Rodriguez v East Texas Motor Freight Court of Appeals

    Jesse RODRIGUEZ, Sadrach G. Perez and Modesto 
Herrera, on their own behalf and on behalf o f 
those similarly situated, Plaintiffs-Appellants,

v.

EAST TEXAS MOTOR FREIGHT, Southern Conference of 
Teamsters and Teamsters Local 657,

Defendants-Appellees.

No. 73—2801.

United States Court o f Appeals,
Fifth Circuit.

Nov. 25, 1974.

Mexican-American city truck drivers brought employ­
ment discrimination class action against motor carrier and 
union organizations challenging carrier’s requirement that 
city drivers resign their jobs before applying for more lucra­
tive road positions and rule preventing city drivers from 
carrying their seniority to road jobs. The United States 
District Court for the Western District of Texas, John H. 
Wood, Jr., J., found that class action was inappropriate and 
that defendants had not violated civil rights statutes and the 
plaintiffs appealed. The Court of Appeals, Wisdom, Circuit 
Judge, held that plaintiffs met class action requirements and 
could maintain action on behalf of carrier’s Mexican-American 
and Negro city drivers who were included in collective bar­
gaining agreement; that evidence that discrimination had 
been practiced in the past in hiring of road drivers, that “ no 
transfer” policy and maintenance of separate seniority rosters 
for city and road drivers perpetuated the past discrimination 
and that there was no business necessity precluding hiring of 
city drivers for road driver positions established that carrier 
had discriminated against plaintiffs and the plaintiff class; 
and that participation by union organizations in establishment

Synopses, Syllabi and Key Number Classification 
COPYRIGHT <§) 1974, by WEST PUBLISHING CO.

The Synopses, Syllabi and Key Number Classifi­
cation constitute no part of the opinion of the court. I N D E X E D



1244 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT

of separate seniority rosters constituted violation of civil 
rights statutes.

Reversed and remanded.

1. Federal Civil Procedure @=161
Class action may not be dismissed because class represent­

atives fail to ask for ruling on propriety of class nature of 
suit; responsibility for determining propriety of class nature 
of suit falls to trial court. Fed.Rules Civ.Proc. rule 23(c)(1), 28 
U.S.C.A.
2. Federal Civil Procedure @=184

Plaintiff class representatives who instituted employment 
discrimination action were required to establish that the ac­
tion met requirements of class action rule. Fed.Rules Civ. 
Proc. rule 23(a), 28 U.S.C.A.
3. Federal Civil Procedure <3=184

Requirements of class action rule must be read liberally in 
suits brought under equal employment opportunity provisions 
and equal rights provision of civil rights statutes. Fed.Rules 
Civ.Proc. rule 23(a), 28 U.S.C.A.; 42 U.S.C.A. § 1981; Civil 
Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.
4. Federal Civil Procedure @=184

Suits brought under equal employment opportunity provi­
sions and equal rights provision of civil rights statutes are 
inherently class suits. Fed.Rules Civ.Proc. rule 23(a), 28 U.S. 
C.A.; 42 U.S.C.A. § 1981; Civil Rights Act of 1964, § 701 et 
seq., 42 U.S.C.A. § 2000e et seq.
5. Federal Civil Procedure @=184

Discrimination on the basis of race or national origin is a 
class wrong. Fed.Rules Civ.Proc. rule 23(a), 28 U.S.C.A.; 42 
U.S.C.A. § 1981; Civil Rights Act of 1964, § 701 et seq., 42 
U.S.C.A. § 2000e et seq.
6. Federal Civil Procedure @=184

Antagonism between Mexican-American city truck driv­
ers, who instituted employment discrimination action chal-



RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT 1245

lenging policy precluding transfer of city drivers to road 
driver jobs, and majority of membership of local union with 
respect to whether separate seniority lists of city and road 
drivers should be merged did not indicate antagonism with 
regard to contention that motor carrier and union organiza­
tions had discriminatorily excluded minorities from road driv­
er positions and did not preclude maintenance of the action as 
a class action. Fed.Rules Civ.Proc. rule 23(a), 28 U.S.C.A.; 42 
U.S.C.A. § 1981; Civil Rights Act of 1964, § 701 et seq., 42 
U.S.C.A, § 2000e et seq.
7. Federal Civil Procedure @=>1741

In order to remove possible antagonism between class 
representatives who instituted employment discrimination ac­
tion challenging motor carrier’s policy precluding transfer of 
city drivers to more lucrative road driver jobs and some city 
drivers, trial court could have narrowed class or separated it 
into subclasses for purposes of relief or could have shaped 
relief to avoid any injustice to dissenting class members and, 
therefore, antagonism did not require dismissal o f class action. 
Fed.Rules Civ.Proc. rule 23(a), 28 U.S.C.A.; 42 U.S.C.A. 
§ 1981; Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. 
§ 2000e et seq.
8. Civil Rights '3=46

District courts have wide discretion in fashioning relief 
under equal employment opportunity provisions of Civil 
Rights Act. Civil Rights Act of 1964, § 701 et seq., 42 
U.S.C.A. § 2Q00e et seq.
9. Civil Rights «=>46

Flexibility and careful tailoring of judicial decrees in 
actions brought under equal employment opportunity provi­
sions of Civil Rights Act are the order of the day. Civil 
Rights Act of 1964, § 701 et seq, 42 U.S.C.A. § 2000e et seq.
10. Federal Civil Procedure @=>184

Plaintiffs who instituted employment discrimination ac­
tion were not required to present more than prima facie case



1246 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT

of discrimination against class in order to maintain action as 
class action. Fed.Rules Civ.Proc. rule 23(a), 28 U.S.C.A.; 42 
U.S.C.A. § 1981; Civil Rights Act of 1964, § 701 et seq., 42 
U.S.C.A. § 2000e et seq.

11. Stipulations ©=> 14(4)
Plaintiffs who instituted employment discrimination ac­

tion challenging motor carrier’s policy precluding transfer of 
city drivers to road driver positions did not abandon their class 
claims by stipulating that the only issue before the court 
pertaining to the carrier was whether carrier’s failure to 
consider the city drivers’ applications for road driver positions 
constituted violation of civil rights provisions, as stipulation 
was apparently made in an attempt to eliminate confusion in 
exposition of evidence and not to foreclose class issues, plain­
tiffs continued to proceed as in a class action and such was 
made clear to trial court and defendants. Fed.Rules Civ.Proc. 
rule 23(a), 28 U.S.C.A.; 42 U.S.C.A. § 1981; Civil Rights Act 
of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

12. Federal Civil Procedure €==>1741
Dismissal of employment discrimination action on behalf 

of class consisting of all Mexican-American and black appli­
cants for road driver positions with motor carrier was not 
improper as plaintiffs never pursued action on behalf of those 
individuals; class considered for relief would be defined as all 
of carrier’s Mexican-American and black city drivers who 
were included in collective bargaining agreement and who 
were precluded by carrier’s policy from transferring to more 
lucrative road positions. 42 U.S.C.A. § 1981; Civil Rights Act 
of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.; Fed.Rules 
Civ.Proc. rules 23, 23(a), (c)(1), 28 U.S.C.A.

13. Civil Rights <®=>44(1)
Prima facie case of employment discrimination may be 

established by statistical evidence and statistical evidence 
alone. 42 U.S.C.A. § 1981; Civil Rights Act of 1964, § 701 et 
seq., 42 U.S.C.A. § 2000e et seq.



RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT 1247

14. Civil Rights <3=44(1)
Evidence that motor carrier had never employed a Negro 

or Mexican-American as a road driver in portion of state 
covered by collective bargaining agreement prior to filing of 
employment discrimination charge, that two and one-half 
years later carrier had hired three Mexican-Americans to join 
its road driver force of approximately 180 drivers and that 
carrier had never hired a Negro road driver in the state 
established prima facie case of past discrimination in hiring. 
42 U.S.C.A. § 1981; Civil Rights Act of 1964, § 701 et seq., 42 
U.S.C.A. § 2000e et seq.

15. Civil Rights ®=43
Once plaintiffs who instituted employment discrimination 

action established prima facie case of past discrimination in 
hiring, burden fell to defendants to rebut statistics or to 
explain disparity in hiring. 42 U.S.C.A. § 1981; Civil Rights 
Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

16. Civil Rights <8=39
Employer’s present hiring practices could neither explain 

nor justify employer’s past discriminatory hiring practices. 42 
U.S.C.A. § 1981; Civil Rights Act of 1964, § 701 et seq., 42 
U.S.C.A. § 2Q00e et seq.

17. Civil Rights ®=43
Absent proof to the contrary, it would be assumed that 

“ lily white” /Anglo nature of motor carrier’s road driver force 
until filing of employment discrimination charge with Equal 
Employment Opportunity Commission resulted from discrimi­
natory hiring practices. 42 U.S.C.A. § 1981; Civil Rights Act 
of 1964, § 701 et seq., 42 U.S.C.A. § 2Q00e et seq.

18. Stipulations <®= 14(10)
Stipulation that plaintiffs had not been discriminated 

against when they were hired at trucking terminal as city 
drivers did not preclude determination that motor carrier 
engaged in discriminatory practices in hiring drivers for road



1248 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT

positions. 42 U.S.C.A. § 1981; Civil Rights Act of 1964, § 701 
et seq., 42 U.S.C.A. § 2000e et seq.
19. Civil Rights <3=44(1)

Proof that relevant labor pool lacks qualified minority 
persons may, even in a class action, rebut prima facie case of 
hiring discrimination. 42 U.S.C.A. § 1981; Civil Rights Act of 
1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.
20. Civil Rights <3=9.10

Equal employment opportunity provisions of Civil Rights 
Act do not force employers to hire unqualified applicants of 
any race or ethnic background. 42 U.S.C.A. § 1981; Civil 
Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 20Q0e et seq.
21. Civil Rights <®=43

Motor carrier against which minority city truck drivers 
brought employment discrimination action challenging carri­
er’s policy precluding transfer of city drivers to road driver 
positions had burden of showing that carrier’s history of 
hiring only white/Anglo road drivers resulted from scarcity of 
available minority persons qualified to serve in position of 
road driver. 42 U.S.C.A. § 1981; Civil Rights Act of 1964, 
§ 701 et seq., 42 U.S.C.A. § 2000e et seq.
22. Civil Rights <s=44(l, 4)

Evidence that motor carrier had discriminated in the past 
in hiring road drivers, that carrier’s policy precluding transfer 
of city drivers to road driver positions and maintenance of 
separate seniority rosters for city and road drivers perpetuat­
ed the past discrimination and that there was no business 
necessity for carrier’s “ no-transfer” policy and seniority sys­
tem established that carrier. had violated equal employment 
opportunity provisions of Civil Rights Act. 42 U.S.C.A. 
§ 1981; Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. 
§ 2000e et seq.
23. Civil Rights <3=9.10

To justify policy which perpetuates past discriminatory 
hiring practices on ground of business necessity, business



RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT 1249

purpose of the policy must be sufficiently compelling to over­
ride any racial impact, it must effectively and efficiently 
carry out its business purpose and there must be no acceptable 
alternative practice. 42 U.S.C.A. § 1981; Civil Rights Act of 
1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

24. Civil Rights @=9.10
Motor carrier’s “ no-transfer” policy which precluded 

transfer by city drivers to more lucrative road driver posi­
tions and which perpetuated past discrimination in hiring of 
road drivers could not be justified under business necessity 
theory on grounds that policy was necessary to protect em­
ployees, property and the general public from unqualified 
drivers or on ground that majority of blacks and Mexican- 
Americans of union local comprised of city drivers had reject­
ed proposal to merge city and road seniority rosters and that 
if it had taken action to merge seniority lines, carrier might 
have been subject to legal action by those who desired dual 
lists. 42 U.S.C.A. § 1981; Civil Rights Act of 1964, § 701 et 
seq., 42 U.S.C.A. § 200Qe et seq.

25. Civil Rights @=43
Plaintiffs who brought employment discrimination class 

action challenging motor carrier’s policy which precluded 
transfer by city drivers to more lucrative road driver positions 
were not required to prove that class, which was composed of 
city drivers, contained those qualified to assume road driver 
responsibilities; carrier had burden of proving that none of 
the class was qualified to transfer to road driver positions. 42 
U.S.C.A. § 1981; Civil Rights Act of 1964, § 701 et seq., 42 
U.S.C.A. § 2000e et seq.

26. Civil Rights @=>9.10
It is discriminatory to require experience as a prerequisite 

to employment when experience is unavailable to minority 
persons. 42 U.S.C.A. § 1981; Civil Rights Act of 1964, § 701 
et seq., 42 U.S.C.A. § 2000e et seq.



1250 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT

27. Stipulations «=  14(10)
Stipulation that motor carrier’s standards and qualifica­

tions for its road drivers were not discriminatory did not 
constitute waiver of contention, asserted in employment dis­
crimination action brought by minority city drivers who were 
precluded by carrier’s policy from transferring to more lucra­
tive road driver positions, that road driving requirements, 
including requirement of three years’ prior experience as a 
road driver had a disparate impact and discriminatory effect. 
42 U.S.C.A. § 1981; Civil Rights Act of 1964, § 701 et seq., 42 
U.S.C.A. § 2000e et seq.
28. Civil Rights <3=9.11

Discrimination against black and Mexican-American city 
truck drivers resulting from motor carrier’s policy precluding 
transfer by city drivers to more lucrative road driver positions 
from which minorities had been excluded in the past was 
continued and reinforced by union action which resulted in 
city and road drivers being placed in separate bargaining 
units with seniorities running from date of entry into the 
particular unit and, therefore, union organizations were liable 
for employment discrimination. 42 U.S.C.A. § 1981; Civil 
Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.
29. Civil Rights ®=43

Prima facie case of past hiring discrimination and proof 
that seniority system which was creature of collective bar­
gaining agreement transmitted discrimination into the present 
shifted burden to union organizations to show that present 
discriminatory effects were unavoidable and required by busi­
ness necessity. 42 U.S.C.A. § 1981; Civil Rights Act of 1964, 
§ 701 et seq., 42 U.S.C.A. §. 2000e et seq.
30. Civil Rights '3=9.11

Union organizations could have eliminated “ lock-in” ef­
fect of separate seniority rosters for city and road truck 
drivers without merging rosters and jeopardizing seniority 
rights of city drivers who wished to remain in their positions 
by allowing seniority carryover on a one-time-only basis for



RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT 1251

qualified city drivers who wished to transfer to more lucrative 
road driver positions; thus, union organizations could not 
escape liability for present discriminatory employment effects 
of past exclusion of minorities from road driver positions on 
ground that the discriminatory effects were unavoidable and 
required as a business necessity. 42 U.S.C.A. § 1981; Civil 
Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 200Ge et seq.
31. Civil Rights @=>46

District courts have broad remedial powers to eliminate 
present effects of past employment discrimination and a large 
measure of discretion in modeling a decree. 42 U.S.C.A. 
§ 1981; Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. 
§ 20Q0e et seq.
32. Civil Rights @=>9.10

Those who suffer employment discrimination must be 
permitted to take their rightful place when job openings 
develop. 42 U.S.C.A. § 1981; Civil Rights Act of 1964, § 701 
et seq., 42 U.S.C.A. § 20Q0e et seq.
33. Civil Rights «=>46

Black and Mexican-American city truck drivers, many of 
whom could have been road drivers but for discrimination 
with respect to hiring of road drivers, were entitled to oppor­
tunity to transfer to road driver positions as such positions 
developed and could meet experience requirement by showing 
three years of city driving on equipment similar to that used 
over the road, notwithstanding employer’s rule requiring 
three years of road driver experience. 42 U.S.C.A. § 1981; 
Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et 
seq.
34. Civil Rights @=>46

Fact that not all motor carriers required three years’ 
experience as prerequisite for road driver positions did not 
require reduction in number of years of experience required 
by motor carrier as prerequisite for permitting its city drivers, 
who were victims of past discrimination with respect to hiring



1252 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT

for road driver positions, to transfer to position of road driver 
as, following removal of requirement that prior experience be 
as a road driver, experience required was not only racially 
neutral but was neutral in effect. 42 U.S.C.A. § 1981; Civil 
Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

35. Civil Rights <s=9.10
Equal employment opportunity provisions of Civil Rights 

Act were not intended to lead to uniform hiring practices 
across an industry; so long as hiring policies do not discrimi­
nate, the provisions do not require their modification. 42 
U.S.C.A. § 1981; Civil Rights Act of 1964, § 701 et seq., 42 
U.S.C.A. § 2000e et seq.
36. Civil Rights @=9.13

City truck drivers who were required to be given opportu­
nity to transfer to more lucrative road driver positions from 
which they had previously been discriminatorily excluded 
could not be disqualified from road driver positions even if 
they performed inadequately on road test unless they could 
not be expected to improve sufficiently given normal training. 
42 U.S.C.A. § 1981; Civil Rights Act of 1964, § 701 et seq., 42 
U.S.C.A. § 200Ge et seq.
37. Civil Rights @=46

In employment discrimination action challenging motor 
carrier’s policy against transfer of city truck drivers to road 
driver positions, trial court’s determination that named plain­
tiffs were unqualified for road driver positions was premature 
where carrier admitted by stipulation that it had not con­
sidered any of the plaintiffs for employment as road drivers. 
42 U.S.C.A. § 1981; Civil Rights Act of 1964, § 701 et seq., 42 
U.S.C.A. § 2000e et seq.
38. Civil Rights @=9.12

Question of how much seniority city truck drivers would 
be permitted to take with them upon transfer to road driver 
positions from which they had previously been discriminatorily 
excluded should be determined by date on which city drivers



RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT 1253

would have qualified for the road driver positions but for 
discrimination. 42 U.S.C.A. § 1981; Civil Rights Act of 1964, 
§ 701 et seq., 42 U.S.C.A. § 2000e et seq.
39. Federal Civil Procedure ®=>2397

Judgment by consent binds parties and those in privity 
with them. 42 U.S.C.A. § 1981; Civil Rights Act of 1964, 
§ 701 et seq., 42 U.S.C.A. § 2000e et seq.
40. Judgment <s=>707 

Release ®=»27
Consent decree entered in government’s “pattern and 

practice” suit against motor carrier and union organizations 
challenging discriminatory employment practices which were 
at issue in subsequently brought private class action did not 
operate as collateral estoppel to prohibit members of class 
from participating in relief in the class action where members 
of the class were neither parties to the government suit nor 
had interests in privity with the government; however, those 
members of class accepting compensation under consent de­
cree and signing release would be bound by terms of the 
release. 42 U.S.C.A. § 1981; Civil Rights Act of 1964, § 701 et 
seq., 42 U.S.C.A. § 2000e et seq.

Appeal from the United States District Court for the West­
ern District of Texas.

Before WISDOM, AINSWORTH and GODBOLD, Circuit 
Judges.

WISDOM, Circuit Judge:
In this employment discrimination case the plaintiffs-appel- 

lants attack two ubiquitous practices in the trucking industry: 
(1) the trucking companies’ requirement that “ city drivers” 
resign from their city driver jobs before applying for the more 
lucrative and sought-after “ road” or “ line driver” * positions,

* The terms “ road driver” and “ line driver” are used interchangeably 
throughout this opinion.



1254 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT

and (2) the companies’ rule preventing city drivers from 
carrying their seniority to road driver jobs. The plaintiffs, 
Mexican-American city drivers for East Texas Motor Freight 
(ETMF), brought this action below as a class action, contend­
ing that these facially neutral practices of ETMF and the 
defendant union organizations perpetuate the effects of past 
discriminatory hiring practices and thus violate Title VII of 
the Civil Rights Act of 19641 and 42 U.S.C. § 1981.2 The 
district court found that the cause of action was inappropriate

1. (a) It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or 

otherwise to discriminate against any individual with respect to 
his compensation, terms, conditions, or privileges of employment, 
because of such individual’s race, color, religion, sex, or national 
origin; or

(2) to limit, segregate, or classify his employees or applicants 
for employment in any way which would deprive or tend to 
deprive any individual of employment opportunities or otherwise 
adversely affect his status as an employee, because of such 
individual’s race, color, religion, sex, or national origin.

(c) It shall be an unlawful employment practice for a labor 
organization—

(1) to exclude or to expel from its membership, or otherwise to 
discriminate against, any individual because of his race, color, 
religion, sex, or national origin;

(2) to limit, segregate, or classify its membership or applicants 
for membership, or to classify or fail or refuse to refer for 
employment any individual, in any way which would deprive or 
tend to deprive any individual of employment opportunities, or 
would limit such employment opportunities or otherwise adverse­
ly affect his status as an employee or as an applicant for 
employment, because of such individual’s race, color, religion, sex, 
or national origin; or

(3) to cause or attempt to cause an employer to discriminate 
against an individual in violation of this section.

42 U.S.C. § 2000e-2.
2. All persons within the jurisdiction of the United States shall have 

the same right in every State and Territory to make and enforce 
contracts, to sue, be parties, give evidence, and to the full and 
equal benefit of all laws and proceedings for the security of 
persons and property as is enjoyed by white citizens, and shall be 
subject to like punishment, pains, penalties, taxes, licenses, and 
exactions of every kind, and to no other.

42 U.S.C. § 1981.



RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT 1255

for a class action, and that none of the defendants had 
violated Title VII or Section 1981. We reverse.

I.

Facts

In the trucking industry, “ road” or “ line driver” is con­
sidered a separate job classification from “ city, pick-up and 
delivery driver” . Road drivers for ETMF drive 10-speed 
tractors with semitrailers, carrying freight among the 52 
ETMF terminals in 19 states. Road drivers work long hours, 
and often spend long periods of time away from home, but 
they have the prestige driving job in the trucking industry, 
and they generally bring home the highest pay. Freight 
brought to a terminal by a road driver is unloaded and 
reloaded onto other trucks, either onto another tractor-trailer, 
or onto a “ bobtail” , a truck with the body and engine mounted 
on the same chassis. A city driver then delivers the merchan­
dise locally.

In conformance with the practice in the trucking industry 
generally, ETMF “ domiciles” road drivers at only some of its 
terminals: those in cities that are relay points equidistant 
between major centers, and those in “head haul” cities, cities 
at the end of a line of service that generate a significant 
amount of freight to other points in the company’s system. 
In Texas ETMF has six terminals that domicile road drivers, 
and fifteen terminals that do not.3 ETMF has city drivers at 
all terminals.

The primary responsibility for hiring drivers, both city and 
road, in the ETMF system rests with the manager at the 
terminal where a vacancy occurs. The manager interviews 
applicants, reviews their qualifications, and makes recommen-

3. Those terminals domiciling road drivers are: Dallas, El Paso, 
Longview, Pecos, San Angelo, and Texarkana. Only city drivers are 
domiciled at the following terminals: Abilene, Amarillo, Atlanta, 
Austin, Beaumont, Brownwood, Ft. Worth, Henderson, Houston, 
Lubbock, Lufkin, Marshall, Odessa, San Antonio, and Tyler.



1256 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT

dations to officials at the corporate headquarters in Dallas. 
Although the Dallas officials must approve each applicant for 
employment, the terminal manager makes the affirmative 
decision to hire. The unions have no responsibility for hiring.

ETMF’s qualifications for road drivers are more stringent 
than for city drivers. City drivers must be at least 21 years 
old and have at least one year pick-up and delivery experi­
ence. Road drivers must be at least 27 years old and have 
three years “ immediate prior line haul road experience” . 
Both city and road drivers face a battery of other require­
ments involving driving, work, credit, and police records. 
They must be familiar with Department of Transportation 
regulations, have a high school education or the equivalent, 
and hold a valid commercial drivers license. Finally, both city 
and road drivers must pass physical, written, and driving 
examinations. Everett E. Cloer, ETMF’s Vice President in 
charge of industrial relations testified to the importance of 
driving tests for road drivers: “Well, first of all [applicants] 
are given a 25-mile driving test within the city to see if they 
can handle the transmissions of this equipment, see what their 
driving reactions are, et cetera. If they pass that, then they 
are given an in-cab trip with the supervisor. The supervisor 
rides with them on a student [over-the-road] trip.” 4 Counsel 
for the parties stipulated that the line driver requirements are 
nondiscriminatory.

City drivers and road drivers are covered by different 
collective bargaining agreements. The defendant-appellee

4. The importance of road testing as a criterion for hiring road 
drivers was echoed by Ed A. Asbury, Manager of ETMF’s San 
Antonio terminal. When asked how he would determine whether 
city drivers were qualified to be road drivers, he answered: “ I think 
I should have to ride with those boys to be able to answer that 
question. I don’t know . . .  I would have to—if I were going 
to make an honest appraisal, I would get out and ride with that 
man. I would ride with him here in town, and I would ride with him 
on the freeway. I would ride with him in line haul equipment. I 
would see what he would do, how he conducted himself, how he 
handled his equipment.”



RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT 1257

Local 657 has a collective bargaining agreement with ETMF 
covering city drivers at ETMF’s San Antonio terminal. Local 
657 represents no road drivers of ETMF. The defendant-ap­
pellee Southern Conference of Teamsters, a delegate body of 
the International Brotherhood of Teamsters, Chauffeurs and 
Warehousemen and Helpers of America, is made up of repre­
sentatives from the affiliated Locals in ten southern states. 
Separate collective bargaining agreements for city and road 
drivers are drawn by the Southern Conference and negotiated 
by the Conference with trucking company representatives. 
Then the agreements are passed down to the Locals to be 
approved and made part of the contracts between the Locals 
and the trucking companies.

Since 1954 ETMF has followed a “no-transfer” policy, pro­
hibiting the transfer of drivers between city and road driver 
classifications and between terminals.5 Under the policy, in 
order for a city driver to obtain a position as a road driver, he 
must resign his city driver job and apply for a road driver slot. 
He thereby forfeits all accumulated seniority. In effect, he 
stands on no better footing in applying for a road driver job 
than a complete stranger to the company. For the purposes 
of strengthening his application, he gains no “ credit” for his 
years as a city driver. And if his bid to be a line driver fails, 
there is no guarantee that he will be rehired as a city driver. 
ETMF’s policy against transfers is complemented by the fact 
that under collective bargaining contracts between ETMF and 
Local unions, including the defendant Local 657, city drivers 
who transfer to the road do not carry over their “ competitive- 
status” seniority, that is, seniority for job bidding and lay off 
purposes.6 Under separate collective bargaining agreements 
for road and city drivers, competitive-status seniority runs 
from the time an employee enters a particular collective

5. Road drivers for ETMF presently operate under a “modified” 
terminal no-transfer policy. If a road driver at one terminal is laid 
off, he can “bump” a less-senior road driver at another terminal.

6. The employee keeps his company seniority for fringe benefit 
purposes.



1258 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT

bargaining unit. Transfer is not expressly prohibited, but it is 
not expressly permitted either, and the agreements have been 
universally interpreted to prohibit the carryover of seniority 
from one classification to another.

For thirty days in January and February 1972, to ease 
morale problems among its city drivers who wanted to become 
road drivers, ETMF relaxed its no-transfer policy and permit­
ted city drivers to transfer to line jobs, if they could qualify.7 
During this period, although all other requirements were 
maintained, the requirement of three years line driving expe­
rience was waived. The modification did not affect the dual 
seniority system established by the separate collective bar­
gaining agreements. Any city driver transferring to the road 
under the modified policy still lost his seniority for job bidding 
and lay o ff purposes. Moreover, the one-time-only change in 
policy opened the possibility of transfer only to those city 
drivers who worked out of terminals domiciling road drivers; 
the restrictions on interterminal transfers remained in effect. 
In the Southern Conference area 220 city drivers showed an 
interest in transferring under the temporary policy, and 35 to 
50 city drivers tried out: five succeeded in transferring to 
road driver jobs.8

Against the history of these policies must be juxtaposed one 
crucial set of facts. The parties stipulated that before 1970 
East Texas Motor Freight had never employed a black or 
Mexican-American as a road driver in the Texas-Southern 
Conference area.9 ETMF’s road driver force in that area 
numbered approximately 180, all white/anglo drivers. After 
charges were filed by plaintiff Jesse Rodriguez with the Equal 
Employment Opportunity Commission (EEOC) on August 20, 
1970, the company hired three Mexican-American road drivers

7. Road drivers were also permitted to transfer to the city.
8. All five of the city drivers to make successful transition to road

driver jobs worked out of the Memphis, Tennessee, terminal.
9. The Southern Conference covers all Teamster members in Texas,

except for some in El Paso.



RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT 1259

in El Paso. By the time of trial, the company had still not 
hired a single black road driver in Texas. In comparison, 
approximately 35 percent of ETMF’s city drivers in Texas are 
black or Mexican-American. Of a total of 575 city drivers for 
ETMF in the state, 111 are Spanish-surnamed, 95 are black, 
and 369 are anglo.

The three named plaintiffs, Jesse Rodriguez, Sadrach Perez, 
and Modesto Herrera, are Mexican-American city drivers at 
ETMF’s San Antonio terminal. With the exception of one 
road driver who temporarily worked out of San Antonio in 
1970, ETMF road drivers have never been domiciled in San 
Antonio. San Antonio city drivers were therefore not able to 
take advantage of the temporary modification of the no-trans­
fer rule in the winter of 1972. Perez was hired as a city 
driver in 1959, Herrera was hired in 1964, and Rodriguez was 
hired in 1965. They stipulated that they were employed at 
the San Antonio Terminal without regard to race, color, or 
national origin. Each is a member of Local 657 and the 
Southern Conference.

Although none of the named plaintiffs made written appli­
cation for a line driver job until 1970, Herrera made verbal 
inquiries about transferring to the road as early as 1965. In 
1970 the plaintiffs submitted letters to the San Antonio termi­
nal manager, requesting transfer to road driving jobs. The 
terminal manager received and filed the letters. ETMF stipu­
lated that it never considered these applications for employ­
ment as road drivers. On August 20, 1970, Rodriguez filed a 
written charge with the EEOC complaining that the policies 
of ETMF, Local 657, and the Southern Conference relegated 
Mexican-Americans and blacks to city driver jobs. Similar 
charges were filed by Herrera on March 11, 1971, and by 
Perez on June 7, 1971. On May 18, 1971, Perez was dis­
charged from his employment with ETMF. The plaintiffs 
received thirty-day “ right-to-sue” letters on October 11 and 
13, 1971. On October 26, 1971, the plaintiffs filed this class 
action suit in district court.



1260 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT

Prior to the trial in this cause, the parties entered into a 
series of stipulations. In addition to the stipulations already 
mentioned, the parties agreed to the following:

The claim of discrimination of the Plaintiffs is solely 
based upon the fact that after their original employment, 
they have been “ locked in” to the lower paying job of city 
driver and denied a job as line driver because of:

(a) The maintenance of separate seniority rosters for city 
and line drivers;
(b) The fact that any city driver regardless of his race, if 
he transferred from city driver classification to a road 
driver classification, loses his accumulated city seniority;
(c) The Defendant East Texas Motor Freight discouraged 
inquiries from Plaintiffs concerning the qualifications 
and/or availability of line driving jobs;
(d) The fact that the Defendant East Texas Motor 
Freight had always employed Anglo/white applicants as 
road drivers;
(e) That the company’s policy and practice of recruiting 
line or road drivers has been based to a great extent on a 
word of mouth system. Since the company’s line drivers 
and supervisory terminal personnel are almost exclusively 
Anglo/white, such a practice has continued the alleged 
illegal exclusion of Mexican-Americans and Negroes as 
road drivers;
That the only issue presently before the Court pertaining 

to the company is whether the failure of the Defendant 
East Texas Motor Freight to consider Plaintiffs’ line driver 
applications constituted a violation of Title VII and 42 
U.S.C. § 1981.
Over strenuous objection at trial, the district court admitted 

evidence relating to the qualifications of the named plaintiffs 
to be road drivers. After trial, the court concluded that none 
of the named plaintiffs could satisfy all of the road driver 
requirements “ according to the company manual due to age or



RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT 1261

weight or driving record” . Furthermore, the court found, 
“ [t]he driving, work, and/or physical records or the plaintiffs 
are of such nature that only casual consideration need be 
given to determine that the plaintiffs cannot qualify to be­
come road drivers” . In conclusion, the court found that “ [t]he 
plaintiffs did not discriminate against the plaintiffs or any 
other employee or union member on the basis of race or 
otherwise” . The plaintiffs appeal. The Equal Employment 
Opportunity Commission, as amicus curiae, has filed a brief 
urging reversal of the decision of the district court.

II.

The Class Action Claim

The plaintiffs brought this suit “ on their own behalf and on 
behalf of other Mexican-American and black individuals who 
similarly have been denied equal employment opportunities by 
the defendants and additionally on behalf of Mexican-Ameri­
can and black individuals who may, in the future, be denied 
equal employment opportunities by the defendants because of 
their national origin and race” . They described the class more 
particularly as “ all of defendant East Texas Motor Freight’s 
Mexican-American and black in-city drivers included in the 
collective bargaining agreement entered into between East 
Texas Motor Freight and the Southern Conference of Team­
sters covering the State of Texas . . . [and as] all
Mexican-American and black applicants for line driver posi­
tions with East Texas Motor Freight included in the above 
area covered by the Southern Conference of Teamsters from 
July 2, 1965, to the present” . Neither the plaintiffs nor the 
defendants moved for a ruling under Fed.R.Civ.P. 23(c)(1) as 
to whether the suit could be maintained as a class action, and 
the court made no ruling until after the trial was completed. 
In its findings the court stated:

31. Plaintiffs have at no time moved for a prompt determi­
nation of the question of whether or not this cause of action



1262 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT

should be maintained as a class action and have offered no 
credible proof on the question.
32. Plaintiffs have offered no proof of liability or damages 
as to any class, having confined the evidence, arguments 
and post trial brief to the individual claims of the named 
plaintiffs, and having stipulated at the commencement of 
trial that the only issue before this Court with respect to 
the defendant truck line involved its failure to consider the 
individual plaintiffs’ application for employment as road 
drivers.

Concluding that the cause of action was “ not a proper one for 
class action” , the court dismissed the class action claims. In 
our opinion, the district court’s dismissal of the class action 
was erroneous.

[1] Rule 23(c)(1) provides that “ [a]s soon as practicable 
after the commencement of an action brought as a class 
action, the court shall determine by order whether it is to be 
so maintained” . A class action may not be dismissed because 
the class representatives fail to ask for a ruling on the 
propriety of the class nature of the suit. That responsibility 
falls to the court. “The court has an independent obligation 
to decide whether an action brought on a class basis is to be 
maintained even if neither of the parties moves for a ruling 
under subsection (c)(1)” . Wright & Miller, Federal Practice 
and Procedure, Civil § 1785 (1972).

[2-5] The plaintiff class representatives, of course, must 
establish that the action meets the requirements of Rule 
23(a).10 See Rossin v. Southern Union Gas Co., 10 Cir. 1973,

10. (a) Prerequisites to a Class Action. One or more members of a
class may sue or be sued as representative parties on behalf of all 
only if (1) the class is so numerous that joinder of all members is 
impracticable, (2) there are questions of law or fact common to 
the class, (3) the claims or defenses of the representative parties 
are typical of the claims or defenses of the class, and (4) the 
representative parties will fairly and adequately protect the inter­
ests of the class.

Fed.R.Civ.P. 23.



RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT 1263

472 F.2d 707, 712; Johnson v. Georgia Highway Express, Inc., 
5 Cir. 1969, 417 F.2d 1122, 1125 (Godbold, J., concurring); 3B 
J. Moore, Federal Practice If 23.02-2 (2d ed. 1974); Wright & 
Miller, Civil § 1759 at 578. But the requirements of Rule 
23(a) must be read liberally in the context of suits brought 
under Title VII and Section 1981. See Wright & Miller, Civil 
§ 1771. Suits brought under these provisions are inherently 
class suits. By definition, discrimination on the basis of race 
or national origin is a class wrong. Oatis v. Crown Zellerbach 
Corp., 5 Cir. 1968, 398 F.2d 496, 499. And a suit charging 
employment discrimination is naturally “ a sort of class action 
for fellow employees similarly situated” . Jenkins v. United 
Gas Corp., 5 Cir. 1968, 400 F.2d 28, 33; see Parham v. 
Southwestern Telephone Co., 8 Cir. 1970, 433 F.2d 421, 428; cf. 
Newman v. Piggie Park Enterprises, 1968, 390 U.S. 400, 
401-402, 88 S.Ct. 964, 19 L.Ed.2d 1263. When class relief is 
sought in the complaint, therefore, the court should liberally 
apply the requirements of Rule 23(a). See Bing v. Roadway 
Express, Inc., 5 Cir. 1973, 485 F.2d 441, 446; compare Danner 
v. Phillips Petroleum Co., 5 Cir. 1971, 447 F.2d 159, 164 (class 
relief not sought in complaint).11

[6] There is no serious dispute that the plaintiffs here 
satisfied the first three criteria in Rule 23(a). The class 
clearly meets the requirements that the members be so nu­
merous that joinder would be impractical, that there are 
common questions of law and fact, and that the claims and 
defenses of the representative parties are typical. The de­
fendants argue strenuously, however, that there was insuffi­
cient guarantee that the named parties would “ fairly and 
adequately protect the interests of the class” .

The defendants maintain that the named plaintiffs have 
acted antagonistically to the interests of a majority of Mexi-

II. In Danner this Court expressly limited its holding: “All we hold 
is that class action relief must be predicated upon a proper class 
action complaint satisfying all the requirements of Rule 23” . 447
F.2d at 164 n. 10.



1264 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT

can-American and black city drivers. The complaint requests 
that the court order the city and line driver seniority lists 
merged to create a single seniority system based solely on the 
date that an employee first joined the company. The desira­
bility of such relief, argue the defendants, was expressly 
rejected at a membership meeting of the defendant Local 657 
on February 11, 1973, approximately two weeks after the 
completion of the trial. An affidavit recounting the results of 
voting at the meeting was admitted into evidence under 
Fed.R.Civ.P. 59. At the meeting the union members voted 87 
to 21 against a proposal that the city and road driver contracts 
be merged and that city drivers be permitted to transfer to 
the road while road drivers were permitted to transfer to the 
city. Of the 138 people present at the meeting, 121 were city 
pick-up and delivery drivers. Eighty-three were Mexican- 
American, 42 were Anglo, and 13 were Negro, If all possible 
Anglo votes were deducted from the total against it, the 
proposal still would have been rejected by a majority of 
Mexican-American and Negro votes.

We do not ascribe the significance to the vote that the 
defendants urge. We cannot tell what assumptions were 
made implicit. Furthermore, the membership of Local 657, 
even the Mexican-American and black membership, is far 
from congruent with the class described in the complaint. 
The Local’s membership is both more restricted and more 
extensive. The Local draws its membership from the San 
Antonio area; the complaint covers city drivers throughout 
Texas. The Local has members who work for trucking firms 
other than ETMF; the class outlined in the complaint is 
restricted to employees or applicants of ETMF. The extent to 
which the vote represents the actual preference of the class, 
therefore, is unclear.

[7- 9] Even taking the results of the vote at face value,12 
we reject the district court’s conclusion that there was suffi-

12. The outcome of the vote is consistent with what one might
expect of a vote of ETMF’s San Antonio city drivers. Separate



RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT 1265

cient reason to dismiss the class action in this case. Especially 
in light of the fact that the evidence of the union vote was not 
received until two weeks after the trial, there were two 
preferable options open to the trial judge. First, he could 
have shaped the class to remove any possible antagonism 
between the representatives and some of the city drivers. 
The court could have narrowed the class or separated it into 
subclasses for purposes of relief. See Oatis v. Crown Zeller- 
bach Corp., 398 F.2d at 499. Or, the court could have shaped 
the relief to avoid any injustice to the dissenting class mem­
bers. District courts have wide discretion in fashioning relief 
under Title VII: Franks v. Bowman Transportation Co., 5 Cir. 
1974, 495 F.2d 398, 414; Bing v. Roadway Express, Inc., 485 
F.2d at 448-449. And flexibility and careful tailoring of 
judicial decrees in Title VII cases are the order of the day. 
See, e. g., Sabala v. Western Gillette, Inc., S.D.Tex.1973, 362 
F.Supp. 1142. The disagreement here concerned only the 
proper remedy; there was no antagonism with regard to the 
contention that the defendants practiced discrimination 
against the plaintiff class. We do not believe that disagree­
ment within the class as to the remedy desired, surfacing so 
late in the litigation, should have resulted in a dismissal of the 
class action.

Because the trial was completed before the court made a 
ruling whether the class action could be maintained, there 
were involved none of the imponderables that make the

seniority rosters in separate contracts prevent laid-off road drivers 
from bumping less senior city drivers from their jobs. Because 
ETMF does not domicile road drivers in San Antonio, to take 
advantage of a merger of seniority rosters and obtain a road job, a 
San Antonio city driver with ETMF would have to move to another 
city. Those city drivers who would not desire such a move, or who 
would not desire to transfer to the road for some other reason, 
would not gain from a merger of seniority rosters. We note that in 
a similar case a court has recently refused to order a merger of 
seniority rosters because to do so would injure those members of 
the plaintiff class who did not wish to transfer to road driving jobs. 
Sabala v. Western Gillette, Inc., S.D.Ky.1973, 362 F.Supp. 1142, 
1153.



1266 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT

decision so difficult early in litigation, and that demand a 
substantial amount of district court discretion and correspond­
ing appellate deference. See Johnson v. Georgia Highway 
Express, Inc., 417 F.2d at 1123. We have before us a record of 
the proceedings, completed as a class action, and we can judge 
for ourselves the possible effects of any antagonism of inter­
ests. We find these effects insubstantial and curable. We 
conclude that the plaintiffs met the requirements of Rule 
23(a) and established a proper class action under Fed. R. Civ. P. 
23(b)(2).13

[10,11] The district court’s finding that the plaintiffs of­
fered no proof on the question of liability or damages to any 
class is clearly erroneous. As we describe more fully below, 
the plaintiffs entered into evidence statistics sufficient to 
present a prima facie case of past hiring discrimination, 
transmitted into the present by the no-transfer rule and 
separate seniority rosters which “ lock” employees into city 
driver positions and prevent their transfer to road driver 
status. The plaintiffs further submitted, without objection, 
detailed information pertaining to all ETMF city drivers 
including their names, seniority dates, and domiciles. It is 
true, as the district court noted, that the plaintiffs concentrat­
ed at trial on the individual claims of the named plaintiffs. 
But the plaintiffs were not required to present more than a 
prima facie case of discrimination against the class. Nor did 
the plaintiffs effectively abandon their class claims by stipu­
lating that “ the only issue presently before the Court pertain­
ing to the company is whether the failure of the Defendant 
East Texas Motor Freight to consider Plaintiffs’ line driver

13. (b) Class Actions Maintainable. An action may be maintained
as a class action if the prerequisites of subdivision (a) are 
satisfied, and in addition:

(2) the party opposing the class has acted or refused to act on 
grounds generally applicable to the class, thereby making appro­
priate final injunctive relief or corresponding declaratory relief 
with respect to the class as a whole;

Fed.R.Civ.P. 23.



RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT 1267

applications constituted a violation of Title VII and 42 U.S.C. 
§ 1981” . The stipulation was apparently entered in an at­
tempt to eliminate some confusion in the exposition of evi­
dence at trial, not to foreclose the class issues. The plaintiffs 
continued to proceed as in a class action. And this was made 
clear to the trial court and the defendants.14

[12] To the extent that the district court’s finding that the 
plaintiffs failed “to offer proof of liability or damages as to 
any class” refers to the class of “all Mexican-American and 
black applicants for line driver positions with East Texas 
Motor Freight” , the finding is not erroneous. The plaintiffs 
never pursued the action on behalf of these individuals, and 
the district court’s dismissal of the class action on their behalf 
was proper. On remand, the class considered for relief should 
be defined as all of East Texas Motor Freight’s Mexican- 
American and black city drivers included in the collective

14. The following colloquy took place between the trial judge and Mr.
Heidelberg, counsel for the plaintiffs:

THE COURT:
I assume, this being a matter before the court, that Mr. 

Heidelberg probably has in mind using this witness to establish a 
general practice and to show that this man was similarly treated 
although he may have no personal complaint. It would merely 
corroborate the testimony that such a practice exists. For that 
limited purpose—
MR. HEIDELBERG:

For that purpose and also, Your Honor, it has not been estab­
lished that this is not a class action. The allegation is made in the 
complaint and there have been no motions filed. The answers of 
the defendants deny that this is a class action, but of course we 
maintain that there is class action involved,
THE COURT:

Well, are you contending now as far as this trial is concerned 
that this is a class action?
MR. HEIDELBERG:

Yes, Your Honor.
THE COURT:

And how many people are you going to try to establish this by? 
MR. HEIDELBERG:

As outlined in the complaint, Your Honor, the class would 
consist of the Mexican-American and black city drivers who are 
located in the State of Texas covered by the jurisdiction of the 
Southern Conference Supplemental Agreement.



bargaining agreement entered into between East Texas Motor 
Freight and the Southern Conference of Teamsters covering 
the State of Texas.

1268 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT

III.

Liability

In the last few years we have seen a large number of suits 
brought in federal court, attacking facially neutral policies 
which allegedly discriminate against minority city drivers by 
perpetuating patterns of discrimination in the hiring o f line 
drivers by private firms in the trucking industry.15 As the 
federal courts have thus become familiar with the practices in 
the trucking industry, a clear pattern has emerged: through­
out much of the industry, trucking companies, and the unions 
representing drivers, have erected barriers to the movement 
of non-white/non-Anglo workers from pick-up and delivery 
jobs to the coveted road driver positions. The employment 
practices attacked in this suit—the no-transfer and seniority 
policies— are prevalent in the trucking industry. Typically, 
city drivers are not permitted to transfer to line driver jobs. 
Where they are, they are not generally permitted to carry­
over their seniority for job bidding and lay o ff purposes. The 
result is, at the very least, a strong disincentive for city 
drivers to transfer to the road. City drivers are thus effec­
tively “ locked in” their city driving jobs with no realistic 
possibility of transferring to line driving positions. Were 
there no more to the scenario, of course, the federal courts 
would likely have no concern; there is nothing per se illegal in 
no-transfer or separate seniority policies. But, as the courts 
have noted with some frequency, the policies often operate to 
perpetuate the effects of hiring discrimination. The overall 
result is a situation where in many areas of the country blacks 
and Mexican-Americans serve as city drivers, while road-driv­
er fleets in private trucking firms, at least until very recently,

15. See, e. g., the cases cited in note 17 infra.



RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT 1269

have been virtually all-white/Anglo.16 Thus it is that facially 
neutral no-transfer and seniority policies have come under a 
broad attack, for “ [i]t is now beyond cavil that Title YII of 
the Civil Rights Act of 1964 proscribes employment practices 
and procedures which, although presently neutral and nondis- 
criminatory on their face, tend to preserve or continue the 
effects of past discriminatory practices” . United States v. N. 
L. Industries, Inc., 8 Cir. 1973, 479 F.2d 354, 360. See Griggs 
v. Duke Power Co., 1971, 401 U.S. 424, 430, 91 S.Ct. 849, 28 
L.Ed.2d 158; Pettway v. American Cast Iron Pipe Co., 5 Cir. 
1974, 494 F.2d 211, 236; Local 189, United Papermakers & 
Paperworkers v. United States, 5 Cir. 1969, 416 F.2d 980, 
990-991, cert, denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 
100.

A. Discrimination by East Texas Motor Freight
We begin by examining the past hiring patterns of ETMF. 

See United States v. Jacksonville Terminal Co., 5 Cir. 1971, 
451 F.2d 418, 450, cert, denied, 406 U.S. 906, 92 S.Ct. 1607, 31 
L.Ed.2d 815. Although the plaintiffs do not attack ETMF’s 
road-driver hiring practices—and indeed stipulated that they 
are not now discriminatory—we must begin there. A pattern 
o f past discriminatory hiring is essential to the plaintiffs’ case. 
See Jones v. Lee Way Motor Freight, Inc., 10 Cir. 1970, 431 
F.2d 245, 247, cert, denied, 401 U.S. 954, 91 S.Ct. 972, 28 
L.Ed.2d 237.

16. Two recent studies have confirmed that Negroes and Mexican- 
Americans have been excluded from line driving jobs. One study 
found that, nationally, Negroes comprised only 2.4 percent of the 
over-the-road drivers for private trucking firms in 1968. Firms that 
employed more than 100 persons had only one-percent Negro road 
drivers. Leone, The Under-utilization of Negroes as Truck Drivers 
by For-Hire Motor Carriers, 22 Lab.L.J. 631, 633 (1971). Another 
Study, covering 329 trucking companies for the year 1970, found 
that Negroes comprised 2.7 percent of the companies’ road drivers. 
In the same companies, Spanish-sumamed Americans made up 
only .8 percent of the road drivers. See Nelson, Equal Opportunity 
in Trucking: An Industry at the Crossroads (GPO 1971).



1270 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT

[13,14] A prima facie case of discrimination may be estab­
lished by statistical evidence, and statistical evidence alone. 
“ The inference [of discrimination] arises from the statistics 
themselves and no other evidence is required to support the 
inference.” United States v. Hayes International Corp., 5 Cir. 
1972, 456 F.2d 112, 120. The statistics in the instant case are 
overpowering. East Texas Motor Freight has stipulated that 
prior to the date that Rodriguez filed a charge of discrimina­
tion with the EEOC in 1970, ETMF had never employed a 
Negro or Mexican-American as a line driver in that portion of 
the State of Texas covered by the Southern Conference Area 
Supplemental Agreement, By the date of trial, two and a 
half years later, ETMF had hired three Mexican-Americans to 
join its Texas road driver force of approximately 180 drivers. 
By trial ETMF had still not hired a Negro road driver in 
Texas.

These figures establish a prima facie case of past discrimin­
ation in hiring. In other trucking cases the statistics have 
shown a similar pattern. In Jones v. Lee Way Motor Freight, 
Inc., 10 Cir. 1970, 431 F.2d 245, 247, for example, the Court 
summarized: “ [Tjhere were no Negro line drivers; most 
whites were line drivers; and all Negroes were city drivers.” 
Similarly, in Bing v. Roadway Express, Inc., 5 Cir. 1971, 444 
F.2d 687, 688, the Court noted: “ All road drivers are, and 
always have been white; all Negro drivers are city drivers, 
though not all city drivers are Negro.” The similarity be­
tween the employment situations in both Bing and Jones and 
that here is striking. In Bing and Jones, and in each of the 
cases cited in the margin, the court held that the statistics 
were sufficiently potent to constitute a prima facie case.17

17. Thornton v. East Texas Motor Freight, 6 Cir. 1974, 497 F.2d 416 
(At ETMF’s Memphis terminal, all of the 105 road drivers were 
white. Of the 131 city drivers, 43 were black.); Witherspoon v. 
Mercury Freight Lines, Inc., 5 Cir. 1972, 457 F.2d 496 (No black had 
ever worked for Mercury Freight as a long haul driver.); Hairston v. 
McLean Trucking Co., M.D.N.C.1973, 62 F.R.D. 642 (Of 479 over- 
the-road drivers at Winston-Salem terminal, nine were black.); 
United States v. Navajo Freight Lines, Inc., C.D.Calif.1973, 6 FEP



RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT 1271

[15] Once the plaintiffs established a prima facie case, the 
burden fell to the defendants to rebut the statistics or to 
explain the disparity in hiring.18 See Rowe v. General Motors 
Corp., 5 Cir. 1972, 457 F.2d 348, 358. Having stipulated to the 
statistics, the defendants cannot, of course, dispute them. 
But the defendants do imply that the force of the statistical 
disparity is countered by the plaintiffs’ stipulations that 
ETMF’s qualifications for road drivers are not discriminatory 
and that the plaintiffs were employed at the San Antonio 
terminal without regard to race or national origin. The 
defendants also argue that the plaintiffs have not shown that 
any members of the plaintiff class were qualified as road 
drivers. We reject these contentions.

[16,17] First, only historical hiring practices are at issue 
here. Whatever the nature of present hiring practices,19 they 
neither explain nor justify, without more, the past failure to 
hire minority line drivers. Without some proof presented by 
the defendants to the contrary, we must assume that the “ lily 
white’VAnglo nature of the ETMF road driver fleet until 1970 
resulted from discriminatory hiring practices.

Cases 274 (No black or Spanish-sumamed road drivers until 1970.); 
Sabala v. Western Gillette, Inc., S.D.Tex.1973, 362 F.Supp. 1142 (Of 
29 road drivers in Houston, 28 were white/anglo; one was Mexican- 
American. Of 65 drivers in Houston, 42 were either black or 
Mexican-American.); United States v. Lee Way Motor Freight, Inc., 
W.D.Okl.1973, 7 EPD ft 9066 (940 road drivers were white, 14 were 
black, and 12 were other than white or black.); Sagers v. Yellow 
Freight System, Inc., N.D.Ga.1972, 6 EPD fl 885 (In 1968 of 150 road 
drivers for Yellow Freight in the Southern Conference area, none 
were black. As of May 12, 1972, only 3.6 percent of Yellow 
Freight’s road drivers in the Southern Conference Area were black).

18. Although the union defendants are not responsible for ETMF’s 
hiring policies, the case against the unions, like that against ETMF, 
begins with the showing of past hiring discrimination that originally 
operated to foreclose the road driver jobs to blacks and Mexican- 
Americans. See p. 1282, infra. The unions thus join ETMF in its 
effort to rebut the prima facie case of hiring discrimination.

19. We do not accord the plaintiffs’ stipulation concerning present 
hiring practices the broad reading that the defendants do. See 
p. 1277, infra.



1272 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT

[18] Second, we accord no weight to the stipulation that 
the named plaintiffs were not discriminated against when 
they were hired at the San Antonio terminal as city drivers. 
It was their inability to gain a road driver job with ETMF at 
any terminal in Texas that the plaintiffs decry.

Finally, the defendants rely on language from McDonnell 
Douglas Corp. v. Green, 1973, 411 U.S. 792, 802, 93 S.Ct. 1817, 
1824, 36 L.Ed.2d 668, in which the Court said:

The complainant in a Title VII trial must carry the initial 
burden under the statute of establishing a prima facie case 
of racial discrimination. This may be done by showing (i) 
that he belongs to a racial minority; (ii) that he applied and 
was qualified for a job for which the employer was seeking 
applicants; (iii) that, despite his qualifications he was re­
jected; and (iv) that, after his rejection, the position re­
mained open and the employer continued to seek applicants 
from persons of complainant’s qualifications.

Nothing in this language is inconsistent with the accepted 
practice of federal courts’ recognizing statistics as establishing 
a prima facie case of employment discrimination. Sagers v. 
Yellow Freight System, N.D.Ga.1973, 5 EPD f  8885 at 5759. 
In McDonnell Douglas a black worker, laid o ff in a reduction- 
in-force, complained that he was not rehired because of his 
race and involvement in the civil rights movement. The 
Court emphasized that the “ critical issue . . . concerns
the order and allocation of proof in a private, 
[non-class-action] challenging employment discrimination” . 
411 U.S. at 800, 93 S.Ct. at 1823. (emphasis supplied). Fur­
thermore, the Court observed in a crucial footnote that the 
test outlined in the text of the opinion for a prima facie case 
“ is not necessarily applicable in every respect to differing 
factual situations” . 411 U.S. at 802, n. 13, 93 S.Ct. at 1824.

The present case differs in several significant respects from 
McDonnell Douglas. First, this is a class action. Equally 
important, the Supreme Court noted in McDonnell Douglas no 
history o f past employment discrimination or any other factor



RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT 1273

that might have discouraged the respondent from applying for 
a job. Indeed, he had had a job with the company, and its 
refusal to rehire him after his layoff formed the gravamen of 
the complaint. In contrast, at the time of Rodriguez’s com­
plaint to the EEOC, ETMF had never hired a black or 
Mexican-American line driver in the Texas-Southern Confer­
ence area. Given these past hiring practices, “ it is not unrea­
sonable to assume that minority persons [would] . be
reluctant to apply for employment, absent some positive as­
surance that if qualified, they [would] in fact be hired on a 
more than token basis” . Carter v. Gallagher, 8 Cir. 1972, 452 
F.2d 315, 331 (en banc). It would be unrealistic to require the 
plaintiffs to show that blacks and Mexican-Americans applied 
for road driver jobs they knew they could not obtain. See 
Bing v. Roadway Express, Inc., 485 F.2d at 451; Jones v. Lee 
Way Motor Freight, Inc., 431 F.2d at 247. We note also 
another distinction. In McDonnell Douglas the respondent’s 
qualifications were undisputed. He had held the job, and 
apparently served satisfactorily, before he was laid off. In 
the instant case, in contrast, the possibility of meeting one of 
the most important criteria for hiring—the road test—has 
been denied to the class of city drivers. Deprived of the 
opportunity to take a driving test, the plaintiffs could not 
prove they were qualified to become road drivers.

[19—22] Proof that the relevant labor pool lacks qualified 
minority persons may, of course, even in a class action, rebut a 
prima facie case of hiring discrimination. Congress did not 
intend that Title VII force employers to hire unqualified 
applicants of any race or ethnic background. Griggs v. Duke 
Power Co., 410 U.S. at 430, 91 S.Ct. 849; Sagers v. Yellow 
Freight System, Inc., 5 EPD at 5758. But it was ETMF’s 
burden to show that its history of hiring only white/Anglo 
line drivers resulted from a scarcity of available Negroes and 
Mexican-Americans qualified to serve in that position. Unit­
ed States v. Hayes International Corp., 456 F.2d at 120. 
ETMF has not met this burden.



1274 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT

The next steps in our analysis were clearly delineated by 
Judge Thornberry in Bing: “ Once it had been established that 
an employer or union has discriminated in the past, then, the 
inquiry is twofold: (1) Does the present policy perpetuate the 
past discrimination? (2) Is the present policy justified by a 
showing of business necessity?” 444 F.2d at 690.

The conclusion is inescapable that both the no-transfer 
policy and the maintenance of dual seniority rosters, one for 
city drivers and one for line drivers, have perpetuated ETMF’s 
past discriminatory hiring practices. Together, they have 
removed all realistic opportunity for transfer. Under the 
no-transfer policy a city driver wishing to transfer to road 
status must first resign his city driver position, with no 
assurance that he will be hired as a line driver, and no 
assurance that if he fails to be hired he will be rehired as a 
city driver. Even if the city driver were to become a road 
driver, because of the separate seniority rosters he would lose 
his accumulated competitive-status seniority. He would have 
the last choice of routes and would be the first laid off. And 
if laid off, he would have no “ bumping” rights to recover his 
city driver job. “ In any industry loss of seniority is a critical 
inhibition to transfer.” 451 F.2d at 453. It is no surprise, 
then, that when the company temporarily relaxed in 1972 its 
no-transfer policy and its requirement that road drivers have 
three years line haul experience only five ETMF city drivers 
in the entire Southern Conference area took, qualified for, and 
held the road driver job. For a city driver with a significant 
amount of seniority the choice must have been a difficult one 
indeed. The named plaintiffs testified that they were unwill­
ing to give up their city driving seniority to transfer to road 
driving jobs they otherwise desired. In the strictest sense, 
city drivers were “ locked” into city driving jobs. The discrim­
ination that removed the possibility that a Mexican-American 
or Negro could obtain a line driver job when first applying to 
the company was thus continued and perpetuated by the



RODRIGUEZ y. EAST TEXAS MOTOR FREIGHT 1275

no-transfer and seniority policies which prevented the city 
drivers from later transferring to road driver jobs.

We turn to the question whether ETMF has justified the 
no-transfer policy and seniority system by a showing of busi­
ness necessity. The business necessity standard is strict.

“ [T]he ‘business necessity’ doctrine must mean more than 
that transfer and seniority policies serve legitimate man­
agement functions. Otherwise, all but the most blatantly 
discriminatory plans would be excused even if they perpetu­
ated the effects of past discrimination. . . . Necessity
connotes an irresistable demand. To be preserved, the 
seniority and transfer system must not only directly foster 
safety and efficiency of a plant, but also be essential to 
those goals. . If the legitimate ends of safety and
efficiency can be served by a reasonably available alterna­
tive system with less discriminatory effects, then the 
present policies may not be continued.

United States v. Bethlehem Steel Corp., 2 Cir. 1971, 446 F.2d 
652, 662, cert, denied, 404 U.S. 959. “ In other words, manage­
ment convenience and business necessity are not synony­
mous.” United States v. Jacksonville Terminal Co., 451 F.2d 
at 451.

[23] The business necessity test essentially involves bal­
ancing the need for the challenged practice or policy against 
its discriminatory impact. The business purpose must be 
“ sufficiently compelling to override any racial impact” ; it 
must “ effectively and efficiently” carry out its business pur­
pose; and there must be no acceptable alternative practice. 
Pettway v. American Cast Iron Pipe Co., 494 F.2d at 246; 
Robinson v. Lorillard Corp., 4 Cir. 1971, 444 F.2d 791, 798, cert, 
denied, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655.

[24] ETMF advances two justifications for its no-transfer 
policy. The company first contends that the no-transfer poli­
cy is necessary to protect employees, property, and the general



1276 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT

public. ETMF conjures up visions of an unqualified driver 
“ hurtling through space, if you will, at 60 miles an hour with a 
rig of gross vehicle weight of 72,000 [pounds]” .20 While we do 
not underestimate the potential dangers raised by unqualified 
drivers, these can be effectively diminished and by carefully 
screening transferees.21 See Thornton v. East Texas Motor 
Freight, 6 Cir. 1974, 497 F.2d 416; Bing v. Roadway Express, 
Inc., 444 F.2d at 691. The visions invoked by ETMF argue for 
continued strict qualifications for road drivers, but they are 
not sufficient justification for the no-transfer policy. Second, 
ETMF argues that as a driver-salesman the city driver’s 
contact with customers is an important element in customer 
relations. The implication is that if city drivers are permitted 
to transfer, ETMF might lose customers. We must reject this 
contention also. Loss of city drivers by transfer is no more 
harmful to the company’s pick-up and delivery business than 
loss for any other reason. We agree with the district court in 
Sagers v. Yellow Freight System, Inc., 6 EPD at 5760:

The city driver’s unique functions and skills may justify 
treating it as a separate job classification from that of road 
driver; it does not constitute an overriding business justifi­
cation for denying qualified city drivers the opportunity to 
transfer to the road driver position where the latter position 
was initially closed to them on the case of race.

ETMF portrays its seniority system as preferred by the 
majority of black and Mexican-American city drivers. The 
company relies on the vote taken at the membership meeting 
of Local 657 where a majority of the blacks and Mexican- 
Americans rejected a proposal to merge city and road senior­
ity rosters. “ It is obviously good personnel management” , 
argues ETMF, to honor the preference of its Mexican-Ameri-

20. Brief for Appellee East Texas Motor Freight 33, quoting testimo­
ny of H. L. Johnson, President of ETMF.

21. ETMF has a continuous training program for road drivers, which 
includes on-the-job training. The training program was accelerated 
after the no-transfer system was temporarily modified in 1972.



RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT 1277

can and black employees. Furthermore, the company hints, if 
it had acted to merge the seniority lines, it might have been 
subject to legal action by those blacks and Mexican-Americans 
who desired dual lists, contending that the merger constituted 
a violation of Title VII. See Graham v. Missouri-Pacific 
Truck Lines, S.D.Tex.1973, [C.A. 71-11-1229, Feb. 2, 1973]. 
Whatever the merits of this argument as it is couched by 
ETMF, when relief is viewed in terms other than a merger of 
seniority lines, such as a once-only transfer by city drivers to 
line jobs with seniority carryover, any force behind the con­
tention evaporates. ETMF’s explanations do not meet the 
question why those blacks and Mexican-Americans who have 
desired to transfer have not been permitted to do so and to 
carry over their competitive-status seniority. Nor is it ex­
plained how permitting those city drivers to carry over their 
seniority would hurt other city drivers or be objectionable to 
them.23

[25] The company finally contends that the plaintiffs have 
nevertheless failed to establish liability, because they have not 
shown that any of the plaintiff class meets ETMF’s road 
driver qualifications. The argument is in essence that if

22. ETMF might have argued that to permit city drivers to carry over 
their seniority to road driver jobs would have been in violation of its 
contract with the local unions representing the line drivers, not 
parties to this case. Certainly the company might have anticipated 
some difficulty from those quarters, for permitting carryover of 
seniority into road jobs would put transferees ahead of some road 
drivers in seniority. Neither the threat of union difficulty nor the 
possibility that giving transferees seniority on the road driver roster 
would violate ETMF’s contract with the road driver locals, however, 
would have provided a sufficient justification for refusing to give 
transferees seniority. Labor unrest stemming from interference 
with the expectations of whites was found not to amount to a 
business necessity in United States v. Bethlehem Steel Corp,, 2 Cir. 
1971, 446 F.2d 652, Robinson v. Lorillard Corp., 4 Cir. 1971, 444 F.2d 
791, 798—799 and Local 189, United Papermakers and Paperworkers, 
5 Cir. 1969, 416 F.2d 989. Furthermore, difficulties caused by the 
fact that city and road drivers were covered by different union 
contracts was rejected as a business necessity in Bing v. Roadway 
Express, Inc., 5 Cir. 1971, 444 F.2d 687, 691, and Jones v. Lee Way 
Motor Freight, Inc., 10 Cir. 1970, 431 F.2d 245, 250.



1278 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT

members of the plaintiff class of city drivers cannot qualify 
for road driver jobs, how can it be said that it is the no-trans­
fer and seniority policies that lock them in city jobs? Rather, 
the argument continues, city drivers are locked in by their 
inability to qualify for the sought-after line driver jobs, and 
ETMF is under no obligation to permit city drivers to transfer 
to line driver jobs for which they are unqualified.

ETMF would have us reverse the burden of proof, placed 
firmly on the defendant by the plaintiffs’ prima facie case of 
past hiring discrimination perpetuated by facially neutral 
practices and policies. We stated earlier that the burden 
rested on the defendants to show that the failure to hire 
minority persons as road drivers resulted from an absence of 
qualified minority drivers available. So too we think the 
burden must remain on the defendants to prove that the 
discrimination shown by the plaintiffs’ prima facie case is not 
perpetuated by present policies in that no minority city driv­
ers are now qualified to transfer to road driver jobs. To our 
knowledge no court has hinged a finding of liability in a 
trucking case on proof that the plaintiff class o f city drivers 
contains those qualified to assume road driver responsibilities. 
That some of the class will be found qualified to transfer 
when the discriminatory restrictions are removed has been 
uniformly assumed. Winnowing the qualified from the un­
qualified has been left to the remedy stage; only those city 
drivers wishing to transfer who meet objective and nondis- 
criminatory standards of the company are, in the final analy­
sis, entitled to relief.

We agree with this approach. It is not the failure to hire as 
a line driver every city driver who would like to transfer to 
the road that forms the gist of the complaint in cases like the 
one before us. It is the policies of the company which 
discourage and prevent transfer regardless of qualifications 
that are under attack. In sum, we are of the opinion that 
ETMF had the burden of proving that none of the plaintiff



RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT 1279

class was qualified to transfer to the road.23 It was not the 
burden of members of the plaintiff class to establish their 
qualifications before a case of discrimination could be made.

We recognize that by a literal reading of ETMF’s road 
driver requirements, none of the plaintiff class of city drivers 
could qualify for a road driver job. No present city driver has 
three years’ “ immediate prior line haul experience” . Nor, we 
assume, do many city drivers have three years’ experience on 
the road, gained at any time; the spate of trucking cases that 
have been marched through the federal courts give clear 
indication of the difficulty that blacks and Mexican-Ameri­
cans have had nationwide obtaining road driver jobs with 
private trucking firms. We do not, however, accept the 
criteria ETMF employs in determining whom to hire as road 
drivers. ETMF’s road driver requirements must be read 
against the business necessity test. That standard, always 
stringent, requires that we scrutinize requirements of experi­
ence when that experience has been discriminatorily denied.

[26] Although requiring experience at a particular job is 
neutral and job-related on its face see Developments in the 
Law-Employment Discrimination and Title VII of the Civil 
Rights Act of 1964, 84 Harv.L.Rev. 1109, 1145 (1971), it is 
discriminatory to require experience as a prerequisite to em­
ployment when the experience is unavailable to minority 
persons. Blumrosen, Seniority and Equal Opportunity: A 
Glimmer of Hope, 23 Rut. L. Rev. 268, 309 (1969). We have in 
this Circuit approved a lower court’s striking down an experi­
ence requirement as a criterion of membership in a labor 
union when “ negroes were prevented from gaining such expe­
rience due to the union’s racial discrimination” . Local 53, 
International Association of Heat & Frost Insulators & Asbes­
tos Workers v. Vogler, 5 Cir. 1969, 407 F.2d 1047, 1054-1055; 
see also United States v. Sheet Metal Workers, Local 36, 8 Cir.

23. Ezra Bierle, dock foreman at ETMF’s San Antonio terminal,
testified that from 1968 or 1969 the tractor-trailer equipment driven
by city and road drivers has been essentially the same.



1280 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT

1969, 416 F.2d 123; Dobbins v. Local 212, International Broth­
erhood of Electrical Workers, S.D.Ohio 1968, 292 F.Supp. 413. 
More significantly, we held in United States v. Jacksonville 
Terminal Co., 451 F.2d at 453, that where blacks were pre­
vented by racial discrimination from utilizing their skills in 
the railroad industry, experience as a job criterion could not 
properly be confined to railroad experience. We do not imply 
that all experience requirements that act to perpetuate dis­
crimination are illegal; only that they are illegal unless justi­
fied as a business necessity. And, as we have said, ETMF has 
not proved that three years’ immediate line-haul experience is 
a business necessity for transfer of its city drivers to line-haul 
duties.

[27] The defendants place great reliance on the plaintiffs’ 
stipulation that “ [t]he standards and qualifications of East 
Texas Motor Freight for its road drivers are not discriminato­
ry” . The defendants argue that, rather than conceding only 
that the criteria are facially neutral, the stipulation waived 
any argument that the road driving requirements have a 
disparate impact and discriminatory effect. We do not accord 
the stipulation such a prominent position in this suit. As we 
have noted, ETMF’s criteria for road drivers automatically 
exclude all members of the plaintiff class, including the 
named plaintiffs. No city driver now employed can have 
three years’ immediate prior line haul experience. And none 
of the named plaintiffs, at least, has three years’ experience 
road driving gained at any time. By the defendants’ reading 
of the stipulation, therefore, the plaintiffs have disqualified 
themselves from the very relief they seek most urgently— 
transfer to road driver jobs. We cannot accept the interpreta­
tion that the plaintiffs, represented by counsel conceded by 
the defendants to be experienced Title VII attorneys, stipulat­
ed away their right to relief on the eve of trial.

In conclusion, the plaintiffs established an unrebutted prima 
facie case against ETMF of past hiring discrimination. It is 
manifest that the harmful effects o f this past discrimination



RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT 1281

have been transported into the present through ETMF’s fa­
cially neutral no-transfer and seniority policies. No compel­
ling business necessity has been offered to justify ETMF’s 
policies. In our view the district court’s finding that ETMF 
did not discriminate against the named plaintiffs, or by impli­
cation the plaintiff class, is clearly erroneous. ETMF must be 
held to have violated 42 U.S.C. § 20006-224 and 42 U.S.C. 
§ 1981.25

B. Discrimination by Local 657 and the Southern Confer­
ence

The plaintiffs contend also that Local 657 and the Southern 
Conference of Teamsters have acted to perpetuate the dis­
crimination against the plaintiff class of city drivers by creat­
ing collective bargaining agreements that establish separate 
seniority rosters for road and city drivers without provision 
for seniority carryover for minority city drivers who desire to 
transfer to road jobs. Before examining the substance of this 
contention, we pause to outline in more detail the manner in 
which the collective bargaining agreement between ETMF 
and Local 657 came into being.

Although the collective bargaining agreement is a contract 
between ETMF and Local 657, it is the product of negotiation 
on a national and regional scale. First, there is the National 
Master Freight Agreement, negotiated on a nationwide basis 
between the Trucking Employers, Inc. and the National Over- 
the-Road and City Cartage policy and Negotiating Committee 
of the International Brotherhood of Teamsters, Chauffeurs, 
Warehousemen and Helpers of America. The National Nego­
tiating Committee represents the local unions; the locals give 
powers of attorney to permit the National Negotiating Com­
mittee to act on their behalf. Although the Master Agree­
ment must be ratified by the locals, ratification is generally a 
formality. Once the agreement is accepted by a majority of

24. See note 1, supra.

25. See note 2, supra.



1282 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT

the local unions, it goes into effect and binds all locals.26 The 
Master Agreement covers both city and road drivers. Then 
there are the Supplemental Agreements. Like the Master 
Agreement, although Supplemental Agreements are signed 
and administered by each local union at each terminal, “ they 
are negotiated on an areawide basis by Local representatives 
of employees of all unionized trucking companies in that 
area” . United States v. Pilot Freight Carriers, Inc., M.D.N.C. 
1972, 54 F.R.D. 519, 521. In our case the Supplemental 
Agreements were negotiated by the Southern Conference of 
Teamsters. From these negotiations came, so far as we are 
now concerned, two separate agreements, one covering road 
drivers and one covering city drivers. The agreements pro­
vide for seniority to run from the date of entry into a 
particular collective bargaining unit. At the terminal level, 
these separate agreements are administered by union locals. 
In the case before us, the city drivers for ETMF in San 
Antonio are represented by Local 657. Local 657 is an inte­
grated union. Since 1952 a majority of the employees work­
ing for ETMF within the jurisdiction and membership of 
Local 657 have been blacks and Mexican-Americans.

[28] As we mentioned earlier, it is the creation and main­
tenance of separate seniority rosters for road and city drivers 
without provision for seniority carryover by minority city 
drivers that forms the crux of the complaint against the union 
defendants. We agree with the plaintiffs that the discrimina­
tion against the black and Mexican-American city drivers that 
closed out the possibility of their being hired originally as road 
drivers was continued and reinforced by union action and 
inaction. For their role in continuing the effects o f this

26. International Brotherhood of Teamsters, Chauffeurs, Warehouse­
men and Helpers of America, Constitution, art. XVI, § 4 (1966). 
“While there is a separate formal contract between each local union 
and [the defendant company] in effect, the National Master Freight 
Agreement is published in pamphlet form and accepted nationwide, 
with a blank in which the number of each individual local union is 
inserted.” Sagers v. Yellow Freight System, Inc., N.D.Ga.1972, 58 
F.R.D. 54, 57.



RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT 1283

discrimination the union defendants must share the blame and 
the liability.

We recognize that the prima facie case against ETMF for 
discrimination in the hiring of road drivers falls only indirect­
ly against the union defendants. The company has always 
exercised full responsibility for hiring; the unions have never 
exercised any. We have discussed how the inability of city 
drivers to carry over their competitive-status seniority formed 
an important link in the chain that “ locked” minority drivers 
into city driver jobs. Of this the unions were not unaware. 
Local 657 concedes in its brief that the “most important thing 
to an employee working under a collective bargaining agree­
ment, except perhaps for wage rates, is his seniority” .27

[29] The plaintiffs’ prima facie case of hiring discrimina­
tion, and proof that the seniority system, a creature of the 
collective bargaining agreement, transmitted the discrimina­
tion into the present, shifted the burden to the defendant 
unions to show that the present discriminatory effects were 
unavoidable, that is, required as a business necessity.

[30] The primary justification offered by the union de­
fendants is that in contributing to the establishment of sepa­
rate seniority rosters they were merely following the desires 
of the majority of their black and Mexican-American mem­
bers. Once again the defendants rely on the post-trial defeat 
by members of Local 657 of a proposal to merge city and road 
driver contracts as an indication of the preferences of a 
majority of Mexican-American and black city drivers. As we 
mentioned earlier, the degree to which the vote should be 
taken to represent the true desires of members of the plaintiff 
class is uncertain. In any event, the unions perceive their 
responsibility too narrowly. There are established ways to 
eliminate the lock-in effect of separate seniority rosters with­
out merging rosters and jeopardizing the seniority rights of 
those city drivers who remain in their positions. Most obvi-

27. Brief for Appellee Teamsters Local Union 657, at 16.



1284 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT

ously, seniority carryover can be allowed on a one-time-only 
basis for qualified minority city drivers who wish to transfer 
to the road. See, e. g., Thornton v. East Texas Motor Freight, 
supra; Bing v. Roadway Express, Inc., 485 F.2d 441; United 
States v. Central Motor Lines, Inc., W.D.N.C.1971, 338 F.Supp. 
532. No reciprocal arrangement for road drivers would have 
been necessary, because they have suffered no discrimination. 
See United States v. Chesapeake & Ohio Ry. Co., 4 Cir. 1972, 
471 F.2d 582, 593. We believe a one-time-only transfer with 
seniority carryover was an alternative that could have eased 
the discriminatory effects of the separate seniority lists with­
out injury to any minority city driver. This reasonable alter­
native vitiates the business necessity defense. See United 
States v. St. Louis-San Francisco Railway Co., 464 F.2d 301 at 
308; Robinson v. Lorollard Corp., 444 F.2d at 798.

For their role in establishing separate seniority rosters that 
failed to make allowance for minority city drivers who had 
been discriminatorily relegated to city driver jobs, Local 657 
and The Southern Conference must be held accountable. 
They have violated 42 U.S.C. § 2000e-2 and 42 U.S.C. § 1981. 
The district court’s finding to the contrary is clearly errone­
ous.

IV.

Remedy

[31] Because the district court concluded that the defend­
ants were not liable under Title VII or 42 U.S.C. § 1981, it 
never reached the question of remedy. We remand for the 
court’s consideration of this issue. The district courts have 
broad remedial powers to eliminate the present effects of past 
discrimination, and a large measure of discretion in modeling 
a decree. Local 53, International Heat & Frost Insulators & 
Asbestos Workers v. Vogler, 407 F.2d at 1052. The discretion 
is not unbridled, however, and we provide the boundaries 
within which the decree in this case must be drawn.



RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT 1285

A. Transfer

[32,33] We have long subscribed in this circuit to the 
theory that those who suffer discrimination under Title VII 
must be permitted to take their “ rightful place” when job 
openings develop. As we said in Local 189, United Papermak- 
ers & Paperworkers v. United States, 416 F.2d at 988:

The Act should be construed to prohibit the future award­
ing of vacant jobs on the basis of a 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. 
This solution accords with the purpose and history of the 
legislation.

See Note, Title VII, Seniority Discrimination, and the Incum­
bent Negro, 80 Harv.L.Rev. 1260 (1967). Thus, black and 
Mexican-American city drivers, many of whom would now be 
road drivers but for the discrimination of the defendants, 
must be given an opportunity to transfer to the road as road 
driving job openings develop.

ETMF need not permit unqualified plaintiffs to transfer to 
the road, but in determining who is qualified ETMF must use 
criteria that either have no disparate impact along the lines of 
race or national original, or that can be justified as a business 
necessity. We have already stated that the requirement of 
three years prior road haul experience must give way. Be­
cause road driving experience has been denied to blacks and 
Mexican-Amerieans as a class, and because ETMF has not 
justified the experience requirement as essential, it may not 
be confined to road driving when to do so would discriminate 
against members of the plaintiff class. ETMF having failed 
to prove that three years’ line-haul experience is a business 
necessity for transfer, each city driver must be considered to 
meet the experience requirement by showing three years of 
city driving on equipment similar to that used over the road.



1286 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT

[34, 35] The plaintiffs argue that, because not all trucking 
companies require three years experience, we should also 
reduce the number of years experience required. See, e. g., 
Bing v. Roadway Express, Inc., 485 F.2d 441 (1 year); Sayers 
v. Yellow Freight System, Inc., N.D.Ga.1973, 6 EPD % 8885 (2 
years). Once the requirement of road experience is removed, 
however, the experience requirement is not only facially neu­
tral, it is neutral in effect. Thus it need not be justified as a 
business necessity. Congress did not intend that Title VII 
lead to uniform hiring practices across an industry. So long 
as hiring policies do not discriminate, Title VII does not 
require their modification.

[36] We hold, not that all minority city drivers with three 
years’ experience at city driving must be permitted to trans­
fer, but only that they may not be excluded unless they fail to 
meet other qualifications that either have no disparate impact 
along racial or national-origin lines or that can be justified as 
essential for safety or efficiency. On remand the district 
court should monitor carefully the criteria used by ETMF to 
prevent minority city drivers from transferring to line driving 
jobs.38

To permit minority city drivers the opportunity to return to 
their “ rightful place” in the road driver ranks, the plaintiff 
class should be divided into sub-classes, one for each terminal 
in the Texas-Southern Conference area where ETMF domi­
ciles road drivers. ETMF’s system of terminal-based responsi­
bility for hiring and of domiciling road drivers only at certain 
terminals is not discriminatory, and we leave these practices 
intact. Still, we are not blind to the recognized mobility of

28. While the in-cab road test is undoubtedly a legitimate method for 
determining the qualifications of a driver, it may be subject to abuse 
unless the chances of a subjective judgment by the tester are 
minimized. See, e. g., United States v. Central Motor Lines, Inc., 
W.D.N.C.1971, 338 F.Supp. 532, 563. Moreover, a potential trans­
feree who performs inadequately on this test should not be disquali­
fied unless he cannot be expected to improve sufficiently given 
normal training.



RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT 1287

today’s minorities. See, e. g., Johnson v. Goodyear Tire & 
Rubber Co., 491 F.2d 1364 at 1371. We may not assume that 
blacks and Mexiean-Americans who became city drivers at a 
terminal where road drivers were not domiciled would not 
have moved to a terminal where road drivers were domiciled 
had a road driver job been open to them. Therefore, those 
members of the class who now work in terminals where road 
drivers are not domiciled must be permitted to join the 
sub-class of their choice. In other words, they must be 
provided an opportunity to become road drivers at one of the 
terminals where ETMF domiciles road drivers. Black and 
Mexican-American city drivers at terminals where road driv­
ers are domiciled should be placed in the sub-class correspond­
ing to that terminal. We may assume that they are already 
at the terminal they would have chosen had road driver jobs 
been open to them in the past.

Within each sub-class, minority city drivers should be per­
mitted the opportunity to transfer as jobs become vacant at 
that terminal. The minority city drivers should be ranked in 
the various sub-classes according to their “ qualification 
dates” , described below. The ranking should determine the 
order in which opportunities to transfer are awarded. 37

[37] Over objection at trial, the district court admitted 
evidence pertaining to the qualifications of the named plain­
tiffs to become road drivers. The court then found that 
Rodriguez, Perez, and Herrera were unqualified. In light of 
the fact that the company admitted by stipulation that it did 
not consider any of the plaintiffs for employment as road 
drivers, we believe that the district court’s action was prema­
ture. The question with regard to the named plaintiffs was 
not whether they were qualified, but whether ETMF’s failure 
to consider their applications was discriminatory. On remand, 
the district court should require ETMF to consider the plain­
tiffs for road driver positions as vacancies occur. The court 
should supervise carefully the standards used by ETMF to



1288 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT

determine whether the plaintiffs are in fact qualified, and 
should view with particular skepticism any reliance by ETMF 
on disciplinary actions taken by the company after the plain­
tiffs initiated their actions with the EEOC.

B. Seniority Carryover

[38] Members of the plaintiff class who transfer to the 
road must be permitted to take with them seniority for job 
bidding and lay o ff purposes. The question is “ how much?” 
In general terms, the answer is that “how much seniority the 
transferee deserves should be determined by the date he 
would have transferred but for his employer’s discrimination” . 
Bing v. Roadway Express, Inc., 485 F.2d at 450. There is no 
way to arrive at such a date with exactitude, however, and 
some method for approximation is necessary.

In Bing we approved a “qualification date” formulation— 
the date a transferee had the experience necessary to qualify 
him for a road driving job. 485 F.2d at 451.29 The Bing test 
represents a compromise between the trial court’s determina­
tion in that case that seniority rights should date from when 
the transferees applied to become road drivers, and the reme­
dy requested by the Government as amicus, that transferees 
should carry over full company seniority. This Court felt, on 
the one hand, that the application-date formulation of the 
district court failed “ to account for the realities of entrenched 
employment discrimination” , 485 F.2d at 451; the company

29. In this case the qualification date of a member of the plaintiff 
class of city drivers is the date when, in the employ of ETMF, the 
individual first accumulated three years combined road and city 
driving experience gained either with ETMF or with other organiza­
tions. If the individual already possessed such experience when 
hired by ETMF, of course, his qualification date will be the same as 
his company seniority date.

Similar to Bing, the straight qualification-date calculation must be 
modified to take account of that period from October 1969 to March 
1971, during which ETMF did not hire any road drivers. The 
seniority of any member of the plaintiff class whose qualification 
date falls within the period when ETMF did no hiring must date 
from March 1970, when ETMF resumed hiring.



RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT 1289

defendant’s discriminatory practices discouraged city drivers 
from applying. On the other hand, the Government’s theory 
of full seniority carryover would have given super-seniority to 
those transferees who were not qualified to be road drivers 
before they began working for the defendant. Until they 
were qualified, “discrimination could not have blocked their 
employment as road drivers” . Id.

The Bing qualification-date formulation was rejected 
recently by a divided panel of the Sixth Circuit. In Thornton 
v. East Texas Motor Freight, 6 Cir. 1974, 497 F.2d 416, a case 
involving the same trucking company that is a defendant in 
the instant case, the Court affirmed the district court’s grant 
of seniority carryover dating from six months after the trans­
feree requested transfer or filed a charge with the EEOC. 
Although the Court distinguished Bing on the grounds that 
more charges were filed with the EEOC in Thornton (thus 
apparently showing that “ silence and futility of protest” were 
less the norm), the Court also criticized the Bing rationale: 
“The rationale in Bing was that silence might be caused by a 
belief in the futility of a transfer request. That may be true, 
but also it may be caused by no desire to transfer.” 497 F.2d 
at 421. The Court also noted that “ there is something to be 
said for rewarding those drivers who protest and help to bring 
rights to a group of employees who have been victims of 
discrimination” . 497 F.2d 420.

We are unpersuaded by these considerations. First, we 
think that the best indication whether a person desired trans­
fer to the road in the past is reflected in whether he desires 
transfer now, so long as we do not create special incentives or 
disincentives that skew the balance. The qualification-date 
test of Bing, by taking into account experience requirements 
on the one hand and the effects of entrenched discrimination 
on the other, is as neutral as any we can envision. Second, 
the concern showed by the Thornton majority for rewarding 
those who help to bring rights to a group of employees was



1290 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT

adequately answered by Judge Phillips, dissenting in part: 
“Any such ‘reward’ should not be at the expense of the other 
victims of the discrimination. Title VII was enacted to pro­
tect all employees from unlawful discrimination. This is 
especially true where the discrimination intimidated the em­
ployees to such an extent that they felt it would be futile to 
request a transfer.” 497 F.2d at 428. In short, we reaffirm 
the qualification-date formulation of Bing.30

C. Back Pay

The district court should consider the question of back pay, 
with particular reference to the guidelines laid down in Pett­
way v. American Cast Iron Pipe Co., 494 F.2d at 251-263; 
Johnson v. Goodyear Tire & Rubber Co., 491 F.2d at 1375- 
1380; and Bing v. Roadway Express, Inc., 485 F.2d at 452- 
455. In these cases the criteria for the award of back pay, 
and the method of calculation, have been thoroughly analyzed. 
The most difficult question remaining before the district court 
will be the apportionment of the burden of paying any back 
pay awards among the three defendants. Consistent with the 
broad discretion awarded the district court on this question in 
Johnson v. Goodyear Tire & Rubber Co., 491 F.2d at 1382, we 
intimate no view to this question.

30. This Circuit recently required that transferees in a trucking case 
similar to this one be permitted use of “ full company seniority” in 
their new positions. Franks v. Bowman Transportation Co., 5 Cir. 
1974, 495 F.2d 398, 416. The Court emphasized, however, a critical 
difference between that case and Bing: “ In [Bing], Roadway had a 
flat requirement of one year’s experience for road drivers, so that 
the qualification date was easily calculable. To allow the use of 
company seniority before that date would have placed the discrimi- 
natee in a better position than he could have achieved without the 
discrimination. In this case, by contrast, Bowman had no rigid 
one-year experience requirement. It sometimes accepted OTR 
[over-the-road] trainees with little or no prior driving experience.” 
Id. 495 F.2d at 417 n. 17. As in Bing, the qualification date in the 
instant case is easily calculable. The three-years experience re­
quirement has been rigidly adhered to.



RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT 1291

V.
The Consent Decree

On June 29, 1972, the United States filed a “ pattern and 
practice” 31 suit in the Northern District of Texas against 
ETMF, the Teamsters International, and the International 
Association of Machinists and Aerospace workers, challenging 
nationwide essentially the same practices at issue in the 
instant private class action. February 19, 1974, approximately 
one month before we heard oral argument in the case before 
us, the parties to the Government’s suit entered into a consent 
decree. The decree covered:

A. Such black or Spanish-surnamed city drivers, hos­
tlers, checkers and garage employees who are domiciled at a 
terminal where road drivers are presently domiciled or 
where road drivers have been, since July 2, 1965, domiciled 
under either ETMF or a predecessor company.

B. Such persons who are incumbent city employees em­
ployed at a non-road driving terminal who have, since July 
2, 1965, indicated a desire to transfer to the road.32

In addition to setting some standards for hiring and establish­
ing hiring ratios, the decree established “ transfer procedures” . 
City drivers were to be afforded 30 days “to indicate an 
interest in transferring to the road driver classification at the 
terminal in which he is employed (if that terminal has an 
over-the-road operation) or at a terminal within the job mar­
ket, or to a terminal of his choice (if the terminal at which he 
is employed has no over-the-road operation) . . . .” The
issue of seniority rights was left for later resolution. The 
decree provided also that ETMF was to furnish a total of 
$175,000 as back pay compensation for members of the affect­
ed class nationwide. Persons accepting a portion of this 
settlement were to sign a release “ stating that such designat­
ed portion is accepted in full and final settlement of all claims

31. See 42 U.S.C. § 20Q0e-6.
32. The decree also covered some named individuals.



for monetary compensation, back pay or any other type of 
relief against ETMF or any predecessor corporation based 
upon any pending litigation or other alleged discriminatory 
actions because of race or national origin occurring prior to 
the date such release is signed” .

[39,40] A judgment by consent binds the parties and those 
in privity with them. Seaboard Air Line Railroad Co. v. 
George F. McCourt Trucking, Inc., 5 Cir. 1960, 277 F.2d 593. 
Members of the plaintiff class in the present action were 
neither parties to the Government’s suit, nor do they have 
interests in privity with the Government. See Williamson v. 
Bethlehem Steel Corp., 2 Cir. 1972, 468 F.2d 1201, 1203, cert, 
denied, 411 U.S. 931, 93 S.Ct. 1893, 36 L.Ed. 390; cf. Trbovich 
v. United Mine Workers of America, 1972, 404 U.S. 528, 92 
S.Ct. 630, 30 L.Ed.2d 686.

We hold, therefore, that the consent decree does not operate 
as collateral estoppel to prohibit any members of the plaintiff 
class from participating in relief in this case. See also IB J. 
Moore, Federal Practice f  0.411[1] (2d ed. 1974). Those mem­
bers of the plaintiff class who accept compensation under the 
consent decree and sign a release, of course, are bound by the 
terms of the release. But no other members of the plaintiff 
class lose any right to relief in the instant case.

We have chosen not to accord the consent decree any great 
weight in our outline of the relief to be awarded by the 
district court. First, the “ affected class” awarded relief in the 
consent decree does not encompass an important segment of 
the plaintiffs’ class here—black and Mexican-American city 
drivers at “ non-road driving” terminals in the Texas-Southern 
Conference area who have not “ indicated a desire to transfer 
to the road” . The Government’s remedy is thus based implic­
itly on the theory, one we reject, that the acceptance by a 
black or Mexican-American of a job as a city driver at a 
city-only terminal, at a time when no road positions were open 
to him, signifies a lack of interest in a road driver position. 
Rather, we have taken cognizance of both the mobility of the

1292 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT



RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT 1293

modern work force and the reality o f entrenched employment 
discrimination that makes a request to transfer a futile ges­
ture. Second, private plaintiffs in class actions under Title 
VII and the United States in “pattern and practice” suits 
protect different interests: the Government protects general 
economic interests in addition to the rights of minorities; 
private plaintiffs represent only the interests of minority 
group members. United States v. Local No. 3, Operating 
Engineers, N.D.Calif.1972, 4 FEP Cases 1088, 1093. While the 
Government may be willing to compromise in order to gain 
prompt, and perhaps nationwide, relief, private plaintiffs, 
more concerned with full compensation for class members, 
may be willing to hold out for full restitution. Finally, we 
cannot ignore the possibility that, if we permit negotiated 
settlements by the Government to control the relief accorded 
in pending private actions against the same plaintiffs, private 
actions will be significantly discouraged. Such a result would 
have a deleterious effect on enforcement of Title VII and 
would not, in our opinion, be consistent with the intent of 
Congress.

We are not unmindful of the argument that by going 
beyond the relief awarded by the consent decree we may 
discourage defendants in “ pattern and practice” suits from 
entering into settlements with the United States when a Title 
VII private class action is proceeding simultaneously against 
the same defendant. The court in Local No. 3, Operating 
Engineers expressed a similar concern: “ If the United States 
cannot offer a final settlement in cases where a pattern and 
practice suit is proceeding simultaneously with a class action, 
then the Government’s bargaining power will be severely 
reduced” . 4 FEP Cases at 1093. Our worries are eased, 
however, as were those of the court in Local No. 3, Operating 
Engineers, by the Government’s support of the broad class 
relief outlined in the opinion. As amicus curiae in this case, 
the EEOC has filed a post-argument brief arguing that “ those 
who elect not to take under the consent decree, as well as



1294 RODRIGUEZ v. EAST TEXAS MOTOR FREIGHT

those who are not covered by the decree, should have an 
opportunity to pursue vindication of their rights through this 
private litigation” .33

The case is reversed and remanded for proceedings consist­
ent with this opinion.

33. Supplemental Brief for the United States Equal Employment 
Opportunity Commission as Amicus Curiae 4.

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.