Monteilh v. St. Landry Parish School Board Appellants' Response to Supplemental Brief of Appellee

    IN' THE

S U P R E M E  COURT OF TH E U N ITE D  S T A T E S

OCTOBER TERM, 1959

No. 5Y.3-"

AL MARSHALL, ET AL,
Petitioners

v.

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND 
ENGINEMEN, ET AL,

Respondents.

PETITION FOR A  W R IT  OF CERTIORARI TO THE  
UNITED STATES COURT OF APPEALS FOR THE  
FIFTH  CIRCUIT,

J oseph L. R auh, J r.,
J ohn Silard,

1631 K  Street, N.W.,
Washington, D. C. 

Attorneys for Petitioners.



Opinion Below ..............................................................
Jurisdiction ..................................................................
Question Presented......................................................
Statement ......................................................................

1. The Taking of Petitioners’ Mileage and Pay
by the Brotherhood’s Introduction of a 
“ Swing Man”  ...............................................

2. Racial Discrimination Demonstrated at the
Trial ..............................................................

(i) Only Negro firemen reduced in pay. . 
(ii) Only white firemen benefit from 

Negroes’ loss ..................................
3. The Opinion of the District Court...................

Reason for Granting the W rit.....................................
The Lower Court’s Complete Disregard of the 

Landmark Steele Ruling Deprives Negro Fire­
men of Their Last Remaining Protection 
Against the Depredations of Their All-White
Statutory Bargaining Representative.............

Conclusion ....................................................................
Appendix A ..................................................................
Appendix B ..................................................................

TABLE OP CONTENTS
Page

5

7

8
10
13

13
17
19
20

Table of Cases

Brotherhood of Railroad Trainmen v. Howard, 343
I'.S. 768 .................................................................... 14

Conley v. Gibson, 355 U.S. 41.....................................  14
Graham v. Brotherhood of Locomotive Firemen and

Enginemen, 338 U.S. 232 .........................................  p(
Oliphant v. Brotherhood of Locomotive Firemen and

Enginemen, No. 560, October Term, 1958..............  4, 5,18
Oliphant v. Brotherhoood of Locomotive Firemen

and Enginemen, 6 Cir., 1958, 262 F. 359................. 19
Steele v. Louisville & Nashville R. Co., 323 U.S.

192 ...............................................................3,13,14,16,18

— 8031-7

to
 t

o 
to

 H



Page
Tunstall v. Brotherhood of Locomotive Firemen and

11 INDEX

Enginemen, 323 U.S. 210.........................................  3,14
Washington v. Central of Georgia By., M.D.Ga., 1959 

[opinion dated June 27, 1958], — F.Supp — .........  19

M iscellaneous

28 U.S.C. 1254(1) ......................................................... 2
Railway Labor A c t ....................................................... 2



IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1959

No.

AL MARSHALL, ET AL, 

v. Petitioners

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND 
ENGINEMEN, ET AL,

Respondents.

PETITION FOR A W R IT  OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE  
FIFTH  CIRCUIT.

To the Honorable the Chief Justice of the Uni,ted States 
and the Associate Justices of the Supreme Court of the 
United States:

Petitioners pray that a writ of certiorari issue to review 
the judgment in this case of the United States Court of 
Appeals for the Fifth Circuit.

Opinion Below

The opinion of the United States District Court for the 
Middle District of Georgia appears at pp. 610-628 of the

(1)



2

record and is reported at 174 F. Supp. 33. The judgment 
of the United States Court of Appeals for the Fifth Cir­
cuit, which is not reported, appears in Appendix A, infra, 
p. 19).

Jurisdiction

The judgment of the Court of Appeals for the Fifth 
Circuit was entered on July 2,1959 (opinion dated June 30). 
On July 28, 1959, that Court denied a timely petition for 
rehearing. The time for the filing of this petition was ex­
tended by an order of Mr. Justice Black to and including 
November 25, 1959. The jurisdiction of this Court is in­
voked under 28 U.S.C. 1254(1).

Question Presented

Is it a violation of an injunction issued under the 
Steele doctrine for the Brotherhood of Locomotive Firemen 
and Enginemen to take mileage and pay away from senior 
Negro firemen and give it to junior white firemen, par­
ticularly where the adversely affected Negroes are ex­
cluded from membership in the all-white Brotherhood and 
where they are even denied any prior notice or hearing on 
the action taken against them by the Brotherhood?

Statement

This case presents a new chapter in the sordid story 
of racial discrimination against Negro locomotive firemen 
by the all-white Brotherhood of Locomotive Firemen and 
Enginemen, their collective bargaining representative un­
der the Railway Labor Act. After decades of covert dis­
crimination against the Negro firemen, the Brotherhood 
was emboldened in 1941 to force an overtly discriminatory 
agreement, the Southeastern Carriers Conference Agree­
ment, upon the southern railroads. That agreement was a 
deliberate effort to deprive Negro firemen of the job rights



3

to which they were entitled by their long years of service 
on the railroads. In Steele v. Louisville & Nashville R. Co., 
323 U.S. 192 (1944) and Tunstall v. Brotherhood of Loco­
motive Firemen and Enginemen, 323 U.S. 210 (1944), this 
Court struck down the discriminatory restrictions of the 
Southeastern Carriers Conference Agreement in no un­
certain terms, holding that the Brotherhood had violated 
its duty of equal and nondiscriminatory representation of 
the Negro firemen for whom it is the exclusive statutory 
bargaining representative.

When discriminations by the Brotherhood continued un­
abated even in the face of these definitive rulings, this 
Court was forced once more to condemn the Brotherhood’s 
discriminations, finding that they constituted “ a continuing 
and willful disregard of rights which this Court in unmis­
takable terms has said must be accorded to Negro fire­
men.”  Graham v. Brotherhood of Locomotive Firemen 
and Enginemen, 338 U.S. 232, 234 (1949).

Thereafter, faced with this third defeat in this Court, 
the Brotherhood finally settled the numerous pending dis­
crimination cases by consenting to the entry of permanent 
federal injunctions. These injunctions implement this 
Court’s decisions in Steele, Tunstall and Graham by for­
bidding any further discrimination against the Negro 
firemen whom the Brotherhood is obligated to represent 
equally and nondiscriminatorily under the Railway Labor 
Act, Thus, the 1952 consent injunction entered in the United 
States District Court for the Middle District of Georgia in 
the Washington case (R. 611), the injunction upon which 
this civil contempt proceeding is based, restrains the 
Brotherhood and the Central of Georgia Railway from en­
forcing any

“ (a) . . . written or oral agreements, or carrying on 
any practices under such agreements, insofar as said 
agreements or practices discriminate, on the ground



4

of their race or color, against Negro firemen in their 
employment or occupation as firemen on steam loco­
motives or as helpers on diesel locomotives, or (b) 
from denying to plaintiffs or other members of their 
class their respective rights to assignments as firemen 
on steam locomotives or as helpers on diesel locomo­
tives based upon seniority and qualifications because 
they are Negroes. .

Unfortunately, the entry of the injunctions did not end 
Brotherhood discrimination against the Negro firemen.1 
While the Brotherhood had learned after three trips to 
this Court to avoid overtly discriminatory agreements, it 
continued its inroads upon the jobs and the pay of Negro 
workers by means more subtle but no less effective. Meth­
ods used by the Brotherhood to defeat the seniority rights 
of the Negroes under the consent injunctions have been 
both general and specific. Thus, the Brotherhood has en­
tered into general agreements with the railroads, reducing 
or limiting the work of firemen, where such reductions and 
limitations are certain to weigh most heavily upon the older 
and higher seniority Negro firemen who hold the choice 
jobs with the most mileage. Where this has not satisfied 
the appetite of the junior white firemen, the Brotherhood 
has made specific incursions upon the mileage and pay of 
particular Negro firemen, as evidenced by this case.2

Faced with continuing inroads upon their jobs and live­

1 Insight into the post-injunction attitude of some powerful Brother­
hood officials in the South may be gained from the statement of a 
Brotherhood General Chairman to a Negro fireman concerning one such 
injunction entered by Federal District Judge Mullins— “ Judge Mullins 
gave it to you but I will sure as hell see you don’t keep it.” J.A. 75, 
Oliphant v. Brotherhood of Locomotive Firemen and Enginemen, No. 560, 
October Term, 1958.

2 See also, discriminations set forth in the record o f the Oliphant case, 
supra, n. 1.



5

lihood, despite the injunctions intended to protect their 
seniority, the Negro firemen as a group sought admission 
to the Brotherhood. They hoped that, through a measure 
of internal political power within the Brotherhood, Negro 
firemen could directly protect themselves against discrimi­
nation. Turned down for membership, they filed a class 
action in 1954 to compel their admission into the Brother­
hood. However, their class suit to accomplish this, Oliphant 
v. Brotherhood of Locomotive Firemen and Enginemen, 
failed when this Court refused review “ in view of the ab­
stract context in which the questions sought to be raised 
are presented by this recoi'd. ”  359 IT.S. 935; rehearing de­
nied, 359 IT.S. 962.

In the present posture Negro firemen continue, fifteen 
years after Steele, to be subjected both to complete ex­
clusion from i the Brotherhood and to discriminatory bar­
gaining representation by the Brotherhood. Negro firemen 
are thus relegated to this Court’s enforcement of the 
Steele doctrine as the sole means for the protection of their 
jobs and livelihood against continuing Brotherhood depre­
dations on behalf of white Brotherhood members. The 
question so forcefully presented by the instant case is 
whether the Steele doctrine and the implementing injunc­
tions afford any real protection to Negro firemen against 
the Brotherhood’s expropriation of their earnings for the 
benefit of the Brotherhood’s own white members.

1. The Taking of Petitioners’ Mileage and Pay by the
Brotherhood’s Introduction of a “ Swing Man’ ’

The act which gives rise to this civil contempt action was 
the Brotherhood’s 1957 introduction of a “ swing* man”  on 
a five-man assigned run on the Central of Georgia Railway 
from Columbus to Birmingham, a run held at that time, and 
traditionally held for over 20 years, by Negro firemen (R.



6

39'2-93; 612).3 Petitioners are the five Negro firemen who 
share the assigned run on which the swing man was added 
in March, 1957, and continues to operate today; four times 
a month this extra man takes a turn from each Negro fire­
man, representing a loss of approximately 500 miles and 
$100 a month for each petitioner (R. 612-613). Since peti­
tioners are Negroes, they are barred by the Constitution of 
the Brotherhood from membership therein and thus from 
participation in Brotherhood deliberations; morever, they 
were not consulted about and had no voice in the Brother­
hood’s negotiation of the swing man agreement with the 
railroad which has resulted in a regular monthly reduction 
in their mileage and pay (R. 119, 161, 456). The first they 
knew of their loss of earnings was when the swing- man was 
assigned to their run by notice on the bulletin board (id.).

Having no remedy inside the union, the five Negro fire­
men turned to the federal court wherein the injunction 
following’ Steele had been issued for their protection. The 
Washington case, in which this injunction had been entered 
in 1952, was a class action on behalf of Negro firemen em­
ployed on the Central of Georgia Railway. On December 
18, 1957, petitioners, members of that class, filed in the 
District Court a motion to intervene in that suit, and to be 
permitted to file a petition for a rule to show cause why 
the Brotherhood should not be held in civil contempt for

3 Jobs are assigned on the railroad on the basis of competitive bidding 
and award to the bidder with the highest seniority. The reason why the 
particular “ run” here involved has traditionally been held by Negro fire­
men is that this run is one of the choice assignments on the Columbus 
Division and, as such, Negro firemen who hold top seniority have success­
fully bid on it through the years. Negro firemen hold the top seniority 
because they have traditionally been denied promotion to engineer and 
have thus stayed on as firemen, accumulating highest seniority while white 
firemen became engineers. Thus in 1957, in the Columbus Division of 
the Central, the Division here involved, the 22 Negro firemen were all 
senior to 64 of the 66 white firemen in the Division. See Appendix B, 
infra, p. 20.



7

violation of the injunction in the Washington case.4 5 Their 
intervention was allowed, their petition was filed, and a rule 
to show cause was issued (R. 5-23).

2. Racial Discrimination Demonstrated at the Trial
At the trial, petitioners demonstrated that the taking of 

their traditional earnings by the introduction of a swing- 
man on their assigned run on the Columbus Division is 
racially discriminatory in that; only Negro firemen have 
been reduced in mileage and pay and the reduction has 
been accomplished for the exclusive benefit of junior white 
firemen.

(i) Only Negro firemen reduced in pay. Petitioners 
showed that their mileage and pay has been materially 
reduced by the swing man put on their run, a run tradi­
tionally held by Negroes because it is a highly desirable 
assignment on which Negro firemen with top seniority have 
top bidding rights (R. 392-93; 542-43). Petitioners showed 
that a swing man had at the same time been put on another 
Negro-held run in the Columbus Division and that no 
swing man has been put on to reduce the mileage of any 
white firemen (R. 130' et seq., 162).B Indeed, petitioners 
showed that the Brotherhood has not by any device, 
swing man or otherwise, reduced the actual mileage or pay 
of a single white fireman on their division (R. 130 et seq., 
162).

4 While the petition was also addressed to the Central of Georgia Rail­
way, during the trial the railroad moved for, and petitioners consented 
to, the release of the Central of Georgia from any liability and the Court 
thereupon entered an order exonerating the Central (R. 609, 617). The 
discrimination which gives rise to the present action, just as the discrimi­
nations of the Southeastern Carriers Conference Agreement, was initiated 
not by the railroad but by the Brotherhood, and it is the Brotherhood 
rather than the raiload which is therefore chargeable.

5 Petitioners also showed that no other swing men have been put on 
any run on any division of the Central since 1951, when a swing man 
was added to a run shared by five Negro firemen on the Savannah Division 
(R. 162; 176-77; 399).



All of this proof was completely uncontradictecl by the 
Brotherhood. In its lengthy defense, the Brotherhood was 
unable to produce a single instance where a swing man 
has been put,on a run held by white firemen (see R. 396-402). 
And it failed to produce even a single instance in which 
it has reduced the mileage of a white fireman on petitioners’ 
division.6 Thus, A. B. Healan, the Brotherhood’s General 
Chairman on the Central of Georgia Railway, and its chief 
witness below, conceded on cross-examination (R. 446-53) 
that the Brotherhood had not produced a single instance 
on the Columbus Division where it has reduced the mileage 
of a white fireman (R. 449). And the same witness con­
ceded that the Brotherhood had not adduced a single ex­
ample that it had 11 added a man to distribute the work of 
other men on the Columbus Division . . . except where it 
was distributing the work of men who were colored fire­
men”  (R. 452-53).

(ii) Only white firemen benefit from Negroes’ loss. Not 
only did petitioners show that the Brotherhood has reduced 
the mileage and pay only of the Negro firemen, but they 
showed on the basis of the race-seniority distribution of 
firemen on the Columbus Division, where the 22 Negroes 
are all at the very top of the seniority roster of 88 firemen 
(see Appendix B, infra, p. 20), that every reduction in 
the mileage and pay of Negroes, including that to which 
petitioners have been subjected, goes to the benefit of junior 
white firemen (R. 132-35; 402-408). Indeed, the Brother­
hood’s witness, General Chairman Healan, conceded as 
much (R. 407-408) :

6 A single alleged exception on the Cedartown District of the Columbus 
Division (petitioners are on the Columbus District o f the Columbus Divi­
sion), where respondents claim reduction in the pay of three white fire­
men, is discussed infra at n. 9, p. 12, where it appears from stipulated 
payroll figures that there was actually no loss whatever in pay to white 
firemen.



9

“ Q. And you also testify that when a swung man is 
cut in on the Columbus Division it necessarily either 
keeps a white man from having to go out of work or 
puts a white fireman back into work who is not working, 
on this division?
“ A. That’s true, that’s true.
“ Q. And that was necessarily the effect of cutting a 
swing man in last year on this run?
“ A. That’s spreading the work, that’s right.
“ Q. In other words Negroes, or primarily Negroes, 
on the Columbus Division had work taken away from 
them last year when the swing man wTas added, and 
whites and exclusively whites wTere benefited. Isn’t 
that true ?
“ A. That’s true. . .”

In sum, the record makes clear and the Brotherhood 
conceded at the trial, that when the extra job was carved 
out of the mileage and pay of the five Negro petitioners, 
the additional mileage and pay went to junior white firemen. 
The Brotherhood’s introduction of a swing man thus 
demonstrably constituted selective diminution of the pay of 
senior Negro firemen, admittedly for the benefit of junior 
white Brotherhood members.7

7 Petitioners showed also that the reduction aggravated an already 
serious discrimination against Negro firemen by virtue of the denial of 
opportunity to add to their pay by exercising engineering seniorities; 
the stipulated payroll records introduced at the conclusion of the trial 
(R. 553) make this existing discrimination clear. The payroll mileage and 
pay records show that of the 66 white firemen regularly employed in 1957 
on the Columbus Division, 61 added to their mileage and pay by exercising 
seniority as engineers, hostlers, etc., while not a single Negro fireman could 
add a dollar to his pay by working in any capacity other than as a fireman.

Some striking examples from the stipulated payroll o f the dual seniority 
available to white firemen may be found in cases such as those of white 
fireman R. B. Gable, Jr., who added $2,873.71 in 1957 to his filing pay 
by exercising engineering seniority during the same months that he worked 
as a fireman; by white fireman D. R. Cruise, who added $4,482.69 by a, 
similar exercise of double seniority; and by white firemen D. H. Greene,



10

3. The Opinion of the District Court

The District Court’s opinion recognizes the validity of 
much of petitioners’ demonstration. The Court found 
that petitioners are entitled to all the protections of the 
Washington injunction, which forbids discriminatory in­
roads upon the seniority rights of the Negro firemen (R. 
612); it recognized that, having traditionally been denied 
promotion to engineer, “ Negro firemen have become the 
senior firemen having the right to choice runs and all other 
rights accompanying high seniority”  (id.); it found that 
for 20 years or more petitioners’ assigned run has been 
shared by senior Negro firemen, who have now been seri­
ously reduced in their monthly pay by the introduction of 
the swing man on their run (id.); and, finally, the Court 
conceded that the reduction in petitioners’ mileage goes to 
“ benefit a junior white fireman’ ’ (R. 625). Despite all 
of this, and despite the District Court’s explicit cognizance 
of the exclusion of petitioners from membership in the 
Brotherhood (R. 612), the Court, flouting both the letter 
and spirit of Steele, refused to find any violation of an in­
junction whose very purpose was to safeguard the seniority 
rights of the Negro firemen against further white Brother­
hood incursions:

(d) As concerns petitioners’ demonstration that the 
Brotherhood has reduced the mileage and pay only of Negro 
firemen, the District Court first referred to a national policy 
of the Brotherhood of “ distributing the work among 
firemen”  (R. 618). The Court accepted the Brotherhood’s 
unsupported allegation that the reduction in petitioners’ 
mileage and pay was effected pursuant to that national pol­

T. J. Murphy, J. S. Holland, E. M. West, J. 0. Landrum, C. M. Maxwell, 
Jr., E. C. Cannon, Jr., A. M. Wilson, Jr., R. E. Nash, J. F. Tracey, and 
J. K. McLendon, all of whom added more than $2,000.00 during 1957 to 
their firing pay by exercising engineering seniority at the same time.



11

icy of reduction.8 But the briefest examination of the 
Brotherhood’s evidence in this respect shows that the al­
leged nationwide policy does not justify the introduction of 
a swing man on the Columbus Division who reduces both the 
mileage and pay of Negro firemen (R. 225-228). The 1953 
policy declaration relied upon by the Brotherhood refers 
to “ reduced mileage in road service without reduction in 
pay”  (R. 225). And the notice served on the carriers on 
January 15, 1956 was likewise “ to reduce the mileage in 
road service without reduction in pay”  (R. 227). As the 
Court itself remarked, “ that was a proposal to reduce the 
minimum mileage . . . but not to reduce the pay”  (R. 226). 
Thus on its face the reduction in the mileage and pay of 
petitioners is a “ reduction in pay”  utterly inconsistent with 
what the Brotherhood alleges to be the national policy of re­
duced work.

(ii) The Court next recited five instances of mileage 
reduction on divisions and districts of the Central of 
Georgia other than that upon which petitioners are em­
ployed, where, it is contended by the Brotherhood, white 
firemen have been forced to take a reduction in mileage 
and pay (R. 621-622). In so doing, the Court overruled 
petitioners’ objection that these five isolated instances, the 
only ones the Brotherhood was able to adduce in its entire 
defense, represent only hypothetical mileage rather than 
actual miles and dollars earned by individual white firemen. 
Petitioners had pointed out to the Court that these hypo­
thetical mileage figures, which omit the additional mileage 
and pay that white firemen (but not Negro firemen) can earn 
as engineers (see supra, n. 7, p. 9), give the entirely false 
impression that the individual white firemen have lost mile­

8 The Court made no reference to the fact that, as Negroes excluded 
from the Brotherhood and given no prior notice, petitioners never had 
any voice either in the formulation or implementation of that or any other 
Brotherhood “ policy” .



12

age and pay, whereas in fact no net reduction has been 
suffered by them at all. Thus, in the single one of the 
five hypothetical instances of “ reduction”  on which peti­
tioners were able to obtain the payroll for the white firemen 
involved, petitioners showed that the particular white fire­
men did not sustain any loss in pay but, on the contrary, 
by accumulating engineering mileage during the month, 
they actually increased their net pay at the time of their 
hypothetical reduction.9

On these weak reeds of an inapplicable national policy 
and a hypothetical (and non-existent) pay loss to white 
firemen, the District Court refused to find that the admitted 
taking of Negro earnings for the admitted benefit of junior 
whites was racially discriminatory and a violation of the 
Steele injunction. On July 14,1958, the Court dismissed the 
rule nisi and the motion to hold respondents in civil con­
tempt (R. 628-629). On July 2, 1959, the Court of Appeals, 
without analysis or opinion, affirmed, the judgment of the 
District Judge “ on the basis of his reported opinion below” . 
The court below, turning its back on Steele, thus held that 
Negro firemen may be stripped of their traditional seniority

9 According to the Brotherhood’s testimony accepted by the District 
Court, by the addition of an extra white fireman in August of 1957, three 
white firemen were reduced in the Cedartown pool from a previous half­
monthly mileage o f 2320 to 1547, with an alleged resulting loss to each 
of 773 miles (R. 594-597). The three white firemen were identified as 
C. Williams, Carter and H. Y. Stevens (R. 601-603). However, exami­
nation of the actual payroll figures submitted by the railroad for these 
three white firemen, shows that C. Williams added to his firing mileage 
and pay by working both as a hostler and as an engineer during August 
of 1957, and as a result he made $591 in that month, whereas he had 
made only $568 in the previous month. Similarly, Carter made $554 
during August o f 1957, whereas he had earned only $391 in July. Far 
from being reduced, these two men increased their actual pay during the 
month it is claimed they lost mileage and pay. And H. Y. Stevens, the 
third white fireman involved, is shown also to have worked dual seniorities 
in August but to have run only 982 firing miles during that entire month, 
from which it is apparent that he was not regularly employed in this 
pool at all during the month he was said to have lost mileage therein.



13

rights, without notice or hearing, by the taking of their 
mileage and pay for the benefit of the white Brotherhood’s 
own members.

Reason for Granting- the W rit

THE LOWER COURT’S COMPLETE DISREGARD OF THE LAND­
M ARK STEELE  RULING DEPRIVES NEGRO FIREMEN OF 
THEIR LAST REMAINING PROTECTION AGAINST THE 
DEPREDATIONS OF THEIR ALL-W HITE STATUTORY BAR­
GAINING REPRESENTATIVE

Petitioners are the victims of an ugly system of racial 
discrimination in the exercise of the all-white Brother­
hood’s exclusive statutory bargaining power. In 1957 the 
Brotherhood sought some way of increasing the earnings 
of its white members on petitioners ’ division of the Central 
of Georgia Railroad; it found the means in the overnight 
expropriation, for the benefit of junior white firemen, of 
the traditional mileage and pay of the most senior Negro 
firemen in the division. Because Negroes are denied 
Brotherhood membership, petitioners had no internal po­
litical power to prevent this expropriation of their mileage 
and pay, nor were they even given prior notice or oppor­
tunity for hearing before the reduction in their working- 
rights became an accomplished fact. Under these circum­
stances, unless this Court grants review and reverses, no 
remedy whatsoever is available to petitioners against this 
cavalier and discriminatory exercise of the Brotherhood’s 
statutory bargaining power.

Even more important than the impact of the ruling 
below upon petitioners is the emasculating effect of that 
ruling upon the essence of this Court’s Steele doctrine.10

10 The Steele doctrine, of course, has its primary significance in the 
area covered by the United States Court of Appeals for the Fifth Circuit. 
Thus, if this emasculating decision by the Fifth Circuit is left unchal­
lenged, the Steele doctrine will have lost its efficacy in the area where it 
is most needed.



14

Fifteen years ago this Court’s decisions in Steele and 
Tunstall established the requirement that a federally em­
powered bargaining agent, the same Brotherhood which 
is respondent herein, is forbidden to discriminate against 
Negro non-members of the union in the exercise of its 
exclusive statutory bargaining power} When discrimina­
tions continued, particularly in the railroad industry where 
there is a tradition of white union hostility against the 
Negro workers, this Court was required on three more 
occasions to reaffirm and reapply the Steele doctrine. 
Graham v. Brotherhood of Locomotive Firemen and En- 
ginemen, 338 U. S. 232 (1949); Brotherhood of Railroad 
Trainmen v. Howard, 343 U. S. 768 (1952); Conley v. Gib­
son, 355 U. S. 41 (1957). But if the court below is right 
in finding no discrimination on the present impelling record 
of disadvantage suffered by Negro firemen at the hands 
of the all-white Brotherhood, then the hard-won Steele 
injunctions against continued discrimination are of little 
if any value. For the lower court’s refusal to characterize 
as racial discrimination the gratuitous appropriation by 
an all-white union of the mileage and pay of Negro workers, 
throws into doubt the continuing vitality of the very essence 
of the requirement of nondiscriminatory bargaining repre­
sentation :

(i) In Steele this Court stated that to assure fair and 
nondiscriminatory representation of persons excluded 
from membership in the exclusive statutory bargaining 
representative

“ the union is required to consider requests of non­
union members of the craft and expressions of their 
views with respect to collective bargaining with the 
employer and to give them notice of and opportunity 
for hearing upon its proposed action.”  323 TJ. S. at 
204.



15

In the instant case petitioners were utterly denied oppor­
tunity to express their views about, or even advance oppor­
tunity to know of, the Brotherhood’s agreement with the 
Central of Georgia Railway to introduce the swing man 
who reduces their traditional monthly mileage and pay. 
Thus, in direct violation of the explicit stricture of Steele, 
at no time before the swing man was put on their run to 
help out junior white firemen did petitioners have any 
opportunity to protest this drastic overnight reduction in 
their traditional mileage and pay.

(ii) Moreover, the Brotherhood’s expropriation of the 
pay of Negro firemen is directly contrary to the Steele 
requirement of fair and equal bargaining representation, 
for the Brotherhood’s expropriation was for the sole 
benefit of its own white membership.

It is conceded on all sides that it is the white firemen 
who benefit from the Brotherhood’s taking of the mileage 
and pay of petitioners. The Brotherhood’s chief witness 
so testified at the trial. See p. 9, supra. The District 
Court so found (R. 625) :

“ To the extent that the addition of a swing man 
creates one more firing job in the overall firing picture 
for the benefit of a junior fireman way down on the list, 
this pay loss does benefit a white junior fireman.”  11

11 The District Court sought to explain this finding away, stating that 
the addition of the swing man created a firing job for the benefit of junior 
white firemen

“ because under the old 50% rule, stricken down by the injunction 
in this ease, over a long period only white firemen were added as 
employees and so many were added that during the last fifteen years 
no new firemen, white or colored, have been employed in the Columbus 
division. The identity of firemen at the bottom of the seniority list, 
therefore, results from discrimination which antedated the injunction 
and which the injunction did not undertake to correct except for the 
future. . . .”  (R. 625).

The court’s inexplicable dismissal of the fact that the work and pay taken 
by the Brotherhood from Negroes has been given to junior white firemen,



16

The Brotherhood, in its Court of Appeals brief (p. 5), was 
equally candid in making the concession, stating that:

“ The ultimate effect of adding a ‘ swing man’ to the 
appellants’ group was to make one new job for a 
fireman near the bottom of the firemen’s roster. This 
fireman would usually be a white fireman. . . ’ ’12

Certainly, the appropriation by the Brotherhood of the 
traditional mileage and pay of senior Negro firemen, is pre­
cluded by Steele where the mileage and pay which is taken

improperly raises the pre-injunction discriminatory action of the Brother­
hood to the status of a post-injunction defense to new discrimination. 
While the absence of Negro firemen at or near the bottom of the seniority 
roster is indeed, as the Court states, the result of pre-1952 discriminations 
by the Brotherhood, it remains a fact that in 1957, with none but white 
firemen at the lower end of the seniority roster, the Brotherhood chose to 
take the traditional mileage and pay of the most senior Negroes on the 
division to distribute it to junior firemen, who are all white firemen. It 
is bad enough that the Brotherhood was permitted to bar Negroes from 
being hired as firemen on the division after January of 1941, but it is 
absolutely intolerable for it now to appropriate the traditional mileage 
and pay of the most senior Negroes for the benefit of the most junior 
whites.

12 Indeed, the Brotherhood not only concedes that the effect of adding 
a swing man is to benefit junior white firemen; it even admits a deliberate 
policy of “ adjusting” the mileage of the Negroes “ to bring them into line 
with the mileage run by other [white] firemen . . .”  (R. 89). How 
successful this “ adjusting” policy has been is easily demonstrated. Thus, 
the average 1957 earnings of 21 senior Negro firemen on the Columbus 
Division was $7,008.28 as compared with average earnings of $6,858.22 
for 21 senior white firemen on the Division, all of whom were junior to 
all o f the Negroes, in some cases by as much as 25 years. No less than 
7 white firemen hired in 1941 or thereafter were able to earn more pay 
during 1957 than the most senior Negro fireman on the Division, who was 
hired in 1917.

As always, it is the senior Negroes who are being “ adjusted for the 
benefit of the junior whites. In the years before Steele, they were “ ad­
justed” all the way off the railroads; now that that is illegal, they are 
being “ adjusted”  down to and even below the level of junior whites. 
It is small wonder that Major Simpson, one of the petitioners, should 
have recalled in his testimony the -pre-Steele days when Negroes were the 
extra men and no one ever suggested putting a swing man on to help 
them- out (R. 160-161).



17

from the Negro firemen is given by the Brotherhood to 
its own junior white members. Indeed it is difficult to 
conceive what constitutes discrimination “ against Negro 
firemen in their employment or occupation as firemen” , for­
bidden by the injunction herein, if it is not the Brother­
hood’s taking of pay from Negroes and giving it to white 
Brotherhood members.

(iii) If all this were not enough, however, it is also 
clear that the taking of the mileage and pay of the senior 
Negro firemen for the benefit of the junior white firemen, 
was a totally selective inroad upon the earnings of Negroes, 
for no reduction of any kind has been effected against 
white firemen. The Brotherhood did not even attempt 
to demonstrate that any white firemen on petitioners’ 
division have been forced to take a reduction in mileage 
and pay. All that the Brotherhood could produce was 
five isolated “ hypothetical”  reductions effected against 
white firemen on other districts and divisions of the rail­
road. And even these were found, upon analysis of the 
payroll, not to be actual reductions in pay for the white 
workers involved, who, unlike the Negroes, can and do 
supplement their firing earnings by concurrent employ­
ment in engineering capacities. See p. 11, supra. Cer­
tainly, when an all-white union, without even notice or 
hearing, takes the mileage and pay of Negroes for the bene­
fit of its white members, the resulting heavy burden of 
disproof of discrimination cannot be met by “ hypothetical”  
figures which bear no relationship to actual dollars and 
cents.

Conclusion

The palpably discriminatory nature of the Brother­
hood’s action requires no embellishment. In response to 
demands of Brotherhood members desiring to earn more 
money, the Brotherhood has simply taken part of the tra­



18

ditional earnings of the senior Negro firemen on the divi­
sion and distributed them among white firemen. This ac­
tion, undertaken without any comparable reduction in the 
earnings of white firemen and accomplished without any 
prior notice or hearing to the adversely affected Negroes, 
is patently contrary to the basic requirement of this Court’s 
Steele ruling. The considerations which rendered that re­
quirement imperative in 1944 continue in all their vigor 
today, for this Court just last term refused to review the 
Sixth Circuit’s Oliphant decision upholding the exclusion 
of Negro firemen from the Brotherhood and that decision 
forever binds the class of Negro firemen. The continuing 
exclusion of the Negro firemen from membership thus ren­
ders imperative the most exacting fair and equal represen­
tation of their interests by the. Brotherhood, and the most 
vigorous and sensitive enforcement by the federal courts 
of the Steele requirement of equal treatment. Inasmuch 
as the decision below utterly disregards that requirement, 
this Court’s review is required to preserve the vitality of 
Steele against a debased system of racial paternalism oper­
ating under federal law to the continuing disadvantage of 
Negro railroad workers.

For the foregoing reasons, it is respectfully submitted 
that the writ of certiorari should be granted.

J oseph L. R atth, Jr.,
J ohn Silar©,

1631 K  Street, N.W.,
Washington, D. C.

Attorneys for Petitioners.



19

APPEN D IX A

Before J ones, B bown and W isdom, Circuit Judges
P ee. Cubiam : This is a suit for civil contempt brought 

by five Negro firemen against the Railroad and Brother­
hood based upon a prior consent injunction prohibiting 
racial discrimination in the job assignments of Negro fire­
men employed by Appellee Railroad.

The background facts, analysis of issues, and reason­
ing have been fully and accurately set forth by District 
Judge Bootle, and his fact findings amply satisfy the 
clearly erroneous test of F.R.Civ.P. 52(a). Accordingly we 
affirm the judgment finding no discrimination under these 
circumstances on the basis of his reported opinion below. 
Washington v. Central of Georgia Ry., M.D.Ga., 1959
[opinion dated June 27,1958],------ F. Supp.------ . See also
Oliphcmt v. Brotherhood of Locomotive Firemen and En-
ginemen, 6 Cir., 1958, 262 F.2d 359, cert, denied, 1959, ------
U .S .------, 79 S.Ct. 648, 3 L.Ed.2d 636.

A ffirmed.

(June 30, 1959.)



20

APPEN D IX B

Firemen’s Race-Seniority Distribution on the Columbus Division (1957)

1. May 1917 [x
2. August 1917 [x
3. December 1919 [x
4. March 1921 [x
5. March 1923 [X
6. September 1923 [x
7. January 1925 0
8. March 1925 |x
9. June 1925 [X

10. September 1925 [x
11. December 1936 [x
12. January 1937 [x
13. January 1937 [X
14. August 1938 [x
15. August 1938 [x
16. July 1939 |x
17. December 1939 [x
18. December 1939 ZI
19. January 1940 [x
20. January 1940 [x
21. December 1940 [I
22. January 1941 [|<
23. January 1941 [x
24. January 1941 [x
25. February 1941 Z
26. February 1941 |Z
27. February 1941 Z
28. April 1941
29. April 1941 □
30. April 1941 Z

31. May 1941 □
'82. July 1941 □
33. July 1941 □
34. July 1941 □
35. September 1941 Z3
36. September 1941 Z
37. September 1941 Z
38. October 1941 Z
39. October 1941 Z
40. November 1941 Z
41. November 1941 Z
42. November 1941 Z
43. January 1942 Z
44. January 1942 Z
45. January 1942 Z
46. March 1942 □
47. April 1942 □
48. April 1942 □
49. June 1942 □
50. July 1942 □
51. September 1942 Z3
52. September 1942 Z
53. September 1942 Z
54. October 1942 □
55. October 1942 Z
56. November 1942 [Z
57. November 1942 Z]
58. November 1942 [Z
59. December 1942 Z
60. March 1943 [Z

61. March 1943 □
62. April 1943 □
63. May 1943 □
64. May 1943 □
65. June 1943 □
66. July 1943 n
67. September 1943 □
68. October 1943 □
69. December 1943 □
70. January 1944 □
71. January 1944 □
72. February 1944 □
73. March 1944 □
74. April 1944 □
75. May 1944 □
76. May 1944 □
77. November 1944 □
78. December 1944 □
79. December 1944 □
80. April 1945 □
81. April 1945 □
82. June 1945 □
83. July 1945 □
84. June 1946 □
85. November 1947 □
86. August 1948 □
87. May 1956 □
88. October 1956 □

“X ” denotes seniority positions held by Negro firemen. Unchecked boxes 
denote seniority positions held by white firemen.

(8031-7)