Sagers v Yellow Freight System Brief for Appellee

    IN THE
UNITED .-STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO. 74-3617

RICHARD B. SAGERS,
Plaintiff-Appellee, 

v.
YELLOW FREIGHT SYSTEM, INC.,

Defendant-Appellee,
and

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, et al.,
Defendants-Appellants.

Appeal from the United States District Court 
for the Northern District of Georgia

BRIEF FOR APPELLEE 
RICHARD B. SAGERS

JACK GREENBERG 
MORRIS J. BALLER 
O. PETER SHERWOOD 

10 Columbus Circle 
New York, New York 10019

JOHN R. MYER
Crosland, Myer, Rindskopf & Terry 
2415 Nat'l Bank of Georgia Bldg. 
34 Peachtree Street, N.W.
Atlanta, Georgia 30303

Attorneys for Plaintiff-Appellee



IN THE

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO. 74-3617

RICHARD B. SAGERS,

Plaintiff-Appellee,

v.

YELLOW FREIGHT SYSTEM, INC.,

Defendant-Appellee,

and

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, et al.,
Def endants-Appellants.

Appeal from the United States District Court 
for the Northern District of Georgia

CERTIFICATE REQUIRED BY FIFTH 
CIRCUIT LOCAL RULE 13(a)

The undersigned counsel of record for Plaintiff-Appellee 
certifies that the following listed parties have an interest 
in the outcome of this case. These representations are made 
in order that Judges of this Court may evaluate possible dis­
qualification or recusal pursuant to Local Rule 13 (a) .

Richard B. Sagers
The class consisting of all black employees 
of Yellow Freight System, Inc. working at 
locations governed by the Southern Conferenc 
of Teamsters.
Yellow Freight System, Inc.
International Brotherhood of Teamsters 
Southern Conference of Teamsters 
Truck Drivers & Helpers Local 728



I N D E X

Statement of Issues ̂ Presented ..................  1
Preliminary Statement ...........................  3
Statement of Facts'- :.............................  9

I. Yellow Freight's Operation ...........  9
II. The Unions And Their Collective

Bargaining Agreements With
Trucking Companies ...................  11

III. Proof of Hiring Discrimination........  13
A. Statistics ......................  13

Yellow's Nationwide Employment 
Statistics ......................  13
Yellow's Southern Conference 
Statistics ......................  14
Yellow's Atlanta Terminal
Statistics ......................  16
Pay Differentials ...............  16

IV. Continuing Effects of Hiring Discrimin-
< ation On Present Black Employees With­

in The Southern Conference   20
A. The No-Transfer Rule .............  20
B. Effects of Separate Seniority

Rosters ..........................  20
V. Sagers' Individual Claim .............  22

ARGUMENT:
I. THE DISTRICT COURT PROPERLY GRANTED

THE MOTION FOR PARTIAL SUMMARY 
JUDGMENT UPON THE ISSUES RELEVANT 
TO THE CASE ...........................  2 5

Page

i



Page
ARGUMENT (Contd):

A. The Requirements of Rule 56,
F.R. Civ. P.....................  25

B. Well-Established Principles of
Title VII Law Gave Plaintiff a 
Right to Partial Summary Judg­
ment .........................  2 9

II. THE DISTRICT COURT 1S GRANT OF SUMMARY
JUDGMENT IN PLAINTIFF'S INDIVIDUAL CASE
WAS PROPER.............................  35

III. THE DISTRICT COURT DID NOT ABUSE ITS 
DISCRETION IN DETERMINING THAT THIS IS
A PROPER RULE 23 (b)(2) CLASS ACTION .... 37

IV. THE DISTRICT COURT DID NOT ERR IN HOLD­
ING THE INTERNATIONAL UNION LIABLE .....  41

V. THE DISTRICT COURT DID NOT ABUSE ITS 
DISCRETION IN ASSESSING A PORTION OF 
THE ATTORNEY'S FEES AGAINST THE UNIONS .. 43

CERTIFICATE OF SERVICE ..........................  44
r

TABLE OF AUTHORITIES 

CASES

Aho v. Erie Mining Co., 466 F.2d 359 (8th Cir. 28
1972) .......................................

Baxter v. Savannah Sugar Refining Corp.,
495 F. 2d 437 (5th Cir. 1974).................  32, 43

Berman v. Narragansett Racing Assn., 414 F.2d
311 (1st Cir. 1969) .........................  38



Page

Bing v. Roadway Express, Inc., 444 F.2d 687
(5th Cir . 1971) . . .......................... 5,29,30,39

Bros., Inc. v. W.E. Grace Mfg. Co., 261 F.2d
428 (5th Cir. 1958-)......................... 25,34

Bruce Construction Corp. v. United States, 242 
F.2d 873 (5th Cir. 1957) .................... 26

Carey v. Greyhound Bus Co., Inc., 500 F.2d
1372 (5th Cir. 1974)........................ 41

Cunningham v. Securities Investment Co., 278
F.2d 600 (5th Cir. 1960).................... 26

Cypress v. Newport News General & Non-Sectarian 
Hospital, 375 F.2d 648 (4th Cir. 1967)...... 37

DeBardelaben v. Cummings, 453 F.2d 320 (5th Cir. 
1972)....................................... 38

Franks v. Bowman Transportation Co., 495 F .2d 398 
(5th Cir. 1974).............................. 30,31,36,39

Herrera v. Yellow Freight Systems, Inc., 505
F.2d 66 (5th Cir. 1974)..................... 29,30,39,41
f

Johnson v. Georgia Highway Express, Inc., 417
F. 2d 1122 (5th Cir. 1969)................... 38,43

Jones v. Lee Way Motor Freight, 431 F.2d 245 
(10th Cir. 1970) cert, denied 401 U.S. 954 
(1971)...................................... 30,39

Local 189, United Papermakers & Paperworkers 
v. United States, 416 F.2d 980 (5th Cir.
1969), cert, denied 397 U.S. 919 ........... 33

Long v. Sapp, 502 F .2d 34 (5th Cir. 1974)...... 30

Palmer v.Chamberlain, 191 F.2d 532 (5th Cir.
1951).......................................

Pettway v. American Cast Iron Pipe Co.,
494 F.2d 211 (5th Cir. 1974)................

28

41
• /

41



Page

Resendis v. Lee Moto:c Freight, 505 F.2d 69
(5th Cir. 1974)...'..........................  39, 41

Rodriguez v. East Texas Motor Freight, 505
F. 2d 40 (5th Cir-.. 1974).....................  29,30,34,39,41

Shahid v. Gulf Power Co., 291 F.2d 422
(5th Cir. 1961).............................  26

Thornton v. East Texas Motor Freight, 497 F.2d
416 (6th Cir. 1974)   34,39

United States v. Georgia Power Co., 474 F.2d
906 (5th Cir. 1973).........................  30

United States v. Roadway Express, Inc., CA No.
C-68-321 (N.D. Ohio)........................  5

Witherspoon v. Mercury Freight Lines, Inc.
457 F. 2d 496 (5th Cir. 1972)................  39

Statutes

42 U.S . § 1981 ................................  4, 39

42 U.S.C. §§ 2000 (e) et seg....................  4, 39

Rules

Rule 23, Federal Rules of Civil Procedure ....  6

Rule 23 (a) (1) .................................  37

Rule 23(a)4 ...................................  37,38

Rule 23 (b) (2)   2,3,37

Rule 56 .....................................  22

Rule 56 (c) ..................................... 26

Rule 56 (e) ..................................... 26

Other Authorities
Bauman, A Rationale for Summary Judgment, 1958,

3 3 ind. L. Rev. 46 7 ......................... 27

iv



Note on Form of Citation

The following citations are frequently used in this 
brief:

"A " - Pages in the joint appendix
filed in this appeal, as 
numbered therein.

"R " - pages in the original record,
as numbered therein.

"E " - Documents in the exhibit file,
not numbered in the original 
record.

v



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO. 74-3617

RICHARD B. SAGERS,
Plaintiff-Appellee,

v.
YELLOW FREIGHT SYSTEM, INC.,

Defendant-Appellee,
and

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, et al.,
Defendants-Appellants.

Appeal from the United States District Court 
for the Northern District of Georgia

BRIEF FOR APPELLEE 
RICHARD B. SAGERS

STATEMENT OF ISSUES PRESENTED
Upon a record showing comprehensive and undisputed evidence 

of racially discriminatory employment practices of a familiar 
type that has repeatedly been held unlawful by the courts:

1. Did the district court err in granting plaintiff 
partial summary judgment on his class 
claim upon a finding that the case raised



no genuine issues as to any material 
fact?

2. Did the district court err in granting 
plaintiff relief on his individual claim?

3. Did the district court abuse its discretion 
in determining that this case is a proper 
Rule 23(b)(2), F.R.Civ.P., class action?

4. Did the district court err in holding the 
International union liable for its partici­
pation in the unlawful racially discriminatory 
employment practices?

5. Did the district court abuse its discretion 
in apportioning plaintiff's attorneys fees 
and costs among all of the defendants?

2



PRELIMINARY STATEMENT
This case presents the familiar pattern of racial dis­

crimination within the trucking industry. It differs from the 
many other employment discrimination cases in this industry 
which this Court has had occasion to examine only in that it 
comes before this Court upon a grant of summary judgment for 
the plaintiff.

As the discussion that follows will confirm, there is 
nothing in the understanding reached between the plaintiff 
and Yellow Freight (hereinafter the Company) or in the manner 
in which the plaintiff has proceeded that is in any way antago­
nistic to the interests of the class. Additionally, the dis­
cussion below will clearly demonstrate that the operative facts 
upon which the district court relied are uncontradicted in the 
record and that the appellant unions had numerous opportunities 
to spread on the record any facts which they believed would 
dispute those presented on behalf of the plaintiff and the 
class.

STATEMENT OF THE CASE
Plaintiff, Richard Sagers, filed this Rule 23(b)(2), F.R. 

Civ.P., class action in the Northern District of Georgia,
Atlanta Division, on December 13, 1970 within 30 days of receipt 
of a Notice of Right to Sue from EEOC (R. 8). The complaint 
was broadly drawn alleging, inter alia, a pattern and practice 
of racial discrimination designed to limit and impede blacks 
from access to higher paying and more responsible jobs at the 
Company's Marietta facility, the general underrepresentation of

3



blacks throughout the Company's Southeast Division, and the 
refusal of the unions to properly and vigorously represent 
their black members, all in violation of rights secured by 
Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000(e), 
et seq., and 42 U.S.C. § 1981.

On February 1, 1971, the Southern Conference of Teamsters 
(hereinafter Regional Union) and the International Brotherhood 
of Teamsters (hereinafter International) jointly filed their 
answer (R. 45). The Company filed its answer on March 29, 1971 
(R. 81). Local 728 filed its answer on March 19, 1971 (R. 76).
All three answers denied substantially all of the material 
allegations in plaintiff's complaint.

By Order entered March 16, 1971, the court denied the 
Company's motion to dismiss for lack of subject matter jurisdic­
tion and for failure to state a cause of action. The court 
also denied Local 728's motion to dismiss. In addressing the 
Local/s motion to dismiss the plaintiff's class action allega­
tions, the court noted that the plaintiff had "made an 'across 
the board' accusation" of racially discriminatory employment 
practices. In the same order, Judge Smith commented that "At 
least thus far, the plaintiff seeks only restoration of his 
former seniority" ( ).

By leave of the court filed September 30, 1971 (R. 154),
plaintiff amended his complaint to clearly allege past exclusion 
of blacks from over-the-road driver jobs which, when coupled 
with the defendant's seniority system, had the effect of perpet­
uating discrimination (R. 150).

4



On May 3, 1971, the Company filed a motion seeking to 
restrict the suit to Sagers' individual claim or, in the alter­
native, to define the class as limited to black employees at 
the Company's Atlanta terminal (R. 107). On May 14, 1971, 
plaintiff responded that the class should be as broad as the 
scope of the EEOC investigation triggered by his complaint 
(R. 124). That investigation extended to the Company's entire 
nationwide operation (R. ). This Court rendered its
decision in Bing v. Roadway Express, 444 F.2d 687 (June 29, 1971), 
during the pendency of this motion. During that summer, counsel 
for the Company initiated settlement discussions.

All of the parties except the unions were willing to 
accept the provisions of the Consent Decree entered in the 
District Court for the Northern District of Ohio in United 
States v. Roadway Express, Civil Action No. C-68-321, as a basis 
for discussion of the type of injunctive relief that would be 
appropriate in this case. Counsel for the parties were unable 
to agree on a basis for determining back pay for the plaintiff 
and the class. Given the then unsettled state of the law of 
back pay and the prospect of avoiding years of litigation that 
would only delay the day when Yellow's black workers could 
transfer to high paying road driver jobs, counsel for the plain­
tiff agreed not to assert the back pay claims of individual 
class members if Yellow would frankly disclose its employment 
policies nationwide. Plaintiff steadfastly refused to enter 
into any understanding that would condition transfer on a waiver 
of back pay claims or bar any member of the class from obtaining

5



back pay for himself.
On September 30, 1971, the Company withdrew its motion to 

limit the class. Continuation of settlement discussions were 
interrupted by the sudden death of the lead counsel for plaintiff. 
Thereafter, settlement discussions resumed and the court was so 
advised by letter dated November 19, 1971. In the same letter, 
counsel for all parties joined in a request for an indefinite 
adjournment of a pre-trial conference then scheduled for December 
21, 1971. Since the unions were unable to agree to the proposed 
settlement, preparation for trial proceeded.

As disclosed by the unions' proposed pre-trial order filed 
in June of 1972 (R. ), their defense was directed exclusively
to the matter of Richard Sager's individual claim. None of 
their defenses addressed the systemic discrimination being chal­
lenged by the plaintiff.

On June 7, 1972, all three union defendants moved to dismiss 
plaintiff's complaint on the following grounds: (1) that it did
not meet the requirements of Rule 23, F.R.Civ.P., (2) that the 
Regional and International unions were not parties to the 
collective bargaining agreements which plaintiff was seeking to 
reform, and (3) all of the grounds set forth in its January 1971 
motion which had previously been denied (R. 208). In his response, 
plaintiff again argued that the class should be nationwide in 
scope (R. 227-229) . In this regard the Company joined the plain­
tiff (R. 244). The Company also advised the court of the other 
employment discrimination suits then pending against it around 
the country (R. 251-253) . By Order entered July 24, 1972, the

6



court denied the unions' motion and defined the class to include 
all non-supervisory and non-officer black employees of the 
Company within the area covered by the Southern Conference of 
Teamsters (R. 274). Pursuant to the court's order, notice of 
the pendency of this suit was mailed for posting in conspicuous 
places at each of the Company's terminals and at the headquarters 
of each of the local unions within the Southern Conference of 
Teamsters (R. 301). None of the local unions or employees 
affected by this suit sought to appear.

On March 30, 1973, plaintiff moved for partial summary 
judgment (R. 304). Plaintiff's motion addressed all of the
liability issues that would have been presented in a full trial. 
Without objection by the plaintiff, the unions were granted two 
extensions of time— until May 30, 1973— to respond to plaintiff's 
motion. During this period counsel for the Regional and Inter­
national unions reopened settlement discussions. These negoti­
ations proved unsuccessful.

On June 1, 1973, the Regional and International unions 
mailed their response to plaintiff's motion (R. 388). It con­
sisted of a fourteen page memorandum of law and a single affi­
davit (R. 421). Neither document raised any issue of fact which 
would serve to defeat plaintiff's motion. Local 728 filed its
response to plaintiff's motion on June 4, 1973 (R. 403). At the

1/
same time it filed an affidavit which was addressed to plaintiff 
Sager's individual claim only. On June 5, 1973, the Company

2i/ The Local in fact filed two affidavits, one by its president 
(R. 503) and another by its legal counsel. The latter affidavit 
was addressed to matters of law only. (Legal counsel's affidavit 
is not among the documents listed on the Clerk's compilation of 
the record on appeal.)

7



filed its response (r . 371) together with a lengthy affidavit 
by its chief legal officer (R. 429).

The defendants were presented with another opportunity to 
introduce facts which would give rise to a dispute sufficient 
to defeat plaintiff's motion when plaintiff filed his reply 
brief together with supporting factual affidavits on June 20,
1973 (R. 486). During the first week of August 1973, the parties
were all advised that the court would not be hearing oral argu­
ment (R. 515). On August 10, 1973, plaintiff submitted his 
second reply brief together with proposed findings of fact (R.516). 
Even at this late stage the defendants failed to avail themselves 
of the opportunity to introduce new facts which would defeat 
plaintiff's motion.

On September 28, 1973, Judge Freeman filed his decision 
granting plaintiff's motion (R. 551).

Subsequently, on October 23, 1973, the unions filed their 
motiop to vacate the district court's order granting partial 
summary judgment (R. 591). The motion was accompanied by an 
affidavit of an officer of the International which for the first 
time disclosed that in 1971 the union had discussed the discrim­
inatory effect of the Company's no-transfer policy and in 
recognition of the problem had proposed its abolition to the 
Company (R. 599 ). The court denied the unions' motion to
vacate on January 22, 1974 (R. 647 ).

On April 24, 1974, the plaintiff and Company submitted 
jointly their proposed consent decree and noted that the unions 
had not consented (R. ). By Order entered May 7, 1974, the

8



court granted the unions 20 days to present their objections 
to the proposed consent decree (r . 659).

On May 20, 1974, the unions filed their objections raising 
the following issues only:

1. The appropriateness of transfer relief to 
the class.

2. The ordering of carryover seniority as 
defined in paragraph 5 of the proposed 
decree.

3. The appropriateness of assessing an award 
of attorneys' fees against the unions.
(R. 660)

All of the unions' objections were specifically discussed and 
disposed of by the district court in its final order entered 
September 10, 1974 (r . 664 ) -

The unions filed their Notice of Appeal on October 4, 1974.

STATEMENT OF FACTS
Since the appellants have not set forth a statement of the

Vfacts disclosed by this record, plaxntxff wxll endeavor to do 
so.

I. Yellow Freight's Operations 
Yellow Freight is a large trucking company which transports 

goods on a transcontinental basis and in international trade. 
[See Company's Answers to Plaintiff's Second Interrogatories
No. 4 (hereinafter Second Answers #__).] It operates a network
of terminals and relay points located at strategic points 
throughout the United States to handle the transfer, loading and

w  Few of these facts are disputed. Where there is room for 
dispute plaintiff will seek to note it.

9



unloading of freight which it transports by truck (Second 
Answers #5).

Employees in Yellow's General Freight Division with whom
3/

this suit is concerned are divided into seven job classifica­
tions as follows:

(a) Road Drivers - operate tractor trailer vehicles
which move the freight on an inter-city basis 
or between the Company's various terminals and 
relay points (Second Answers #5);

(b) City Drivers - operate smaller trucks used for
local pickup and delivery of freight. City
drivers have the same basic driving skills as
do road drivers but operate smaller, lighter,
and shorter equipment at slower speeds for

4/
shorter periods of sustained driving (Second 
Answers #5, 15, and 16);

(c) Checkers - employed in certain larger terminals,
including Atlanta, to check movement of freight 
in and out of trailers (Second Answers #5 and 
attached Exhibit A);

(d) Dockmen - load and unload freight at terminals
(Second Answers #5);

I T  Yellow's two specialty hauling divisions, "Thermo" and "Steel," 
do not operate within the area covered by Sager's class and are, 
therefore, not included in the discussion here (Second Answers #4).
4/ As appears in the affidavit of W. C. Smith at page 5, there 
is no dispute that working conditions are more difficult for road 
drivers than city drivers. For example, road drivers work longer 
hours than city drivers and-, unlike city drivers, they are away 
from their homes and families for long periods of time. Of 
course, road drivers take home more money than do city drivers 
(R. 425).

10



(e) Office Employees - employed at each terminal in
varying numbers to perform billing, rating, 
communication, secretarial, and accounting 
functions (Second Answers #5);

(f) Supervisory Personnel - each terminal, depending
on size, employs salesmen, foremen, and super­
visors, including a branch manager (Second 
Answers #5);

(g) Garage Employees - employed at each terminal to
perform fueling, lubrication, tire, and mechanical 
work (Second Answers #5) .

II. The Unions And Their Collective Bargaining 
Agreements With Trucking Companies

Yellow and other trucking companies are parties to a National 
Master Freight Agreement (hereinafter National Agreement) nego­
tiated at three-year intervals by a group of employer representa­
tive^ and the National Over-the-Road and City Cartage Policy 
and Negotiating Committee (hereinafter National Negotiating 
Committee).

The National Negotiating Committee is chaired by the presi­
dent of the International and includes among its members the 
secretary-treasurer, vice-president, and general organizer of

Vthe International. The National Negotiating Committee operates

There is nothing in this record identifying the affiliation 
of all the members of the National Negotiating Committee. The 
record identifies the following persons to be functionaries of 
the International:

National Negotiating
Committee Member Title

International President 
International Vice-President

Frank Fitzsimmons 
Weldon L. Mathis

11 [cont1d]



pursuant to identical powers of attorney permitting it to nego­
tiate on behalf of its local unions (Union Answers #21). While 
the National Agreement must be signed by the local union, it 
becomes binding on all the locals affiliated with the International 
once it is accepted by a mere majority of them (Union Answers,
Exhibit #1).

The National Agreement is supplemented by a series of 
regional agreements negotiated on behalf of the locals within 
each geographic region by the National Negotiating Committee and 
a committee of the affected regional "Conference of Teamsters."
The regional Conferences operate under the supervision and con­
trol of the International (Union Answers, Exhibit #3).

The National Agreement together with the supplemental 
agreements negotiated by the National Negotiating Committee and 
the Southern Conference of Teamsters constitute the collective 
bargaining agreements governing all teamster locals in Alabama,
Florida, Georgia, Mississippi, Tennessee, Arkansas, Louisiana,

6/
Oklahoma, and Texas. The contracts negotiated by these bodies 
are then printed in pamphlets, leaving blank spaces where the 
57 [cont1 d]

Murray W. Miller Inti. Secretary-Treasurer
Joseph W. Morgan Inti. General Organizer

[Compare Union's Answers to Plaintiff's Interrogatories No. 1
(hereinafter Union Answers #__) and J. W. Morgan Affidavit
(R. 599) with Union Answers, Exhibit 4 at page 102-]
6/ The role of the international in matters affecting its locals 
in the Southern Conference of Teamsters is not limited to active 
participation in contract negotiation. It also actively partici­
pates in meetings at the regional level and asserts a leadership 
role in the formulation of positions taken by locals in the 
Southern Conference for presentation to representatives of the 
employers. See, e.g., affidavit of Joseph W. Morgan attached 
to the Union's motion to vacate order granting summary judgment (R.599) 
where he, a representative of the International and a member of

12



employer and local union insert their names and sign (Union 
Answers, Exhibits 4-7).

Workers at terminals throughout the Southern Conference are 
organized into four separate collective bargaining units complete 
with a separate collective bargaining agreement for each group 
of employees as follows:

1) Road Drivers
2) City Drivers, Checkers and Dockmen
3) Maintenance and Garage Employees
4) Office and Clerical Employees

(Union Answers, Exhibits4-7).

Ill. Proof of Hiring Discrimination 
A . Statistics
Statistical evidence presented to the district court 

disclosed a clear pattern of racial discrimination by Yellow in 
the hiring of road drivers nationwide. These statistics were 
summarized in plaintiff's proposed findings of fact numbers 8 
through 20 and 23 (R. 524) which are reproduced here as follows:

Yellow's Nationwide Employment Statistics
8. As of May 12, 1972, Yellow employed more than 

8,400 persons nationwide. Only 5% of these were black 
(Second Answers, Exhibit A; M. Smith Affidavit, flO)
(R. 339).

h7 [cont'd]
the National Negotiating Committee, recommended to the representa­
tives of the local unions within the Southern Conference that they 
agree to request the employers to abolish all "no-transfer" rules. 
After discussion and amendment to include a proposal regarding 
retreat rights, the representatives of the locals adopted his 
proposal. But his role did not end there! He and counsel for 
the International— and no representatives of the locals— then met 
with representatives for the employers to urge acceptance of the 
proposal voted by the representatives of the locals (R. 261).

13



9. Shortly after the filing of this action as 
of December 30, 1970, Yellow employed 1,841 road 
drivers nationwide. Of these, 34 or 1.9% were black 
drivers (Murphy Affidavit, Exhibit E-l) (R. 449).

10. Prior to 1968 Yellow had employed only one
black person as a road driver system-wide. This 
single black dr.iver had been hired at Yellow's 
Pittsburgh terminal by a predecessor company in 1939 
(M. Smith Affidavit, *j[ll (R. 339); Murphy Dep. , pp.
20-22 (E ); and Murphy Affidavit, p.3 (R. 431)).

11. Sometime after 1965 Yellow began to alter 
its hiring practice to increase the number of black 
road drivers it employed. Yellow's nationwide hiring 
statistics for road drivers from the time the first 
black drivers were hired in 1968 are as follows:

1968
1969
1970
1971
1972

20 blacks hired (11.2%) 
15 blacks hired (4%)
4 blacks hired (5.1%) 
33 blacks hired (12.6%) 
59 blacks hired (13.8%)

(Murphy Affidavit, Exhibit E-l) (R. 449).
12. As of December 31, 1972, Yellow's total 

road driver force numbered 2,341. Of these drivers, 
105 or 4.5% were black (Murphy Affidavit, pp. 2-3 
(R. 430-431) and Exhibit E-2 (R. 450).

13. As of May 12, 1972, Yellow's total force of 
city drivers numbered 2,400. Of these 133 or 5.5% 
were black (M. Smith Affidavit, [̂10 (R. 339) ; Second
Answers, Exhibit A).

Yellow's Southern Conference Statistics
14. Yellow maintains 22 terminals within the area 

encompassed by the Southern Conference of Teamsters; 
road drivers are domiciled at 8 of these terminals as 
follows:
Amarillo, Texas (Road Domicile)

Athens, Georgia
Atlanta, Georgia (Road Domicile)

Augusta, Georgia 
Austin, Texas 
Beaumont, Texas 
Chattanooga, Tennessee

14



Clarksville, Tennessee (Road Domicile)
Dallas, Texas (Road Domicile)

El Paso, Texas
Fort Smith, Arkansas (Road Domicile)
Houston, Texas 
Laredo, Texas

Lubbock, Texas (Road Domicile)
Nashville, Tennessee (Road Domicile)
Oklahoma City, Oklahoma (Road Domicile)

San Antonio, Texas 
Springdale, Arkansas 
Sherman, Texas 
Tulsa, Oklahoma 
Wichita Falls, Kansas 
Waco, Texas

(M. Smith Affidavit, *[f8 (R. 338) ; Second Answers, Exhibit A) .

15. Prior to 1968 neither Yellow nor its prede­
cessor corporation, Watson-Wilson Transportation System, 
Inc., employed any black road drivers at any Southern 
Conference terminal. Thus, immediately prior to its 
acquisition by Yellow in 1964, Watson-Wilson employed 
some 450 white road drivers and no blacks (Murphy Depo­
sition, p.11 (E ) .
t 16. Of the 150 road drivers employed by Yellow in
1968 at its Southern Conference terminals, none were 
black (Murphy Deposition, p.22 (E ).

17. Between 1968 and 1970, Yellow hired a total
of 199 whites and 46 blacks (19%) as city drivers, dock 
and garage workers. During the same period, 22 whites 
and one black (Plaintiff Sagers) were hired as road 
drivers (Second Answers, Exhibit A; see also Plaintiff's 
Memorandum in Reply to Defendants1 Responses to Motion 
for Summary Judgment, p.4 (R. 489)).

18. By May 12, 1972, Yellow employed 1,333 persons 
at its terminals within the Southern Conference, slightly 
more than 10% of whom, or 138, were black. These black 
employees at Yellow's Southern Conference terminals were 
employed in the following capacities:

8 road drivers (3.6% of the 38 garage men
total force of 220) 57 dock workers & checkers

27 city drivers 8 others
(M. Smith Affidavit, ^[8 and 9 (R. 338) ; Second Answers, Exhibit 
A) .

15



19. Of the 8 road drivers indicated, 6 were hired 
by Yellow during >1971 and 2 were hired in May, 1972 
(Second Answers, Exhibit A).

Yellow's Atlanta Terminal Statistics
20. Yellow.'s Atlanta terminal, where plaintiff 

Sagers is employed, had 142 employees as of May 12,
1972. Eighteen of these employees, or 12.6%,were 
black. Prior to 1969, no black had ever been employed 
as a road driver. Subsequent to plaintiff Sager's 
one week employment as a road driver in 1969, no 
additional black was employed as a road driver within 
the Southern Conference until after January, 1971 
(Yellow's Answers to Second Interrogatories, Exhibit 
A; Yellow's Admissions 25 and 26) (R. ).

k  -k  k

Pay Differentials
23. The pay differential between city and road work 

is substantial with road drivers typically earning 
considerably more than city drivers, as indicated in 
the following tables:

Year

1969
1971

Year

1969
1971

Systemwide Average Income
Road City

Driver Driver
Annual

Difference
$14,596 $9,678 $4,918
$15,734 $12,102 $3,632

Atlanta Average Income
Road

Driver
City

Driver
Annual

Difference
$14,118 $8,083
$16,431 $10,236

$6,035 
$6,195

(Second Answers No. 28, Exhibit c).

B. Testimonial Evidence of Hiring Discrimination 
In addition to the statistical evidence of hiring dis­

crimination, the record is replete with undisputed testimonial 
and documentary evidence which in the clearest of terms demon-

16



strates that the Company had discriminated against blacks in
the hiring of road drivers.

8/
At his deposition and later in his affidavit, S. P. Murphy, 

Yellow's vice-president and chief legal officer, testified 
frankly about the Company's discriminatory hiring policies and 
of its efforts to effect compliance with Title VII. In sub­
stance, he testified that he examined Yellow's employment picture 
in 1964 in terms of its compliance with Title VII [S. P. Murphy 
Deposition at p.7 (E )]. At that time, he noticed the
general absence of blacks in the city and road driver classifi- 

9/
cations [S. P. Murphy Deposition at p.ll (E )]. Focusing
on its operations in the area covered by the Southern Conference, 
he noted the total absence of blacks in road driver jobs. This 
he attributed to the fact that Yellow's branch managers "simply 
were not hiring blacks for road driver jobs" [S. P. Murphy Depo­
sition at p .13 (E )]. He didn't know if blacks had applied

1/

The Company has the sole responsibility for hiring. See W. C. 
Smith Affidavit p.3 (R. 423).
_8/ All parties were sent notice of the deposition (R. 294). The 
deposition was attended by counsel for the plaintiff, the Company, 
and Local 728. Neither counsel for the Company nor for the Union 
chose to examine the witness. See Deposition of S. P. Smith at 
p.48 (E. ).
9/ Plaintiff was hired by Watson-Wilson Transportation System,
Inc. Yellow acquired Watson-Wilson in 1965, retained its employees, 
and assumed its operation. In subsequent years it acquired 
several other trucking companies and made their operations part 
of the Yellow System. While his testimony focused primarily on 
the facilities formerly operated by Watson-Wilson, the racially 
discriminatory hiring practices there were typical of the entire 
Yellow operation. Both Yellow and the trucking companies it 
acquired hired few, if any, blacks in road driver jobs. [See 
S. P. Murphy Deposition at p.19 (E. ) and S. P. Murphy Affi­
davit «[5 (R. 430-432)] . Also see statistics summarized at pp.
13-16, supra.

17



for road driver jobs (ld_. ) but later described the Company's
"word of mouth" recruitment, and hiring process, a process
which virtually insured continuation of the total absence of
blacks in road driver jobs. Up until 1967 the Company's primary
source of recruits for road drivers was referrals from road
drivers in the Company's employ [S. P. Murphy Deposition at p.18
(E. )]. Road drivers were hired at the Company's various

10/
terminals with the assistance of driver superintendents who were 
based at strategic points throughout the system [S. P. Murphy 
Deposition at pp. 15-16 (E. - )].

Top management initially attempted to effect compliance 
with Title VII by simply issuing equal opportunity policy state­
ments to its branch managers [S. P. Murphy Deposition at pp.
18-19 (E. - )]. When by 1966 no results were achieved, new
policy statements were issued and branch managers were urged to 
hire blacks [S. P. Murphy Deposition at p.23 (E. )]. Still
no results were forthcoming. Then, in 1968, top management began 
exerting "real pressure" and ordered its branch managers to hire 
at least one minority race person out of every ten hires [S. P. 
Murphy Deposition at pp. 24-25 (E. - )]. At those terminals
where the branch manager took an interest, minorities were hired 
[S. P. Murphy Deposition at p.26 (E. )]. At many terminals, no
results were achieved [S. P. Murphy Deposition at p.26 (E. )].
Beginning in 1969, the Company included its branch managers' 
ability to find and hire qualified minority persons as one of the

idT" Driver superintendents would check the qualifications of pros­
pective road drivers. Prior to 1965 some road drivers would be 
hired without having his qualifications checked by a driver 
superintendent [S. P. Murphy Deposition at p.17 (E. )].

18



criteria for judging their job performance [S. P. Murphy Depo­
sition at p.27 (E. )]. Where the Company felt that it was
not getting compliance, it either sent in or threatened to send 
in black supervisors to find qualified minority drivers [S. P. 
Murphy Deposition at p.28 (E. )]. At those locations where
black supervisors were sent in, the Company found that it had 
good success in finding qualified black drivers [S. P. Murphy 
Deposition at p.29 (E. )] .

At the Atlanta terminal, where the plaintiff worked as a
city driver, no blacks were hired as road drivers until 1971—
after top management threatened to send in a black supervisor
[S. P. Murphy Deposition at p.29 (E. )]. Murphy stated that
since January, 1971 the Atlanta terminal has been doing a good

11/
job of hiring blacks [S. P. Murphy Deposition at pp. 22-30 (E. )

Mr. Murphy's testimony poignantly illustrates that the 
underrepresentation of blacks generally and their total absence 
from jj-oad driver jobs was the result of entrenched hiring dis­
crimination at the local level. No significant results were 
achieved until top management took firm corrective action. 1971
was the first year that Yellow hired more than one black person

12/
into road driver positions in the Southern Conference. * 6

—■' Yellow hired one black and one white road driver at its 
Atlanta terminal in 1971. One white road driver was hired prior 
to June 12, 1972. See Second Answers, Exhibit A. By October
6, 1972 Yellow was not hiring at its Atlanta terminal because 
of this lawsuit [S. P. Murphy Deposition at p.43 (E. )] .
12/ see page 15, supra.

19



IV. Continuing Effects of Hiring Discrimination 
On Present Black Employees Within The 
Southern Conference

Yellow's answers to plaintiff's second interrogatories and 
Mr. Murphy's testimony both clearly describe the effects of the 
Company's "no-transfer" policy and separate seniority unit 
structure established between it and the unions on present black 
employees.

A . The No-Transfer Rule
The "no-transfer" rule is in force at all of Yellow's 

terminals within the Southern Conference [S. P. Murphy Deposition 
at p.33 (E. )]. The rule is unilaterally imposed by the
Company and bars covered employees from transferring between 
bargaining units at the same terminal [S. P. Murphy Deposition 
at p.34 (E. ) and W. C. Smith Affidavit (R. 423)]. Thus, if 
an employee who is a city driver wishes to transfer to the over- 
the-road driver classification, he must resign his job as a city 
driver and accept employment at one of Yellow's terminals in 
another city where he would have only as much job security in 
terms of work assignment, layoff, and shift preference as would 
a newly hired employee [S. P. Murphy Deposition at p.34 (E. )
and Second Answers, No. 25].

B. Effects of Separate Seniority Rosters
By operation of the separate seniority unit structure, an 

employee transferring between jobs in different bargaining units

The Company has terminals outside the Southern Conference 
where this policy is not in effect. At those locations an employee 
could transfer between bargaining units without changing terminals 
[S. P. Murphy Deposition at p.34 (E. )]. However, see discussion,
infra at p. 20 regarding the consequences of changing bargaining 
units.

20



must forfeit accumulated bid seniority [W. C. Smith Affidavit 
p.4 (R. 424) and Second Answers Nos. 19, 23, 24 and 25]. Once 
an employee transfers, he loses accrued seniority in his old
seniority unit even if he later decides to return to his old job.

Some white employees have been permitted to retain the
right to "retreat" to their old bargaining unit without loss of 

15/
seniority. This is normally accomplished by the transferring
employee making a request of the Company for a "leave of absence
of limited duration" from his old job while he tries out his new 

16/
job. [See W. L. Swain Deposition and Exhibits A-2, A-4 and A-6 
attached to Plaintiff's Request for Admissions (R. 363, 365, 367)]. 
If the Company agrees to permit a leave of absence for that 
purpose, it prepares and signs a request letter which is then 
sent to the local union for its signature. Only if both the 
Company and the union agree in writing is the employee entitled 
to have "retreat rights" [S. P. Murphy Affidavit 9, 10, and
11 (1̂. 433-434) and Yellow's Admissions Nos. 17 and 18 (R. 481)].

Plaintiff became ensnared in this system when he attempted 
to take the giant step as the very first black at Yellow's Atlanta

14/

-±—/ Were the Company to abandon its "no-transfer" policy at its 
terminals within the Southern Conference, a transferring employee 
would nevertheless go to the bottom of the seniority roster in 
his new bargaining unit and would also forfeit seniority accumu­
lated in his old seniority unit [W. C. Smith Affidavit at p.4 
(R. 424) ] .

j5/ See footnote 19,infra. In his affidavit S. P. Murphy states, 
without citing specific instances, that numerous white employees 
throughout the Yellow System request leaves of absence for the 
purpose of trying out road driver jobs but are consistently 
turned down [S. P. Murphy Affidavit 13 (R. 434)] .
16/ The request may also be initiated by the Company or the 
union [Yellow's Admissions, No. 17 (R. 481)].

21



terminal ever to take a job as an over-the-road driver. When 
he transferred he took with him none of his- years of accrued 
seniority. When he sought to return to his old job at the Atlanta 
terminal, his accrued seniority had vanished [Yellow's Admissions, 
No. 13 (R. 480)].

At no time, either prior to or after the district court's 
grant of summary judgment, has any of the defendants submitted 
any evidence in any form permitted by Rule 56, F.R.Civ.P. to 
dispute these facts.

V. Sagers' Individual Claim 
Not only was the plaintiff discriminated against in the 

same manner as the entire class, but the evidence clearly demon­
strates that in addition he was the victim of unequal treatment
at the hands of his employer and the unions.

17/
Sagers was hired by Watson-Wilson in 1955 (R. 478). In 

1963, he became Watson-Wilson's first black city driver and was
tso employed until November, 1969 when he transferred to a road

driver job at Yellow's Nashville, Tennessee terminal. Before
transferring, he made several requests of Company officials for

18/
a leave of absence for the purpose of trying out his new job.
He was aware that white employees had been given leaves of 
absence while they tried out new jobs and believed that he too 
should be permitted to take a leave. The undisputed evidence in 
the record shows that at least one white employee was granted a
n r See footnote 9, supra.
18/ in effect, a leave of absence from his city driver job would 
have preserved his fourteen years of bid seniority as a city 
driver. See discussion, supra, at p. 21.

22



leave of absence for no other reason than to permit him to try 
out an over-the-road job and that there is a second white
employee who was granted a leave of absence partly to permit him

19/
to try out a road driver job. Both of these persons received 
the prior written permission of Local 728 and the Company. [See 
Plaintiff's Request for Admissions, Exhibit Nos. A-2 and A-3 
(R. 363-364).]

There is no dispute that the plaintiff made at least two 
requests of Company officials for a leave of absence so that he 
could have a trial period as a road driver, nor that his request 
was denied by the Company and that he was given the option of 
resigning his city driver job or declining the road driver posi­
tion [Yellow's Admissions Nos. 7 and 10 (R. 479, 480)].

— ■ The evidence in the record shows that six white employees 
and no black employees had been granted leaves of absence so 
that they could try out other jobs (excluding those granted 
leaves of absence so that they could take full-time union jobs 
or supervisory jobs at the Company). Three such employees,
Messrs. Hill, Sanders, and Jordan, were granted leave pursuant 
to the various Southern Conference supplemental agreements. [E.g., 
see Pickup and Delivery Supp. Agmnt. Art. 43 § 2 and Over-the- 
Road Supp. Agmnt Art. 41 § 2 appearing in the record as Union 
Answers, Exhibits 5 and 4, respectively, which permit the granting 
of leaves of absence upon written permission signed by both the 
employer and the union provided the employee does not work for 
a competitor in the trucking industry (E. , )]. These
three persons were granted 90-day leaves so that they could try 
out new businesses. Another white employee, W. J. Bennett, 
was granted a 90-day leave for reasons not stated. The fifth 
white employee, John Washington, was granted a 30-day leave so 
that the Company could try out a new peddle-run and determine 
if it was profitable and to permit him to determine if he pre­
ferred city or road driver work. The sixth white employee,
E. A. Florence, was granted a 30-day leave for the sole purpose 
of allowing him to decide whether or not he preferred road 
driving or city driving. [See Exhibit A-2 through A-9 attached 
to Plaintiff's Request for Admissions (R. 363-370) and Yellow's 
Admissions Nos. 18 through 23 (R. 481-483).]

23



The only area open to possible dispute is the question of
whether or not the plaintiff requested the aid and assistance
of Wayne Sheppard, vice-president of Local 728, in obtaining a

2 0/
leave of absence. Plaintiff, at his deposition, testified that
he called Mr. Sheppard at the union hall prior to his resignation
from his city driver job and informed him that he wanted to
obtain a leave of absence [Sagers' Deposition at p.9 (E. )].
He testified further that Sheppard responded that the Company
did not have to give him a leave of absence but that he, Sagers,
should go on the road if he wanted to [Sagers' Deposition at pp.
9-10 (E. - )]. Mr. Sheppard's affidavit states:

Richard B. Sagers never at any time requested 
me, as the Local Union's representative of the 
employees of Yellow Freight Systems, Inc.,— or 
any other official representative of ... Local 
Union No. 728— to procure for him a leave of 
absence of any kind prior to his resignation 
from the Employer to accept a position as 
over-the-road driver. (emphasis added) (R. 503)

Of course, the record is silent as to whether or not Mr.
1Sheppard acknowledges ever speaking with the plaintiff about a 

leave of absence prior to Sagers' resignation from his city 
driver job. If he had not, presumably Mr. Sheppard would have 
so stated at arbitration. The record is also silent as to 
whether or not Mr. Sheppard considered his telephone conversation 
with the plaintiff a "request" and, if so, whether or not he 
deemed it a request made of him in his official capacity.

There is no dispute, however, that after plaintiff returned 
to his city driver job his name was placed at the bottom of the

1 ̂ / The~ existence of a factual dispute as to this issue is of no 
import since the Company's flat refusal of Sagers' request by 
itself effectively foreclosed plaintiff from obtaining a leave. 
See page 21, supra.

24



seniority list at the request of Local 728. [See Yellow's
Admissions No. 13 (R. 480).] There is also no dispute that
the union's representation at arbitration was less than

2 1 /
vigorous.

ARGUMENT
Even at the door of the Court of Appeals the defendant 

unions do not appear to have comprehended the import of Rule 56, 
F.R.Civ.P., or the requirements of Title VII of the 1964 Civil 
Rights Act, 42 U.S.C. §§ 2000(e) et seq. and 42 U.S.C. § 1981.

I
THE DISTRICT COURT PROPERLY GRANTED THE 
MOTION FOR PARTIAL SUMMARY JUDGMENT UPON 
THE ISSUES RELEVANT TO THE CLASS.

A . The Requirements of Rule 56, F.R.Civ.P.
Rule 56 is designed to permit the speedy resolution of 

legal disputes where there is no genuine dispute as to the 
essential facts. See Bros., Inc, v. V7. E. Grace Mfg. Co., 261 
F.2d 428, 432 (5th Cir. 1958). In restating this proposition, 
Judge Winter wrote:

[T]he function of a motion for summary judgment 
is to smoke out if there is any case, i.e., any 
genuine dispute as to any material fact, and, if

_
——7 The transcript of the arbitration discloses that Sagers' 
union representatives did nothing more than state Sagers' asserted 
position [see transcript of arbitration attached to W. Sheppard 
Affidavit (R. 508-512)]. A clue to the unions lack of vigor in 
representing the plaintiff appears at page 44 of Sagers' Depo­
sition where he states that Weldon Mathis, a member of the 
National Negotiating Committee, told him that after hearing the 
tape of the plaintiff's hearing "he went along with the company" 
and that the union did not take a position because its position 
would have been against him, Sagers J.' (E. ).

25



there is no case, to conserve judicial time 
and energy by avoiding an unnecessary trial 
and by providing a speedy and efficient 
summary disposition. Bland v. Norfolk & So.
R-R. Co., 406 F.2d 863, 866 (4th Cir. 1969).

Summary judgment may be granted on the issue of liability,
leaving for subsequent; resolution disputed questions as to the
amount of damages. See Rule 56(c), F.R.Civ.P.

Plaintiff has always recognized that he has a heavy burden 
as movant to clearly demonstrate that there is no genuine issue 
as to any material fact and that he is entitled to judgment as 
a matter of law. Shahid v. Gulf Power Co., 291 F.2d 422, 423 
(5th Cir. 1961). The absence of genuine issues of fact must 
appear from the pleadings and evidentiary documents in the 
record. See Rule 56(c), F.R.Civ.P. It is likewise settled law 
that the papers supporting the movant's position are closely 
scrutinized while the opposing papers are indulgently treated 
in determining whether the movant has satisfied his burden. But 
the district court noted, when the movant makes out a convincing

tshowing as to the absence of genuine issues of fact, the party 
opposing the motion must demonstrate by; receivable facts that 
a real, not formal controversy exists (R. 568), quoting from 
Bruce Construction Corp. v. United States, 242 F.2d 873, 875 (5th 
Cir. 1957). It simply will not do for the party opposing the 
motion to stand on mere denials. He "must set forth specific 
facts showing that there is a genuine issue for trial," Rule 
56(e), F.R.Civ.P. Neither is the party opposing the motion 
permitted to hold back his evidence until trial on the possibility 
that an issue of fact might arise if the case goes to trial.
See (R. 569) quoting from Cunningham v. Securities Investment

26



Co., 278 F-2d 600, 603 (5th Cir. 1960). Thus, as the district 
court stated, "... if the party opposing summary judgment does 
not disclose the merits of his case or defense, nor explain, 
pursuant to Rule 56(f) , why he cannot present by affidavit facts 
essential to justify his opposition, he is no longer entitled 
to the rule liberally construing the pleadings in his favor.
6 Moore, Federal Practice, 1(56.22 (2) at 2822 (1972)" (R. 568).

The rule requiring the party opposing the motion to come 
forward with receivable facts or to explain why he cannot present 
facts essential to justify his opposition once the movant has 
demonstrated the absence of a genuine dispute of the material 
facts is particularly applicable in this case where the proof 
in support of the motion is largely documentary and has a high 
degree of credibility. See Bauman, A Rationale for Summary 
Judgment, 1958, 33 Ind. L. Rev. 467, 483.

In opposing plaintiff's motion in the court below and on
this(appeal, the unions have done nothing more than allege legal
conclusions and make assertions that they are entitled to a
trial on the hope that they can produce evidence at that time
that would justify the application of the seniority provisions
of their collective bargaining agreements to the members of the

22 /
class. Despite the fact that they had ample opportunity to

indeed, a month and a half before the district court issued 
its decision, plaintiff indicated point-by-point that the unions 
had failed to meet their obligation under Rule 56. See Plain­
tiff's Second Reply Memorandum in Support of Motion (R. 516).
If they believed that the plaintiff and the Company had misrep­
resented any facts to the court or had failed to disclose facts 
which would mandate denial of relief to the plaintiff or the 
class, it should have so notified the court and/or requested a 
hearing. This they did not doI

27



present facts sufficient to meet their minimal duty under Rule 
56, they have failed to do so. The court below, therefore, 
properly concluded that what the undisputed record shows as to 
the employment practices of the defendants is true.

As the papers filed in the court below clearly demonstrate 
both the Company and the unions vigorously disputed the legal 
conclusions to be drawn from the facts. See Company's and 
Unions' Memoranda in Opposition to Plaintiff's Motion for 
Summary Judgment (R. 371, 388, 403). Disputes as to legal 
issues only are no bar to the grant of summary judgment. See 
Palmer v. Chamberlain, 191 F.2d 532, 540 (5th Cir. 1951) and 
Aho v. Erie Mining Co., 466 F.2d 359 (8th Cir. 1972). The 
district court properly resolved those legal questions in plain 
tiff's favor upon the undisputed facts of this record.

t

28



B. Well-Established Principles of Title VII Law 
Gave Plaintiff a Right to Partial Summary 
Judgment

As this Court noted in Herrera v. Yellow Freight Systems,
Inc., infra at p. 67,,the pattern of racial discrimination
at Yellow is virtually a carbon copy of that examined in

2 3/
Rodriquez v. East Texas Motor Freight, infra. It might be 
added that this record discloses the same pattern of discrimina­
tion examined by this Court in Bing v. Roadway Express, supra 
(history of hiring discrimination demonstrated by statistical 
evidence, no-transfer policy and lock-in seniority system in 
effect and no showing of business necessity to justify either 
rule).

At the risk of belaboring the obvious, plaintiff will sum­
marize the facts— all undisputed— that clearly demonstrate his 
entitlement, as a matter of law, to summary judgment on the issue 
of class-wide discrimination.

tPlaintiff's statistical proof demonstrates that the Company
discriminated in hiring at all of its terminals in the Southern
Conference until 1971. See Statement of Facts, pp.15-16-
As this Court stated in Rodriquez, infra at p. 53:

A prima facie case of discrimination may be 
established by statistical evidence and 
statistical evidence alone.

'
-=-=■' Both Herrera and this case arise out of Yellow's operations 
in the area covered by the Southern Conference of Teamsters. 
Herrera did not, however, dispose of any of the claims of the 
members of the present class of blacks. Herrera involved the 
claims of three Mexican-Americans only. Without dispute, this 
record shows that the pattern of hiring discrimination, no-trans­
fer rule, and the lock-in seniority system applied at all of 
Yellow's operations within the Southern Conference, at least 
through July, 1971. See Statement of Facts, pp. 14-22.

29



Only the defendant Company even attempted to explain the 
disparity in hiring, and its explanations confirm plaintiff's 
allegations. See S. P. Murphy Affidavit (R. 429). The record 
shows that blacks were not hired as road drivers because of the 
reluctance of the Company's own managers to hire blacks into 
road driver jobs and because of reliance on word-of-mouth 
recruitment practices. See Statement of Facts, pp. 17-18.
Even though top management in 1965 announced its intention to 
comply with the requirements of Title VII, it was not until 
years later when it took, or threatened to take, direct action 
at the local level that blacks were hired as road drivers in 
the Southern Conference. See Statement of Facts at p. 18.

This Court has repeatedly held that "word-of-mouth" recruit­
ment is unlawful where it serves to perpetuate an all-white 
work force. See Long v. Sapp, 502 F.2d 34, 41 (5th Cir. 1974); 
United States v. Georgia Power Co., 474 F.2d 906, 925 (5th Cir. 
1973)?; Franks v. Bowman Transportation Co., 495 F.2d 398, 418 
(5th Cir. 1974).

The defendants have presented no facts that would justify
as a business necessity the application of the no-transfer rule

24_/or the separate seniority roster system to members of the class.
There is no question of fact as to the existence of the 

no-transfer rule.

Plaintiff notes that repeated attempts to demonstrate that 
business necessity dictates the application of these two impedi­
ments to equal employment opportunity for blacks who have been 
the victims of discrimination have consistently failed. E.q., 
see Rodriquez v. East Texas Motor Freight, infra; Franks v.
Bowman Transportation Co., supra; Herrera v. Yellow Freight 
Systems, Inc., infra; Bing v. Roadway Express, supra; Jones v.
Lee Wav Motor Freight, infra.

30



The unions' argument that there are issues of fact as to 
the existence of the no-transfer rule and that its "lock-in" 
effect is disputed is nothing more than a crude charade. They 
quote part of the Company's answer to plaintiff's first interrog­
atories number 23 (a) which by itself suggests that the Company 
denies that it restricts transfers to over-the-road jobs. They 
fail to point out, however, that the question asked was directed 
to transfers from non-road driver classifications at the Atlanta 
terminal to road driver jobs at other terminals in the Yellow 
network. As described above at p. 20, the no-transfer rule 
applies to transfers between job classifications at the same 
terminal.

Existence of disputed questions as to the "lock-in" effect
of separate seniority rosters preventing transfer with carryover
seniority is, of course, a legal conclusion to be drawn from
an examination of past hiring practices together with a reading
of the seniority provisions of the various collective bargaining
agreements between the Company and the unions. The granting
of summary judgment is not barred by the presence of a "dispute"

25 /
as to this issue. See Franks v. Bowman Transportation Co.,
495 F.2d 398, 415 (5th Cir. 1974).

26 /
The unions' discussion of "rightful place" is premature 

unless it is their contention that the formula outlined by the
2 5/— / Plaxntiff submits that any dispute as to the lock-in effect of 
the seniority provisions of the union's collective bargaining 
agreements with the Company is only a formal one. in addition, 
plaintiff submitted specific proof in respect to this issue. See 
Claude Wilson's Affidavit (R. 452). The unions have, to this day, 
submitted no specific proof that would contradict plaintiff's 
position.
2 6 / Calculation of the amount of carryover seniority that indi­
vidual class members will have has not yet been done.

31



district court for calculating the amount of carryover seniority
of individual class members is error. The parameters set for
determining the amount of carryover seniority to be afforded
individual class members are among the technical details which

.. , partial
plaintiff in his motion for/summary judgment suggested might be 
left by the court for possible agreement of the parties or 
further simplified proceedings (R. 335-336). After plaintiff's 
motion was granted, he and the Company did come to an agreement 
on this issue. Since no agreement was forthcoming from the 
unions, plaintiff and Yellow jointly applied to the court for 
an order which, in accordance with the qualification-date formula 
announced in Bing II, supra, provided for class members who trans­
ferred to road driver jobs to take their terminal seniority or 
if they did not have the requisite experience qualifications 
applicable to all road drivers at the time they were hired, to 
carryover seniority from the date they acquired the necessary 
qualifications. See Decree ^5 (R. 560-561).

The unions recognize that this Court has reaffirmed the 
Bing II qualification-date formula used in this case but would 
impose an additional burden on the plaintiff by having him and 
the members of the class demonstrate (1) that road driver 
vacancies in fact existed after they gained the requisite 
experience for those jobs, and (2) that he had the desire for 
a road driver job. The unions' position as to vacancies is con­
trary to both the law and the record. The burden of showing 
the lack of vacancies is upon the violators of the Act. See 
Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437, 444 (5th

32



Cir. 1974). Here, while the unions raised the no-vacancy issue
in their legal papers in opposition to the proposed consent
decree, they made no effort to demonstrate in fact the lack of
vacancies for over-the-road jobs during any relevant period.
The record shows that Yellow employed numerous whites as road
drivers in the Southern Conference every year since 1965 (see
Second Answers, Ex. A). However, the court noted that the record
showed that there were no vacancies for substantial periods at
two of Yellow's terminals and ordered that the seniority dates
for class members transferring to those terminals be adjusted 

27 /
accordingly.

To require an employee to show that he had a "desire" for
a road driver job at the time he became qualified to hold one
would require a victim of discrimination to prove that he had
desires and expectations above those he could realistically
expect to achieve in face of the racial policies of an employer.
It would "reward" those with unrealistically high expectations by placing them

/in their "rightful place" and punish those whose expectations 
were more in line with reality. Moreover, to condition the right 
to relief upon a showing of "desire" would require the same kind 
of subjective proof that this Court has sought to eliminate as 
an element of Title VII causes of action. Cf. Local 189, United 
Papermakers & Paperworkers v. United States, 416 F.2d 980 (5th 
Cir. 1969), cert, denied 397 U.S. 919. Plaintiff submits that

UL/ it should be noted that the adjustment of the seniority dates 
of class members at these locations due to a lack of vacancies 
has no impact since the rank of class members would be unchanged 
in relation to the white employees hired, at the time hiring was 
suspended and at the time hiring resumed. See p. 20 as to the 
effect of bid seniority.

33



this argument proceeds on the same "reward" theory advanced in 
Thornton v. East Texas Motor Freight, 497 F.2d 416, 421 (6th Cir.
1974) which this court specifically discussed and rejected in
Rodriquez, supra. Whether a person would have desired a road 
driver’s job in the past were his hopes and aspirations not 
dampened by rampant racism can be best reflected in whether he 
desires transfer now. Cf. Rodriquez, supra at p. 64. Imposition 
of an additional requirement as suggested by the unions would 
only create "built-in headwinds" for minority groups and would 
enmesh the courts in a morass of proof as to the states of mind 
of workers in prior years.

Without doubt the district court was correct in exercising 
its discretion to grant plaintiff's motion for summary judgment. 
Indeed the court's decision fulfills the very purpose of Rule 56. 
As Judge Brown stated in Bros., Inc, v. W. E. Grace Mfg. Co., 
supra at 432:

Summary judgment is a marvelous instrument in 
expediting the administration of justice. it 
is the means by which causes or defenses with 
no real merit are weeded out without the 
hazard of a decision on an artificial situation 
described by artful pleadings, or without the 
cost in precious judicial time of a long pro­
tracted trial which ends with a determination 
that, on the facts viewed most favorably to a 
party, the claim or defense is not good as a 
matter of law.

The unions that are defendants in this suit have sought to
litigate over and over again the same issues that are present
in this case. It was clear in 1971 that the no-transfer rule
and separate roster system would have to yield upon a showing 
of past hiring discrimination. See Bing I, supra. But for the

34



unions' intransigence, many of Yellow's black employees in the 
Southern Conference would now be earning an average of $4,000 
to $6,000 a year more than they could as city drivers. See 
Statement of Facts at p. 16 . The unions' tactics have only 
served to cause delay for the plaintiff class and additional 
and unnecessary burden on the court. Their actions in this case 
can only highlight the utility of Rule 56 to help hasten the day 
when black and other minority workers will attain rights guaran­
teed them under the Act.

II
THE DISTRICT COURT'S GRANT OF SUMMARY JUDGMENT 
IN PLAINTIFF'S INDIVIDUAL CASE WAS PROPER.

While the district court, in its Order of September 28,
1973, declined to grant that portion of the motion directed to 
the plaintiff's individual claim of unequal treatment in refusing 
to him a leave of absence, it is clear that the court in that 
same prder found that the plaintiff, like the members of the 
class, was the victim of Yellow's discriminatory hiring policies 
(R. 579) , and that conditioning his transfer upon a change of 
location and loss of seniority was insufficient to discharge the 
defendants' affirmative duty under Title VII to undo past dis­
crimination (R. 580). Clearly plaintiff cannot be denied 
relief because he attempted to transfer and was required to 
pay the unlawful price of transfer. The only question left 
open after the district court's order of September 28, 1973 was 
the amount of seniority to which the plaintiff is entitled.
Once having found that the plaintiff was injured, the district

35



court's power to fashion an equitable remedy is broad. See 
Franks v. Bowman Transportation Co., supra at p. 414. Indeed, 
it has a duty to make the discriminatee whole and to remedy the 
effects of past discrimination. Idy Certainly the named 
plaintiff is entitled to no less injunctive relief than members 
of the class where his injury arises out of the very same set 
of circumstances that entitles the class to a remedy.

As fully discussed in part I(B) above, the unions have 
presented no facts that would serve as a basis for the district 
court to decline to set the parameters of seniority relief for 
the class. Since undisputed facts in this record show that the 
named plaintiff meets all of the qualification criteria entitling 
him to relief and the unions chose not to object to any of 
the provisions of the proposed order addressed to the plaintiff's 
individual claim, the district court properly specified Sagers' 
remedy in its final order. That order should not be disturbed.

1

36



Ill
THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION 
IN DETERMINING THAT THIS IS A PROPER RULE 23 
(b) (2) CLASS ACTION.

The contention that this case is not a proper class action
because the plaintiff has not met the requirements of F.R.Civ.P.
Rule 23(a)(1) and (a)(4) is frivolous.

The district court defined the class as all black employees
of Yellow Freight, excluding office and supervisory personnel,
who are employed within the area covered by the Southern Con-

28/
ference of Teamsters (R. 553). As the plaintiff points out
at page 15, supra, the record clearly indicates that there were
approximately 130 members of the class as of May 12, 1972.
There were at least 113 class members employed by Yellow prior 

29/
to July 1, 1971. The courts have held in a civil rights action
that the requirement of numerosity is met where there were as 
few as 18 persons in the class. See Cypress v. Newport News 
General & Non-Sectarian Hospital, 375 F.2d 648, 653 (4th Cir. 
1967).

28/ The inclusion of office and supervisory personnel in the 
district court's Decree is an oversight. Since the court's 
Decree disposes of the claims of class members with respect to 
positions of over-the-road drivers only, it is submitted that 
this oversight is of no import since there is little or no like­
lihood that office and supervisory workers at Yellow who were 
employed prior to July 1971 have any interest in becoming road 
drivers. Plaintiff is willing to join the Appellant in an appli­
cation to amend the district court's decree that would exclude 
office and supervisory personnel. Additionally, plaintiff has 
consistently sought to represent the class of all Yellow's black 
employees nationwide. Limitation of the class to Yellow's black 
employees in the Southern Conference is the result of a decision 
made by the district court in the exercise of its discretion 
(R. 226).
29/ see Yellow's Answers, Ex. A.

37



Given the appellants' assertion of collusion between the
plaintiff and Yellow, it is assumed that argument as to whether
or not the plaintiff has met the requirements of Rule 23(a) (4)
is limited to the question of whether or not the plaintiff has

12/acted antagonistically to the interests of the class. It should 
be noted that this is a factual issue not raised by the unions 
below and is, therefore, an inappropriate subject for review in 
this Court. See DeBardelaben v. Cummings, 453 F.2d 320 (5th 
Cir. 1972). Additionally, determination of what constitutes 
adequate representation, within the meaning of Rule 23, depends 
on the circumstances of each case and, generally, unless abuse 
is shown, the trial court's decision as to whether or not a 
proper class action has been brought is final. See Johnson v. 
Georgia Highway Express, Inc., 417 F.2d 1122, 1123 (5th Cir. 
1969). The district court found that this case could be main­
tained as a class action in its order of July 24, 1972 (R. 266) 
and that finding was reaffirmed in its subsequent orders of 
September 23, 1973 (R. 553) and September 10, 1974 (R. 664).
The unions have failed to address, much less meet, either of 
these predicates on this appeal.

Antagonism that defeats a class action must go to the heart 
of the controversy. See Berman v. Narragansett Racing Assn.,
414 F.2d 311, 317 (1st Cir. 1969). No action taken by the 
plaintiff violates either the letter or spirit of Rule 23 (a) (4) .

30 / since the plaintiff does not seek to represent the interests 
of Yellow's white employees or their minority employees who are 
not black, there is no need to discuss whether or not the plain­
tiff has acted antagonistically to their interests.

38



Plaintiff has consistently sought to obtain the right to transfer 
to road driver jobs for all of Yellow's black employees who 
have been the victims of Yellow's discriminatory hiring policies 
and who now find themselves locked in by a no-transfer rule and 
a seniority system from which they cannot escape without paying 
a price which court after court has held to be unlawful under 
Title VII of the civil Rights Act of 1964, 42 U.S.C. §§ 2000(e) 
et seg. and 42 U.S.C. § 1981. See, e.q., Rodriguez v. East Texas 
Motor Freight, 505 F.2d 40 (5th Cir. 1974); Herrera v. Yellow 
Freight Systems, Inc., 505 F.2d 66 (5th Cir. 1974); Resendis v.
Lee Motor Freight, 505 F.2d 69 (5th Cir. 1974); Franks v. Bowman 
Transportation Co., 495 F.2d 398 (5th Cir. 1974); Thornton v.
East Texas Motor Freight, 497 F.2d 416 (6th Cir. 1974); Wither­
spoon v. Mercury Freight Lines, Inc., 457 F.2d 496 (5th Cir. 1972) 
Bing v. Roadway Express, 444 F.2d 687 (5th Cir. 1971); Jones v.
Lee Way Motor Freight, Inc., 431 F.2d 245 (10th Cir. 1970), cert.
denied 401 U.S. 954 (1971) and scores of district court opinions. 
The relief ordered by the district court permits plaintiff and 
qualified class members' to transfer to road driver jobs and to
take with them seniority sufficient to put them in their rightful

31/ 
place.

No action taken by the plaintiff in this litigation has
prejudiced the rights of any class member. In an effort to obtain

31/ Tt should be noted that the seniority relief granted by the 
district court is consistent with the standards established by 
this Court in Bing v. Roadway Express, Inc., 485 F.2d 441 (5th 
Cir. 1973) and Rodriquez, supra. Here the plaintiff and the mem­
bers of the class who elect to transfer take with them an adjusted 
seniority date which is designed to put them in no better position 
than white road drivers who were not the victims of unlawful dis­
crimination. See Order of September 10, 1974 (R. 673 ) .

39



expeditious transfer rights for Yellow's black workers, plaintiff 
agreed in 1971 that he would not assert the back pay claims of 
individual class members against the Company. At no time did 
he enter into an agreement with any of the defendants to waive 
the right to back pay of any class member. There was and is no 
agreement that acceptance of road driver jobs by any class member 
would be conditioned on waiver of the right to back pay. A
reading of the district court's decree discloses that the right

32/
of members of the class to back pay is not barred. Thus, any 
class member who wishes back pay need only come into court and 
claim it.

1

32/ The~ decree simply states that "This decree shall adjudicate 
and finally dispose of the claims and rights of the class members 
with respect to positions as over-the-road drivers with defendant 
Yellow..." (R. 671 ) . No where does it declare that all claims
of class members have been adjudicated, and no where does it dis­
cuss or dispose of the back pay claims of the members of the 
class. Further, it does provide for the mailing of notices to 
all class members (R. 672 ).

40



IV

THE DISTRICT COURT DID NOT ERR IN HOLDING 
THE INTERNATIONAL UNION LIABLE.

The unions argue that this Court's decisions in Resendis, 

supra, and Herrera preclude liability for the International. 

Essentially the same collective bargaining agreements that were 

examined in the Rodriguez trilogy are at issue in this case, 

but whatever the evidence showed in Resendis and Herrera, the 

undisputed facts in this case clearly demonstrate the direct 

involvement of the International in the negotiation and admin­

istration of the contracts that serve to lock-in the plaintiff 

and the class.

That the International is not responsible for the discrim­

inatory hiring practices at Yellow does not relieve it of 

liability. In fact, this Court has stated on many occasions 

that'Title VII places an affirmative duty on labor unions, as 

well as employers, to take corrective steps to prevent present 

discriminatory practices, to remove the impediments that perpet­

uate past discrimination and to put the victims of discrimination 

into their "rightful place." See Carey v. Greyhound Bus Co.,

500 F.2d 1372, 1377 (5th Cir. 1974); Pettway v, American Cast 

Iron Pipe Co., 494 F.2d 211, 243 (5th Cir. 1974); and Rodriguez, 

supra.

The record in this case shows, without dispute, that the 

International participates in the negotiation of both the
41



National Agreement and the Southern Conference Supplemental

Agreements. The International has exclusive control over the

Southern Conference of Teamsters and acts directly in the

administration of the Southern Conference Supplemental Agreements.
pp. 11-14.

See Statement of Facts,/ The International Constitution requires 

all of its locals within the area governed by the Southern Con­

ference to participate in and pay dues and assessments to the 

Southern Conference. See Union Answers, Ex. 1 at p. 102 (E. ).

Additionally, it is the International Constitution that permits 

it to enforce the contracts it and the Southern Conference nego­

tiates against all of its locals within the area covered by the 

Southern Conference once it gains the approval of only a majority
32/

of its locals in that area. See Union Answers, Ex. 1 at p.

103 (E. ). In face of the documentary evidence in this

record there can be no doubt as to the correctness of the dis-
r

trict court's decisions holding the International liable.

3 3/ The effectiveness of the International in convincing its 
locals to accept its proposals is graphically demonstrated in 
the Affidavit of J. W. Morgan where he obtained the unanimous 
approval of the representatives of the local unions within 
the Southern Conference authorizing him to seek abolition of 
the "no-transfer" rule. See footnote 6, supra.

42



V

THE DISTRICT COURT DID NOT ABUSE ITS 
DISCRETION- IN ASSESSING A PORTION OF 
THE ATTORNEYS' FEES AGAINST THE UNIONS.

The unions have succeeded in delaying the attainment of the 

right of qualified Yellow's black employees to transfer to the 

high paying road driver jobs for over three years. As a result 

these black workers have lost $12,000 to $16,000. Must black 

and other minority workers re-litigate the same issues time and 

again against the same union at each and every terminal of the 

hundreds of trucking companies around the country in order to 

gain the right to enjoy the same seniority privileges as their 

white counterparts?

Once liability has been found, the district court is 

empowered with the discretion to award attorneys' fees against 

those defendants found liable. E.g., see Baxter v. Savannah 

Sugar Refining Corp., supra; Johnson v. Georgia Highway Express, 

Inc., 488 F.2d 714 (5th Cir. 1974).

Here the district court has assessed one-half of the award 

of attorneys' fees against the unions, with each of the three 

unions bearing just one-sixth of the total award. The district

court did not abuse its discretion and its apportionment of the
34 /

award should not be disturbed.

34 / The amount of attorneys' fees to be awarded the plaintiff 
has not yet been determined.

43



CONCLUSION

For the reasons set forth above, the decision of the
district court should be affirmed.

Respectfully submitted

JACK GREENBERG ^
MORRIS J. BALLER 
0. PETER SHERWOOD 

10 Columbus Circle 
New York, New York 10019

JOHN R. MYER
Crosland, Myer, Rindskopf & Terry 
2415 Nat'l Bank of Georgia Bldg. 
34 Peachtree Street, N.W.
Atlanta, Georgia 30303

Attorneys for Plaintiff-Appellee

43a



CERTIFICATE OF SERVICE

This is to certify that on this 24th day of January, 1975
I served copies of the foregoing Brief for Appellee Richard B.
Sagers upon the following counsel of record by United States
Mail, postage prepaid:

Charles Kelso, Esq.
Fisher & Phillips
3500 First National Bank Tower
Atlanta, Georgia 30303
L. N. D. Wells, Jr., Esq.
G. William Babb
8204 Elmbrook Gardens Drive
Dallas, Texas 75247
Mr. Stephen P. Murphy 
Yellow Freight System, Inc.
P. O. Box 7270
Shawnee Mission, Kansas 66207
Gerald D. Letwin, Esq.
Equal Employment Opportunity 
Commission

1206 New Hampshire Avenue, N.W. 
Washington, D. C. 20506

A _________ __________
Appellee

44