English v. Seaboard Coast Line Railroad Company Brief for Plaintiff-Appellant

    IN THE
, UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT 
NO. 71 - 3362

WILLIAM ENGLISH, JR.

Plaintiff-Appellant, 
- vs -

COAST LINE railroadCOMPANY, et al.,

Defendants-Appellees.

INTERLOCUTORY APPEAL FROM THE UNITED 
STATES DISTRICT COURT FOR THE SOUTHERN 
DISTRICT OF GEORGIA, WAYCR^S D“ S

BRIEF FOR PLAINTIFF-APPELLANT

BOBBY L.HILL 
JOSEPH JONES, JR.
FLETCHER FARRINGTON

208 East 34th Street 
Savannah, Georgia 31401

JACK GREENBERG 
WILLIAM L. ROBINSON 
MORRIS J. BALLER

10 Columbus Circle - Suite 2030 
New York, New York 10019

Attorneys for Plaintiff-Appellant



I N D E X

Table of Authorities..............................  ^
Issue Presented for Review ..........................  ±

Statement of the C a s e ........................ ^
Statement of Facts ............................  5
Argument ....................................  Q

Statutory and Factual Setting .................  8
I. Individual White Employees Need No 

Separate Representation of Their 
Interests Because These Interests Are 
Adequately Represented by the Present 
Union Defendants............................  10

A. Local 5 Adequately Represents The
Interests of the Individual White 
Employees............................ 10

B. BRAC Adequately Represents The
Interests of the Individual White 
Employees............................  13

II. Individual White Employees Have Shown No 
Rights or Legitimate Interests Worthy 
of Separate Representation in this
Litigation.................................. 16

A. Individual White Employees Have No
Substantive Right to Oppose the 
Alteration of a Discriminatory 
Collective Bargaining Contract Which 
Would Make Them Necessary or 
Indispensable Parties ................ 16

B. Individual White Employees Have Ex­
pressed No Interest in Participat­
ing in This Litigation.............. 18

Conclusion..........................................  20

Page

Certificate of Service . 21



TABLE OF AUTHORITIES
CASES

Banks v. Seaboard Coast Line Railroad
Company, ___ F.Supp. , 3 EPD *8059
(N.D. Ga. 1970) ....................

Bing v. Roadway Express, Inc., 444 F.2d 687 
(5th Cir. 1971) ..................

Bowe v. Colgate-Palmolive Company, 416 F.2d 711 
(8th Cir. 1969) ......................

Central of Georgia Ry. v. Jones, 229 F.2d 648 
(5th Cir. 1956), cert denied 352 U.S.
848 (1956). . . .~~7 . ........

Conley v. Gibson, 355 U.S. 41 (1957)
Culpepper v. Reynolds Metals Company, 421

F.2d 888 (5th Cir. 1970) ..................
Ford Motor Co. v. Huffman, 345 U.S. 330 (1953).
Haby v. Stanolind Oil and Gas Co., 225 F.2d 

723 (5th Cir. 1955) ..........
Hayes v. Seaboard Coast Line Railroad Co.,

F-SuPP- ___,3 EPD *8170 (S.D. Ga. 1971) ........
Humphrey v. Moore, 375 U.S. 335 (1964)..........
Jenkins v. McKeithen, 395 U.S. 411 (1969)
Local 189, United Papermakers and Paperworkers 

Union v. United States, 416 F.2d 
980 (5th Cir. 1969)....................

McShan v. Sherrill, 283 F.2d 462 (9th Cir. 1960)
National Licorice Co. v. National Labor Relations

Board, 309 U.S. 350 (1940)..................
Neal v. System Board of Adjustment, 348 F.2d 

722 (8th Cir. 1965)..............

Page

15

9

12, 14

17
5

19
17

9

12
17
5

9
9

17

12

l



CONT'D

Niles - Bement -Pond Co. v. Iron Moulders' Union,
254 U.S. 77 (1920).................................  8

Norman v. Missouri Pacific Railroad, 414 F.2d
73 (8th Cir. 1969).................................. 17

Pellicer v. Brotherhood, 217 F.2d 205
(5th Cir. 1954)...................................  ]_7

Provident Bank & Trust Co. v. Patterson, 390
U.S. 102 (1969)................................... 8> 9

Quarles v. Philip Morris Co., 279 F.Supp. 505
(E.D. Va. 1968)................................... 17

Shields v. Barrow, 17 How. 130 (1854) ..................  8
Stadin v. Union Electric Company, 390 F.2d

912 (3rd Cir. 1962) ........ .................... 19
Thompson v. New York Central Railroad Company, 250

F.Supp. 175 (S.D.N.Y. 1966)....................  12
Todd v. Joint Apprenticeship Committee, 223

F.Supp. 12 (N.D. 111. 1963)....................  12
United States v. Jacksonville Terminal Company

F.2d ___, 3 EPD f8324 (5th Cir. August 24,
1971) .......................................... 7, 9, 11

United States v. St. Louis-San Francisco Railroad 
Co., ___ F.Supp. ___, 3 FEP Cases 739
(E.D. Mo. 1971)................................ 15, 17

Waters v. Wisconsin Steel Works of International
Harvester, 427 F.2d 476 (7th Cir. 1970)........ 11, 12

Page

- ii -



CONT1D
STATUTES

Page
Civil Rights Act of 1964, Title VII

42 U.S.C. §2000e ..................
42 U.S.C. §2000e-6 (b) ............

28 U.S.C. §1292 (b)..............
42 U.S.C. §1981 ................

OTHER AUTHORITIES
Federal Rules of Civil Procedure 

Rule 19(a)........
Rule 24 . . . .
Advisory Committee Note to Rule 
24(a) as amended, 39 F.R.P.

69 (1966) ............
3A Moore's Federal Practice (1966 ed.) 

119.10 ............

-  1 X 1  -



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 71 - 3362

WILLIAM ENGLISH, JR.,
Plaintiff-Appellant,
- vs -

SEABOARD COAST LINE RAILROAD 
COMPANY, et al.,

Defendants-Appellees.

BRIEF FOR PLAINTIFF-APPELLANT 

ISSUE PRESENTED FOR REVIEW

Whether, in a Title VII suit seeking to alter a 
racially discriminatory seniority system, individual white 
employees whose relative seniority position might be affected 
by the decree must be joined as parties defendant, despite the 
presence as defendants of their segregated white local union 
and its allegedly discriminatory parent union?

STATEMENT OF THE CASE
This is an interlocutory appeal from an order of the

United States District Court for the Southern District of



Georgia, entered September 7, 1971, staying this action pending 
joinder of certain white individuals as parties defendant pur­
suant to Rule 19(a), Federal Rules of Civil Procedure

1_/
(A. 201a-203a).

The heart of this action is an attack upon the seniority
system maintained by defendant Seaboard Coast Line Railroad
Company ("Seaboard") and defendants Brotherhood of Railway,
Airline,, and Steamship Clerks, Freight Handlers, Express and
Station Employees ("BRAC") and Local Number 5 thereof ("Local 5"),

2/which represent employees in the railroad's Waycross Division.
This attack centers on those provisions of the seniority system, 
embodied in collective bargaining agreements between Seaboard 
and BRAC, which plaintiff alleges have prevented or discouraged 
black employees from gaining promotion or transfer into the 
better, higher-paying jobs traditionally reserved for whites.

The case grows out of an EEOC charge of discrimination 
filed by plaintiff William English, Jr., the appellant here, 
on February 6, 1968 (A. 8a). The complaint was filed on 
November 18, 1969, seeking relief from violations of Title

1/ This form of citation is to the Appellant's Appendix filed 
with this brief.
2/ Local Number 1586 of BRAC was also joined as a defendant, 
for reasons of jurisdictional completeness related to plaintiff’s 
prayer for relief, including the merger of the separate, 
segregated locals of BRAC. It is not alleged that Local 1586 
discriminated against black employees.

2



VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000ee_t seg.. 
and the duty of fair representation, as a class action on be­
half of similarly situated black employees (A. 3a-lla). On 
November 27, 1970 plaintiff moved to amend his complaint in 
order to add a cause of action under 42 U.S.C. §1981, based 
on the same facts as the Title VII action (A. 23a-32a); and 
on June 19, 1971 plaintiff moved to amend the complaint further 
to eliminate an error in terminology relating to the claim 
for breach of the duty of fair representation (A. 43a-44a).
The District Court on August 17, 1971 allowed these amend­
ments (A. 197a). Defendant Seaboard has filed an original 
answer to the complaint (A. 12a-14a), an amended answer 
(A. 21a-22a), and a second amended answer, in response to 
both the original and the amended complaints (A. 15a-20a,
A. 25a-42a) . Extensive procedural and discovery litigation 
has occurred in the court below.

The present appeal arises from a motion to dismiss for
failure to join indispensable parties, filed by Seaboard on

2/October 12, 1970. This motion urged, inter alia, that the 
action must be dismissed in the absence of those white em­
ployees whose relative seniority position might be adversely

3/ The motion itself is not included in the Record on Appeal. 
However, its content is clear from the Court's Order of 
September 7, 1971 (A. 201a).

3



affected by the decree plaintiff seeks. On August 17, 1971 
the district court entered an order which defined plaintiff's 
class to include "Negro employees of the Seaboard Coast Line 
Railroad Company at or near Waycross, Georgia, who belong to 
or are eligible for membership in either of the two defendant 
locals of BRAC, Number 5 and Number 1586, by reason of job 
classification" (A. 196a), but reserved decision on the re­
levant portion of Seaboard's motion to dismiss (A. 197a). On 
September 7, 1971 the district court denied the motion to dis­
miss, but stayed the action

Until such time as the plaintiff files an amend­
ment naming as defendant one or more of the white 
employees included in said class [of potentially 
affected employees], whereupon this Court will 
pass an order pursuant to Rule 23(a) providing 
for service upon said class to show cause why 
they should not be joined as defendants.

(A. 203a). Implicit in the court's ruling was the holding
that such individual white employees are indispensable or
necessary parties to the action.

Plaintiff moved on September 18, 1971 to certify the
order of September 7, 1971 for interlocutory appeal pursuant
to 28 U.S.C. §1292(b) (A. 204a). The court's amended order
of September 18, 1971 certified the question for interlocutory
appeal (A. 205a-208a). On September 23, 1971 plaintiff timely
filed in this Court his petition for permission to appeal
under 28 U.S.C. §1292 (b) . This Court granted leave to file
the interlocutory appeal on November 9, 1971, and ordered
the appeal expedited (A. 211a).

4



STATEMENT OF FACTS
The complaint alleges an across-the board pattern of 

discrimination by defendants against plaintiff and all other 
similarly situated black employees at Waycross. It specifi­
cally alleges that defendants' discriminatory practices in­
clude "a racially segregated, dual system of jobs and lines 
of progression" (A. 6a); restriction of blacks to inferior 
jobs (IcL) ; unequal application of job requirements to blacks 
seeking traditionally white jobs (_Id.) ; and a "lock-in" seniority 
system which perpetuates racially identifiable dual job cat­
egories (A. 7a). The complaint also alleges that the union 
defendants maintain racially segregated local unions (Ld.); 
and that BRAC and Local 5 breach their duty of fair repre­
sentation toward black members of Local 1586, in that those 
defendants participate or acquiesce in defendant Seaboard's
discriminatory practices through collective bargaining agree-

1/ments and otherwise (A. 8a). The complaint seeks declaratory 
injunctive, and affirmative relief against all the practices 
outlines above (A. 9a-lla). The defendants' various answers 
deny all these substantive allegations.

4/ The district court was of course obliged to treat all the 
foregoing allegations as true for purposes of ruling on the 
motion to dismiss, Conley v. Gibson, 355 U.S. 41, 45-46 (1957); 
Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). The court below 
apparently did so, and none of these facts are in dispute on 
this interlocutory appeal.

5



All employess and job classifications pertinent to this 
action are in Seaboard's Waycross Division and are within the 
BRAC craft unit for collective bargaining purposes. All em­
ployees and job classifications therein are divided into two 
groups knows simply as Group 1 and Group 2, roughly corres­
ponding to clerk's and laborer's jobs, respectively (A. 101a- 
194a). Group 1 jobs are better and higher-paying than Group 
2 jobs (A. 124a, 177a). All the blacks employed in Waycross 
hold Group 2 jobs (A. 128a, 129a, 130a-131a, 135a, 157a); 
all the Group 1 jobs are reserved for whites only (A. 130a- 
131a, 157a); and the great majority of whites work in Group 1

5/jobs (A. 130a-131a). All the black employees are members of
Local 1586, theblack local (A. 180a); all the whites, whether
in Group 1 or Group 2, belong to Local 5, the white local

6/(A. 180a, 125a).
Promotion or transfer within the craft represented by 

BRAC in Seaboard's Waycross Division is governed by the col­
lective bargaining agreement in effect between defendants

5/ See also Defendant Seaboard's Answers to Plaintiff's Requests 
for Admission, filed October 7, 1971, Nos. 8-12.
6/ There appears to be no dispute as to the fact that the 
locals are each segregated. The record contains no direst ad­
mission of this fact by defendant unions, however. Plaintiff's 
interrogatories to BRAC and its locals, filed June 9, 1971, 
sought to discover this information for the record, but the 
unions have not yet seen fit to answer these interrogatories.

6



Seaboard and BRAC (A. 20a, 41a). Under this agreement, Group
1 seniority and Group 2 seniority are kept strictly separate 
(A. 124a). In the event of permanent transfer or promotion 
from Group 2 to Group 1, the transferred employee would carry 
over none of his accrued Group 2 seniority for Group 1 pur­
poses (A. 131a-132a). For purposes of promotion into Group 1, 
or for bidding on jobs within Group 1, Group 2 seniority is 
inapplicable (A. 109a, 173a). Since all blacks are in Group 2, 
no blacks have any usable seniority rights for any Group 1 jobs. 
Thus, whatever defendants' present state of mind regarding equal 
employment opportunities, in fact their seniority system serves 
effectively to lock blacks into the inferior jobs assigned to
them in keeping with present and past patterns of discrim­
ination .

As relief, plaintiff seeks, inter alia, appropriate 
modification of the existing seniority system (A.9a, 30a). Such 
relief would no doubt include an order allowing qualified Group
2 employees to exercise their accrued seniority rights in apply­
ing or bidding for transfer or promotion into Group 1 jobs
(A. 104a, 109a), possibly in competition with present white

VGroup 1 employees. It is these whites who are the object of

2/ Cf• United States v. Jacksonville Terminal Company. ___
F .2d ___, 3 EPD f8324 (5th Cir., August 31, 1971). That case
involved identical issues and some of the same defendants as the 
present action. The relief there granted with respect to the 
defendants' seniority/transfer system is similar to what 
plaintiff seeks here.

7



Seaboard's solicitude, and whom the court below has deemed 
indispensable or necessary parties.

ARGUMENT
Statutory and Factual Setting

This appeal involves application of Rule 19(a) of the
Federal Rules of Civil Procedure, 28 U.S.C., to the facts, of
v 8/
the present action. That rule provides, in relevant part.

Persons to be joined if feasible. A 
person who is subject to service of pro­
cess and whose joinder will not deprive 
the court of jurisdiction over the sub­
ject matter of the action shall be joined 
as a party in the action if (1) in his 
absence complete relief cannot be accorded 
among those already parties, or (2) he 
claims an interest relating to the sub­
ject of the action and is so situated that 
the disposition of the action in his 
absence may (i) as a practical matter im­
pair or impede his ability to protect 
that interest or (ii) leave any of the 
persons already parties subject to a sub­
stantial risk of incurring double, mul­
tiple, or otherwise inconsistent obliga­
tions by reason of his claimed interest.

On the facts of this action, only subsection 2(i) 
of Rule 19(a) is germane, as inspection of the pleadings 
quickly shows. The only relief sought by plaintiffs which

8/ The definition in principle of who is a "person to be 
joined if feasible" under Rule 19(a), or an "indispensable 
party", is and long has been clear. See, e.g.. Provident 
Bank & Trust Co., v. Patterson, 390 U.S. 102, 124-125 (1969), 
and Shields v. Barrow, 17 How. 130, 139 (1854). Application’
of that definition to specific persons has always been the 
problem, see Niles-Bement-Pond Co. v. Iron Moulders' Union 
254 U.S. 77, 80 (1920). “ ---

8



would in any way affect the interests of the individual white 
employees is an injunction and affirmative relief against the 
discriminatory aspects of the job classification and seniority 
systems in effect on Seaboard's Waycross Division. The collec 
tive bargaining agreement in effect between defendants BRAC 
and Seaboard embodies all pertinent provisions relating to 
these seniority and job classification agreements. Individual 
white employees are not parties to this collective bargaining 
agreement. if the court, having all parties to the agreement 
before it, decided to enjoin and modify the agreement's terms, 
the court would be able to accord "complete relief . . . among 
those already parties." Therefore subsection (1) is in­
applicable here. For the same factual reason, e.g., presence 
before the court of all parties to the bargaining agreement, 
subsection 2 (11) is likewise inapplicable here. ^This argu-

u°*rt haf not hesitated to decree "complete relief" in­cluding substantial revisions of discriminatory seniority pro­
visions of collective bargaining agreements, in cases where only 
the company and unions were parties. See, e.g., Local 189 United 
3lferT ^ y S r d PaPer^ kers v- United States. 41~F.2d 980 ^5th 
?Q7i’/ 9T6T9-Z tryg Roadvay Express, Inc.. 444 F.2d 687 (5th Cir.■3 n ?.tates v• Jacksonville Terminal Co., F.2d

EPD 58324 (5th Cir. 1971). The Court must be presumed to have 
done so in full knowledge that, if parties indispensable to a

such relief were absent, the Court should have raised the Rule 19 issue sua sponte. Provide.nt Bank & Trust Co v 
|||terson 390 U-S. 102^U0-111 (1969) , Habv v. on

C?’' 225 F*2d 723 (5th Cir. 1955); McShan v. Sherrill 283 F ?d 462 -464 (9th Cir. 1960). The Title V I ~ a'ses cited in thie note 
would therefore appear to lend sub silentio support to ampllant-'c position in this b r i e f . ------------^  s

10/ Even if the appellees choose to argue their point under sub­
sections (a) (1) or fc)(2) (ii), we submit that the substance of our
argument herein is also applicable and persuasive with respect 
to those other subsections.

9



ment will consequently deal with the issue raised here pri­
marily in terms of Rule 19(a)(2)(i): whether disposition of 
this action in the absence of the individual white employees
would, as a practical matter, endanger their ability to protect 
their interests.

I* Individual White Employees Need No Separate 
Representation of Their Interests Because 
These Interests Are Adequately Represented 
by the Present Union Defendants.

In deciding the Rule 19 motion, the district court did 
not specify whether it had separately considered the adequacy 
of the white clerks' representation through Local 5, BRAC, or 
both. While the court's clearly implied negative answers to 
these various questions present slightly distinct issues for 
appeal, we urge that the district court erred in its ruling 
based on any of the possible grounds.

The individual white employees whose interests are pur­
portedly at stake here are all members of Local 5 and therefore 
of BRAC. These union defendants are committed by duty and pre­
ference to defending these employees' interests,as the record 
abundantly demonstrates. They adequately represent their white 
members in this action. Separate representation would there­
fore be doubly redundant.

A. Local 5 Adequately Represents the Interests 
of the Individual White Employees.

10



The most crucial fact on this appeal is the presence 
of Local 5, a concededly all-white union whose membership is 
limited to those employees who might be affected by the re­
lief plaintiff seeks, as a party defendant. This defendant 
is duty-bound under its duty of fair representation toward 
those members to protect and defend their rights. Moreover, 
"as a practical matter" in an industry where seniority posi­
tions are fiercely defended and crucially important, see United
States v. Jacksonville Terminal Company, ___ F.2d ___, 3 EPD
18224 (5th Cir. 1971) at pp. 6993-146,-147, Local 5's vigorous 
representation of its members' seniority positions is assured.

This same issue has been considered by a number of 
cases, none of them controlling in this Court, but all of 
which support plaintiff's view. The Court of Appeals for the 
Seventh Circuit has squarely endorsed the position plaintiff 
takes here in Waters v. Wisconsin Steel Works of International 
Harvester, 427 F.2d 476 (1970). That action was a Title VII 
and §1981 race discrimination suit against a Company and local 
union, the Bricklayers Local 21. The court assumed Local 21, 
having systematically excluded blacks from membership, to be 
all-white,427 F.2d at 479-480. The district court under Rule 
19(a) had nevertheless held the individual bricklayers to be 
indispensable parties to the action, 427 F.2d at 481. The 
Court of Appeals reversed. Although for other reasons the

11



Court of Appeals did not reach the Rule 19 question in its 
ratio decidendi, it stated bluntly:

Local 21 adequately represents the 
interests of absent bricklayers thereby re­
futing the argument that individual white 
bricklayers are indispensable parties.
Bowe v. Colgate-Palmolive Company, 416 
F.2d 711, 719 (7th Cir. 1969).

427 F.2d at 489 n. 22. In another discrimination case against a 
raii:r‘03b and international and local local unions relating to 
seniority rights, Thompson v. New York Central Railroad Company.
2 50 F.Supp. 175 (S . D .N. Y. 1966), the court denied a Rule 19 motion 
to dismiss for failure to join individual union members as 
defendants, stating,

The Local represents the employees as a class. It 
made the very determination of which plaintiffs com­
plain. In the absence of a showing that the benefited 
employees' interests are not the same as defendant 
Union s the motion to bring in the employees as indis­
pensable parties is denied.

250 F.Supp. at 178. And in Todd v. Joint Apprenticeship Com- 
m_it_teê , 223 F.Supp. 12, 17-18 (N.D. 111. 1963) the court, on 
facts closely similar to those presented here, strongly rejected 
the same proposition that Seaboard urged below.

In only one reported decision known to plaintiff's 
counsel, Hayes v. Seaboard Coast Line Railroad Co.. 3 EPD 
18170 ( s.D. Ga. 1971), has a federal court found members of
a segregated white local union which was a party defendant

. . . 10a/to be necessary or indispensable parties to the action.
l°a/ Neal v. System Board of Adiustment, 348 F.2d 722 (8th Cir. 
1965) [dictum] is not such a case, in that the segregated locals 
there had been consolidated at the time of the decision. More­
over, Neal is inapplicable here because it arose under the unique 
provisions of the Railway Labor Act, cf. Bowe v. Colgate-Palmolive 
Company, at 719 n.9 (7th Cir. 1969). See also, Thompson v. New 
York Central Railroad Co., supra.

12



That case was decided by the same court which decided and
11/certified the present question for appeal.

B. BRAC Adequately Represents the Interest of 
the Individual White Employees.

Unlike its segregated white Waycross local, the 
Brotherhood (BRAC) has interests which are not coterminous 
with those of its white members in Waycross. Nevertheless, 
the record makes it clear that BRAC has chosen in this pro­
ceeding to represent only those individual whites' interests, 
and leaves little doubt that it views its obligation with re­
spect to the seniority system here in question as the unbend­
ing defense of the status quo.

Whatever BRAC's theoretical duty to represent black 
members fairly, it is clear that BRAC has utterly disregarded 
blacks' interests. The complaint (here presumptively true) 
alleges such a default of duty, and BRAC's posture through­
out this litigation in which it has denied and resisted all 
plaintiff's claims shows its alignment with white employees' 
interests. Moreover, BRAC is party to the collective bar­
gaining agreement which embodies the disputed system, and 
has single-mindedly defended the validity of its contract

11/ Petition to file an interlocutory appeal on the same issue 
in the Hayes matter was denied by this Court for want of juris­
diction, 3 EPD f8320, on August 10, 1971.

13



as a bona-fide seniority agreement (A. 19a-20a, A. 41a). BRAC 
plainly perceives its duty to include only the preservation 
of the contractual system for perpetuating the enjoyment by 
white employees of their discriminatory advantages. In this 
light, BRAC is an adequate and independent representative of 
the individual employees' interests.

The Seventh Circuit and most other courts confronted 
with the question have approved the logic of plaintiff's 
position. In Bowe v. Colgate-Palmolive Company, 416 F.2d 
711 (1969), a sex-discrimination case against a company and 
union, the court reversed a lower court's Rule 19 holding 
that individual males were necessary parties to the suit.
The Court of Appeals said,

Colgate also argued that there was a 
failure of necessary joinder in the actions 
below as none of its male employees were 
made parties to the action. The issue is 
frivolous. The Union was made a party 
and its duty was to represent the male em­
ployees as well as the female employees.S/
There is nothing in the law which pre­
cluded the Union from recognizing the in­
justice done to a substantial minority of 
its members and from moving to correct it.

416 F.2d at 719. Footnote 8 in that text contains another 
highly relevant comment: "In fact, since a majority of
the Jeffersonville employees were male, it is not unreason­
able to assume that the officers of the Union were elected 
by a majority of male members and would, therefore, be re­
sponsive to their interests." Id.* A similarly realistic

14



assessment of the situation in Waycross would show that BRAC 
is wholly responsive to its white majority there. Accord: 

States v. St. Louis —San Francisco Railroad Co. ,
F.Supp. ----, 3 FEP Cases 739, 741 (E.D. Mo. 1971), a race
discrimination case wherein the Court noted, "The Brother­
hood is fully capable of representing the interests of its 
members."

The only case on point which supports the Seaboard's 
position in this regard is Banks v. Seaboard Coast Line Rail-
road_Co., ___ F.Supp. ___, 3 EPD 18059 (N.D. Ga. 1970), where
the Seaboard once again sought dismissal of a Title VII 
claim for failure to join affected individual white em­
ployees. In that case the international union (Brotherhood 

Railway Carmen), but not the local, was a defendant. That
court's holding, on which the court below relied exclusively

12/
in ruling on the matter sub ludice. was based on its per­
ception that

The Brotherhood has an equal duty to 
represent those members comprising the 
cases which plaintiff represents as well 
as the white employees whose interest 
would be realigned by any other grant­
ing relief to plaintiff. it thus appears 
that the white employees' interest is not 
the same as the Brotherhood's, and that 
the Brotherhood cannot fairly and ade­
quately represent the interest of the class.

12_/ A. 201a-203a. We think this reliance was misplaced, in 
view of the crucial factual difference arising from the pre­
sence of the local union defendant here.

15



. . . Here it seems clear that the 
white employees whose interest will 
be realigned should plaintiff prevail 
are indispensable parties.

JEd. at p. 6161. This reasoning is, we submit, unpersuasive 
in the instant case. Whatever the facts in Banks may have 
indicated with respect to any differentiation between the 
union's interests and those of its white members, here BRAC 
has sufficiently demonstrated that its goals and the white 
employees' goals are at once identical and hostile to those 
of plaintiff and his class.

Individual white employees who might be affected by 
a decree herein are already represented not once but twice 
by vigorous defendants. Additional representation of such 
employees could only be burdensome and redundant.

II. Individual White Employees Have Shown No 
Rights or Legitimate Interests Worthy of 
Separate Representation in This Litigation.

A. Individual White Employees Have No Substantive 
Right to Oppose the Alteration of a Discrim­
inatory Collective Bargaining Contract Which 
Would Make Them Necessary or Indispensable 
Parties.

The only rights" or interests of white employees here 
in question are those individuals' seniority positions relative 
to certain black individuals, for certain purposes. These 
seniority "rights" based on a racially discriminatory seniority

16



system, like even legitimate seniority rights, "are not vested, 
indefeasible rights. They are expectancies derived from the 
collective bargaining agreement, and are subject to modification." 
Quarles v. Philip Morris Co.. 279 F.Supp. 505, 520 (E.D. Va.
1968); Norman v. Missouri Pacific Railroad, 414 F.2d 73, 85 (8th 
Cir. 1969); United States v. St. Louis-San Francisco Railroad 
Co., supra, at 741; cf. Humphrey v. Moore. 375 U.S. 335 (1964); 
Ford Motor Co. v. Huffman. 345 U.S. 330 (1953); Pellicer v. 
Brotherhood. 217 F.2d 205 (5th Cir. 1954); Central of Georgia 
Ry. v. Jones. 229 F.2d 648 (5th Cir. 1956), cert, denied 352 
U.S. 848 (1956). Such modification could in principle occur 
through normal collective bargaining processes, to which only 
Seaboard and BRAC would be parties; individual white employees 
would not participate directly, but would be represented and 
bound by their union. Since the parties adamantly refuse to 
modify their contract, however, this matter must proceed in 
federal court. When the court performs this function of 
modifying the bargaining agreement, there is no more need for 
individual white employees to be represented in the litigation 
than there would be for their personal presence at collective 
bargaining sessions. Our position, in short, has been aptly 
summarized by Professor Moore: "Public rights may be vindicated,
although they run counter to contractual rights between the 
defendant and third persons, without having the latter before 
the court." 3A Moore's Federal Practice 1(19.10, p. 2344; National 
Licorice Co. v. National Labor Relations Board. 309 U.S. 350 
(1940) .

17



B. Individual White Employees Have Expressed 
No Interest in Participating in This Liti­
gation .

Individual white employees have been formally notified 
of the pendency of this action by service upon officers of 
their white local union of EEOC charges and legal process. In 
addition, it is highly probable that this action has achieved 
notoriety among Waycross employees through informal channels. 
Nevertheless, not a single white employee has raised his voice 
to seek separate representation by means of intervention pur­
suant to Rule 24, Federal Rules of Civil Procedure. Yet it 
is clear under Rule 24 that a white employee would be "entitled 
to intervene in an action when his position is comparable to 
that of a person under Rule 19(a)(2)(i), as amended, unless 
his interest is already adequately represented in the action 
by existing parties." Advisory Committee's Note to Rule 24(a) 
as amended, 39 F.R.D. 69, 110 (1966). The absence of any
such motion to intervene in the case seriously undermines the 
credibility of defendant's proposition that defendant unions

11/do not now adequately represent the white employees' interests.

1.3/ Even upon motion to intervene, we submit that the part­
icipation of individual white employees may be open to serious 
doubt. However, the propriety of their joinder would be less 
dubious there, where movants would presumably assert that their 
interests are not adequately represented, than on the actual 
record barren of any such indication.

18



The fact that the issue of white employees' participation 
arises in the context of Seaboard's motion to dismiss under 
Rule 19(a) puts this question into a context very different 
from that of Rule 24. The Seaboard is, of course, the one 
defendant whose interests are fundamentally different from 
those of its white employees. Despite the fact that Seaboard 
is in no way prejudiced by the absence of these employees from 
the litigation, it alone and perhaps paradoxically insisted 
on raising the issue below.

In view of the foregoing argument showing that in­
dividual white clerks are in no legitimate sense needed in 
this litigation, the addition of these superfluous parties 
can only have the effect of complicating and prolonging this 
litigation. "Additional parties always take additional time. 
Even if they have no witnesses of their own, they are the 
source of additional questions, objections, briefs, arguments, 
motions and the like which tend to make the proceeding a 
Donnybrook Fair.'" Stadin v. Union Electric Company, 309 
F.2d 912, 920 (3rd Cir. 1962). Such needless encumbrance of 
the proceedings would be contrary to this Court's recognition 
of 'the duty of the courts to make sure the Act works," 
Culpepper v. Reynolds Metals Company, 421 F.2d 888, 891 (5th 
Cir. 1970). The Act itself directs courts in the case of 
Attorney General pattern and practice suits "to assign the 
case for hearing at the earliest practicable date and to cause

19



the case to be in every way expedited," 42 U.S.C. §2000e-6(b). 
The courts should be no less diligent in facilitating prompt 
hearing of private class actions which are directed at pro­
viding a remedy for the same underlying problems as the 
Attorney General suits. The unnecessary addition of more 
defendants in this action would cut against all these policies.

CONCLUSION
The district court's order requiring joinder of the 

individual white clerks as defendants was without justification 
and virtually without precedent. The white employees in 
question are already adequately represented in this proceed­
ing both by defendant Local 5 and by defendant BRAC. This 
Court should therefore vacate the district court's order 
staying this action.

Respectfully submitted.

BOBBY L. HILL 
JOSEPH JONES, JR.
FLETCHER FARRINGTON

208 East Thirty-Fourth Street 
Savannah, Georgia 31401

JACK GREENBERG 
WILLIAM L. ROBINSON 
MORRIS J. BALLER

10 Columbus Circle 
Suite 2030
New York, New York 10019 

Attorneys for Plaintiff-Appellant

_2C



CERTIFICATE OF SERVICE

This is to certify that I have served a copy 
of the foregoing Brief for Plaintiff-Appellant upon Malcolm 
Maclean, Esq., Post Office Box 9848, Savannah, Georgia 31402; 
James L. Highsaw, Esq., 1015 18th Street, N.W., Washington,
D.C. 20036; Stanley M. Karsman, Esq., Ill West Congress Street, 
Savannah, Georgia 31402 attorneys for defendants by placing 
same in the United States mail, adequate postage prepaid 
this ____ day of December, 1971.

Attorney for Plaintiff-Appellant