Gamble v. Birmingham Southern Railroad Company Brief for Plaintiffs-Appellants

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

NO. 74-2105

JACK A. GAMBLE, et al.,
Appellants,

- vs -
BIRMINGHAM SOUTHERN RAILROAD COMPANY, 
gt al.,

/appellees.

On Appeal From The United States District Court 
For The Northern District of Alabama 

Southern Division

BRIEF FOR PLAINTIFFS-APPELLhNTS

DEMETRIUS C. NEWTONSuite 1722 - 2121 Buildin 
2121 Eighth Avenue North 
Birmingham, Alabama 35203

JACK GREENBERG 
BARRY L. GOLDSTEIN

10 Columbus Circle 
Suite 2030
New York, New York .100.19

Attorneys for Appellants



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

NO. 74-2105

JACK A. GAMBLE, et al.,
Appellants,

- vs -
BIRMINGHAM SOUTHERN RAILROAD COMPANY, 
et al. ,

Appellees.

On Appeal From The United States District Court 
For The Northern District of Alabama 

Southern Division

CERTIFICATE REQUIRED BY FIFTH CIRCUIT 
_______  LOCAL RULE 13(a)___________

The undersigned, counsel of record for plaintiffs— 
appellants Gamble, et al., certifies that the following listed 
parties have an interest in the outcome of this case. These 
representations are made in order that Judges of this Court 
may evaluate possible disqualification or recusal pursuant 
to Local Rule 13(a).

1. Jack Gamble, Ollie Debose, Humphrey Mike,
Suprgeon P. Smith, Pink Wilson, Cecil L.
Meredith, John Calhoun, W.N. Yow, Otis Thomas, 
Howard Jones, and Johnie Allen, plaintiffs;



The class of black employees of Birmingham 
Southern Railroad Company, whom plaintiffs represent;
Birmingham Southern Railroad Company, a wholly 
owned subsidiary of United States Steel 
Corporation, defendant;
United Transportation Union, defendant;
Local 1887, United Transportation Union, defendant.

Attorney for Plaintiffs-Appellants



TABLE OF CONTENTS

Note on Form of Citations ...........................
Table of Authorities ............................... iv
Statement of the Questions Presented For Review ....
STATEMENT OF THE CASE ..............................  1
STATEMENT OF FACTS .................................  5
Introduction

A. The Parties ...............................  6
B. The Pertinent Job Positions ...............  7
C. The Evolution of the Employment

Practices at B S R ................ . 8
1. The System in 1935 at the Advent of

Union Representation at B S R .....  8
2. Union Representation of Yardmen ..... 10
3. The Segregated Job Assignment and

Qualification Practices at BSRand the Application of Mediation
Agreement A-150 ..................  12

4. The Further Pre-1965 Efforts by the
Black Switchmen to Terminate the 
Discriminatory Practices at BSR ... 15
a. The Repeated but Futile

Efforts of Black Switchmen to 
Obtain Any Promotional
Opportunities ...............  16

b. The Discriminatory "Roll-Back"
of White Conductors and the
Exclusion of Blacks From
Engine Cabs ..........   20

Page

x



Page

t

5. The Renewed Efforts to End The Dis­
criminatory Practices At BSR Undertaken 
by Black Switchmen After the Passage 
of the Civil Rights Act of 1964 .....  22

D. The Assignment and Promotional Practices at 
BSR and Their Discriminatory Effect Since 
July 2, 1965 ............... .............. 23
1. Yardmen: Switchmen and Conductors .... 23
2. Selection of Supervisors .............  29

ARGUMENT
I. THE LOWER COURT ERRED IN HOLDING THAT THE"CRYSTAL CLEAR" DISCRIMINATORY PRACTICES OF 

THE DEFENDANTS HAD NO ADVERSE AND UNLAWFUL 
EFFECTS ON THE PROMOTIONAL OPPORTUNITIES 
OF BLACK SWITCHMEN AFTER JULY 2, 1965 
AND CONSEQUENTLY ERRED IN FAILING TO GRANT 
AFFIRMATIVE RELIEF ......................

A. Blacks Have Been Discriminatorily 
Denied Opportunity to Qualify and 
Promote to Conductor Positions; 
Accordingly the Court Should Order 
That Black Switchmen Employed Prior 
to July 2, 1965, Be Afforded As Soon 
As Practical An Opportunity to Qualify for and Promote to Conductor Positions

B. Black Yardmen are Entitled To Affirm­
ative Relief From BSR's Unlawful Exclusion of Blacks From Supervisory 
Positions ..........................

C. Awards of Back Pay, Attorneys' Fees 
and Costs Are Appropriate and Necessary 
Forms of Relief In Light of The Dis­
criminatory Practices of Defendants 
Which Have Resulted In The Black Yardmen 
Suffering Substantial Economic Loss

CONCLUSION ............................................
Appendix "A"
Appendix "B"

31

32

42

44
48

n



NOTE ON FORM OF CITATIONS

The following citations are frequently used in this
brief:

II a1' pages of the Appellants 1 - Appendix 
filed in this appeal, as numbered 
therein.

II ,R" - exhibit contained in the original 
record, as designated therein.

"PX II — exhibit introduced by the plaintiffs 
in the trial below, as designated 
therein.

"RX II - exhibit introduced by the defendant 
Birmingham Southern Railroad Company
in the trial below, as designated 
therein.

- iii -



TABLE OF AUTHORITIES
PaHg-

Cases
Alexander v. Gardner-Denver Company, 39 L.Ed.2d

147 (1974).........................................  15
Baxter v. Savannah Sugar Refining Corporation,

No. 73-1039 (5th Cir. June 6, 1974)................  43,44,47
Bing v. Roadway Express, Inc., 485 F.2d 441 (5th

Cir. 1973).........................................  35,37
Brown v. Gaston County Dyeing Machine Co., 457 F.2d 

1377 (4th Cir. 1972) cert, denied 93 S.Ct. 319 
(1973)............................................  43

Buckner v. Goodyear Tire & Rubber Company, 339
F.Supp. 1108 (N.D. Ala. 1972) aff'd per curiam
476 F. 2d 1287 (1973)..............................  44

Bush v. Lone Star Steel Company, 373 F.Supp. 526
(E.D. Tex. 1374)..................................  40

Carter v. Gallagher, 452 F.2d 315 (8th Cir.
1972)...................................... -...... 43

Clark v. American Marine Corp., 320 F.Supp. 709(E.D. La. 1970) aff'd 437 F.2d 959 (5th Cir. 1971) 47
Contractors' Association of Eastern Pennsylvania 

v. Secretary of Labor, 444 F.2d 159 (3rd Cir.
1971), cert. denied 404 U.S. 854 (1971)..........  4:4

Duhon v. Goodyear Tire & Rubber Company, No.
73-1296 (5th Cir. May 24, 1973)..................  47

Franks v. Bowman Transportation Company, No. 72-
3229 (5th Cir. June 3, 1974).....................  37,43,47

Griggs v. Duke Power Company, 420 F .2d 1225, aff'd
in pertinent part 401 U.S. 424 (1971)........... 38

Glover v. St. Louis San-Francisco Railway, 393 U.S.
324 (1969)......................................  15

Johnson v. Georgia Highway Express, 488 F.2d 714
(5th Cir. 1974).................................  4?

- iv -



Page
Johnson v. Goodyear Tire & Rubber Company, 491 F.2d

1364 (5th Cir. 1974).................................  37,47
Local 189 v. United States, 416 F.2d 980 (5th Cir.

(1969) 397 U.S. 919 (1970)...........................  35,37
Long v. Georgia Kraft Company, 450 F.2d 557 (5th

Cir. 1971).......................................  37
Morrow v. Crisler, 491 F.2d 1053 (5th Cir. 1974).....  43
NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974).........  43
Norman v. Missouri-Pacific Railroad Company,

F. 2d (8th Cir. June 4, 1974)7 EPD 59418.....  46
Peters v. Missouri-Pacific Railroad Company, 483

F. 2d 490 (5th Cir. 1973).........................  46
Pettway v. American Cast Iron Pipe Company, 494F.2d 211 (5th Cir. 1974)........................  32,33, 35, 37,39,43,46,47
Rock v. Norfolk and Western Railway Company, 473 

F .2d 1344 (4th Cir. 1973) cert, denied
37 L.Ed. 2d 161 (1973)..........................  36, 37

Rosen v. Public Service Electric & Gas Co., 477
F . 2 d 90, 95-96 (3rd Cir. 1973)..................  46

Rowe v. General Motors Corp., 457 F.2d 348
(5th Cir. 1972).................................  43

Southern Illinois Builders Association v. Ogilvie,
471 F. 2d 680 (7th Cir. 1972)....................  43

United States v. Bethlehem Steel Corp., 446 F.2d
652 (2nd Cir. 1971).............................  43

United States v. Chesapeake & Ohio Railroad Co.,
471 F.2d 582 (4th Cir. 1972) cert, denied 411
U.S. 939 (1973)...................................  32,36, 38

United States v. Georgia Power Company, 474 F.2d
906 (5th Cir. 1973)...............................  35,37,38

United States v. Georgia Power Company, 7 EPD 59167
(N.D. Ga . 1974)...................................  46



Page
United States v. Hayes International, 456 F.2d

112 (5th Cir. 1972)................................  37,38
United States v. Hinds County Bd. of Education,

417 F.2d 852 (5th Cir. 1969).....................  32
United States v. Jacksonville Terminal Company,

451 F.2d 418 (5th Cir. 1971), cert, denied,406 U.S. 906 (1972)..............................  5,11,12,33,36,37,39,41,43
United States v. Jacksonville Terminal Company,

6 EPD 58724 (M.D. Fla. 1973) (order issued onremand), 6 EPD 58829 (enforcement directed)......  41
United States v. St.Louis San-Francisco Railway 

Co., 464 F.2d 301, 307--08 (8th Cir. 1972)(en banc), cert. denied 409 U.S. 1107 (1973).....  36,37
United States v. United Carpenters' Local 169, 457

F.2d 210 (7th Cir. 1972).........................  43
United States v. United States Steel Corporation,

371 F.Supp. 1045 (N.D. Ala. 1973) order issued
5 EPD 58619 (May 2, 1973)................ ........ 39,40,43

United States v. Wood, Wire, & Metal Lathers Int'l 
Union, Local 46, 471 F.2d 408 (2nd Cir. 1973) 
cert, denied 37 L.Ed.2a 398 (1973)................  43

Vogler v. McCarty, 451 F.2d 1236 (5th Cir. 1971)......  38

Statutes and Other Authorities:
National Mediation Board Certification ("NMB"),

Birmingham So. R. R. Case No. R.3953 (Sept.
11, 1967)........................................  11,42

Railway Labor Act, 45 U.S.C. §§151 et seq............  17
Title VII, Civil Rights Act of 1964 (as amended 1972),

42 U.S.C. §§2000e et seq..........................  passim
28 U.S.C. §1291 ......................................  2

- vi -



STATEMENT OF QUESTIONS PRESENTED 
FOR REVIEW _________

1. Whether the district court's finding of no violation of
Title VII based solely on the conclusion that there were no
"vacancies" in the conductor position since July 2, 1965, which
were not filled by Blacks, is erroneous in light of the "crystal
clear" history of racial job segregation in the yard, that vacancies
for conductors were regularly posted pursuant to the collective
bargaining agreement and were routinely filled by white yardmenand
junior to black yardmen,/that over twenty conductor vacancies were 
created since 1965 by the death, promotion or retirement of white 
conductors?

2. Whether the lower court erred in not finding that Blacks 
had been discriminatorily excluded from supervisor positions in 
light of the uncontroverted facts that no Black was ever selected 
as a supervisor at BSR, that BSR once had an explicit policy 
against selecting a Black as a supervisor, and that BSR presently 
vests a white Trainmaster with unfettered discretion to select 
supervisors?

3. If the answer to question one and/or two is affirmative, 
whether appropriate affirmative relief should properly include the
(1) affording of black yardmen hired prior to the most junior 
"qualified" white conductor the opportunity to "qualify" as con­
ductor and to use their yard seniority to bid on or otherwise 
promote to conductor jobs, (2) granting affirmative relief for 
promotion of Blacks to supervisor positions, and (3) awarding 
reasonable attorneys' fees and costs?

- Vll



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

NO. 74-2105

JACK A. GAMBLE, et al.,
Appellants,

- vs -
BIRMINGHAM SOUTHERN RAILROAD COMPANY, 
et al.,

Appellees.

On Appeal From Tlie United States District Court For The Northern District of 7\labama 
Southern Division

BRIEF FOR PLAINTIFFS-APPELLANTS

STATEMENT OF THE CASE

This appeal is the culmination of efforts over a twenty- 
year period by black yardmen at Birmingham Southern Railroad^ 
'(hereinafter "BSR") to achieve equal employment opportunity.

i_ythe
The procedures undertaken by black yardmen prior to 

institution of this suit are discussed infra., pp. 12-22.



This case of racial discrimination comes here from a
final judgment of the United States District Court for the 
Northern District of Alabama, entered on March 15, 1974. The 
appeal involves important questions with respect to the lawful­
ness of job assignment and seniority practices, and the nature 
of appropriate relief from the effects of these practices, under 
Title VII of the Civil Rights Act of 1954 (as amended 1972),
42 U.S.C. §§2000e ejt seq. This Court has jurisdiction of the 
appeal under 28 U.S.C. §1291.

On August 25, 1966, plaintiff Gamble and over twenty
other black switchmen filed charges with the Equal Employment

2/Opportunity Commission. [PX20, 854a; Tr. 380a-82a, 455a] The 
charging parties complained that BSR had denied black switchmen 
promotional opportunities and that BSR had rejected previous 
attempts by the black switchmen to terminate unfair practices.
On May 18, 1967, eleven black switchmen, including all the named 
plaintiffs, filed amended charges with the EEOC alleging dis­
crimination in employment practices by BSR, Local 1110, Brother­
hood of Railroad Trainmen (hereinafter "Local 1110"), and the 
Brotherhood of Railroad Trainmen (hereinafter"BRT"). [PX21, 855a;
Tr. 384;-86a] The charges also alleged that Blacks had been 
systematically excluded from membership in Local 1110.

2/ Citations in this form are to Plaintiffs' Appendix
filed with this brief.
3/ The Brotherhood of Railroad Trainmen joined with several
other unions in 1969 to form the United Transportation Union.
See infra, p. 11.



[Id.1 The EEOC issued a decision on January 2, 1968 finding 
reasonable cause to believe that BSR violated Title VII by 
denying promotional opportunity to Negro Switchmen" and that 
Local 1110, Brotherhood of Railroad Trainmen had violated Title 
VII "by limiting its membership to white Switchmen, thus limiting 
the employment opportunities of Negro Switchmen". [PX2.3,
864a-871a]

The plaintiffs received Notices of Right to Sue [PX22,R]
and timely filed a complaint on October 14, 1968 [5a-16a]. The
plaintiffs brought this cause as a class action on behalf of all
similarly situated Blacks pursuant to Rule 23(b)(2), Federal
Rules Civil Procedure. The plaintiffs alleged that BSR and Local

_5/1110 maintained unlawful employment practices of, inter alia, 
restricting black employees to the switchmen position, utilizing 
a discriminatory seniority sytem, denying Blacks membership in 
Local 1110, Brotherhood of Railroad Trainmen, excluding Blacks 
from managerial and skilled craft positions, and providing 
segregated facilities. [Ha]

On December 17, 1968 the Court denied the motions to 
dismiss of BSR, BRT and Local 1110, but ordered the plaintiffs

4/ citations in this form are to the Record.
5/ Local 1651, United Steelworkers of America, and the United
Steelworkers of America were also named as defendants. Their 
motion to dismiss, filed on November 6, 1968 [17a], was granted 
on December 17, 1968. [32a-33a]

3



to define the class with more particularity. [32a-33a] The
plaintiffs amended their Complaint on December 30, 1968, to
further define the class as

"Negro persons who are switchmen who are 
employed, or might be employed by Birmingham 
Southern Railroad Company at its railroad 
terminal and other facilities, located in 
and around Birmingham, Alabama who have been 
and continue to be or might be adversely 
affected by the practices complained of 
herein." [34a]

Both the BSR and the defendant Unions filed Answers on 
January 27, 1969 generally denying the allegations in the 
Complaint. [34a-54a] Additionally, the BSR filed a Counter­
claim requesting the Court to determine the appropriate seniority 
for working as switchmen and conductors. [47a-48a]

The United Transportation Union (hereinafter "UTU") and 
Local 1887, United Transportation Union (hereinafter "Local 1887" 
or "Local") answered the Counterclaim of BSR on February 7,
1972. [57a-58a]

Plaintiffs took substantial pre-trial discovery in the 
form of interrogatories, depositions, requests to admit facts 
and requests to produce documents.

The case came on for a three-day hearing from April 17 
through April 19, 1973. Following the filing of post-trial brief 
and proposed findings of fact and conclusions of law, the Court 
entered its Findings of Fact, Conclusions of Law, and Judgment 
on March 15, 1974. [59a-79a] Generally, the Court found no



violation of Title VII, dismissed the action and taxed costs 
against the plaintiffs. [Id.*]

On March 25, 1974 the plaintiffs timely filed their 
Notice of Appeal. [79a]

STATEMENT OF FACTS
Introduction

The essential factual situation of this appeal is simple: 
Blacks have been excluded from the conductor and supervisory jobs in 
the "switching" yard at BSR. Until September, 1972, when a few 
token exceptions were made, Blacks were "locked-into" the job 
of switchmen. Not surprisingly the switchmen position is the 
lowest paid and most menial job.

However, in order to clearly understand the post Title 
VII discriminatory practices of BSR and the BRT-UTU, it is 
necessary to trace the history of these practices.

Judge Dyer artfully phrased the need for a careful his­
torical analysis:

"Given the fact that black employees have 
been locked into certain job categories 
. . . the District Court must determine
who turned the key - and why. In this 
regard, the present employment situation 
in the railroad industry conjoined with 
the extent craft and class seniority system 
necessitates judicial cognizance of events 
which would be relagated to irrelevant 
antiquity in other more dynamic industries.

* * *

Deprived of an historical overview in these 
situation, Justice v/ould surely be blind."
United States v. Jacksonville Terminal Company,
451 F.2d 418, 440-41 (5th Cir. 1971), cert, 
denied 406 U.S. 906 (1972).

5



A. The Parties
The named plaintiffs, Jack Gamble, Ollie Debose,

Humphrey Mike, Spurgeon P. Smith, Pink Wilson, Cecil L. Meredith, 
John Calhoun, W.N. Yow, Otis Thomas, Howard Jones, and Johnie 
Allen are black citizens of the United States, residents of 
Birmingham, Alabama and employees of BSR. [Op. 59a] Messrs. Debose, 
Mike, Smith and Wilson were "qualified" by BSR to work as con­
ductors after August, 1972; the remaining plaintiffs are re­
stricted to switchmen positions, see infra, pp. 23-28. Each 
of the eleven named plaintiffs is a long-time employee of BSR; 
not one of the named plaintiffs has been employed for less than 
twenty years. [PX26, 881a]

The plaintiffs presently belong to Local 1887 of the UTU; 
prior to 1967 they belonged to the all-black, Local 1651 of the 
United Steelworkers of America. [Op. 60a] The eleven named 
plaintiffs brought this action as a class action on behalf of 
black switchmen employed or who might be employed by BSR.
[Amended Complaint, 34a]

Defendants Local 1887 and the UTU are labor organizations 
having more than 15 members; Local 1887, an affiliate of the UTU, 
represents the craft of yardmen, i.e., switchmen and conductors, 
at BSR for the purpose of dealing with BSR concerning rates of 
pay, rules, and terms and conditions of employment. [Op. 60a]

Defendant Company, Birmingham Southern Railroad Company 
is a wholly owned subsidiary of United States Steel Corporation,

6



located in Birmingham, Alabama. [Op. 60a] BSR, classified as 
a class 1 Railroad, operates as a switching and terminal carrier 
serving approximately 60 industries in the Birmingham, Ensley, 
Fairfield, Bessemer and Port Birmingham areas, rid.]

B . The Pertinent Job Positions
This action was brought by eleven black switchmen on their 

own behalf and on behalf of other black yardmen. The jobs of 
switchman and conductor comprise the "craft" of yardmen, and 
are the only hourly-wage jobs with which this litigation is 
concerned. Blacks have been restricted severely in their oppor­
tunity to move into the higher-paying job in the yard, conductor, 
and excluded from promotion to the supervisory positions in the 
yard.

Since 1935 the switchmen position has been the entry-
6/level job in the yard. In general, switchmen couple and un­

couple cars, adjust and line-up switches, "settle the brakes" on 
railroad cars, and "bleed" the air from the brakes. In addition, 
whenever the job requires, the switchmen classify and identify 
cars for movement. [Tr. 123a] In large part the conductor per­
forms the same duties as the switchmen. [323.] The conductor is 
also responsible for the paper work required by the switching

V  .crew and for undertaking to insure that the duties assigned the 
crew are carried out. [Tr. 123-24a; Op. 71a-72a]

6/ Prior to 1935 white yardmen were hired into the yard
as conductors, as a matter of course. See, infra. pp. 8-9.
7/ The "switching crew" typically is composed of two switchmen
and a conductor.



However, the paper work required of the conductor is 
minimal. No employee has ever been disqualified from the job of 
conductor because he could not do the paper work. [Tr. 629a] 
Moreover, white employees with only a fourth grade education 
are working as conductors. [Tr. 632a-33a; PX45-46, R]

The method of training and qualifying switchmen for 
conductor jobs and for selecting yardmen (switchmen or conductors) 
for supervisory positions is best described in the context of the 
historical development of the employment practices at BSR.

C. The Evolution of the Employment Practices at BSR
It is necessary to analyze three interrelated develop­

ments jointly: (1) the development of the promotional and job
placement system; (2) the discriminatory application of the 
system; and (3) the persistent attempts over more than two decades 
by the black switchmen to remedy the discriminatory application 
of the employment practices.

1. The System in 1935 at the Advent of Union 
Representation at BSR

Prior to 1935 there was no union representation of em­
ployees at BSR. During 1935 the BRT organized the white yardmen, 
i.e., the conductors, and became their recognized collective 
bargaining representative. [Op. 60a]

At this time all whites were initially hired as con­
ductors, and all Blacks were initially hired as switchmen.



[Op. 61a; Tr. 341a-342a] The white conductors did not have any 
seniority rights as switchmen and likewise the black switchmen 
had no seniority rights as conductors. One of the first acts 
of the BRT was to complain about this situation —  the BRT 
wanted the white conductors to have seniority rights as switchmen. 
[Op. 61a]

The dispute was submitted to the National Mediation 
Board; the BRT and BSR subsequently entered into Mediation

9/Agreement A-150. [Op. 71a, 71a; RXl-2, 906a-07a] The Agreement 
provided as follows:

(a) the conductors would be accorded seniority 
as switchmen as of the date they were 
employed as conductors;

(b) No switchmen hired prior to 1930 (no 
switchmen were hired between 1930 and 1936) 
would be "displaced" by a conductor; and

(c) "Conductors will not be hired except by 
promoting in order of seniority when 
qualified from the Switchmen's list 
provided by this Article." (emphasis 
added)[RXl, 906a; PX8, 773a-774a; See 
Op. 61a]

8/

8/ The Court found that both conductors and switchmen
were hired directly into these positions but neglected to mention 
that the position to which employees were assigned depended on 
their skin color. Compare Op. 61a, with Tr. 341a-342a.
9/ Mediation Agreement A-150 is included in the Collective
Bargaining Agreement between BSR and BRT. [PX8, 773a-74a] As 
a result of the segregated unions at BSR there are two collective 
bargaining agreements covering yardmen. BSR's Agreement with 
BRT-UTU [PX8, 773a-779a[ and with the Steelworkers (PX9, 780a-812a)' 
Pertinent sections of these Contracts have been included in the 
Appendix as indicated above.
10/ The phrase "in order of seniority" is emphasized because 

of its importance and because the lower court in summarizing

9



In effect, Agreement A-150 placed all white yardmen, 
who had previously been only conductors,on the switchmen seniority 
list in order of their yard seniority, i.e., time worked in the

U Syard as conductors or switchmen. Of course, Mediation Agree­
ment A-150, which greatly expanded the job opportunities for 
white conductors and conversely limited the job security of black
switchmen was the result of egotiations attended by two parties,

12/
BRT and BSR, neither of which represented the black switchmen.

2. Union Representation of Yardmen
As stated above the white yardmen, all of whom were con­

ductors, were organized by the BRT in 1935. The black yardmen, 
all of whom were switchmen, were organized in 1937 by the United 
Association of Iron, Steel and Mill Workers. [Op. 60a-6la] In

Cont1d10/ Agreement A-150 ignored this language. It is important to note 
this Section of the Agreement because BSR specifically violated it 
by qualifying and promoting white switchmen as conductors who were 
junior to black switchmen. See infra, pp. 2.3-28.
11/ The job bidding or placement system at BSR permits an
employee to bid for a job only after the employee has been placed 
on the seniority list covering that job. Accordingly, once a 
switchman was "qualified" by BSR for a conductor job, he would 
be placed on the conductor seniority list; it was only after being so placed that a worker was allowed to use his yard seniority 
to bid for a conductor job. See infra, p. 23.
12/ It should be noted that the seniority arrangement provided
by Mediation Agreement A-150 which permitted white yardmen to bid 
for conductor or switchmen jobs on the basis of yard seniority 
is precisely the form of seniority relief requested by black 
switchmen in this litigation; that is, all Blacks should be afforded 
their yard seniority to promote or bid on conductor jobs, if 
they have the requisite ability and fitness.

10



1951 the United Steelworkers of America was recognized as
tie collective bargaining representative of the switchmen.
[Tr. 104a, 451a]

On September 11, 1967, the BRT as a result of an election
held under the auspices of the National Mediation Board, became13a/
the authorized representative for conductors and switchmen.
[Op. 61a, 67a] As required by the applicable labor law, the 
black employees who.had previously been represented by the Steel­
workers were able to join the BRT after the election. [Tr. 104a — 
423a] On January 1, 1969, the BRT affiliated with several^other 
labor unions and formed the United Transportation Union. [Tr.
235a] Local 1887, UTU was the successor in interest of Local 
1110, BRT in every respect. [Tr. 235a-238a]

Prior to the 1967 National Mediation Board election,
Local 1110, BRT, was all-white and Local 1651, Steelworkers, was 
all-black. [Tr. 343a-44a, 346a, 367a] A representative of the 
BRT would approach newly-hired white yardmen while they were work­
ing as switchmen and ask them to join the union. [Tr. 146a —147a]

13/

13/ TLe Court erroneously found that the Steelworkers became
the collective bargaining representative of the switchmen in 
1959. See Op. 6la.
13a/ See NMB Cert., Birmingham So. R.R. Case No. R-3953 
(Sept. 11, 1967); this National Mediation Board Certification 
has been attached hereto as "Appendix A 1.
W
supra,

See United States v. Jacksonville Terminal Company, 
at 422, fn.2.

11



No Black yardmen was ever asked to join the BRT prior to 1967.
[See Tr. 343a--344a] The BRT until 1960 restricted its member-15/
ship to "white males" by an explicit constitutional provision.
[Op. 67a]

3. The Segregated Job Assignment and Qualification 
Practices at BSR and the Application of 
Mediation Agreement A-150

After the 1936 Mediation Agreement, BSR could no longer 
assign whites directly into conductor jobs; rather BSR was re­
quired to assign all new employees as switchmen. However, the 
Company would regularly "qualify" whites as conductors shortly 
after their hire; no Black was qualified as a conductor until 
September, 1972. See infra, pp.23-28. Consequently, white yard­
men not only have the advantage of working in the better-paying 
conductor jobs, but they also have the advantage of having job 
security in two jobs rather than one. This latter advantage was 
made apparent by the decisions in two arbitration awards.

In 1949 the BRT took to arbitration a grievance filed by 
Mr. Frazier, a white, "qualified" conductor. The grievance con­
cerned Mr. Frazier's right to successfully bid for a switchman 
position on the basis of his yard service over Mr. Fluker, a black 
switchman, who had been hired prior to 1930. [RX3, 908a-12a;

15/ See United States v. Jacksonville Terminal Company,
supra, at 436.

12



Tr. 455a-57a] Mr. Frazier, who had been hired initially as a 
conductor, had been "granted" switchman's seniority as a result 
of the 1936 Mediation Agreement.

The Railroad Adjustment Board held, in effect, that the 
white conductors could use their yard seniority to bid on any 
switchman job. [Id.-] Although their seniority rights were seriously 
affected by this arbitration, the black switchmen were not re­
presented by any labor organization before the National Railroad

15a/
Adjustment Board. [Tr. 536a-37a]

The second pertinent arbitration award developed from the 
numerous attempts by the black switchmen to terminate the unequal 
distribution of jobs in the yard. In addition to trying to ex­
pand their job opportunities by seeking qualification as con- 

16/ductors, Blacks attempted to at least protect their job security 
as switchmen.

Mr. Spratt, who was then president of Local 1651, Steel­
workers, filed three grievances in 1952 concerning related series

15a/ One result of the Mediation Agreement A-150, the segre­
gated job pattern, and the "Frazier Award" was the egregiously 
discriminatory "roll-back" practice: White yardmen were allowed
to exercise their yard seniority to bump-back to switchmen 
positions, roll Blacks from desirable jobs or "out-the-gate" while 
white yardmen junior to the "rolled" Blacks worked as conductors. 
As a result of BSR's exclusion of Blacks from the "qualified" con­
ductor list. Blacks could not out-bid these junior whites for con­
ductor jobs. [Op. 62a, 76a] See pp.20-21, infra.
16/ The measures undertaken by black switchmen to increase
their job opportunities is discussed in Section C,4, infra.

13



of events. Two grievances concerned the selection of a white
qualified conductor, who had been "granted" switchmen seniority
by the 1936 Mediation Agreement, to work a switchman's vacancy
created by an emergency ahead of Mr. Spratt. [PX24, 872a—880a]
In the third grievance, which was consolidated with the others,
Mr. Spratt grieved that a white qualified conductor, who was his
junior in terms of yard service, was selected ahead of Mr. Spratt
to fill an emergency conductor position. [ Id. ]

The provision in the Steelworkers' contract which was
applicable to these grievances read in pertinent part,

". . . regular employees will not be per­
mitted to work more than five (5) straight 
time eight hour shifts in yard service . . .
unless the Extra Boardi^/has been exhausted 
and the exigencies of the service require 
the use of additional men, in which event, 
senior available employees in. the class ̂ in which the vacancy occurs shall be used in 
accordance with applicable rules or practices 
in effect." (emphasis and footnote added)
[PX9, Art. 3, 792a; See similar language in 
the BRT-UTU Agreement, PX8, Art. 11,
Section 11-D, 790; Tr. 351a-52a]

17/

17/ Mr. Spratt was chairman of the local black union from
1941 until the middle 1950s. [Tr. 345a] Mr. Gamble succeeded 
Mr. Spratt as chairman of the local black union and he continued 
in that position until Local 1651 was dissolved as a result of 
the representational election in 1967. [Tr. 345a, 366a] Both 
Mr. Spratt and Mr. Gamble continually worked through all avail­
able lawful means to try to eliminate or at least reduce the dis­
criminatory practices at BSR.
18/ See infra, pp.28-29, for a description of the working
of the Extra Board.

14



for
Mr. Spratt's argument was straightforward: if BSR 

insisted on treating black switchmen as a separate "class" 
promotion, then the white workers in the conductor "class" should 
not be able to work as switchmen ahead of black workers who were 
restricted to the switchmen "class." [Tr. 351a-52a] These 
grievances, vdiich were filed in 1952, were processed through the 
grievance procedure and ultimately carried to the National Rail­
road Adjustment Board. [PX24, 872a-880a] In 1959, the Board 
decided the grievances adversely to Mr. Spratt: The Board held 
that the white yardmen who received the emergency assignments had 
seniority as both conductors and switchmen and thus could bid or 
otherwise be selected to fill vacancies as switchmen or conductors 
whereas, Mr, Spratt, since he only had seniority as a switchman,

19/could not fill a conductor's position.
4. The Further Pre-1965 Efforts by the Black 

Switchmen to Terminate the Discriminatory 
Practices at BSR

Three particular discriminatory practices at BSR caused 
substantial economic loss, humiliation and inconvenience to black 
yardmen. The Blacks' overriding concern was their absolute ex-

19/ Of course, Mr. Spratt's seniority was limited to the
switchmen job solely on account of his race. See infra, pp. 2 d—27 
The National Railroad Adjustment Board did not have the juris­
diction to decide the grievances in order to prevent racial 
discrimination. The Board simply interpreted the Contracts even 
though they were discriminatory. See Glover v. St.Louis-San 
Francisco Railway, 393 U.S. 324 (1969); Alexander v. Gardner-
Denver Company, 39 L.Ed.2d 147 (1974).

15



In addition there were two other egregious, although subsidiary, 
discriminatory policies: white conductors "rolled" Blacks from 
switchmen positions while whites who were junior to the black 
switchmen continued to work in the yard as conductors; and Blacks 
were refused admittance to the engine cabs under any circumstances.

By the end of 1965 the two subsidiary discriminatory 
practices were terminated but the crucial problem of denial of 
equal promotional opportunity exists to the present day.

a. The Repeated But Futile Efforts Of Black Switchmen to Obtain Any Promotional 
Opportunities

During the 1950s black switchmen, particularly Mr. Spratt 
and Mr. Gamble, requested BSR officials, including Mr. Cotton, 
President of BSR, and Mr. Wurtele, Vice-President of BSR, for an 
opportunity to promote. [Tr. 347a-49a, 372a; see 196a-97a] BSR 
officials refused to even consider Blacks for promotion. [Tr. 658a]

However, the black switchmen resorted to collective bar­
gaining and union procedures in their attempts to achieve equal 
opportunity. Mr. Spratt on several occasions turned in time sheets, 
thereby initiating the grievance procedure, claiming that he should 
be awarded back wages which he lost because white switchmen, who
were junior to him, were qualified as conductors while Spratt 
and other blacks remained switchmen. [Tr. 348a-49a]

20/ If the Company qualified Blacks as conductors then these
other two problems would have, as a matter of course, been 
resolved.

elusion from any jobs in the yard but the switchman position.
20/

16



In 1957 Mr. Justice Goldberg, then General Counsel for
the Steelworkers, wrote to Clifford Hood, President of the United
States Steel Corporation, on behalf of the black switchmen at
Birmingham Southern. Mr. Goldberg described the discriminatory-
promotional system at BSR as "patently unfair" and requested that
Mr. Hood take action to terminate BSR's discriminatory system.
[PX27, 882a-84a] At Mr. Hood's suggestion, Mr. Goldberg wrote to
Mr. Cotton attaching the letter which had previously been sent
to Mr. Hood. [PX27, 882a-84a; Tr. 188a, see 349a-50a]

Mr. Cotton met with Mr. Goldberg in March, 1957. [Op. 62a]
Mr. Cotton informed Mr. Goldberg that BSR "had reached an impasse"

21/with the BRT in trying to resolve problems of discrimination.
[Tr. 191a; PX28, 885a-86a]

Since Mr. Goldberg's efforts did not result in any change 
in the discriminatory system the black switchmen turned to the 
negotiation process. Mr. Farr, the District Director of the Steel­
workers, sent a letter dated September 29, 1959, to Mr. Cotton,

22/
pursuant to Section 6 of the Railway Labor Act. [PX29, 887b- 
887f; Tr. 200a] The Steelworkers requested that

21/ Of course, the only discriminatory practice which the BSR
considered resolving was the roll-back of white conductors, see infra, pp. 20-21. Also BSR had complete authority to qualify black 
switchmen as conductors without any approval by BRT. [Op. 67a-68a]
22/ 45 U.S.C. §§151 et seq. The Railway Labor Act requires
that a party to a contract must give notice by letter to the 
other contract party outlining proposed changes in the contract. [See Tr. 199a-200a]

17



"{a]11 switchmen be given equal oppor­
tunity to qualify for promotional rights 
in order to equalize the seniority stand­
ing between the employees [i.e., between 
black and white yardmen]". [PX29, 887d;
Tr. 200a]

BSR rejected the request of the black steelworkers for equality.
Once again, in March, 1962, Mr. Farr wrote Mr. Cotton 

requesting that BSR afford all switchmen the opportunity to qualify 
for conductor and, if qualified, to use their yard seniority to 
promote to and bid on conductor jobs. [PX30, 887a-88a; Tr. 207a-08a]

Mr. Cotton replied by letter dated March 27, 1962, as
follows,

"I am sure that you realize that certain 
parts of the proposed rule [concerning 
the qualifying of switchmen] you suggest 
involve the rights of another craft and 
would of necessity have to be negotiated 
with the Brotherhood of Railroad Trainmen.
A moratorium similar to that quoted in 
the Switchmen's Agreement, is also a part 
of the Brotherhood of Railroad Trainmen's 
Agreement and prohibits either from serv­
ing notices prior to November 1, 1962."
[PX31, 889a-90a; Tr. 207a-08a]

Mr. Cotton simply misinterpreted precise contract language
in his reply to Mr. Farr. Contrary to Mr. Cotton's representation
the Company did not need any additional agreement in order to

23/qualify the black switchmen as conductors.

2 3/ The lower court found,
"[t]he determination of the need to pro­
mote additional conductors and the decision 
of whether an employee is qualified to serve as 
a conductor are matters within the sole dis­
cretion of the BSR. Neither the BRT nor any other organization has any voice or part­
icipates to any degree in these decisions." 
[Op. 67a-68a; see infra, p. 24]

18



The only positive achievement that the black switchmen
obtained through their persistent efforts was a concession, and
it was merely a paper concession, that BSR would qualify black
switchmen as conductors. [PX9, Agreement of September 27, 1963,
Art. Ill, (A)(2), 811a; Op. 63a-64a] This paper concession was
not nearly adequate and was not the provision requested by the

24/
black switchmen; however, BSR told the representatives of the

25/
black switchmen that it was this provision or nothing. [Tr. 42 5a- 
26a] The Agreement provided that the "right of a switchman" 
to be promoted

"to the position of conductor in accordance 
with seniority, ability and fi.tness, when­
ever additional conductors are required by 
the carrier is recognized." (Emphasis added)
[PX9, 811a; Op. 64a]

Of course, the emphasized language was not in the BRT-BSR
contract which set forth the terms by which the white switchmen

26/were qualified as conductors. [Compare PX8, 773a-74a with 
PX9, 811a]

24/ Black switchmen requested the opportunity to work as con­ductors on the basis of their yard seniority —  the same opportunity 
which white yardmen had. BSR simply recognized that black switchmen 
could be qualified for conductor positions. Blacks had to wait nine 
years before a Black was qualified by BSR and then only a handful 
of Blacks were qualified —  most black yardmen are still denied 
equal opportunity to work as conductors in the yard.
25/ This agreement finally terminated the long-standing dis­
criminatory roll-back policy. See Section b, infra.
26/ Section III (A) (2) of the 1963 Agreement also provided that
nothing in the agreement "will be construed to grant any switchman 
promoted to conductor after September 27, 1963 promotional rights 
to or seniority rights as a conductor prior to September 27, 1963"

19



b. The Discriminatory "Roll-Back" of White
Conductors and the Exclusion of Blacks From Engine Cabs

BSR's granting white yardmen dual seniority as switchmen 
and conductors while limiting Blacks to the switchmen position 
created an "irritating practice" for Blacks apart from the straight 
forward denial of promotional opportunity. [Op. 76a] white con­
ductors bumped black switchmen into less desirable jobs or into 
layoff status while whites junior to the bumped Blacks continued 
to work as conductors. [Id.-]

Black switchmen repeatedly objected to this practice.
[PX27, 862a-64a; Tr. 355a-58a] The BSR attempted to solicit BRT's 
approval for eliminating this practice. On November 7, 1949, 
September 18, 1956, and December 3, 1962 BSR by letter to the BRT 
proposed contract provisions to alleviate this discriminatory 
practice. [Op. 62a-63a; RXll, 23-25, 934a-939a, 981a-85a; Tr. 
521a-22a, 643a-49a] Throughout these years the BRT adamantly re­
jected any contract provisions which would have removed the dis—

Cont'd
2_6/ [PX9, 811a; Op. 64a] However, this provision did not deny or 
take away any seniority rights of the black switchmen under any other agreement. [Tr. 178a]

When a few Blacks were finally qualified as conductors in 1972 ̂ the BSR and UTU entered into a letter of understanding which 
provided, inter alia, that any switchman qualified as a conductor 
would be allowed to utilize his yard seniority. [RX9, 933a; Op. 64a]

This letter resolved any possible ambiguity between Article X of the BRT-UTU Agreement [PX8, 773a-74a] and the 1963 
Agreement with the Steelworkers [PX9, 811a] . See Counterclaim of BSR [47a-48a] .

20



criminatory impact of the policies at BSR. [Tr. 647a-49a] Of
course, the BSR could have unilaterally terminated this practice
at any time by simply treating the black yardmen equally and
qualifying them as conductors. The problem was not resolved until
the September, 1963, Agreement between the Steelworkers and the 

28/
BSR.

27/

The second subsidiary discriminatory practice was des­
cribed by the lower court as follows:

"Equally galling [to the practice of white 
conductors rolling back to displace black 
switchmen] and indusputably discriminatory 
was the refusal by BSR to permit black switch­
men to ride or keep their lunches— -'in the cabs while permitting white switchmen to do so." 
(footnote added) [Op. 76a] 30/

After several protests over a six-year period this 
practice was finally stopped on September 1, 1965. [Op. 76a-77a]

27/ A 1959 contractual agreement between the BSR and BRT
partially alleviated this problem. This agreement prevented senior 
white conductors from exercising their switchmen seniority to bximp 
black switchmen if the conductors' exercise of switchmen seniority 
would result in the layoff of a switchman who had more yard senior­
ity than a white yardman who was working as a conductor. [Op. 63a;
PX8, 775a]
28/ This Agreement provided that switchmen who held seniority in
a higher position (i.e., as conductors) were required to exercise 
their conductor seniority before exercising their switchmen seniority. 
[Op. 64a, 76a; PX9, 811a] But, BSR required the black switchmen to 
make several concessions in order to end once and for all this 
unconscionable practice. See p.. . 19, supra.
2 9/ One black switchman testified that his lunch froze one day
because he could not put it in the engine cab. [Tr. 305a]
30/ In 1959 the Steelworkers, on behalf of the black switchmen,
protested this policy and requested a safe place for all switchmen, 
to ride. [PX29, 887c] On June 14, 1965 Mr. Gamble filed a 
grievance protesting this policy on behalf of Mr. Calhoun, a black 
switchmen. [PX34, 893a]

21



5. The Renewed Efforts To End The Discriminatory 
Practices at BSR Undertaken by Black Switchmen 
After The Passage of the Civil Rights Act of 1964

Although the black switchmen had been unsuccessful in 
their long campaign to achieve equal employment opportunity prior 
to 1965, they renewed their persistent efforts to achieve equal 
employment opportunity after the passage of the 1964 Civil Rights 
Act.

The three committeemen of Local 1651, in a letter dated
May 4, 1965, to Mr. Hughes, Vice-President of BSR, requested that
BSR end its discriminatory practices.

"We request and hope the above mentioned 
[the termination of discriminatory practices 
at BSR] can be accomplished by voluntary 
means and in full compliance with Title VII 
of the Civil Rights Act (passed 1964) cover­
ing discrimination and job opportunities, 
effective July 2, 1965." [PX33, 892a;Tr. 374a-75a]

Subsequently, black employees bid on vacancies posted for 
conductor positions. When BSR filled these vacancies with white 
employees with less yard service, Mr. Gamble, in his position as 
Chairman of Local 1651, filed grievances in June and July, 1965, 
on behalf of the black employees who had unsuccessfully bid.
[PX35, 894a; PX38, 901a; Tr. 376a-77a] BSR rejected the grievances 
filed by Mr. Gamble. [PX36, 899a; PX39, 902a]

Accordingly, Mr. Gamble, Mr. Mike, and Mr. Yow sent a 
letter dated August 5, 1965 to Mr. Brimm, Office for Contract 
Compliance, requesting his assistance. [PX40-41, 903a-04a] After 
discussions with Mr. Brimm, Messrs. Gamble, Mike and Yow, once 
again wrote to BSR on September 21, 1965:

22



"We respectfully request that the subject 
test [the qualifying test for the conductor's position] be given to all switchmen who desire 
upgrading to qualify for the position of Con­
ductor. Although this request has previously 
been made over the years by members of this 
group [black switchmen], we have been con­
sistently denied such right. This request for 
the opportunity to take said tests is being 
made on the advise [sic] of Mr. Hugh A. Brimm
• • •" — ;y[PX37, 900a]

Again the BSR refused to take any steps to terminate 
their discriminatory practices. Accordingly, the black switchmen
filed charges with the EEOC. See supra, pp. 2-3.

D. The Assignment and Promotional Practices At BSR
and Their Discriminatory Effect Since July 2, 1965
1. Yardmen: Switchmen and Conductors
The craft of yardmen is composed of two jobs at BSR:

32/
Switchmen and Conductors. The switchmen's position is the entry- 
level position and accordingly the hourly pay rate is considerably
less than the pay rate for conductors.

Basic Hourly Wage Rates of Conductor and Switchmen 
Employees of Birmingham Southern Railroad Company, 
July 2, 1965 Through April 1, 1972. [PX17, 841a-42a]

Effective Dates Conductors Switchmen
4/1/64 to 9/26/66
7/1/68 to 1/1/69
11/1/70 to 4/1/71
10/1/71 to 4/1/72

$ 3.1630 
3.8925 
4.6125 
5.0375

$ 2.9700 
3.6250 
4.3200 
4.7175

31/ This request remains part of the relief which the black
switchmen request that this Court order.
32/ See supra, pp. 7-8 for description of job duties.

23



All yardmen have been initially assigned as "student 
switchmen" since the 1936 Mediation Agreement. [Tr. 105a] The 
student switchman enters a "cubbing period" during which he is 
assigned to an experienced switchman who instructs him in the per­
formance and safety requirements of the jcb . [Tr. 124a, 238a-239a, 
280a, 368a]

Moreover, yardmen learn the required skills and knowledge
for performing the job of conductor while working as switchmen;
their switchmen job experience provides the necessary training
for handling conductor positions. [Tr. 125a-26a; 633a-34a]

Before a yardman may exercise his yard seniority to bid
for a vacancy in the job of conductor he must be "qualified" by
BSR. [PX8, 773a] A BSR supervisor notifies a switchman when the
Company decides to offer the employee an opportunity to "qualify"
as a conductor. [Tr. 240a-41a; 323a-24a] A yardman does not apply
or bid for the opportunity to qualify as a conductor.. [ Id. ]

The decision to qualify yardmen as conductors lies solely
within the discretion of BSR. [Op. 67a-68a] Similarly, BSR alone
is responsible for determining whether a yardmen is qualified as 

33/
a conductor.

33/ BSR administers a qualifying test for conductors which is
required by state law. [Op. 70a-71a] There is no evidence in the 
record that any individual has ever failed this test. The validity 
of this test is not an issue in this case. Black switchmen simply 
seek the opportunity to qualify as conductors on the same basis as 
their white contemporaries. See, e.g., PX37, 900a.

24



The Company maintained an avowed policy of not qualifying 
or promoting black switchmen. As Mr. Cotton, when asked why BSR 
skipped over black switchmen to qualify and promote junior whites, 
explicitly stated:

"In that time, throughout the country, and 
in this area, foreman [conductor] jobs were 
filled by whites. We had a railroad to run.
We have enough trouble without asking for 
additional trouble by trying to make social 
experiments." [Tr. 658a]

Accordingly, white yardmen were regularly qualified as con­
ductors shortly after being hired while black yardmen were re­
legated solely to switchmen positions. For example, the thirty-
three white yardmen who were working on July 1—3, 1^64, as 

34/conductors were, on the average, promoted to conductor positions
only 11.79 months after being hired. [PX7, 770a-772a] Mr. Gamble
had been working at BSR for 2_9 years at the time of trial and yet
he had not been "qualified1 as a conductor. [PX26, 881a] In fact,
at the time of trial there were thirty-three (3 3) black switchmen
who had at least 18 years of seniority whom BSR had not afforded3 5/
any opportunity to "qualify" as conductors. [PX12, 13, 15;
826a, 837a, 839a]

The discriminatory qualification and promotion policies
36/resulted in all but one white yardman, who was hired prior to

34/ There were other white yardmen who"qualified" as conductors
but who were not working as conductors on July 1-3, 1964.
[PX7, 770a-72a]
35/ After September 1, 1972 four black.switchmen were "qualified"
and promoted as conductors. Two other black yardmen were offered 
opportunities to oualify. See infra, p. 28 , and chart below at'p.26
36/ jyir, w.R. King was the exception. Mr. King was hired almost
18 months after the most junior black switchman, Mr. W.T. Hunter, on 
the seniority roster as of January 1, 1966. [PX13, 830a] Mr. Kingwas furloughed for most of the time between his hire in 1957 until he 
was terminated in 1970. [PX25, R]

25



1965 and who remained on the BSR seniority roster as of 1965, 
being qualified as a conductor,while not one comparable black

37/yardman was qualified until September, 1972. [Tr. 131a; PX7, 
12-13, 15, 770a-772a, 818a-825a, 829a-837a, 839a]

NUMBER OF YARDMEN BY RACE ON THE 
SWITCHMEN'S SENIORITY LIST AS OF THE 
FOLLOWING DATES [Exc^gding 1970 
through 1972 hirees]_______ _________

NUMBER OF YARDMEN 
QUALIFIED AS 
CONDUCTORS AS OF 
THE FOLLOWING DATE:

W B W B
January 1, 1965 71 53 70 0
January 1, 1966 69 50 68 0
January 1, 1967 67 49 66 0

39/ 39/
January 1, 1968 75 47 73 0
January 1, 1969 74 45 72 0
January 1, 1970 68 42 66 0
January 1, 1971 66 40 65 0
January 1, 1972 64 39 63 0
January 1, 1973 59 39 58 4

[PX13 , 15, 82 9a-837a, 839a] [PX12, 15, 818a-
82.5a, 839a]

37/ Until new yardmen were hired in 1971 and 1972, every black
yardman was senior to at. least six qualified white conductors. 
[Compare PX12 with PXl3; the race of the yardmen may be determined 
from PX15, 839a] Mr. Hunter, apart from those black yardmen hired 
in 1971 and 1972, is the most junior black switchman; Messrs. 
Talley, Harden, Walker, Wade, Vines, and Dodson are all white 
qualified conductors who have less yard seniority than Mr. Hunter. 
[PX12-13, 15, 816a-837a, 839a]
38/ Nine yardmen were hired by BSR between 1970 and 1972.
[PX13, 837a]
39/ The increase in the number of switchmen and conductors in
1968 was due to the incorporation of former Federal Barge Line 
Employees in the BSR workforce. [Op. 66a] One of the former 
Federal Barge Line employees was not a qualified conductor.

26



On the one hand, the black yardmen, since they were denied 
the opportunity to "qualify" as conductors have been unable to 
use their yard seniority to bid on the many conductor vacancies 
which have been posted since July 2, 1965. On the other hand, the 
white yardmen have been able to use their dual seniority as con­
ductors and switchmen to work the preferable and higher-paying 
jobs; white yardmen have routinely worked one day as a switchman 
and the next day as. a conductor while Blacks, who were senior to 
them, were locked-into switchmen positions. [See, e.g., Tr. 538a540a] 

Vacancies for conductor jobs have been posted at the rate 
of approximately one to two per month since 1965. [Tr. 438a-39a]
The posting of vacancies in order to solicit bids from yardmen is
accomplished pursuant to specific collective bargaining provisions.

40/[PX8, 773a-779a] Of course, as in any other industry, positions 
are posted whenever vacancies are created by death, retirement 
or promotion. Since 1965, five vacancies were created by the death 
of white conductors, ten or eleven vacancies by the retirement of 
white conductors, and six vacancies by the promotion of white con­
ductors to supervisory positions. [Tr. 151a-156a] Also, as in 

. . .  41/other industries, new positions are posted for bidding. [PX8, 774a]

4_0/ Job positions in the yard at BSR are determined by "runs".
A "run" is a regular daily assignment operating five days a week; 
each run requires a "switching crew" which is almost always 
comprised of one conductor and two switchmen. [Op. 69a]
41/ The average number of crews operating increased from 28 in
1965 to 35 in 1968. [PX6, 928a] Of course, this increase would have created a number of vacancies.

The figures in RX6 are average figures by year - consequently there may have been several new runs created one month, then some 
runs dropped the next and then another increase in runs.



Furthermore, vacancies occur as a result of other events:
e.g., (1) "temporary vacancies" of ten days or more; (2) the

42/starting point of the run is changed, the day-off is changed, 
or the starting time is changed by one hour or more. [PX8, 773a- 
779a, See Op. 69a]

In addition, temporary vacancies of less than ten days 
such as those caused by sickness, vacations, etc., are generally 
filled through the Switchmen's and Conductors’ extra boards. [PX8, 
777a-79a; PX9, 802a-05a] The extra-boards operate on a "rotary 
basis": the first man assigned to the extra-board is the first 
man to "catch" a vacancy from the board. [ Id ; Tr. 160a-162a:
See Op. 72a-73a] When the incumbent employee returns to his job, 
the extra-board employee returns to the extra-board and catches 
another vacancy after all those ahead of him on the extra-board 
have caught vacancies. [Id..]

It was not until August or September, 1972, that blacks 
were qualified as conductors. Messrs. Mike, Smith and Dubose were 
qualified by BSR in the summer of 1972 and, because of their substan­
tial yard seniority, they were able to promote to conductor jobs

43/shortly after qualification. [Op. 68a] As a result of BSR's

42/ However, a conductor who is working on a run whose starting
point or time or off-day is changed, may not "be displaced by an 
exercise of seniority." [PX8, 774a-75a; compare Op. 69a] In other 
words, a conductor's vacancy on such a run would only be created 
if the conductor working the run decided to voluntarily remove 
himself from the run.
43/ Just prior to trial a fourth switchman, Mr. Wilson, was
qualified. Two other black switchmen, Mr. Price and Mr. Wells were 
offered the opportunity to qualify as conductors - Mr. Price in 
August, 1972, and Mr. Wells in Februarv, 1973. [Op. 68a-69a; RX7-8, 931a-32a]

28



refusal to qualify Blacks as conductors, no black yardman could
exercise his seniority to bid on the numerous conductor vacancies
until September, 1972; only six Blacks have since received the
opportunity to qualify as conductors, while thirty-three black
switchmen remain without the right to equal job access in the 

44/
yard.

2 . Selection of Supervisors
The supervisor positions with responsibility for the yard 

are yardmaster, transportation-supervisor, assistant trainmaster
and trainmaster. [Tr. 142a-144a] Presently, there are nine

45/yardmasters, seven transportation supervisors, two assistant 
trainmasters and one trainmaster. [Tr. 142a-146a; PX14, 26a; 838a, 
881a] 46/With one exception, all of these supervisors were promoted 
from the ranks of the yardmen. [Tr. 142a—146a] All of these super­
visors are white; BSR has never had a black supervisor. [Tr.145a;389a]

44/ Apart from the obvious discriminatory nature of the
bidding and promotional system, the switchmen's extra-board operates in a discriminatory fashion. If the conductors' extra­
board is exhausted, the Company fills the vacancy with the first 
"qualified" conductor on the switchmen's extra board. [PX8, 776a] 
Accordingly, if there was a white yardman who was a qualified 
conductor on the switchmen's extra-board, he would be selected 
to fill the vacancy even though he may have been on the bottom 
of the extra-board. [Tr. 163a]
45/ There are thirteen employees with seniority on the
yardmaster seniority list. [PX14, 838a] However, four of these 
yardmasters have been promoted to other supervisory positions: 
Messrs. Oldacre, Atkins, Case, and Ashley. [PX26, 881a]
46/ Mr. McCormack the trainmaster, was promoted to supervisor
from the position of locomotive engineer. [Tr. 268a]

29



Mr. E. P. McCormack, who is the trainmaster, has the sole
responsibility for selecting supervisors for the Transportation
Division, which includes the supervisory positions over the yard.
Mr. McCormack does not follow any written guidelines in the
selection of supervisors; in fact, Mr. McCormack has "no set
policy" for selecting supervisors. [Tr. 278a; See Tr. 143a-44a,
274a; PXl, 731a-32.a] There is no review of the selection decisions

47/made by Mr. McCormack. [Tr. 144a, 274-a; PXl, 73la-32a]
Employees do not bid for or otherwise request supervisor 

positions; the Company posts no notices for supervisor positions. 
[Tr. 249a, 390a, 440a] Rather, the Company selects employees as 
potential supervisors; [Tr. 249a; 277a~78a] BSR then administers 
tests to those employees selected’ The Company has never afforded 
a black employee the opportunity to take the test for a super­
visory position. [Id.*]

47/ In 1966 the BRT, in exchange for the "yardmaster
arbitrary," agreed to allow the position of yardmaster to attrite. 
[Tr. 524a] As a result of this agreement the last yardmaster 
promoted to the yardmaster position was Mr. Ashley on September 1, 
1965. [PX14, 838a] An arbitrary is a fixed amount of money, 
in this instance the rate of pay for forty minutes,which is paid to an employee for some specified job. [Tr. 140a.]

The yardmaster arbitrary is paid to the conductor in a 
crew which works in any area formerly supervised by a yardmaster. 
[Id_.] Conductors regularly receive the yardmaster arbitrary —  
of course, since Blacks have been excluded from conductor positions 
they have not had the opportunity to receive the yardmaster arbitrary. [Tr. 141a]

30



A R G U M E N T
I .

THE LOWER COURT ERRED IN HOLDING THAT THE 
"CRYSTAL CLEAR" DISCRIMINATORY PRACTICES OF 
THE DEFENDANTS HAD NO ADVERSE AND UNLAWFUL 
EFFECTS ON THE PROMOTIONAL OPPORTUNITIES OF 
BLACK SWITCHMEN AFTER JULY 2, 1965 AND 
CONSEQUENTLY ERRED IN FAILING TO GRANT 

AFFIRMATIVE RELIEF
The lower court held that prior to July 2, 1965 "it is 

crystal clear that BSR had historically engaged in racially dis­
criminatory practices. . . . "  [Op. 76a] The record permits no 
other conclusion. The president of BSR bluntly admitted that 
Blacks were not considered for conductor position because

"[W]e had a railroad to run. We have 
enough trouble without asking for addi­
tional trouble by trying to make social, 
experiments." [Tr. 658a]

Moreover, the statistical evidence of discrimination in
this case is overwhelmingly apparent. Not one black yardman
worked as a conductor until August, 1972. All 3J9 of the black
yardmen who were working as of that date and who were hired prior
to July 2, 1965 were locked-into switchmen positions; whereas,48/
every one of the _55 white yardmen who had been hired prior to 
July 2, 1965 and who were working at BSR as of September, 1972, 
were qualified as conductors. [PX12, 13, 15, 818a-825a, 829a-837a, 
839a; See chart p. 26 , supra] As of the date of trial only 
out of the 39 black switchmen had been afforded the opportunity 
to qualify as switchmen. [See p. 28, supra] Finally, all

48/ The yardmen who were incorporated in the BSR workforce
from the Federal Barge Line in 1967 are not included in these 
statistics. See, Op. 66a.

31



of the nineteen yard supervisors are white; there has never
49/

been a black supervisor at BSR.
A. Blacks Have Been Discriminatorily Denied Opportunity

to Qualify and Promote to Conductor Positions;
Accordingly the Court Should Order That Black 
Switchmen Employed Prior to July 1, 1965, Be Afforded 
As Soon As Practical An Opportunity to Qualify for 
and Promote to Conductor P o s i t i o n s _______________

Blacks have been denied access to conductor positions by BSR's 
simple expedient of not "qualifying" Blacks as conductors. Unless 
a yardman is "qualified" by BSR he cannot bid for or otherwise 
be assigned to conductor positions. See supra, p. 24.

There is no suggestion in the record that the black yardmen
did not possess the ability, fitness, or experience to work as
conductors. The lower court stated:

"Observation of the black switchmen who 
testified as witnesses at the trial of 
this case and consideration of their 
testimony has convinced the Court that their 
experience has equipped them to perform the 
duties of a conductor." [Op. 77a]-2_/

49/ it is now clearly established that statistical evidence in
Title VII cases is given "critical weight." Pettway v. American 
Cast Iron Pipe Company, 494 F.2d 211, 225 n.34 (5th Cir. 1974)
(and cases cited therein)

The statistics in this case, which simply detail that zero 
Blacks have had an opportunity to promote, may, only in the most literal sense, be termed statistics. Yet these figures eloquently 
state the reach of the employment discrimination at BSR.

As this Court observed in another context: "Nothing is as 
emphatic as zero". United States v. Hinds County Board of 
Education, 417 F.2d 852, 858 (1969).
50/ Their many years of experience as yardmen plainly provided
sufficient experience for black workers to become conductors; the 
most junior black switchmen hired prior to July 2, 1965, W.T. 
Hunter, has over 19 years of experience. [PX13, 837a] See United 
States v. Chesapeake & Ohio Railway Co., 471 F.2d 582, 588-89 
(4th Cir. 1972) cert. denied 411 U.S. 939 (1973).

32



Similarly, the maintenance of an all-white roster of 
qualified conductors was not justified by any contention of

51/"business necessity." In fact, Mr. Staab, Director of Labor 
Relations for BSR, admitted that the Company has no business 
interest in which specific employees work as conductors as long 
as the employees are qualified; Mr. Staab testified that BSR has 
no "tangible cost" in qualifying yardmen as conductors. [Tr.
540a-41a]

The Court's finding that there was no post-Act discrimi-
52/

nation is based simply and solely on the definition of a "vacancy."
The Court disregards the definition of a "vacancy" which is in­
corporated in the Collective Bargaining Agreements as merely

53/being vacancies within the vernacular of the railroad industry.
[Op. 69a] The Court engages in some semantic gymnastics by

Cont1d.
50/ Ironically, black switchmen would be told "to look after" a
newly hired white yardman and to train and instruct him in the 
safety and performance requirements of the job. [Tr. 368a, 239a~240a] 
These newly-hired white yardmen were soon qualified for conductor 
jobs and supervised the same black switchmen who trained them. 
[239a-40a, 289a; 368a]
51/ The defendant is under a heavy burden to justify a dis­
criminatory seniority system as a "business necessity." See, e.g., United States v. Jacksonville Terminal Company, supra, at 451;
Pettway v. American Cast Iron Pipe Company, supra at 245-47.
52/ Since the Courts have adopted the "ricjitful place" theory of
relief, the determination of the "present job" of white employees 
or concomitantly what constitutes a "vacancy" is of critical im­
portance. See infra, pp. 35-36.
53/ Occurrences which are termed "vacancies" under the collec­
tive bargaining agreement are described supra, at pp. 27-28.

33



specifically holding that the death, quit, retirement or promotion
of a conductor does not create a "vacancy". [Op. 69a, 77a]
According to the Court a "true" vacancy only occurs when BSR
decides that it is necessary to "qualify" an employee as a con- 54/
ductor. [Op. 69a, 74a, 77a]

The Company did not "qualify" any yardmen from July 2,
55/

1965 until September, 1972. Of course, as of 1965 all of the non-
56/

qualified yardmen, except one, were black. But, the lower court
57/reasoned, that since there were no "vacancies" from 1965 to 1972

54/ The lower court mistakenly uses the terms "promote" and
"qualify" interchangeably. See, e.g., 69a, 74a, 77a. The BSR 
has the complete discretion to "qualify" yardmen whenever it so 
decides. See pp.13,24, supra. The qualification of a yardman as 
a conductor does not automatically insure him a conductor's position 
The qualifying of a yardman simply permits him to bid for con­
ductor positions whenever vacancies occur as defined by Section X 
of the BSR—BRT-UTU contract. [PX8, 773a-79a]
55/ The Company since 1972 has qualified four black yardmen.See supra, p. 25.
.56/ Mr. W.R. King was the sole unqualified white yardman. Mr.
King was substantially junior in terms of seniority to every black switchman. See fn. 26 , supra.
57/ BSR did not decide to "qualify" any switchmen from 1958
through August, 1972. Of course, all of the "unqualified" senior 
switchmen during this period were Black; and from 1965 through 1970 
all of the "unqualified" switchmen except one were Black. However, 
on the basis of the Company's own criteria there was a greater need 
to "qualify" swtichmen as conductors after 1965 than there was from 
1955 through 1957 when a large number of white switchmen were 
qualified. [RX6, 928a-930a - the statistics from BSR's exhibit are summarized in chart form and attached hereto as "Appendix B"; 
compare Op. 65a-56a] For example, in 1957 there was, on the average 
forty-three (43) crews and seventy-five (75) available conductors - 
or a surplus of thirty-two (32) conductors to fill vacancies. In 
1969 the comparable figures are as follows: on the average there 
were thirty-five (35) crews and forty-nine (49) available conductors 
or a surplus of only 14. conductors.

Yet in 1957 (when 
men) despite the substanti 
1969, BSR qualified twelve not qualify one conductor.

there were many "unqualified" white yard- 
ally larger surplus of conductors than in 
. (12) conductors; whereas in 1969 BSR did[I!-]

34



then there was no discrimination. [Op. 74a, 77a] By this dry
syllogism the lower court ignores the plain evidence in the record
that since July 2, 1965 vacancies, as defined by the collective
bargaining agreements, occurred at the rate of approximately one
to two per month and that at least twenty-one vacancies were
created by the death, retirement, or promotion of conductors.
[Tr. 151a-156a, 438a-39a; See pp. 2 7-28, supra]

58/
The district court by its arbitrary definition of 

vacancy misconstrues the "rightful place" theory, disregards the 
history of employment practices at BSR, and contravenes the strong 
remedial purpose of Title VII.

This Court is familier with the "rightful place" theory 
which was originally set forth in Local 189 v. United States, 59/
416 F.2d 980 (5th Cir. 1969), cert.denied 397 U.S. 919 (1970):

and since "rightful place" is the appropriate theory of relief

"A 'rightful place' theory stands between 
a complete purge of 'but for' effects [and] 
maintenance of the status quo. The Act 
should be construed to prohibit the f u ture 
awarding of vacant jobs on the basis of a

58/ The court's definition of "vacancy" is neither grounded
in the collective bargaining definition nor industry practice; 
the definition appears contrived solely for this lawsuit.
59/ This Court has consistently adhered to "rightful place"
as the appropriate theory of relief. United States v. Georgia 
Power Co., 474 F.2d 906 (1973); Bing v. Roadway Express, Inc.,
485 F.2d 441, 450 (1973); Pettway v. American Cast Iron Pipe
Company, supra at 248.

35



seniority system that 'locks-in' prior 
racial classification. White incumbent 
workers should not be bumped out of their 
present positions by Negroes with greater 
plant seniority; plant seniority should be 
asserted only with respect to new job 
openings." (footnote omitted) supra at 988.

There is no doubt that the seniority system at BSR, by
excluding non-"qualified" Blacks from even bidding on conductor
vacancies, "locks" Blacks into the lowest-paying job, switchman,

60/in a discriminatory fashion. Similarly, BSR regularly awarded
conductor jobs on the basis of this unlawful seniority system to
"qualified" white yardmen who had less yard seniority than black
yardmen. Finally, the lower court's definition of a "vacancy"
does much more than protect white incumbents from being "bumped"

61/from "present" jobs. The lower court has, in effect, approved a 
preferential system of promotion for white yardmen: the '(qualified" 
white yardmen are guaranteed promotion into conductor jobs ahead 
of senior black yardmen solely because the Company had formerly 
discriminatorily denied Blacks the opportunity to "qualify" as 
conductors.

60/ A "craft or class" railroad seniority system which continues
the effects of past racial assignment practices is as unlawful as 
a departmental seniority system in a manufacturing plant. United 
States v. Jacksonville Terminal, supra at 453; United States v. 
Cheaspeake & Ohio Railway Company, supra at 589; Rock v. Norfolk 
and Western Railway Company, 473 F.2d 1344, 1349 (4th Cir. 1973) 
cert. denied 37 L.Ed.2d 161 (1973); United States v. St.Louis-San 
Francisco Railway Co., 464 F.2d 301, 307-08 (8th Cir. 1972)(en banc), 
cert. denied 409 U.S. 1107 (1973) .
61/ White yardmen have regularly worked for a period of time
as switchmen and then because of the unlawful seniority system have 
promoted into conductor positions ahead of senior black yardmen.[538a-40a]

36



theory is clearly in conflict with appropriate seniority and
promotional relief which must be designed to remove all continuing
effects of past discrimination from the procedure for filling
jobs. Pettway v. American Cast Iron Pipe Co., supra at 235-36,
247-49; United States v. Jacksonville Terminal Company, supra
at 453, 458-59. Every time BSR posted a conductor job for bidding
and a white yardman was able to promote into the position while
senior black yardmen were excluded from even bidding on the job,
the past job segregation unlawfully affected the employment
opportunities of black yardmen.

The remedy for the continued "locking-in" of black workers
into switchmen jobs is clear: whenever a black yardman seeks to
bid on or otherwise move into a conductor job he should be
entitled to do so on the basis of his yard seniority. United

62/
States v. Chesapeake & Ohio Railway Company, supra at 589, 592-

63/
94; Rock v. Norfolk and Western Railway Company, supra at 349.

The district court's application of the "rightful place"

62/ In both the Jacksonville Terminal Company and Chesapeake
& Ohio Railway Company cases plant-wide bidding and seniority was 
ordered betv/een crafts as well as within crafts. United States v . 
Jacksonville Terminal Company, supra at 453; United States v. 
Chesapeake & Ohio Railway Company, supra at 592-94; see United 
States v. St. Louis-San Francisco Railway Co., supra at 307-08.
On this appeal plaintiffs seek to have yard seniority ordered for 
use only within the craft of yardmen.
63/ The above-cited cases all pertain to railroad seniority
systems similar to that at BSR. This Circuit has regularly 
ordered plant seniority in an industrial plant. Franks v. Bowman 
Transportation Company. No. 72-3239, Slip. Opinion at 4339-40 
(June 3, 1974); Pettway v. American Cast Iron and Pipe Co.. supra 
at 253-36, 247-49; Johnson v, Goodyear Tire & Rubber Company. 491 
F.2d 1364, 1373 (5th Cir. 1974); Bing v. Roadway Express, Inc., 
supra at 451 (1973); United States v. Georgia Power Company, supra 
at 926-27 (1973); United States v. Hayes International, 456 F.2d 112,
119 (1972); Long v. Georgia Kraft Company, 450 F.2d 557, 560 
(1971); Local 189 v. United States, supra.

37



Judge Butzner in Cheaspeake & Ohio Railway Company des­
cribed the appropriate relief:

"Accordingly, on remand the district court 
should enter a decree that will enable 
qualified Barney yard brakemen who were 
employed before the date of the Act to 
exercise their company seniority with 
respect to: (a) filling general yard
vacancies including those caused by fur­
loughs , and (b) thereafter enjoying all 
other prerogatives dependent upon seniority." 
(Emphasis added) supra at 589.

Similarly, in this case all black yardmen who are senior
to a "qualified" white conductor should be afforded the oppor-

64/
tunity to "qualify" as a conductor and, if qualified, have the 
opportunity to bid on all vacancies in the craft of yardmen, i.e., 
conductor or switchmen positions.

This Court has made plain that the definition of "vacancy"
may not be limited in order to defeat the granting of full relief

6 5/to terminate the continuing effects of discrimination. In Hayes 
International the Court held that the Company could not exclude 
Blacks from promotion on the basis of plant seniority in a period 
of rapid expansion because the Company during such a period needed 
"experienced men" rather than "newcomers":

64/ Of course, the plaintiffs are not requesting that BSR fill .
conductor positions with any "unqualified" switchmen; however, the 
qualification procedure for black switchmen must be no more 
stringent thanihe procedure applied to white switchmen. Griggs v. 
Duke Power Company. 420 F.2d 1225, 1230-31, 1236-37 (4th Cir. 1970) 
aff1d in pertinent part, 401 U.S. 424 (1971).
65/ "This Court [the Fifth Circuit] has always recognized theimportance of granting full relief in Title VII cases. E.g.,
United States v. Georgia Power Co., supra, 474 F.2d at 927;
Vogler v. McCartv. 451 F.2d 1236, 1238-39 (5th Cir. 1971)."
Pettway v, American Cast Iron Pipe Co., supra at 243, n.82.

38



"While this may be considered a nonracial 
business purpose, we do not find it to be 
sufficiently compelling to outweigh the 
discriminatory effect it might have upon 
the negro transferee". supra at 118.

^ee United—States v,— Jacksonville Terminal Company, supra at

Two recent district court decisions have, in order to 
insure full affirmative relief, broadly defined instances which 
create promotional opportunities for Blacks to promote on the 
basis of their plant seniority.

In United States v. United States Steel Corporation. 371 
F.Supp. 1045 (N.D. Ala. 1973), Judge Pointer ruled as follows:

To increase the number of occasions in which 
these new rights [plant seniority] may be 
exercised in conformity with the principles enunciated in Local 189 v. United States, 
supra, the Court has directed that oppor­
tunities for promotion be afforded not only 
in the event of the death, retirement or pro­
motion of other employees, but also with 
appropriate safeguards in recall situations 
following force reduction of at least fifteen da_ys_. " (Emphasis added and footnote omitted) supra at 1056-57. 67/

|6/_ Although in the slightly different context of recall rights 
during a reduction-in-force, one recent decision of this Court has recognized the need of the courts to be careful to insure effective 
use of plant seniority to terminate continuing discriminatory effects.

We have observed that past discrimination may 
penalize black employees in a reduction-in-force 
situation, and think that affirmative relief is 
necessary to remedy such effects, [citations 
omitted] The district court should be mindful of 
this consideration in granting complete affirm­
ative relief." Pettway v. American Cast Iron Pipe Co. . supra at 248 n.l03~.

——/ See United States v. United States Steel Corporation,
5 EPD [̂8619 (N.D. Ala. May 2, 1973) (order issued) p. 7817.

39



In United States Steel the district court expanded the
collective bargaining contract definition of vacancy in order to 
insure full relief; whereas, the lower court in this action 
contracted the collective bargaining definition of vacancy in 
a manner which stiffles effective affirmative relief.

Judge Justice in a recent Title VII opinion specifically 
rejected the defendant Company's proposal to limit the definition 
of vacancy:

"Under the defendants' proposal, the evidence 
establishes that . . . the departments could
not reasonably expect to see an increase 
in the level of the work force lasting a 
sufficient period of time to give rise to a 
permanent opening. Changing the 'rules 
of the game' at this stage would . . .
obliterate, for all practical purposes, the 
advancement of blacks to their 'rightful 
place.'" Bush v. Lone Star Steel Company,
373 F.Supp. 526, 534 (E.D. Tex. 1974)

On the one hand, the lower courts in Bush and United 
States Steel properly interpreted this Court's well-established 
principles of affording full affirmative relief by expanding the 
definition of vacancy (United States Steel), or at least, by 
maintaining the contractual definition (Bush); on the other hand, 
the lower court herein by arbitrarily ignoring the contractual
definition contravened proper judicial application of Title VII.

68/
White yardmen at BSR have routinely had and continue 

to have the opportunity to bid and promote into both switchmen

68/ That is all the white yardmen who were hired prior to
January 4, 1956 or before (Obed Talley, the most junior qualified 
switchman,was hired on this date); all of the black yardmen hired 
before July 2, 1965 were hired prior to this date.

40



and conductor jobs as those jobs are posted pursuant to the 
collective bargaining agreement. The overwhelming majority of 
black yardmen are still deprived of any opportunity to bid on 
conductor jobs solely as a result of BSR's discriminatory quali­
fication practices, see supra, pp.23-28. This blatant discriminatory 
situation may not be sanctioned under Title VII by some lame 
definition of "vacancy".

It is instructive to examine the resolution of a similar 
problem when the white conductors desired to work on the switchmen 
jobs, which had previously been occupied solely by Blacks. As 
fully described in the Statement of Facts the BRT and the BSR 
entered into an agreement, which permitted white conductors to 
fully exercise their seniority, as provided by the collective bar­
gaining agreements, on switchmen jobs. See supra, pp. 8-9, 12-14.
However, the district court, inexplicably, denied equal treatment

69/
when Blacks sought the opportunity to work as conductors.

69/ The district court, at least in part, relied on Jacksonville
Terminal Company in support of its vacancy definition. [Op. 69a, 78a] 
The lower court discusses "mere reshuffling" or "churning" in an 
apparent reference to Jacksonville Terminal Company, supra at 
458 n.33. However, this footnote is inapplicable to this action.

"Reshuffling" or "churning" is a rearrangement of the work­
force within a certain craft or class which does not involve putting 
additional men to work United States v. Jacksonville Terminal Company, 6 EPD 118724, p. 5202 (M.D. Fla. March 13, 1973) (Order
issued on remand). Of course, the lower court herein denied that 
vacancies were created when switchmen promoted, on the basis of 
successful bidding, to conductor positions.

Moreover, as clearly established by the lower court on 
remand,the "churning" or "reshuffling" limitation on vacancies only 
applied to transfer between crafts or classes. United States v. 
Jacksonville Terminal Company, 6 EPD 1[8829 pp. 5519-20 (M.D. Fla. 
September 4, 1973(enforcement directed)

41



B. Black Yardmen Are Entitled to Affirmative Relief
From BSR's Unlawful Exclusion of Blacks From 
Supervisory Positions_______ ___________________

The evidence of the discriminatory exclusion of Blacks
from supervisory positions could not be clearer. At present there
are nineteen employees in the positions, yardmaster, transportation
supervisor, assistant trainmaster, and trainmaster, which have
supervisory responsibility over the yard. [Tr. 142a-146a; PX14,
16, 838a, 881a] All of these supervisors are white; in fact, BSR

70/
has never had a black supervisor. See supra, pp. 29-30.

Mr. Cotton, President of BSR, admitted that Blacks have 
been excluded from supervisory positions as a matter of explicit 
Company policy. [Tr. 658a] The present system for selecting 
supervisors at BSR is geared to perpetuate the unlawful exclusion 
of Blacks. Mr. McCormack, the Trainmaster, has the sole re-

71/sponsibility for the selection of supervisors; there is no review 
of Mr. McCormack's selection deicisons, nor are there any written 
guidelines established for the selection of supervisors. See 
supra, pp. 29-30. Mr. McCormack candidly admitted that "I have
no set policy [for the selection of supervisors]". [Tr. 278a]

Cont'd.69/ The conductor and switchman jobs at BSR are within thesame craft or class. See NMB Cert., Birmingham So. R. R. Case 
No. R-3953 (Sept. 11, 1967), attached hereto as Appendix A.
70/ Since 1965 there have been, at least, six yardmen pro­
moted to supervisory positions. [Tr. 156a-57a]
71/ Mr. McCormack may occasionally ask another supervisor for
his opinion; for example, Mr. Staab, the labor relations director, 
testified that Mr. McCormack may ask him at lunch if an employee 
who is being considered for promotion is a "good guy". [PXl, 733a]

42



This Court has recognized the discriminatory potential
of a subjective decision-making system:

"All we do today is recognize that promotion/ 
transfer procedures which depend almost en­
tirely upon the subjective evaluation . . .
of the immediate foreman are a ready mechanism 
for discrimination against Blacks. . . .  We 
and others have expressed skepticism that 
Black persons dependent directly on decisive 
recommendations from whites-2// can expect non- 
discriminatory action." (footnote added)
Rowe v. General Motors Corp., 457 F.2d 348,
358-59 (1972).

If such a subjective decision-making system actually
73/results in racial disparity in the selection of employees, 

then courts have regularly held that the system violates Title VII. 
Baxter v. Savannah Sugar Refining Corporation, No. 73-1039 Slip. 
Opinion at 4377-80 (5th Cir. June 6, 1974); Pettway v. American 
Cast Iron Pipe Company, supra at 240-43; Rowe v. General Motors 
Corp., supra at 358-59; United States v. Jacksonville Terminal 
Company, supra at 449.; United States v. Bethlehem Steel Corp.,
446 F.2d 652, 655 (2nd Cir. 1971); Brown v. Gaston County Dyeing 
Machine Co., 457 F.2d 1377, 1382-83 (4th Cir. 1972) cert, denied 
93 S.Ct. 319 (1972); United States v. United Carpenters' Local 
169, 457 F.2d 210, 215 (7th Cir. 1972).

72/ This is especially true where, as in the present action,
the white supervisor making the determinative selection decisions 
was a direct participant in the practices of segregation, such as 
excluding Blacks from the engine cabs. [Tr. 307a-08a] See also 
the Trainmaster's reference to Blacks during his testimony; compare 
the transcript at 291a "Nigger switchmen" with the lower court's 
opinion at 78a, "Nigra switchmen".
73/ There could be no greater racial disparity in selection
of supervisors than exists at BSR.

43



Strong affirmative relief is appropriate to remedy the
effects of BSR's total exclusion of Blacks from supervisory 
positions. This relief must provide goals and timetables for 
the promotion of-qualified Blacks until the effects of the present 
discrimination at BSR have been terminated. Franks v. Bowman 
Transportation Company, supra at 4343-47; Morrow v. Crisler,
491 F.2d 1053, 1056-57 (5th Cir. 1974) (en banc); NAACP v. Allen, 
493 F.2d 614, 618-22 (5th Cir. 1974); United States v. United 
States Steel Corporation, 5 EPD 5(8619 pp. 7819-20 (N.D. Ala. 1973)
Buckner v. Goodyear Tire & Rubber Company, 339 F.Supp. 1108, 1125 
(N.D. Ala. 1972) aff'd per curiam 476 F.2d 1287 (1973); United 
States v. Wood, Wire & Metal Lathers Int11 Union, Local 46, 471 
F.2d 408, 412-13 (2nd Cir. 1973) cert. denied 37 L.Ed.2d 398 
(1973); Carter v. Gallagher, 452 F.2d 315, 331 (8th Cir. 1972); 
Southern Illinois Builders Association v. Ogilvie, 471 F.2d 600 
(7th Cir. 1972); see Contractors' Association of Eastern 
Pennsylvania v. Secretary of Labor, 444 F.2d 159 (3rd Cir. 1971), 
cert, denied 404 U.S. 854 (1971).

C. Awards of Back Pay, Attorneys' Fees and Costs Are
Appropriate and Necessary Forms of Relief In Light 
of the Discriminatory Practices of Defendants Which 
Have Re suited 7^1? the Black Yardmen Suffering Substantial 
Economic Loss _________________________________________

74/ The only issue concerning back pay which is before this
Court is the liability of the defendants for back pay. The 
determination of the amount of back pay and the allocation of that 
amount was severed from the question of liability by the trial 
Court. [Tr. 99a; 184a-35a] See Baxter v. Savannah Sugar Refining 
Corporation, supra at 4382-83.

44



The clear evidence that black yardmen lost substantial
earnings because of the discriminatory practices of the defendants
is uncontraverted. Essentially, Blacks lost earnings for the
simple reason that they were "locked-in" to switchmen jobs, while
white yardmen worked on both switchmen and conductor jobs. A
switchman earns considerably less than a conductor; for example,
as of April 1, 1972, conductors earned $5.29 per hour compared
to $4.95 for switchmen. [PX17, 842a]

The severe economic effect of the discriminatory practices
at BSR is clearly illustrated by comparing the average gross
earnings and hourly rates of pay of black and white yardmen.

THE AVERAGE GROSS YEARLY EARNINGS FOR 
1965 THROUGH 1971 FOR SWITCHMEN AND 
CONDUCTORS WITH SENIORITY DATING FROM 
1925 to 1957 TPX18, 850a; See PX4, 738a-750a]

EARNINGS
NUMBER OF DIFFERENCEYEAR EMPLOYEES AVERAGE EARNINGS DOLLARS PERCENTAGEW B WHITES BLACKS $ %

1965 46 42 7,659.36 7,175.28 484.08 6.7
1966 45 36 8,252.88 8,007.56 245.38 3.1
1967 44 33 8,416.42 7,907.07 509.35 6.4
1968 49 31 8,697.87 8,069.61 628.61 7.8
1969 47 32 9, 567.50 8,721.65 845.85 9.7
1970 41 30 10,285.05 9,050.25 1,234.80 13.6
1971 40 28 11,791.65 10,370.81 1,420.84 13.7
TOTAL 61

(312) 46
(232)

9, 177.71 8,369.38 808.33 9.7

45



White yardmen earned $9.177.71 per year from 1965-1971 
or $808.33 or 9.7% more than the $8, 369.88 which black yardmen

15/
earned. [Id.. ] The white yardmen actually earned $4.99 for each 
hour worked from 1966 through 1972 or $_,_31 or 6.62% more than 
the $4.68 per hour earned by black yardmen. [RX10, R]

Although these statistics demonstrate a striking dis­
parity in earnings between black and white workers, the figures 
actually underestimate the economic loss of black yardmen. The 
figures do not include the economic loss suffered by Blacks as 
a result of their discriminatory exclusion from supervisory
positions; nor do the figures include the economic loss in pensions76/paid or to be paid.

7_5/ This substantial economic disparity between black and
white yardmen is not at all attributable to any greater yard 
seniority on the part of the whites. In fact, Black yardmen had 
M  years more seniority than white yardmen. [PX18, 851a]
76/ This Court has held that pension payments and other 
fringe benefits are to be included in back pay. Pettway v.
American Cast Iron Pipe Company, supra at 263; Peters v. 
Mississouri-Pacific Railroad Company. 483 F.2d 490 (5th Cir. 1973) ; Rosen v. Public Service Electric & Gas Co., 477 F.2d 90, 95-96 
• (3rd Cir. 1973); United States v. Georgia Power Company, 7 EPD 
^9167 (N.D. Ga. 1974); Cf. Norman v. Missouri-Pacific Railroad 
Company, F.2d (8th Cir. June 4/ 1974), 7 EPD [̂9418.

Pensions at BSR are, at least partly, dependent upon 
gross earnings. [PX 44, R] Obviously, since Blacks' gross 
earnings have been limited by discriminatory practices it follows 
that their pensions are discriminatorily limited.

46



The Fifth Circuit in a recent series of unequivocal
opinions has held that where, as in this case, employment dis­
crimination and resultant financial harm are clearly demonstrated 
then back pay must be awarded. Johnson v. Goodyear Tire & Rubber 
Company, supra at 1375; Pettway v. American Cast Iron Pipe 
Company, supra at 252-53; Baxter v. Savannah Sugar Refining 
Company, supra; Franks v. Bowman Transportation Company, supra; 
Duhon v. Goodyear Tire & Rubber Company, No. 73-1296, Slip.
Opinion (5th Cir. May 24, 1974).

It is no less clear that the Court should award reasonable
22/attorneys' fees and costs to plaintiffs. The award of costs and 

attorneys' fees is an essential, appropriate and well-precendented 
form of relief for the private party, who assumes the "mantle of 
private attorney general", in implementing the strong public 
policy of terminating racial discrimination. Johnson v. Georgia 
Highway Express. 488 F.2d 714 (5th Cir. 1974); Clark v. American 
Marine Corp., 320 F.Supp. 709 (E.D. La. 1970) aff'd 437 F.2d 
959 (5th Cir. 1971).

77/ The lower court's taxation of plaintiffs for costs
should, of course, be reversed. [See Judgment, 79a]

47



C O N C L U S I O N

It is difficult to imagine an employment system that 
was more blatantly discriminatory, nor any affected class which 
so persistently engaged in as many good faith, lawful efforts 
to terminate discrimination. In such circumstances Title VII 
mandates full, affirmative relief, specifically, the plaintiffs 
respectfully urge the Court to reverse the lower court's finding 
of no violation of Title VII, and its denial of any affirmative 
relief, and to order as follows: (1) afford black yardmen hired
prior to the most junior "qualified" white yardman an opportunity 
to "qualify" as a conductor and to use their yard seniority to 
bid on or otherwise promote to conductor jobs; (2) grant 
affirmative relief for promotion of Blacks to supervisory 
positions; and (3) award reasonable attorneys' fees and costs.

Respectfully submitted

DEMETRIUS C. NEWTONSuite 1722 - 2121 Building 
2121 Eighth Avenue North 
Birmingham, Alabama 35203

JACK GREENBERG 
BARRY L. GOLDSTEIN

10 Columbus Circle 
Suite 2030
New York, New York 10019

Attorneys for Appellants

48



N ATIO N AL M ED IA TIO N  BOARD
WASHINGTON, D.C. 20572

APPENDIX "A"

In the matter of 
REPRESENTATION OF EMPLOYEES 

of
BIRMINGHAM SOUTHERN RAILROAD COMPANY 

Yardmen (Conductors and Helpers)

CASE NO. R-3953 
CERTIFICATION 
September 11, 19&7

The services of the National Mediation Board were invoked by the Brotherhood of 
Railroad Trainmen on June 2, 1967, to investigate and determine who may represent for 
the purnoses of the Railway Labor Act, as provided by Section 2, Ninth, thereof, toe 
craft or class of Yardmen (Conductors and Helpers), employees of the Birmingham 
Southern Railroad Company.

At the time application was received, certain of these employees wei 
ted by the Brotherhood of Railroad Trainmen, while certain other employee 
represented by the United Steelworkers of America.

The Board assigned Mediator Luther G. Wyatt to investigate.

represen- 
we re

FINDINGS
The investigation disclosed that a dispute existed among 

end by direction of the Board, the mediator was instructed to 
secret ballot, using an agreed to eligible list to determine 
representation choice.

the employees concerne 
conduct an election by 
the employees'

d

The following is the result of the election as reported by Mediator Wyatt, who 
was assigned to count the ballots in this case and attested thereon by the party 
observers.
Number of Employees Voting:

Brotherhood of Railroad 
Trainmen

United Steelworkers Void Number of
of America Ballots EmployeesEligible

Yardmen (Conductors &
Helpers) 50 U5 0 107
The Notional Mediation Board further finds that the carrier and^employees in 

this case are, respectively, a carrier and employees within the meaning of the 
Railway Labor Act, as amended; that this rsoard has jurisdiction over the dispute 
involved herein; and that the interested parties were given due notice of investige 
tion.



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APPENDIX "B

COMPARISON OF THE AVERAGE NUMBER OF CREWS, AVAILABLE CONDUCTORS, AND THE 
RATIO OF THE NUMBER OF AVAILABLE CONDUCTORS TO THE AVERAGE NUMBER OF 

CREWS FOR EACH YEAR FROM 1955 - 1972

YEARS 1955 1956 1957 1958 1959 1960 1961 1962 1963 1964 1965 1966 1967 1968 1969 1970 1971 1972
Number of 
Conductors 65 63 75 80 75 70 67 64 62 56 54 52 53 52 49 47 44 39

Average Number 
of Crews 41 37 43 31 26 30 25 25 25 27 28 28 32 35 35 34 30 29

Surplus Number 
of Conductors 
(Conductors 
minus Crews) 24 26 32 49 49 40 42 39 37 29 26 24 21 17 14 13 ]4 10

Number of Avail­
able Conductors 
per Crew(Conduc­
tors divided 
by Crews) 1.6 1.7 1.7 2.6 2.9 2.3 2.7 2.6 2.5 2.1 1.9 1.9 1.7 1.5 1.4 1.4 1.5 1.3

SOURCE:- RX6, 928a-30a



CERTIFICATE OF SERVICE

I hereby certify that on this the 1st day of July,
1974 I served two copies of the Brief for Plaintiffs- 
Appellants on appeal and one copy of Appellants' Appendix 
upon the following counsel of record by depositing copies 
of same in the United States mail, adequate postage prepaid.

J. Fredric Ingram, Esq.
Thomas, Taliaferro, Forman, Burr 

& Murray
1600 Bank for Savings Building 
Birmingham, Alabama 35203

and
Clarence M. Small, Jr., Esq.
Rives, Petterson, Pettus, Conway 

& Burge
800 First National - Southern Natural 

Building
Birmingham, Alabama 35203

Attorney for Appellants