged 
it as being impossible. So accordingly I do not 
think that we gave it any consideration or even talked 
about it. (A.II. 764a).43/

Finally, other undisputed facts of record severely 
undercut the force of the finding that the 1968 offer was in 
good faith. N&W fully expected union opposition to scuttle 
its proposal when made (A.II. 607a). After its rejection by 
UTU, the company took no further action: it did not inform
the black local of its offer or the failure of negotiations 
and never again raised the issue with UTU (A.n. 630a-361a).
In 1969-1970 N&W and UTU engaged in 65 days of intensive col­
lective bargaining during which the merger of rosters was

Of course, under the Railway Labor Act, 45 U.S.C. Section 
151 et seq., a local union like the black local is powerless to

38-



never once mentioned by either party (A. II 700a 704a), 
and emerged with the same old seniority system (id. 765a,
A. Ill 793a-802a).

Even if this Court accepts the finding that N&W made 
the initial 1968 merger offer in good faith, the record shows 
that subsequently N&W rejoined the defendant unions in dis­
playing a callous disregard for the aspirations of Barney 
Yard employees to gain equal access to CT Yard jobs. Such 
is not the stuff of which back pay defenses are made, under 
any view of the law.

3. The disparate promotion rate and its causes.
Recognizing that promotion to the higher paying positions 

does come more slowly to Barney Yard brakemen, the court be­
low characterized that disparity in part as a matter of ob­
jective employment needs and. in larger part as a matter of 
purely personal choice by Barney Yard employees (App. 25) .
In neither case, the court implies, is the resultant economic 
loss the defendants' responsibility. As to the first expla- 
nation--objective conditions--we have already shown that this

43/ (Cont'd)
negotiate with a carrier on its own for seniority rights.
All such negotiations must be conducted by the international 
Union through its General Chairman (A. II 675a-676a, 682a- 684a). Therefore, the International's refusal to negotiate a 
dovetailing rendered plaintiffs legally incapable of the act 
of rejecting the offer, which the court below attributed to 
them.

-39-



disparity is part and parcel of plaintiffs' case, see pp. 33- 
3 4, supra. The second explanation demands more extensive
refutation. It is, in short, a speculative surmise by the 
district court without any basis in the record.

As the court noted, Barney Yard employees— and likewise 
CT Yard employees-do exercise their seniority, inter alia, 
to seek personally preferable working arrangements such as 
daytime shift, overtime, regular hours, weekends free, etc.
But there is no showing anywhere in the record that these 
choices have led any significant number of Barney Yard brakemen 
to decline promotion to higher jobs.

At trial 11 black Barney Yard employees testified. Not
a single one had declined an opportunity for promotion to
conductor or car retarder operator. All those hired before
March 18, 1956 had been offered a chance to qualify for pro-

44/
motion--and accepted (A. I 85a, 155a, 266a, 327a).
All those hired after that date never had the opportunity to 
accept or decline. The 1971 seniority list shows 56 Barney 
yard employees with hire dates on or before March 18, 1956 
(A. Ill 805a-806a). Of these, 44 had accepted and qualified 
for promotion to conductor, car retarder operator, or both 
(id. 808a-809a). Only 12 had not been promoted (id.) and the 
record does not reveal why. The remaining 84 Barney Yard 
brakemen hired after March 18, 1956 had never declined pro­
motion or indeed even had the opportunity to exercise any 
personal choice in the matter.
44/ Qne other pre—1956 hiree, David Williams, was in a unique 
situation not relevant here. See, e.g., Tr. 151-165.

-40-



The record does contain testimony regarding choices
made by certain employees based on personal preferences,
but it has nothing to do with their decision to accept or
decline advancement. Rather, it concerns their choice of
whether to maximize income by taking any assignment available
from the extra board brakeman list, and to be continually "on
call", or to take the regular schedule and more assured work

* 45/ 
routine of a regular assignment as a brakeman (A. I 203a—204a).

A correct understanding of the meaning of "promotion 
in the context of the yardman craft shows how baseless the 
district court's presumption is. When a man "promotes" 
to conductor from brakeman, he merely qualifies as a conductor 
and establishes a seniority date on the conductor's roster 
(A. Ill 798a-799a). lie continues to maintain his brakeman's 
gej-̂ fority, and need not necessarily work as a conductor (A. I 
28a-29a). In fact, he usually cannot work frequently as a 
conductor for some time after his promotion. At no time is 
the promoted man forced to take regular or frequent conductor 
work; if he prefers to work as a brakeman for whatever reason, 
he simply need not bid for conductor assignments. In that 
event he will be called for work only to "protect a particular 
conductor job, or cover a crew when no willing conductor is 
available for it. Since in the Barney Yard there are far more 
qualified and willing conductors than assignments, this rarely 
occurs. Consequently, a present preference for brakeman's

The facts as to such choices and their legal consequences, 
if any, would be for the reserved further proceedings at the
computational stage.

-41-



work under favorable conditions would not and does not deter a 
Barney Yard man from "promoting" to conductor and thereby begin­
ning to accrue seniority that would eventually put him in a 
position to gain a. favorable and regular conductor billet.

The court’s observation that "progression through the three 
grades seems, as often as not, a matter of personal whim and not 
opportunity" has no applicability here. No one showed that any 
Barney Yard man had expressed or acted upon such a "whim". As 
to those men hired before March 18, 1956, most proved to the con­
trary by taking the opportunity when ̂ they finally got it. As to 
later hirees, the question is purely a matter of opportunity, since 
they never had a chance (as their white contemporaries had) to 
exercise any personal choice in the matter.

The third reason assigned for denying back pay is an 
erroneous basis for disallowing even that part of the claim based 
on the limited promotional opportunities open to Barney Yard 
brakemen.

4. The purportedly minor "degree" of the discrimination.
Lastly the district court justified denying back pay because 

in several respects it found the discrimination practiced by 
defendants not sufficiently great in degree to warrant monetary
relief.

First it noted that this Court had not found or ordered that 
the two yards were in fact a single yard. We have previously noted 
that this distinction has no consequence, see pp. 34-35 , supra. 
Second, the court below has now termed N&W’s discriminatory hiring 
system "not so legally sinful as it was a source of abrasion which

42- . I



would be stopped" (App. 26 ). While we had read the court's
first opinion otherwise, e.g. finding unlawful conduct (A. I 
41a), in any event this Court did not merely agree that discrimina­
tory hiring constitutes an abrasion; it found a violation of 
•p-Ltpe VII (App. 9 , 473 F.2d at 1348). Moreover the initial
hiring discrimination forms only one part of the practices which 
violated plaintiffs' civil rights and deprived them of income.
The defendants' seniority rules which this Court ordered ef­
fectively modified were also responsible for economic loss.

Finally, the court below characterized defendants' practices 
as "a very bland discrimination" (App. 26)- If we correctly 
divine the court's meaning, we would strongly disagree. The 
point may be moot however, since

The degree of discrimination practiced by an employer 
is unimportant under Title VII. Discriminations 
come in all sizes and all such discriminations are 
prohibited by the Act.

Rowe v. General Motors Corp., 457 F.2d 348, 354 (5th Cir. 1972).
The Fifth Circuit has also recently said,

[E]mployment discrimination based on race, whether 
overt, covert, simple or complex, is illegal.Title VII is strong medicine and we refuse to vitiate 
its potency by glossing it with judicial limitations unwarranted by the strong remedial spirit of the act.

Johnson v. Goodyear Tire & Rubber Co., supra, at 1377.
The district court accuses plaintiffs of coupling, in

their back pay claim, "an inch of discrimination and a mile of
cure" (App. 26). The comment is inapposite. we are unsure how
many "inches" of discrimination the record reveals, but it does

46/show approximately $1,000,000 of resultant economic disparity.

46/ our estimate is based on Pi.Ex. R-14 (App. 402 ), showing an 
average annual disparity of $1185 per man for 8% years for an 
average of about 110 Barney Yard men.

-43-



Plaintiffs seek no punitive damages, nor any different or 
enormously greater quantum of relief, but only compensation for 
this loss to the extent it resulted from discrimination. As 
this Court has said:

"The clear purpose of Title VII is to bring an end to 
the proscribed discriminatory practices and to make 
whole, in pecuniary fashion, those who have suffered 
by it..." [quoting Rowe v. General Motors Corp., supra 
at 354]Also, as we stated in Robinson, "[t]he back pay 
award is not punitive in nature, but equitable— in­
tended to restore the recipients to their rightful 
economic status basent the effects of the unlawful 
discrimination."

Moody, supra at 142. Plaintiffs' claim for back pay fits pre­
cisely within this Court's prescription for an appropriate remedy 
to the ills of racial discrimination in employment.

D. Only Discrimination Can Explain the Economic Disparities 
Shown by This Record.

This is not a case, like so many others, where the causes 
of income differences between white and black employees are 
diverse and difficult to separate. Other Title VII cases some­
times present difficult issues involving such factors as un­
certainty about blacks' qualifications (relative to white and 
relative to the demands of white jobs), lack of available post- 
1965 vacancies, or black employees' desire to bid for or promote 
into better jobs. The instant appeal, on its facts, presents no 
such complexities.

This Court has already precluded any question as to qualifi-
47/cations as a defense to a class back pay award, when it cor­

rectly noted that:

—  Any particular individual's qualifications may still be an 
sue at the stage of determining individual entitlements, see part

-44-(E) , infra.



The difficulty with this finding [that CT Yard 
jobs are greatly different and more complex than 
Barney Yard jobs] is that it is contradicted both 
by the prior conduct of the railroad and by its 
admissions in the record that a "dove-tailing" of 
the seniority rosters in the two yards was prac­
tical . . . . [I]t is inconceivable that an ex­perienced Barney Yard brakeman would be unqualified 
to work as a brakeman in the CT Yard, particularly since one official of the railroad stated that the 
duties of a brakeman in the two yards were "basically 
similar".

(473 F.2d at 1349, App. 11-12).
The CT Yard jobs here in question involve no particular require­
ments except (at the promoted level) literacy and willingness to 
learn a set of procedures and a trade. Barney Yard jobs have 
exactly the same basic .requirements (id.). N&W disqualifies al­
most no one from these jobs for lack of ability.

The second factor, vacancies, also does not pose any prob­
lems in this case. The nature of work assignments, the ebb and 
flow of work volume, and. the collectively bargained operations 
of the Norfolk Terminal job assignment system assure a high 
number of vacancies at all times, particularly in the CT Yard 
• (App. 109,110,135 ). The representative or the CT Yard employees 
estimated at the remand trial that his colleagues had. experienced 
a 55%-60% turnover rate within a three-month period, indicating a 
total of about 150 job-slot vacancies for that short time (App. 
110, cf. Pi. Ex. R-2). Thus, in three months there were more 
CT Yard vacancies than Barney Yard employees. At the promoted 
levels, the record shows at least 35 conductor and 9 car retarder 
operator vacancies in the CT Yard between July 2, 1965 and the 
trial in April, 1971 (A. Ill 820a-823a). If Barney Yard employees 
had been enabled to move to CT Yard jobs with their seniority, 
there were abundant jobs for them.

-45-



Finally, we consider the question of bids, or requests for 
transfer or promotion. Two separate contexts require separate 
answers. The first concerns promotions within a particular yard, 
e.g. Barney Yard brakeman to Barney Yard conductor. Under the 
applicable union contract, an eligible brakeman need make no bid 
for such a promotion; if his seniority entitles him to the 
opportunity he will be automatically approached and requested to 
take the qualifying examination (A. Ill 798a). The second sit­
uation involves "transfers" between yards— here, different senior­
ity units. The union contracts provide no procedure for such 
requests, and CT Yard vacancies are not posted for bidding in 
the Barney Yard. A Barney Yard man could request "transfer" to 
the CT Yard only by applying for employment exactly like a new 
hire "off the street", and if employed would have to resign his 
Barney Yard seniority (A. I 29a). As the district court found, 
very few Barney Yard employees applied for CT Yard jobs under these 
discriminatory conditions. In the circumstances, that
fact is no more a bar to back pay here than it was in Moody, and 
Robinson.

All possible explanations for the income disparities between 
employees in the two Yards fail, save one. That one is the ob­
vious fact that economic opportunities are superior in the CT 
Yard. And because the geographical division of the yard traces 
an exact racial division attributable to defendant s discrimina­
tory practices, the disparity in pay signals a racially defined 
difference in economic opportunity at Norfolk Terminal. That 
difference, still unredressed, is what this case is all about.

-46-



E. Back Pay and the Nickel plate Merger Payments.
Defendants cannot be heard to complain that an award of 

back pay would be inequitable, incalculable, unmanageable, or 
unjust, on this record. Defendants have themselves established 
an exact precedent for class back pay on the same premises, m  
agreeing to guaranteed payments under the Nickel Plate merger
plan, see pp.25-27, supra. <

The theory behind the Nickel Plate merger guarantee of a 
minimum monthly wage exactly parallels the theory for back pay. 
The defendants agreed, in the merger agreement, to presume that 
all then-current Norfolk and western yardmen were adversely af­
fected by the merger bringing in other competition (App. 229,
239) . Therefore, the responsible Norfolk and western official 
testified, the individual claimant need not demonstrate that he 
personally suffered loss of income due to the merger as a pre­
requisite to collecting on his monthly guarantee (id.). In 
fact he need present no proof of an individual nature except for 
his monthly guarantee figure and his actual earnings (App. 239-
240) . The payments are not for work done, but for work oppor­
tunities lost. The same supervisor testified:

0. Do these payments represent money that was 
paid out for work not done because the employee 
could not get enough work to come up to his guaran 
teed income level?
A. That is correct.

(App. 238) This assumed situation is exactly the same as the 
actual predicament of Barney Yard men— "not enough work" (See p. 
11, supra).

The amounts willingly paid out by Norfolk and western under

-47-



the merger plan dwarf the plaintiffs' back pay claim in magni­
tude. Norfolk and western expended $3,000,000 in one year alone 
on these payments (App. 224)— far more than plaintiffs seek for 
the entire 1965-73 period.

Plaintiffs' case for back pay is far more logical and com­
pelling than the case for the merger payments. The merger 
assumes that affected employees suffered an adverse economic im­
pact. plaintiffs proved the income loss due to discrimination. 
Furthermore merger payments are not limited to actual losses, as 
are Title VII back pay awards, Moody v. Albemarle Paper Co., 
supra at 142, 148; rather, the merger payments may well in some 
cases amount to a free bonus. Finally, whatever income loss the 
merger caused, it resulted from legitimate business needs (in­
cluding the consolidation of the fragmented, inefficient, and un­
profitable railroad industry). But the loss inflicted on Barney 
Yard men is the bitter fruit of the tree of illegal race dis­
crimination.

This Court has already ordered the tree uprooted. Now it 
must grant plaintiffs the just deserts of their years of long 
toil.

F. This Court Should Establish Proper Guidelines for the
Computation of Back Pay Due the class Members on Remand.

The district court deferred questions going to the methods 
of computation or determination of individual entitlement to 
back pay, reserving them for a separate hearing if necessary

-48-



(APP. 319) If the court agrees with us that plaintiffs have
a right to class bach pay. then the court below must reach those 
further questions on remand. Because this case has already 
passed the five-year mart, because the Fifth Circuit has recently 
addressed these same questions with great care, detail, and 
realism, and because such instructions might well serve to guide 
the court below and other courts' in this circuit in a manner that 
will obviate further time-consuming proceedings here and else­
where, we suggest that this Court establish general standards 
to govern the further proceedings on remand. See, e.g., Johnson 
„ c.oodyear Tire & Rubber Co,.,, supra, at 1379-1380; pettvray,^ 
ACIPCO, supra, at 259-263; and Baxter v. Savannah Sugar Befrnrna 
Corp., supra, at 443-445.

II THE COURT BELOW ERRED IN MERGING THE CONDUCTORS SENIORITY ROSTERS 
IN A MANNER THAT UNNECESSARILY 
PROLONGS THE IMPACT OF PAST PRAC­
TICES OF DISCRIMINATION.

Barney Yard brakemen have enjoyed fewer and slower 
opportunities for promotion to conductor rank than their CT 
Yard counterparts. Because of defendants' unlawful discrimination 
all Barney Yard brakemen hired before September 18, 1963 presently
have less seniority as conductors than contemporaneously hired CT

^  This bifurcated approach to the back pay issue is in accord 
with that approved by this court it ’ 
S 7 9 T o ? nS t S ?  £ i yat 258^363 and B a ^ . T S S T a t  443.

-49-



Yard employees. Those Barney Yard brakemen (hired before
March 18, 1956) who have promoted to conductor carry a later
seniority date than similarly situated CT Yard men; those hired
after March 18, 1956, have never had the chance to qualify
and begin accumulating conductors' seniority, although all
CT employees in that category had received that opportunity
by 1970. see pp. 22-23,supra. ,

In the prior appeal of this case, this Court recognized
that these facts required a more effective remedy than the
"topping and bottoming" of conductors' rosters initially
ordered by the court below (App. 13) . It did not, however,
specifically address the detailed questions raised by this
aspect of the merger issue, holding only that

"With particular reference to the right of 
Barney Yard brakemen to qualify for promotion 
to conductors, any decree should, while protect­
ing Barney Yard, brakemen from prejudice in con­
nection with promotion to this higher classifi­
cation, not give such brakemen any higher or broad­
er rights than those enjoyed or granted to CT Yard 
brakemen, who had qualified for promotion to con­
ductors." (473 F.2d at 1349, App.13,14)

On remand plaintiffs sought a dovetailing by Terminal seniority
date (or date of hire as a brakeman) to implement this general
instruction (App.20 -22). Instead, the court below ordered
the rosters merged according to existing conductors' seniority
dates (App. 23, 3 3 ) .

The district court's decree placed on the merged roster 
all those Barney Yard employees who now have conductor seniority, 
but left them forever behind their CT Yard contemporaries (see 
pp. 24-25 , supra). To those Barney Yard employees not already

-50-



on the Barney Yard conductors' roster, the court below granted 
no seniority relief whatever (see p. 25 , supra). The district 
court's ruling erroneously denied plaintiffs the full and
effective relief to which Title VII, in light of defendants'

49/past practices, entitles them.
The facts of this case offer no justification for the 

merger method adopted by the court below. The later conductor 
seniority dates of" Barney Yard brakeman vis-a-vis their CT 
Yard contemporaries is rooted in past inequality of opportunity 
between the two yards. The relegation of blacks to the short 
end of this inequality was the product of racial discrimi­
nation. To root out the continuing effects of past discrimi­
nation as embodied in present conductor seniority dates requires 
merger under a different formula. Use of Terminal seniority 
provides the most straightforward and most effective alternative 
Under that system, competition among qualified brakemen would 
be governed by their total length of company service - not by 
their past rate of progress through an illegal system of 
dual promotion lines.

On this appeal, as in the brakemen roster merger issue on 
the prior appeal, there can be no question of any business

— Rock v. Norfolk & Western Rwy. Co., 473 F.2d at 1348, 
App. 12,13.

-51-



necessity for denying plaintiffs their complete seniority 
remedy. Cf. 473 F.2d at 1348, App. 12,13. N&W admitted in 
open court that plaintiffs' merger method was practicable 
and acceptable to the company (App. 246) . Even UTU did not 
contend otherwise below.

Clear authority in substantially similar railroad in­
dustry Title VII cases mandates the remedy plaintiffs seek.
In United States v. Chesapeake & Ohio Rwy. Co., supra, this 
Court more explicitly addressed itself to the precise issue 
presented here. On nearly identical facts showing past ex­
clusion of black Barney Yard employees from general [CT] yard 
conductor positions, see 471 F.2d at 586, the Court rejected 
the same district court's "topping and bottoming" remedy in 
the following terms:

"Since Barney Yard brakemen were ineligible 
for promotion to [general yard] conductor un­
til the court entered its decree, ranking them 
on the [merged] conductors' roster by the date 
of the examination simply perpetuates the racial 
discrimination that initially barred them from 
becoming conductors. Only when the Barney Yard 
brakemen can assert their company seniority for 
all purposes will present effects of past dis­
crimination be fully eradicated. . . .

"Accordingly, on remand the district court 
should modify its decree to provide that as be­
tween a Barney yard brakeman and a general yard 
brakeman competing for a conductor's job, com­pany seniority shall determine rank. . . . "
471~ F.2d at 589, 590.

Similarly, the Fifth Circuit in United States v. Jacksonville 
Terminal Co., 451 F.2d 418, 458-459 (5th Cir. 1971), cert. 
denied 406 U.S. 906 (1972), ordered the use of company or

-52-



Terminal seniority dates by black railroad workers seeking
50/entry to formerly white positions.

Barney Yard employees seeking to work as CT Yard conductors 
fall into exactly the same position as the employees whose 
full rights the c&O ruling assured. Present Barney Yard con­
ductors hold seniority as of the dates they passed the con­
ductor's examination; Barney Yprd brakemen who become con­
ductors in the future will also receive seniority dates in 
accordance with their passage of the examination (see p. 21 , 
supra). The decree appealed from does nothing to alter those 
dates, but on the contrary would engrave them for all time in 
the stone of a mandatory injunction (App. 22 ). This stone 
would drag down black workers throughout their careers. The 
law requires the substitution of non-discriminatory seniority 
dates.

The reasons recited by the court below for denying
plaintiffs their proposed dovetailing remedy do not withstand.
analysis. Its characterization of plaintiff's proposal as
a demand for "super-seniority" (App. 20 ) is rhetoric unsup-

51/ported by reasoning. in fact, plaintiffs seek no "higher

-—' in Jacksonville Terminal, the Court required recognition
of company seniority rights in the context of transfer between 
different crafts. 451 F.2d at 454. The same reasoning would 
apply here even if the district court's erroneous holding that 
Barney Yard and CT Yard jobs comprised two entirely crafts or 
trades (A. I 42a) had not been rejected by this Court in the 
prior appeal, 473 F.2d at 1349, App. 10-11. The close similarity of Barney Yard and CT Yard positions, id,, makes the Terminal 
seniority remedy all the more appropriate here.
51/
to "

The court discarded the notion as giving unfair advantage Barney Yard brakemen, just entering upon the conductors'
-53-



or broader rights than those enjoyed or granted to CT Yard
brakemen, who had qualified for promotion to conductors,
Rock v. Norfolk & Western Rwy. Co., 47 3 F.2d at 1349, App. 14 .
They seek use of a single, non—discriminatory standard -
Terminal seniority — for all qualified conductors regardless

52/of race or yard of initial assignment. The district court s
construction of this Court's holding in.C&O, cited above at

*
p. 52, as referring only to brakemen (App. 21) misconstrues 
the whole thrust and logic of the C&O decision.

The prediction of the court below that implementation of 
plaintiffs' proposal would displace incumbent CT Yard con­
ductors ignores specific provisions of plaintiffs' proposal to 
the contrary. See plaintiffs' Proposed Dovetailing, para­
graphs 2(c), (viii) , p. 10, specifically limiting the application 
of Terminal, seniority competition to future vacancies and 
proscribing displacement of incumbents (App. 40-41). Plaintiffs 
carefully drafted their proposal to conform to this Court's 
admonition against such a result in its prior decision, 473 
F.2d at 1349, App. 14. Finally, the district court's dismissal

51/ (Cont'd)
roster" (7\pp. 20). It did not even consider that many such 
brakemen had for long years been on a conductors' roster, but 
with a date inferior to that of their white counterparts.

_?/ plaintiffs' proposed dovetailing of conductors rosters
included provision for continued reliance on existing conductor 
seniority dates when competition was between only Barney Yard 
employees or only CT Yard men. It limited use of Terminal 
seniority to competition cutting across the division of the 
two yards. See paragraph 2(c), p. 6, of Plaintiffs Proposed 
Dovetailing, filed October 3, 1973.

54-



of the evidence of discrimination in promotional opportunities 
as "speculative statistics" (App. 25 ) is unrounded. That 
characterization of compelling evidence which is neither 
speculative nor exclusively statistical is erroneous for 
reasons previously discussed in considerable detail, see pp. 
40-42, supra.

The district court's merger of existing conductors' rosters 
represents a slight improvement over the "topping and bottoming" 
method it initially preferred. But it does not give the plain­
tiff class a full remedy, and it denies one part of that class 
(those hired in the 1956-1963 period) any relief. It is 
like "topping and bottoming" in that, without any justification 
of business necessity, it carries forward the effects of past 
illegality. It makes the court a party to a system of con­
tinuing discrimination, perhaps less severe than "topping and 
bottoming," but exactly the same in principle.

The decree entered below confounds the proper role of 
Title VII courts. The federal courts must assist m  eliminating 
ongoing discrimination, rather than assuring its unnecessary 
continuation in attenuated form. This Court should now correct 
the error below by ordering dovetailing of conductors' rosters 
on a Terminal seniority basis.

III. THE DISTRICT COURT ERRED IN REFUSING TO GRANT PLAINTIFFS 
AN UPWARD adjustment IN THE 
NICKEL PLATE MERGER'S MONTHLY 
WAGE GUARANTEES.

Every yardman in both Yards who was employed before 
October 1964 enjoys the protection of a guaranteed monthly

-55-



wage under the Nickel Plate merger agreement. If N&W cannot 
provide him with enough work to cover his guaranteed minimum, 
he may upon demand receive payments in lieu of work. N&W 
regularly expends very considerable sums for such payments.
See p. 2 6) , supra.

Because defendants discriminated against Barney Yard men
in ways which depressed their’incomes relative to CT Yard men
during the 1963—1964 "test period", as they also did in later
years, Barney Yard employees have a lesser degree of income
protection than their CT Yard counterparts. See pp. 26 -27 ,
supra. As a present, result, in any month when there is in- 
~  . 53/sufficient work for all Yardmen at Norfolk Terminal, Barney
Yard workers receive less compensation than similarly situated
CT Yard men. The injury caused by the Nickel plate merger
plan is thus a continuing injury. If work slows down next
month, Barney Yard employees will once again pay for the fact
that they were, ten years ago, the victims of then-accepted
racial discrimination.

These monthly payments are of course within the ambit of 
Title VII. That Act forbids discrimination by employers with 
respect to "compensation, terms, conditions, or privileges of 
employment," 42 U.S.C. §2000e-2 (a) (1). Similarly, the monthly 
payments are subject to Title VII1s proscription against union

— The evidence suggests that this occurs most of the time, 
at least as to some employees. See Pi.Ex. R-19, App. 411, 
and Pi.Ex. R-25, App. 412-441, App. 225, 226.

-56-



practices that "adversely affect [an individual's] status 
as an employee," 42 U.S.C. §703(c)(2). Leading Title VII 
cases have invariably recognized that fringe benefits and 
other incidents to basic wages must be within the Act's 
coverage if the provisions cited above are to have any broad 
meaning compatible with the broad meaning given to the rest 
of the Act. See, e.g., Rosen v. Public Service Gas & Electric 
Co., 477 F.2d SO, 95-96 (3rd Cir. 1973) (retirement benefits); 
Bowe v. Colgate Palmolive Co. , 489 F.2d 896, 903-904 (7th Cir. 
1973) (vacation, sick pay, and bonus); Peters v. Missouri- 
Pacific Railroad Co., 483 F.2d 490, 498-499 (5th Cir. 1973), 
cert, denied 414 U.S0 1002 (1973) (mandatory retirement age
and benefits); Hays v. Potlatch Forests, Inc,, 465 F.2d 1081, 
1084 (8th Cir. 1972) (overtime pay benefits).

The disparity between Barney Yard and CT Yard monthly 
guarantee levels presents a prototypical case of present ef­
fects of past discrimination. Innumerable cases, including 
Griggs v. Duke Power Co., 401 U.S. 424, 430 (1971), and this

54/Court's many earlier and later decisions to the same effect,

54/ E.g., United States v. Dillon Supply Co., 429 F.2d 800 
(4th Cir. 1970); Griggs v. Duke Power Co., 420 F.2d 1225 (4th 
Cir. 1970); Robinson v. Lorillard Corp., supra; United States v. Chesapeake & Ohio R. Co., supra; Moody v. Albemarle Paper Co., 
supra; and the prior .appeal in this case.

-57-



establish beyond any question that Title VII requires elimination 
of all such continuing effects of past discrimination. For these 
reasons, Title VII requires modification of the Nickel Plate merger
agreement between N&W and UTU insofar as it limits Barney Yard 
employees to lower monthly guarantees than their CT Yard counter­
parts of comparable seniority.

*

Plaintiffs submitted the issue to the court below on that 
basis. As relief, they sought an upward adjustment of the 
guaranteed amounts for Barney Yard men sufficient to equalize 
their protection with that of similarly situated CT Yard employees. 
The district court did not express its position on the substance 
of the issue. it refused to reach the question because of plain­
tiffs' alleged tardiness in raising the point (App. 19). Stating 
that the issue was first presented in final argument after the

move on to new material at this late date" (App. 19).
The court below misconstrued, the nature of the monthly 

guarantee issue and erred in failing to reach it.
This Court and other appellate tribunals have often required 

consideration of a tardily—filed claim in the closely related con­
text of class back pay. In Robinson v. Lorillard Corp,, supra, 
this Court allowed a back pay claim which counsel had previously 
disavowed to be revived after completion of trial but before entry

— / In fact, plaintiffs had extensively explored the Nickel
Plate merger issue at the remand trial held some four months 
earlier (App. 223-233, 235-244).

remand I t'We deem it inappropria te to

-58-



of decision, 444 F.2d at 803. The court relied heavily upon 
Rule 54(c), F.R.C.P., requiring that

"every final judgment shall grant the relief 
to which the party in whose favor it is 
rendered, is entitled, even if the party has 
not demanded such relief in his pleadings.
[emphasis supplied]

The Court then noted that Rule 54(c) leaves "no question that 
it is the court's duty to grant whatever relief is appropriate 
in the case on the basis of the facts proved, id. Similarly, 
the Fifth Circuit required consideration of back pay in United 
States v. Hayes International Corp., 456 F.2d 112, 121 (1972), 
even though the issue was not raised until after post—trial pro­
ceedings following an appeal and remand, 415 F.2d 1038 (5th Cir. 
1969) and even though no evidence on back pay was presented at 
the remand trial, see 3 EPD (N.D. Ala. 1970) at p. 6357.
See also Rosen v. Public Service Gas & Electric Co., 409 F.2d 
775, 780 n.20 (3rd Cir. 1969).

Defendants were in no way prejudiced by the timing under 
which the issue was raised. The source of the discrimination in 
monthly guarantee levels is precisely the same as that of the 
other economic disparities in the case: discriminatory initial
placement and subsequent seniority lock-in. Defendants have 
vigorously litigated these same factors for over five years. In 
Robinson, the Court noted that "because the obligation to provide 
back pay stems from the same source as the obligation to reform 
the seniority system, any general defenses relevant to the back 
pay award were equally relevant to the suit for injunctive relief,"

59-



444 F.2d at 803. Here, there can be even less question of sur­
prise. The guarantee payment adjustments are part and parcel 
of the back pay issue; they are merely an additional form of 
compensation which must be awarded along with back pay in order 
to make the plaintiff class whole. See pettway v. American Cast 
Iron Pipe Co., 494 F.2d 211, 263 (5th Cir.. 1974) . And back pay 
has been squarely in issue throughout this litigation. The 
district court's characterization of the issue as "new material" 
is misplaced here.

The ruling of the court below would poorly serve the interests 
of judicial economy. Given the continuing nature of the offense, 
plaintiffs' claim for monthly guarantee adjustments obviously 
presents a continuing cause of action which can be timely filed 
now or in the future. A separate, unnecessary, and largely 
duplicative litigation would ensue, placing a wholly unnecessary 
burden on all parties and on the court.

In an effort to avoid such inefficient piecemeal litigation, 
plaintiffs urge this Court to direct that the district court re­
solve the issue on remand in this proceeding by granting them 
the adjustments sought.

CONCLUSION

WHEREFORE, for the reasons set out above, this Court should 
hold that the District Court was in error in denying to the 
plaintiff class an award of back pay, full injunctive relief 
with respect to conductor's positions, and adjustment of their

-60-



monthly guarantees pursuant to the Nickel Plate Merger. This 
Court should reverse the decision below and remand for entry of 
full relief in each of these regards. In remanding for further 
proceedings to determine the amount and distribution of class back
pay, this Court should provide appropriate instructions to guide 
the District Court in its further proceedings.

Respectfully submitted,

WILLIAM T. MASON, V ' 1 /

jr".
147 Granby Street 
Norfolk, Virginia 23510

ROBERT BELTON951 S. Independence Blvd. 
Charlotte, North Carolina 28202

JACK GREENBERG 
MORRIS J. BALLER10 Columbus Circle

New York, New York 10019
Attorneys for Appellants

CERTIFICATE OF SERVICE
The undersigned, one of the attorneys for appellants, 

hereby certifies that on this 19th day of August, 1974, he 
served two copies of the foregoing Brief for Appellants and one 
copy of Appellants' Supplemental Appendix herein upon the 
following counsel for defendants by United States Mail, postage 
prepaid.
James T. Turner, Esq. Willard Moody, Esq.
Williams, Worrell, Kelly 200 Professional Building

& Worthington Portsmouth, Virginia 23704
1700 Virginia Nat'l Bank Bldg.
Norfolk, Virginia \ fy

Attorney fô r Appellants
-61-