Franks v. Bowman Transportation Company Petition for a Writ of Certiorari to the US Court of Appeals for the Fifth Circuit
Public Court Documents
January 1, 1974
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Brief Collection, LDF Court Filings. Franks v. Bowman Transportation Company Petition for a Writ of Certiorari to the US Court of Appeals for the Fifth Circuit, 1974. 645d2c6c-b29a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b077dd88-93f1-4452-89e5-0755d9baa466/franks-v-bowman-transportation-company-petition-for-a-writ-of-certiorari-to-the-us-court-of-appeals-for-the-fifth-circuit. Accessed August 14, 2025.
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iuiprrutc (ta r t of iljr Itnitrit Stains
October Term, 1974
No. 74-----------
H arold F r a n k s a n d J o h n n ie L e e ,
v.
Petitioners,
B o w m an T ra n sportation C o m pa n y , I n c ., a n d I n t e r n a
tio n a l U n io n op D istr ic t 50, A llied and T e c h n ic a l
W orkers op t h e U n it e d S tates and Canada, a n d I ts
L ocal N o. 13600,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
J o h n R . M yer
Crosland, Myer, Rindskopf & Terry
2415 Nat’l Bank of Georgia Bldg.
34 Peachtree Street, N.WT.
Atlanta, Georgia 30303
J ack G reenberg
J a m es M. N a brit , III
M orris J . B aller
B arry L. G oldstein
10 Columbus Circle—Suite 2030
New York, New York 10019
E l iz a b e t h R. R in d sk o pf
265 Church Street
New Haven, Connecticut 06510
Attorneys for Petitioners'
TABLE OF CONTENTS
Opinions Below .........................
Jurisdiction .................................
Question Presented ....................
Statutory Provisions Involved ...
Statement of tlie Case ...............
R easons for G r a n t in g t h e W r it
I. The Petition Presents an Important Unresolved
Issue of Statutory Interpretation Affecting
Thousands of Persons Injured by Employment
Discrimination ...................................................... 8
II. The Court of Appeals Decision Is in Conflict
With the Remedial Purpose of Title VII and
With the Whole Scheme of Federal Labor Law 10
III. Neither the Statutory Language Nor the Legis
lative History Supports the Result Reached by
the Court of Appeals ........................ 19
IV. The Court of Appeals Decision Conflicts With
Authorities Holding That Title VII Does Not
Limit Remedies Available Under 42 U.S.C.
§ 1981 .................................................................... 21
1
2
2
2
PAGE
C o n clu sio n 23
11
A ppe n d ix page
Decision of the Court of Appeals ......................... A1
Judgment of the Court of Appeals .......................A42
Order of the Court of Appeals Denying Petition
for Rehearing ............. ...................................... A43
Order of the Court of Appeals Denying Petition
for Rehearing .......................................................A44
Opinion of the District Court .................................A45
Order and Decree of the District Court ...............A65
Judgment of the District C ourt............................. A69
Cases:
Aeronautical Industrial District Lodge 727 v. Camp
bell, 337 TJ.S. 521 (1949) ...........................................18,19
Afro-American Patrolmen’s League v. Duck, 366 F.
Supp. 1095 (N.D. Ohio 1973), aff’d in pertinent part
503 F.2d 294 (6th Cir. 1974) ................................... 14
Alexander v. Gardner-Denver Co., 39 L. Ed.2d 147
(1974) ...................................... 11,22
Allen v. City of Mobile, 331 F. Supp. 1134 (S.D. Ala.
1971), aff’d per curiam 466 F.2d 122 (5th Cir. 1972),
cert, denied 412 U.S. 909 (1973) ............................ 14
Atlantic Maintenance Co. v. N.L.R.B., 305 F.2d 604
(3rd Cir. 1962), enf’g 134 NLRB 1328 (1961) ...... 17
Contractors Association of Eastern Pennsylvania v.
Secretary of Labor, 442 F.2d 159 (3rd Cir. 1971),
cert, denied 404 U.S. 854 (1971) ............................ 22
Corning Glass Works v. Brennan, 41 L.Ed.2d 1
(1974) ...... .......,.......... ................................................ 12
Crosslin v. Mountain States Tel. & Tel. Co., 400 U.S.
1004 (1971), vacating and remanding 422 F.2d 1028
(9th Cir. 1970) ........................................................... 8
13
Dobbins v. Electrical Workers, Local 212, 292 F. Snpp.
413 (S.D. Ohio 1968), aff’d as later modified 472
F.2d 634 (6th Cir. 1973) ..........................................
EEOC v. Plumbers, Local Union No. 189, 311 F. Supp.
468 (S.D. Ohio 1970), vac’d on other grounds 438
F.2d 408 (6th Cir. 1971), cert, denied 404 U.S. 832
(1971) ............................................... .......................... 13
Ford Motor Co. v. Huffman, 345 U.S. 330 (1953) ...... 18
Golden State Bottling Co. v. N.L.R.B., 38 L.Ed.2d 388
(1973), aff’g 467 F.2d 164 (9th Cir. 1972) ........ .....16,19
Griggs v. Duke Power Co., 401 U.S. 424 (1971) ....8,11,21
Guerra v. Manchester Terminal Co., 498 F.2d 641 (5th
Cir. 1974) .................................................................... 21
Harper v. Mayor of City Council of Baltimore, 359
F. Supp. 1187 (D. Md. 1973), aff’d sub noni. Harper
v. Kloster, 486 F.2d 1134 (4th Cir. 1973) .............. 15
Head v. Timken Boiler Bearing Co., 486 F.2d 870
(6th Cir. 1973) ........................................................... 12
Jersey Central Power & Light Co. v. Electrical Work
ers, Local 327, 8 EPD 1)9759 (D.N.J. 1974) .............. 14
Johnson v. Railway Express Agency, Inc., O.T. 1974
No. 73-1543 ................................................................ 21
Jones v. Lee Way Motor Freight, Inc., 7 EPD 1)9066
(W.D. Okla. 1973) ................ 9
Jones v. Mayer Co., 392 U.S. 409 (1968) .................... 22
Local 189, United Papermakers and Paper-workers v.
United States, 416 F.2d 980 (5th Cir. 1969), cert.
denied 397 U.S. 919 (1970) ................................12,15,20
Love v. Pullman Co., 404 U.S. 522 (1972) ..................... 8
IV
Macklin v. Spector Motor Freight Systems, Inc., 478
F.2d 979 (D.C. Cir. 1973) ....................................... 21
McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973) 8
N.L.R.B. v. Cone Brothers Contracting Co., 317 F.2d
3 (5th Cir. 1963) .......... ............................................... 17
N.L.R.B. v. Lamar Creamery Co., 246 F.2d 3 (5th Cir.
1957), enfg 115 NLRB 1113 (1956) ........................ 17
N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S.
333 (1938) .................................................................. 16
N.L.R.B. v. Rutter-Rex Mfg. Co., 396 U.S. 258 (1969).... 16
N.L.R.B. v. Transport Co. of Texas, 438 F.2d 258 (5th
Cir. 1971) ................ 16
Pettway v. American Cast Iron Pipe Co., 494 F.2d 211
(5th Cir. 1974) ..........................................................12,16
Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177
(1941) ................................................................... 16,17,19
Phillips v. Martin-Marietta Corp., 400 U.S. 542 (1971) 8
Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (E.D.
Ya. 1969) .................................................. .......... 12,13,20
Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.
1971), cert, dismissed 404 U.S. 1006 (1971) .............. 12
Rock v. Norfolk & Western Ry. Co., 473 F.2d 1344
(4th Cir. 1973), cert, denied 412 U.S. 933 (1973) .... 12
Rowe v. General Motors Corp., 457 F.2d 348 (5th
Cir. 1972) .................................................................... 14
Southport Co. v. N.L.R.B., 315 U.S. 100 (1942) .......... 16
United States v. Bethlehem Steel Corp., 446 F.2d 652
(2nd Cir. 1971) ........................................ .................12, 20
United States v. Borden Co., 308 U.S. 188 (1939) ...... 22
PAGE
PAGE
United States v. Chesapeake & Ohio Ry. Co., 471 F.2d
582 (4th Cir. 1972), cert, denied 411 TJ.S. 939
(1973) .......................................... ........... ..... .......... ..12,
United States v. Georgia Power Co., 3 EPD 1J8318
(X.!). Ga. 1971) .............. .............................. ............
United States v. Georgia Power Co., 474 F.2d 906 (5th
Cir. 1973) ................... ........... ............. .......... ............ 9,
United States v. Georgia Power Co., 7 EPD 1(9167
(X.i). Ga. 1974) ...................... ........... .......................
United States v. Jacksonville Terminal Co., 451 F.2d
418 (5th Cir. 1971), cert, denied 406 U.S. 906 (1972)
United States v. Louisiana, 380 U.S. 145 (1965) ..........
United States v. N. L. Industries, Inc., 479 F.2d 354
(8th Cir. 1973) ......... ............................... ..................
United States v. Sheet Metal Workers, Local 36, 416
F.2d 123 (8th Cir. 1969) .......................................13,
United States v. Sheet Metal Workers, Local 36, 280
F. Supp. 719 (E.D. Mo. 1968) ...... ............................
Vogler v. McCarty, Inc., 451 F.2d 1236 (5th Cir.
1971) ...........................................................................
Waters v. Wisconsin Steel Works of International
Harvester Co., 503 F.2d 1309 (7th Cir. August 26,
1974) .......... .................................................................
Watkins v. United Steel Workers of America, Local
No. 2369, 369 F. Supp. 1221 (E.D. La. 1974) ..12,13,1.4,
Statutes and Rule:
5 U.S.C. §3502 (1966) ................................. ................
29 U.S.C. §160(c) [Section 10(c), National Labor
Relations Act] ..........................................................
20
6
16
9
12
11
12
20
13
11
20
22
18
15
VI
42 U.S.C. §1981 [Civil Eights Act of 1866] ..-2,4,8,21,22
42 U.S.C. §1982 ........................................................... - 22
42 U.S.C. §§2000e et seq. [Title VII, Civil Rights Act
of 1964] ...........................2,5,7,9,12,14,15,17,19,20,22
42 U.S.C. §2000e-2(a) .................................................... 2
42 U.S.C. §2000e-2(e) .................................................... 3
42 U.S.C. §2000e-2(h) [Section 703(h) of Title VII] .... 3, 7,
9,11,15,19, 20, 21, 22
42 U.S.C. §2000e-5(g) [Section 706(g) of Title VII] -4,10,
11,12,16,19, 20, 21
42 U.S.C. §§3601 et seq. [Fair Housing Act of 1968] — 22
50 U.S.C. App. §§301 et seq. [Selective Training and
PAGE
Service Act of 1940] .................................................. 17
50 U.S.C. App. §§451 et seq. [Selective Training and
Service Act of 1948] ................................................ 17
50 U.S.C. App. §459(c) (1967) ................... ................ 18
Federal Rules of Civil Procedure, Rule 23(b)(2) ...... 6
National Labor Relations Act [29 U.S.C. §§151 et seg.] 15,
16,17,18,19
Other Authorities:
Cong. Rec, S. 1526 (daily ed. February 19, 1972) ...... 22
Cong. Rec. S. 1797 (daily ed. February 15, 1972) ...... 22
Cooper and Sobol, Seniority and Testing Under Fair
Employment Laws: A General Approach to Objec
tive Criteria of Hiring and Promotion, 82 I I arv. L.
R ev . 1598 (1969) ..................................................... 13, 21
Equal Employment Opportunity Commission, 7th
Annual Report for Fiscal Year ended June 30, 1972 9
Vll
PAGE
Subcommittee on Labor of the Senate Committee on
Labor and Public Welfare, Legislative History of
the Equal Employment Opportunity Act of 1972
(1972) ...................................................................... . 11
S. Rep. No. 415, 92nd Congress, 1st Session (1971) .... 22
I n t h e
g>upmw> (tart of % luitrfli States
October Term, 1974
No. 74-----------
H arold F r a n k s a n d J o h n n ie L e e ,
v.
Petitioners,
B ow m an T ransportation C o m pa n y , I n c ., a n d I n t e r n a
tio n a l U n io n op D istr ic t 50, A ll ie d and T e c h n ic a l
W orkers of t h e U n ited S tates and C anada, a n d I ts
L ocal N o. 13600,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Petitioners, Harold Franks and Johnnie Lee, respect
fully pray that a Writ of Certiorari issue to review the
judgment and opinion of the United States Court of Ap
peals for the Fifth Circuit entered in this proceeding on
June 3, 1974.
Opinions Below
The opinion of the Court of Appeals, reported at 495
F.2d 398, is reprinted in the Appendix hereto at pp. A1-A41.
The Order of the Court of Appeals denying Petitioners’
Petition for Rehearing, reported at 500 F.2d 1184, is re
printed in the Appendix at p. A44. The unreported opin
2
ion, decree, and judgment of the United States District
Court for the Northern District of Georgia are reprinted
in the Appendix at A45-A70.
Jurisdiction
The judgment of the Court of Appeals was entered on
June 3, 1974. Petitioners’ timely Petition for Rehearing
was denied on September 12, 1974. Jurisdiction is in
voked under 28 U.S.C. §1254(1).
Question Presented
Whether in an action based on Title VII and 42 U.S.C.
§ 1981 the district courts are prohibited as a matter of
law from granting, as part of the remedy to black job
applicants unlawfully refused employment, the full senior
ity they would have obtained but for the employer’s dis
crimination!
Statutory Provisions Involved
The pertinent sections of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended, provide:
Section 703(a), 42 U.S.C. §2000e-2(a):
It shall be an unlawful employment practice for an
employer—
(1) to fail or refuse to hire or to discharge any in
dividual, or otherwise to discriminate against any in
dividual with respect to his compensation, terms, con
ditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national or
igin; or
3
(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would
deprive or tend to deprive any individual of employ
ment opportunities or otherwise adversely affect his
status as an employee, because of such individual’s
race, color, religion, sex, or national origin.
Section 703(c), 42 U.S.C. § 2000e-2(c):
It shall he an unlawful employment practice for a
labor organization—
(1) to exclude or to expel from its membership, or
otherwise to discriminate against, any individual be
cause of his race, color, religion,, sex, or national or
igin;
(2) to limit, segregate, or classify its membership or
applicants for membership, or to classify or fail or
refuse to refer for employment any individual, in any
way which would deprive or tend to deprive any in
dividual of employment opportunities, or would limit
such employment opportunities or otherwise adversely
affect his status as an employee or as an applicant for
employment, because of such individual’s race, color,
religion, sex, or national origin.
Section 703(h), 42 U.S.C. § 2000e-2(h):
Notwithstanding any other provision of this title, it
shall not be an unlawful employment practice for an
employer to apply different standards of compensa
tion, or different terms, conditions, or privileges of
employment pursuant to a bona, fide seniority or merit
system, or a system which measures earnings by quan
tity or quality of production or to employees who work
in different locations, provided that such differences
are not the result of an intention to discriminate be
cause of race, color, religion, sex, or national origin.
4
Section 706(g), 42 U.S.C. $2000e-5(g):
If the court finds that the respondent has inten
tionally engaged in or is intentionally engaging in an
unlawful employment practice charged in the com
plaint, the court may enjoin the respondent from en
gaging in such unlawful employment practice, and
order such affirmative action as may be appropriate,
which may include, hut is not limited to, reinstatement
or hiring of employees, with or without back pay (pay
able by the employer, employment agency, or labor or
ganization, as the case may be, responsible for the
unlawful employment practice), or any other equitable
relief as the court deems appropriate. . . . No order of
the court shall require the admission or reinstatement
of an individual as a member of a union, or the hiring,
reinstatement, or promotion of an individual as an em
ployee, or the payment to him of any back pay, if such
individual was refused admission, suspended, or ex
pelled, or was refused employment or advancement or
was suspended or discharged for any reason other than
discrimination on account of race, color, religion, sex,
or national origin or in violation of section 704(a).
The Civil Rights Act of 1866, 42 U.S.C. § 1981, provides:
All persons within the jurisdiction of the United
States shall have the same right in every State and
Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal benefit
of all laws and proceedings for the security of persons
and property as is enjoyed by white citizens, and shall
be subject to like punishment, pains, penalties, taxes,
licenses, and exactions of every kind, and to no other.
5
Statement o f the Case
This class action filed in the United States District Court
for the Northern District of Georgia on May 5, 1971, chal
lenged practices of racial discrimination in employment by
Respondents Bowman Transportation, Inc,, and Local No.
13600, in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e et seq., and 42 U.S.C. § 1981. Peti
tioner Franks, a discharged former employee of Bowman,
alleged that Respondents had engaged in across-the-board
practices of racial discrimination in employment. Peti
tioner Lee, a rejected job applicant who was later hired
and discharged by Bowman, intervened in the case and
filed a similar class action complaint on July 21, 1971.
The district court found that Petitioner Franks had
been discriminatorily denied promotion to better jobs re
served for whites and discriminatorily discharged in 1968
for filing an EEOC charge alleging promotional discrimina
tion (A55-A56), and that Bowman’s initial refusal to hire
Petitioner Lee as an over-the-road (OTR) driver in Janu
ary, 1970, was racially motivated (A59-A60, A63). The
district court also found that Respondents had engaged in
a comprehensive program of racial discrimination until
after suit wras filed (A46-A52).1
With respect to OTR jobs, the court found that Bowman
followed “an unwritten policy” against hiring black ap
plicants ; that no black OTRs were employed anywhere in 1
1 Prior to 1968, Bowman maintained completely segregated jobs
and departments, with almost no black employees anywhere in the
Company (A47-A48). By August, 1971 (after suit was filed)
Bowman still had only a token few blacks in most job categories
and none at all in several of the more desirable positions (A48).
Bowman refused to allow transfers, which effectively locked blacks
into their few inferior jobs (A47, A51). Blacks were consistently
relegated to the lower paying positions (A48-A49).
6
the Company until September, 1970 ;2 3 and that prior to the
first hiring of blacks as OTRs, experienced and apparently
qualified black applicants had sought OTR jobs (A50).s
The court held the case maintainable as a class action under
Rule 23(b)(2), Federal Rules of Civil Procedure (A53). It
allowed Petitioner Lee to represent a subclass, denominated
“Class 3”, consisting of all black OTR applicants who ap
plied prior to January 1, 1972 (A53, A66). Finding that
members of this subclass had been discriminatorily denied
OTR opportunities, the court granted them “preferential
re-application rights” to renewed and non-discriminatory
consideration for the OTR job (A66-A67). It rejected Peti
tioners’ demand that such discriminatees, if subsequently
hired, be g*ranted OTR seniority back to the date when they
would have been hired but for Bowman’s discrimination.4 *
On Petitioners’ appeal, the Court of Appeals affirmed all
the trial court’s findings of discrimination,6 found certain
2 Bowman employed no blacks and 415 whites as OTRs in July,
1965; no blacks and 464 whites as OTRs in March, 1968; and 11
blacks (all at one of the four OTR terminals) and 499 whites as
OTRs in August, 1971 (A48). At the time of trial (March, 1972),
Bowman’s OTR workforce was only 3.3% black (A18 n .ll , cf.
A50).
3 The record shows that Bowman rejected 196 black OTR ap
plicants in 1970-1971 alone. Of these, 115 list truck driving ex
perience on their applications which meets Bowman’s basic stan
dards; Bowman verified the claimed experience of at least 48
black applicants whom it nevertheless rejected.
Two black rejected OTR applicants other than Lee testified at
trial. The court found that each was “experienced and not obvi
ously disqualified” but had been discriminatorily rejected (A50).
4 The court expressly relied on its reasoning on the back pay
issue in United States v. Georgia Power Co., 3 EPD 1(8318 (N.D.
Ga. 1971) (A53-A54) ; that decision was subsequently reversed,
474 F.2d 906 (5th Cir. 1973).
6 With respect to the OTR hiring issue, the Court of Appeals
held,
The record in this case shows that Bowman followed a con
scious policy of excluding blacks from its OTR Department
7
other practices unlawful (A15-A20), and held that Peti
tioners were entitled to affirmative injunctive relief as well
as class back pay (A24-A40).* 6 But the Court of Appeals
rejected Petitioners’ request for full seniority relief for
blacks previously refused hiring, who successfully re-apply
for OTP jobs (members of “Class 3”).7 Characterizing the
remedy sought as “a giant step beyond permitting job com
petition on the basis of company seniority” and as “con
structive seniority” (A29-A30), the Court held that Section
703(h) of Title VII, 42 U.S.C. § 2000e-2(h), precludes such
relief as a matter of law (A30-A31). The Court based its
conclusion on the view that a seniority system is “bona
Me” and therefore protected by Section 703(h) regardless
of the prior unlawful exclusion of blacks from sharing the
benefits of that system.8
until September 1970, a time over five years after the effec
tive date of the Civil Rights Act of 1964. The District Court
found that Bowman, although aware of its legal obligations,
intentionally continued to follow its discriminatory policy
and put off hiring black OTR drivers as long as it could
(A31).
6 Respondent Bowman's Petition for a W rit of Certiorari pre
senting the class back pay issue, No. 74-424, was denied on Decem
ber 9, 1974.
7 The record does not reveal how many persons are in this group
because the district court denied Petitioners’ request for retained
jurisdiction and reporting provisions. (The Court of Appeals
ordered the request granted, A37.) 212 members of “Class 3”
were sent notice inviting them to re-apply for priority considera
tion for OTR jobs, pursuant to the decree (A 67); presumably at
least some were hired if Bowman had abandoned its policy of
racial exclusion.
8 The Court of Appeals did not base its decision on the same
reasons as the district court; it rejected those grounds in its dis
cussion of the back pay issue (A37-A39).
8
REASONS FOR GRANTING THE WRIT
I.
The Petition Presents an Important Unresolved Issue
of Statutory Interpretation Affecting Thousands o f Per
sons Injured by Employment Discrim ination.
The critical issues of employment discrimination law at
present involve remedies. This Court has decided Title VII
cases involving procedural questions,9 and cases defining
standards for proof of discrimination.10 This case brings
to the Court an important question involving the scope of
remedial authority vested in the district courts once dis
crimination is established. The Court of Appeals decision
resolved that question in a manner which conflicts in prin
ciple with decisions of this Court and lower courts.
The decision below would severely limit courts’ power
and EEOC’s authority to grant effective relief to thousands
of victims of unlawful hiring discrimination (I, infra).
That restriction is inconsistent with numerous decisions in
employment discrimination cases and other fields of labor
law and with the remedial purpose of Title VII (II, infra).
Nothing in the language or legislative history of Title VII
requires or supports the restriction (III, infra). In any
event, a limiting interpretation of Title VII’s provisions
should not bar relief under 42 U.S.C. §1981 (IV, infra).
The Court of Appeals decision interposes a general pro
hibition on seniority relief for victims of hiring diserim-
9 See, e.g., Love v. Pullman Co., 404 U.S. 522 (1972) ; and Cross
lin v. Mountain States Tel. & Tel. Co., 400 U.S. 1004 (1971),
vacating and remanding 422 F.2d 1028 (9th Cir. 1970).
10 See, e.g., Griggs v. Duke Power Co., 401 U.S. 424 (1971);
Phillips v. Martin-Marietta Corp., 400 U.S. 542 (1971) ; McDon-
nell-Douglas Corp. v. Green, 411 U.S. 792 (1973).
9
ination. The Court found a barrier not in the circumstances
of the case, but in the terms of Section 703(h) of Title VII,
42 TJ.S.C. §2000e-(h). If that decision stands, no court
may grant any job applicant rejected because of race, sex,
religion, or national origin—whatever the circumstances—
hiring with the seniority the applicant would have acquired
but for the discriminatory rejection.
The prohibitory effect of the decision will cut back on
relief now being obtained, or that could be obtained, in
many cases. In several Title YII cases, the United States
Department of Justice has secured decrees granting com
pensatory seniority to unlawfully rejected applicants.11 The
United States Equal Employment Opportunity Commission
(EEOC) has filed 306 pending lawsuits, 174 of which seek
relief from discrimination in hiring [information supplied
by EEOC Litigation Services Branch, December 5, 1974],
And EEOC has thousands of pending administrative
charges of discrimination involving refusals to hire.11 12 13 In
conciliating, settling, or litigating these claims, EEOC’s
remedial effectiveness may be limited by the decision be
low.18 Many private plaintiffs’ refusal-to-hire suits will also
be adversely affected.
11 See, e.g., United States v. Georgia Power Co., 7 EPD f9167
(N.D. Ga. 1974) at p. 6885, issuing decree on remand from 474
F. 2d 906 (5th Cir. 1973) ; Jones v. Lee Way Motor Freight, Inc.,
7 EPD lf9066 (W.D. Okla. 1973) at p. 6500.
12 EEOC’s 7th Annual Keport for Fiscal Year ended June 30,
1972 (its most recent) shows that 8,836 charges of hiring discrim
ination were received in fiscal year 1972. In fiscal year 1974,
14,866 actionable charges of hiring discrimination were filed (per
information supplied by EEOC Systems Control Branch, Decem
ber 2, 1974). No available data shows how many charges involve
jobs to which seniority applies, but the percentage is doubtless
substantial.
13 EEOC’s authority derives solely from Title YII. Thus, a
limitation read into Title VII may hamstring EEOC in all its
proceedings.
10
The principle announced below would permanently dis
able the federal courts from even entertaining claims for
relief from discriminatory seniority-based layoff practices.
Layoffs due to reduction in force are a recurrent feature
of the American economy, as exemplified in the current
recession. Such layoffs in industry are commonly controlled
by the “last hired, first fired” principle. Where racial or
other minorities were “last hired” because of discrimina
tion, that principle raises significant employment rights
issues. If allowed to prevail, the decision below would
prohibit courts from, addressing those issues, by exempt
ing employment seniority systems from modification re
gardless of their effects and circumstances.
II.
The Court o f Appeals D ecision Is in Conflict With
the Remedial Purpose o f Title VII and With the W hole
Scheme o f Federal Labor Law.
A. In Section 706(g) of Title VII, 42 IJ.S.C. §2000e-5(g),
Congress gave the courts broad equitable powers to rem
edy employment discrimination. The provision authorizes
courts to enjoin such discrimination “and order such af
firmative action as may be appropriate, which may include,
but is not limited to, reinstatement or hiring of employees
. . . or any other equitable relief as the court deems ap
propriate.” In 1972 a Conference Committee of the Senate
and House reiterated Congress’s intent to give courts ple
nary remedial powers:
The provisions of this subsection [706(g)] are intended
to give the courts wide discretion exercising their
equitable powers to fashion the most complete relief
possible. In dealing with the present section 706(g)
the courts have stressed that the scope of relief under
11
that section of the Act is intended to make the victims
of unlawful discrimination whole, and that the attain
ment of this objective rests not only upon the elimina
tion of the particular unlawful practice complained
of, but also requires that persons aggrieved by the
consequences and effects of the unlawful employment
practice be, so far as possible, restored to a position
where they would have been were it not for the un
lawful discrimination, [emphasis added]
Section-by-Section Analysis of H.R. 1746, reprinted by
Subcommittee on Labor of the Senate Committee on Labor
and Public Welfare in Legislative History of the Equal
Employment Opportunity Act of 1972 (1972), pp. 1844,
1848. See Alexander v. Gardner-Denver Co., 39 L.Ed. 2d
147, 157-158 (1974). The only limitation on the grant of
remedial authority is found in Section 706(g) itself: no
such relief may be granted in the absence of a finding of
discrimination.
The Court of Appeals did not doubt that respondent
Bowman had engaged in discrimination made unlawful by
Section 703(a), requiring a grant of relief under Section
706(g), or that class 3 members lost jobs as a result
(A30). Nevertheless it barred full seniority relief on the
basis of Section 703(h), which does not by its terms de
fine or restrict available remedies but rather specifies what
constitutes an unlawful practice.
The Court’s theory in borrowing from Section 703(h)
to narrow the scope of Section 706(g) is incompatible with
federal courts’ duty to grant effective relief from racial
discrimination. Such relief must include affirmative mea
sures designed to eradicate, insofar as possible, all the
continuing effects of past discrimination.14 The decision
14 United States v. Louisiana, 380 U.S. 145, 154 (1965); Griggs
v. Duke Power Co., 401 U.S. 424, 429-430 (1971) ; Vogler v.
12
below denies such effective relief. It subjects rehired class
3 members, because of their inferior seniority status, to
a variety of obstacles to full employment opportunities.15
The courts have not previously hesitated to modify se
niority systems where necessary to eliminate the present
effects of past discrimination as mandated by Section
706(g). In the line of cases fathered by Quarles v. Philip
Morris, Inc., 279 F. Supp. 505 (E.D. Ya. 1969), and Local
189, United Papermakers and Paperworkers v. United
States, 416 F.2d 980 (5th Cir. 1969), cert, denied, 397 U.S.
919 (1970), the courts have required substitution of date-
of-hire (“company” or “plant”) seniority for unit seniority
to allow segregated black employees equal access to jobs
in formerly all-white units.16 These decisions adopt em
ployment date as a nondiscriminatory seniority standard
not because it is per se valid but because it accomplishes
the remedial purpose of Title VII. The instant case re
quires a different remedy under the same principles be
cause of a crucial factual difference—the existence of an
all-white workforce. See Watkins, v. United Steel Workers
McCarty, Inc., 451 F.2d 1236, 1238 (5th Cir. 1971); Pettway v.
American Cast Iron Pipe Co., 494 F.2d 211, 243 (5th Cir. 1974);
Bock v. Norfolk & Western By. Co., 473 F.2d 1344 (4th Cir.
1973), cert, denied 412 U.S. 933 (1973). Cf. Corning Glass Works
v. Brennan, 41 L.Ed.2d 1 (1974).
15 Under the Respondents’ collective bargaining agreement,
choice of driving assignments and shifts, exposure to layoff during
reduction-in-force, and rights to recall are controlled by OTR
seniority.
16 See, e.g., United States v. Bethlehem Steel Corp., 446 F.2d 652
(2nd Cir. 1971); Bobinson v. Lorillard Corp., 444 F.2d 791 (4th
Cir. 1971), cert, dismissed 404 U.S. 1006 (1971); United States
v. Chesapeake & Ohio By., 471 F.2d 582 (4th Cir. 1972), cert,
denied 411 U.S. 939 (1973); United States v. Jacksonville Termi
nal Co., 451 F.2d 418 (5th. Cir. 1971), cert, denied 406 U.S. 906
(1972) ; Head v. Timken Boiler Bearing Co., 486 F.2d 870 (6th
Cir. 1973); United States v. N. L. Industries, Inc., 479 F.2d 354
(8th Cir. 1973).
13
of America, Local No. 2369, 369 F. Supp. 1221, 1231 (E.D.
La. 1974), and Cooper and Sobol, Seniority and Testing
Under Fair Employment Laws: A General Approach to
Objective Criteria of Hiring and Promotion, 82 H abv. L.
R ev . 1589, 1629 (1969) [hereinafter cited as Cooper and
Sobol]. The denial of authority to grant such remedy
places the decision below in conflict with the Quarles-Local
189 line.17
Date-of-hire seniority is not a sacrosanct principle where
it perpetuates discrimination. In cases involving union
work-referrals, the courts have expressly rejected use of
employment seniority or longevity of membership or ser
vice. Such seniority, they reason, is unavailable to black
workers because of past policies of exclusion and there
fore carries into the present the consequences of past dis
crimination. United States v. Sheet Metal Workers, Iwcal
36, 416 F.2d 123, 131 (8th Cir. 1969) ;18 Dobbins v. Elec
trical Workers Local 212, 292 F. Supp. 413 (S.D. Ohio
1968), aff’d as later modified, 472 F.2d 634 (6th Cir. 1973);
EEOC v. Plumbers, Local Union No. 189, 311 F. Supp.
468, 474-476 (S.D. Ohio 1970), vac’d on other grounds 438
F.2d 408 (6th Cir. 1971), cert, denied, 404 U.S. 832 (1971).
These decisions require referral of black employees despite
their lack of longevity, and in effect modify the employ
17 The ruling below brings an anomalous result. The most dis
criminatory employers, who like Bowman have totally excluded
blacks, are subjected to less a complete remedy than other em
ployers who have hired blacks into segregated units. Such a rul
ing places a premium on total resistance to law. See, e.g., Watkins v.
United Steel Workers of America, Local No. 2369, supra, 369 F.
Sup. at 1229.
18 The Local 36 opinion reverses and expressly rejects a district
court holding that the referral system was a non-diseriminatory
seniority system and therefore immune from revision, 280 F. Supp.
719, 728-730 (E.D. Mo. 1968). The Eighth Circuit agreed that a
seniority system was at stake, but held it non-bona fide and un
lawful, 416 F.2d at 133-134 and n. 20.
14
ment seniority system. The same modification was held
beyond the Court’s power in the instant case.
The opinion below conflicts with decisions involving pro
motional and layoff rights.19 At least two courts have re
quired modification of a layoff system based on date-of-hire
seniority, where blacks had until recently been refused em
ployment. In Watkins v. United Steel Workers of America,
Local No. 2369, supra, 369 F. Supp. at 1226, the Court held
that “employment preferences cannot he allocated on the
basis of length of service seniority, where blacks were,
by virtue of prior discrimination, prevented from accumu
lating relevant seniority.” It therefore found layoff and
recall practices based on actual hire date discriminatory
under Title VII, id. at 1223. In Jersey Central Power &
Light Co. v. Electrical Workers, Local 327, 8 EPD 1J9759
(D.N.J. 1974), the court held that a seniority clause based
on employment date had to be accommodated to avoid prej
udice to recently hired black employees in a reduction-in
force. Similarly, the courts have invalidated length-of-
service as a factor in promotions, where blacks were pre
viously denied hiring. Rowe v. General Motors Corp., 457
F.2d 348, 358 (5th Cir. 1972) (“ [the defendant] could not
. . . treat the recently hired and governmentally twice
emancipated Blacks as persons who once again had to go
to the foot of the line”) ; Allen v. City of Mobile, 331 F.
Supp. 1134, 1142-1143 (S.D. Ala, 1971), aff’d per curiam
466 F.2d 122 (5th Cir. 1972), cert, denied 412 U.S. 909
(1973) (holding use of service seniority credits unlawful);
Afro-American Patrolmen’s League v. Duck, 366 F. Supp.
1095, 1102 (N.D. Ohio 1973), aff’d in pertinent part 503
19 This case did not present the layoff issue on its facts. How
ever, the Fifth Circuit’s broad holding would seem to exempt a
“last hired, first fired” layoff system from modification without
regard to its impact on black workers or its business justification.
15
F.2d 294 (6th Cir. 1974); Hamper v. Mayor and City Council
of Baltimore, 359 F. Supp. 1187, 1203-1204 (D. Md. 1973),
aff’d sub nom Harper v. Kloster, 486 F.2d 1134 (4th Cir.
1973).
The holding below cannot be reconciled with any of the
foregoing employment discrimination cases. In requesting
retroactive seniority to the date when Class 3 members
would have been hired but for discrimination, Petitioners
merely seek to eliminate the present discriminatory impact
of Respondents’ seniority system on unlawfully rejected
applicants.20 The Court of Appeals rejected Petitioners’
request because it viewed Section 703(h) as placing be
yond remedy a seniority system founded on employment
date. Yet none of the other decisions finds employment
seniority per se consistent with Title VII,21 and many ex
pressly reject such seniority.
B. The Court of Appeals’ decision also conflicts with
labor law decisions of this Court which define the nature of
appropriate relief under Section 10(c) of the National
Labor Relations Act, 29 U.S.C. § 160(c). The conflict is par
ticularly significant because Section 10(c) served as the
20 Indeed this ease is more compelling than the decisions involv
ing use of seniority in work referrals, layoffs and recalls, or
promotions. In those cases the beneficiaries of the courts’ holdings
had not themselves been rejected applicants; in the absence of
discrimination they might not have personally obtained the posi
tion granted them by court order. Petitioners seek only restora
tion of the seniority rights they would have individually enjoyed
if Respondents had not violated the law.
21 The Court of- Appeals’ reliance on the rejection of “fictional
seniority” in Local 189, 416 F.2d at 994-995, is misplaced. Judge
Wisdom’s dicta are addressed to the propriety of giving a remedy
to persons whose rejection before enactment of Title VII was not
then unlawful. Judge Wisdom also questioned whether remedies
should be granted to new employees who were not themselves the
victims of past discrimination. Neither of these problems is
present in the instant case.
16
model for Title VII’s remedial provision, Section 706(g),
42 U.S.C. § 2000e-5(g).22
This Court has consistently held in NLRA cases that a
person unlawfully deprived of employment should be placed
in the same position he would have occupied but for the
unlawful discrimination. N.L.R.B. v. Rutter-Rex Mfg. Co.,
396 U.S. 258, 263 (1969). A remedy that leaves him “worse
off” is inadequate, id; Golden State Bottling Co. v. N.L.R.B.,
38 L. Ed. 2d 388 (1973), aff’g 467 F.2d 164, 166 (9th Cir.
1972). Thus, reinstatement to the full status that would
have obtained absent discrimination, including full senior
ity, is appropriate and necessary relief for an employee
discharged for protected union activities. Phelps Dodge
Corp. v. N.L.R.B., 313 U.S. 177, 188 (1941), Southport Co.
v. N.L.R.B., 315 U.S. 100, 106 n.4 (1942); and for an eco
nomic striker illegally denied rehiring, N.L.R.B. v. Mackay
Radio & Telegraph Co., 304 U.S. 333, 341, 348 (1938);
N.L.R.B. v. Transport Co. of Texas, 438 F.2d 258, 264-266
(5th Cir. 1971).
Unlawfully rejected applicants for employment are en
titled to no lesser remedy than dischargees and strikers.
This Court has held:
Experience having demonstrated that discrimination
in hiring is twin to discrimination in firing, it would
indeed be surprising if Congress gave a remedy for
the one which it denied for the other. . . . To differen
tiate between discrimination in denying employment
and in terminating it, would be a differentiation not
only without substance but in defiance of that against
which the prohibition of discrimination is directed.
22 United States v. Georgia Power Co., 474 F.2d 906, 92.1 n.19
(5tli Cir. 1973) ; Pettway v. American Cast Iron Pipe Co., 494
F.2d 211, 252 (5th Cir. 1974).
17
Phelps Dodge Corp. v. N.L.R.B., supra, 313 U.S. at 188. Vic
tims of unlawful hiring discrimination should therefore be
reinstated on the same basis as those unlawfully discharged.
See, e.g., Atlantic Maintenance Co. v. N.L.R.B., 305 F.2d
604 (3rd Cir. 1962), enfg 134 NLRB 1328 (1961) (requir
ing reinstatement of rejected applicant with full seniority
status); N.L.R.B. v. Lamar Creamery Co., 246 F.2d 3, 10
(5th Cir. 1957), enfg 115 NLKB 1113 (1956) (rejected ap
plicant ordered reinstated “without prejudice to senior
ity”) ; N.L.R.B. v. Cone Brothers Contracting Co., 317 F.2d
3, 7 (5th Cir. 1963).
The Fifth Circuit’s decision under Title VII specifically
prohibits the relief this Court deems vital under the NLRA.
Under the doctrine announced below, a victim of racially
motivated refusal to hire may not be reinstated to the posi
tion he would have held in the absence of discrimination.
The district court could only order him reinstated to an
inferior position of lower seniority standing. And discrim
ination in hiring would give rise to a lesser remedy than
its “twin” discrimination in firing, when the discrimination
is motivated by race or sex rather than union activities.
The decision below carves out a special category of un
lawful labor practices for persons illegally denied hiring
because of race or sex and denies them a remedy available
to all other victims of such practices.
C. Public policy sometimes requires individuals in pro
tected categories to be given employment credit for time
not actually worked on a job. Thus, Congress has enacted
legislation that grants seniority or length-of-service credit
to persons who were not employed but were engaged in
military service. The Selective Training and Service Act
of 1940, 50 U.S.C. App. §§ 301 et seq., and the Selective
Service Act of 1948, 50 U.S.C. App. §§ 451 et seq., both
required that an enrployee returning to a prior employer
18
from satisfactory military service be restored to bis job
“without loss of seniority,” 50 U.S.C. App. § 459(c) (1967).
See also, 5 U.S.C. § 3502(a) (1966) (federal employee
competing for retention in reduction-in-force receives
credit for time in military service).
In Ford Motor Co. v. Huffman, 345 TJ.S. 330 (1953),
this Court held that the same policies expressed in the
Selective Training and Service Act of 1940 authorized,
as consistent with the National Labor Relations Act, the
granting of seniority credit for military service before
initial employment. Huffman rejected a challenge to a
collective bargaining agreement provision that gave veter
ans seniority credit for service during World War II
whether or not they were Ford employees before enter
ing the service, 345 U.S. at 334-335 nn.6,7, id. at 339-340.23
The Court, while relying on the strong public policy favor
ing employment of returning veterans, indicated that simi
lar provisions would be appropriate for other national
policy or public interest reasons, id. at 338-339. It spe
cifically held that the NLRA does not require seniority
to be based exclusively on dates of actual employment,
holding,
Nothing in the National Labor Relations Act, as
amended, so limits the vision and action of a bar
gaining representative that it must disregard public
policy and national security. Nor does anything in
that Act compel a bargaining representative to limit
seniority clauses solely to the relative lengths of em
ployment of the respective employees.
Id. at 342. Accord: Aeronautical Industrial District Lodge
727 v. Campbell, 337 U.S. 521 (1949) (Selective Service
23 The Court noted that such seniority provisions were then
“widespread,” id. at 333.
19
and Training Act does not require that NLRA be con
strued to require date-of-employment as standard for
seniority).24
The decision in the instant case would bar the district
courts under Title VII from granting, as a remedy for
discrimination, a measure that the NLRA. clearly author
izes for bargaining representatives. Such a narrow view
of Title VII is incompatible with the strong public policy
—no less strong than that of assisting returning veter
ans—favoring effective relief to victims of employment
discrimination.
III.
Neither the Statutory Language Nor the Legislative
History Supports the Result Reached by the Court o f
Appeals.
The text of Section 703(h) does not clearly indicate any
Congressional purpose to delimit remedies available un
der Section 706(g). Section 703(h) does not authorize or
limit Title VII relief at all; it simply clarifies the pro
hibition of Section 703(a) against unlawful employer
practices, by authorizing use of a “bona fide seniority or
merit system.” The statute does not define a “bona fide
seniority system.” In Phelps Dodge Corp. v. N.L.B.B.,
supra, this Court noted, “unlike mathematical symbols,
the phrasing of such social legislation as this seldom at
tains more than approximate precision of definition,” and
therefore sought guidance in the broad legislative policy
of the NLRA, 313 U.S. at 185. See also, Golden State
Bottling Co. v. N.L.R.B., supra, 38 L.Ed.2d at 398. A
24 As the Court noted there, to imply “that date of employment
is the inflexible basis for determining seniority rights as reflected
in layoffs is to ignore a vast body of long-established controlling
practices in the process of collective bargaining. . . . ” Id. at 527.
20
similar approach here militates against a restrictive read
ing of the vague provisions of Sections 703(h).
Every decision that construed Section 703(h) prior to
the Court of Appeals decision herein had read the section’s
terms narrowly.25 26 In the leading cases of Quarles v. Philip
Morris, Inc., supra, 279 F. Supp. at 516-517, and Local 189,
United Papermakers and Paperworkers v. United States,
supra, 416 F.2d at 995-996, the courts reasoned that a
seniority system which carries forward the effects of past
discrimination is by definition not “bona fide”. Both courts
noted that the Section 703(h) exemption is expressly in
applicable to seniority systems which cause differences re
sulting from “an intention to discriminate because of race,”
and that prior hiring discrimination is such an “inten
tional” act, see Quarles, 279 F. Supp. at 519; Local 189,
416 F.2d at 996.26
The legislative history reveals no Congressional inten
tion that Section 703(h) should limit the scope of Section
706(g). Congress attached no such limitations when it
adopted the remedial provisions of Section 706(g).27 Arid
all indicia of purpose show that Congress intended no ad
ditional restrictions when it added Section 703(h) to Title
VII as a late amendment. For a full discussion, see
25 Subsequently, the United States Court of Appeals for the
Seventh Circuit, in Waters v. Wisconsin Steel Works of Interna
tional Harvester Co., 503 F.2d 1309 (August 26, 1974), reached
the same legal conclusion as the Fifth Circuit. Waters is, however,
distinguishable. It involves the layoff/recall rights of an employee
whose application was discriminatorily rejected before Title VII
became effective.
26 Accord: United States v. Bethlehem Steel Corp., supra, 446
F.2d at 661-662; United States v. Chesapeake & Ohio Bwy. Co.,
supra, 471 F.2d at 587-588; United States v. Sheet Metal Work
ers, Local 36, supra, 416 F.2d at 133-134 and n. 20.
27 On the contrary, Congress has expressed its understanding
that Section 706(g) authorized broad remedies, see p. 10, supra.
21
Cooper and Sobol, supra, at 1610-1614. There was no
Congressional discussion, after the introduction of the
amendment, of what constitutes a “bona fide seniority sys
tem,” id. at 1610-1611, 1613.28
The limitation imposed by the Court of Appeals is there
fore judge-made. The Court of Appeals erroneously en
grafted a limitation on Section 706(g) from an unrelated
provision. The Court of Appeals’ construction of Section
703(h) as a limiting remedial provision is particularly in
appropriate since it would undo much of what Congress
hoped to accomplish in providing for broad and flexible
remedies. See Cooper and Sobol, supra, at 1614.
IV.
The Court o f Appeals D ecision Conflicts With Au
thorities Holding That Title VII Does Not Limit Rem
edies Available Under 42 U.S.C. §1981 .
The Court of Appeals ignored Petitioners’ cause of
action under the Civil Eights Act of 1866, 42 U.S.C. § 1981.
The Court correctly assumed that Petitioners were en
titled to relief on that separate basis (A 9, A 39),29 but
28 Petitioners suggest that a “bona fide seniority system” within
the correct meaning of the Act would be one which measures not
mere longevity but rather skill or ability necessary to efficient job
performance. This reading of the section is supported by its
reference to “merit” and “quantity or quality of production”.
Cf. Griggs v. Duke Power Co., 401 U.S. 424 (1971). The decision
below forecloses seniority relief to rejected applicants without
regard to whether, in a particular case, seniority might be related
to job performance.
29 Although this Court has not yet specifically ruled on the ques
tion (but see, Johnson v. Railway Express Agency, Inc., O.T.
1974, No. 73-1543), Section 1981 is now universally accepted as
an independent basis for employment discrimination actions. See,
e.g., Macklin v. Spector Motor Freight Systems, Inc., 478 F.2d
979, 993-994 (D.C. Cir. 1973) ; Guerra v. Manchester Terminal
Co., 498 F.2d 641, 654 (5th Cir. 1974) ; and cases cited therein.
22
did not draw the logical consequences. Section 703(h)
cannot limit remedies based on laws other than Title VII,
Contractors Association of Eastern Pennsylvania v. Secre
tary of Labor, 442 F.2d 159, 172 (3rd Cir. 1971), cert,
denied 404 U.S. 854 (1971). The same reasons for reject
ing Section 703(h) as a limitation on Title VII relief
apply even more forcefully to the Section 1981 remedy;
the latter section is a separate statute enacted a century
earlier. Cf. Watkins v. United Steel Workers, Local No.
2369, supra, 369 F. Supp. at 1230-1231.
This Court has stated that in adopting Title VII, Con
gress did not intend to limit the scope or effectiveness of
pre-existing remedies for employment discrimination, in
cluding Section 1981, Alexander v. Gardner-Denver Co.,
39 L.Ed.2d 147, 158 (1974). While considering the 1972
Amendments to Title VII, the Senate twice rejected an
amendment that would have made Title VII the exclusive
remedy for employment discrimination, Cong. Rec. S.
1526 (daily ed. February 9, 1972), Cong. Rec. S. 1797
(daily ed. February 15, 1972). The Report of the Senate
Committee on the amendments specifies that none “of the
provisions of this bill are meant to affect existing rights
granted under other laws,” S. Rep. No. 415, 92d Congress,
1st Session (1971), p. 24. This Court has reached a simi
lar conclusion as to the effect of the Fair Housing Act of
1968, 42 U.S.C. §§ 3601 et seq., on the sister statute of
Section 1981. In Jones v. Mayer Co., 392 U.S. 409, 417
n. 20 (1968), it held that that Act “does not mention 42
U.S.C. § 1982, and we cannot assume that Congress in
tended to effect any change, either substantive or pro
cedural, in the prior statute. See United States v. Borden
Co., 308 U.S. 188, 198-199 [1939].” By the same logic,
Section 703(h) cannot bar Petitioners from full seniority
relief based on Section 1981.
23
CONCLUSION
The Court should grant a Writ of Certiorari to review
the judgment and opinion of the Court of Appeals.
Respectfully submitted,
J o h n R . M y ee
Crosland, Myer, Rindskopf & Terry
2415 Nat’l Bank of Georgia Bldg.
34 Peachtree Street, N.W.
Atlanta, Georgia 30303
J ack Gbeen bebg
J am es M. N a bbit , III
M o eeis J . B alleb
B abby L. G oldstein
10 Columbus Circle—Suite 2030
New York, New York 10019
E l iz a b e t h R . R in d sk o pf
265 Church Street
New Haven, Connecticut 06510
Attorneys for Petitioners
APPENDIX
A1
D ecision o f the United States Court o f Appeals
for the Fifth Circuit
FRANKS v. BOWMAN TRANSP. CO.
Appeal from the United States District Court for the North
ern District of Georgia.
Before THORNBERRY, AINSWORTH and RONEY, Cir
cuit Judges.
THORNBERRY, Circuit Judge:
After processing a complaint through the EEOC, appellant
Franks brought this racial-discrimination civil rights suit un
der Title VII, § 706, of the Civil Rights Act of 1964, 42
U.S.C.A. § 2000e-5, and under 42 U.S.C.A. § 1981 on behalf of
himself and those similarly situated against his former em
ployer, Bowman Transportation Company, and his union.1 He
alleged a discriminatory refusal to promote and a discrimina
tory discharge, and he sought extensive declaratory and equi
table relief for himself and for class members. Lee was
permitted to intervene as plaintiff to press his individual
claim against Bowman for a discriminatory refusal to hire and
for a discriminatory discharge and to represent other classes
of black Bowman employees and job applicants. The district
court found after a three-day trial that Franks had estab
lished the factual bases for his individual claim, but it dis
missed his individual action because it concluded Franks had
waited beyond the applicable limitations period to file suit.
The court held that Lee factually established his claim for a
discriminatory refusal to hire, but failed to prove his claim for
discriminatory discharge, and it accordingly entered judgment
partly for him and partly against him. As to the classes
represented, the court found that past racial discrimination
had been demonstrated and that the departmental seniority
1. International Union of District 50, Local No. 13600, Allied and
Technical Workers of the United States and Canada. Also included
as a party defendant was the national union of which Local 13600 is
a part, International Union of Allied and Technical Workers of the
United States and Canada.
A2
system maintained by Bowman and the union perpetuated the
effects of past discrimination. As a remedy, the court en
joined Bowman from discriminating along racial lines in the
future, ordered that certain class members be allowed to
utilize company seniority accumulated before the date on
which discrimination had ceased, and afforded certain discri-
minatees who responded to a notice from Bowman within
thirty days priority in consideration for employment. The
court declined to grant further affirmative relief requested,
including the use of full company seniority for certain discri-
minatees, measures to ensure hiring and training of greater
numbers of blacks in the future, and a requirement that
Bowman file periodic reports with the district court to demon
strate compliance.
On this appeal we are asked to review the district court’s
adverse rulings on the individual claims of Franks and Lee
and to determine whether the district court abused its discre
tion in not affording greater affirmative relief to the classes
they represented. We shall discuss the pertinent facts in
connection with the various claims.
I. Franks’ Individual Claim: Limitations and Laches
Bowman is an interstate trucking company which operates
as a common carrier licensed by the Interstate Commerce
Commission throughout southeastern United States and in
parts of the mid-west.I. 2 Its principal terminals are in Atlanta,
Birmingham, Charlotte, and Richmond.
Franks, a Negro, was first hired at Bowman’s Atlanta
terminal in 1960 as a “tire man,”—a position which requires
the most menial work at the terminal and brings the lowest
pay. Except for a one-year period in 1961 and 1962 during
which he was assigned as a “grease man,” Franks worked as a
tire man continuously until 1965, when he resigned due to an
2. Bowman’s operations and procedures are described more fully at
the beginning of part III of this opinion, infra.
FRANKS v. BOWMAN TRANSP. CO.
A3
injury. In 1966 he was rehired as a tire man. After his
return Franks attempted on several occasions to obtain a
transfer, or promotion, into another job, but his way was
blocked by Bowman’s racially discriminatory policy of employ
ing blacks only in the Tire Shop.3 Although Bowman agreed
in a collective bargaining agreement signed in 1967 to allow
transfers and to hire without regard to race, the discriminato
ry policy was in fact continued in effect unofficially after
1967. Both before and after 1967 Franks was told that blacks
could not transfer, or be promoted, from the Tire Shop. The
district court found that but for Bowman’s discriminatory
policy, Franks should reasonably have been promoted to a
higher paying, “dock worker” position by the end of 1967. No
challenge is made to this finding.
Having watched white workers hired “off the street” into
higher paying positions for which he was qualified and had
applied, Franks filed a complaint with the Equal Employment
Opportunity Commission on March 25, 1968, charging that
Bowman refused to promote him because of its racially dis
criminatory policy of employing blacks only in the Tire Shop.
EEOC officials visited the Atlanta terminal on two occasions,
on April 23, 1968 and on May 10, 1968 to investigate Franks’
charges. A few hours after the second visit Bowman dis
charged Franks, assertedly for “unauthorized bobtailing,” or
using company vehicles for personal errands. The district
court rejected this purported explanation, however, and found
that Franks was discharged “for reasons of race.” On May
13, 1968 Franks filed a second complaint with the EEOC,
alleging a discriminatory discharge.
Efforts to resolve the dispute through conciliation having
failed, on March 21, 1969 Franks’ then attorney requested the
EEOC to issue a § 706(e) “suit letter” covering both com
plaints, and such a letter was sent on the same day to Franks’
mailing address by certified mail, return receipt requested.
3. Two blacks who worked as “cleanup men” in the Trailer Shop
were exceptions.
FRANKS v. BOWMAN TRANSP. CO.
A4
Franks resided at 5339 Victory Drive in Morrow, Georgia, but
he received his mail at 5319 Victory Drive, where his grand
mother, sister, and nine-year-old nephew resided. On March
22 his nephew received the letter and signed the postal
receipt, but he lost the letter before delivering it to Franks.
Franks learned that his nephew had signed for some letter,
but he never saw or received the letter personally. About a
year later, on March 20, 1970 Franks contacted EEOC officials
again about his dispute with Bowman, and, upon being shown
the postal receipt for the first suit letter, affirmed in an
affidavit that he had not personally received it. Franks then
retained his present attorneys and filed “amended” charges
with the EEOC which substantially duplicated the earlier
charges. A second suit letter issued on April 14, 1971, and
Franks filed a suit less than a month later on May 5, 1971.
On these facts the district court held Franks’ Title VII and
his Section 1981 claim barred. As to the Title VII action, the
court reasoned that the thirty-day statutory limitations
period 4 began to run on March 22, 1969, the date the first suit
letter was delivered to Franks’ mailing address, so that the
action was barred after April 21, 1969. As to the § 1981
action, the court concluded that a two-year Georgia statute of
limitations was applicable and that it barred the claim since
the suit had not been filed for almost three years after
Franks’ discharge on May 10, 1968.
[1] The statutory language which established the thirty-
day limitations period applicable to Franks’ Title VII action is
found in § 706(e) as it read before the 1972 amendments:5
If within thirty days after a charge is filed with the
Commission [or within sixty days, if the Commission acts to
extend the period] the Commission has been unable to
obtain voluntary compliance with this subchapter, the Com-
4. The 1972 amendments to the Civil Rights Act of 1964, P.L. 92-261
§ 14, 86 Stat. 113, extended the limitations period from thirty days
to ninety days.
5. See note 4 supra.
FRANKS v. BOWMAN TRANSP. CO.
A5
mission shall so notify the person aggrieved and a civil
action may, within thirty days thereafter be brought
against the respondent named in the charge (1) by the
person claiming to be aggrieved.
The key word in the statute is “notify”; the limitations period
begins to run upon notification of the aggrieved party.6 This
Court has held that such notification takes place only when
“notice of the failure to obtain voluntary compliance has been
sent and received.” Miller v. International Paper Co., 5th Cir.
1969, 408 F.2d 283 (emphasis added). There being no question
that the EEOC mailed the statutory notice to Franks, the
Title VII limitations issue must be framed in terms of wheth
er Franks constructively “received” the letter, even though it
never actually came into his hands. We hold that Franks did
not “receive” the first suit letter, and that the thirty-day
limitations period began to run only when the second suit
letter actually reached him or his attorney. Genovese v. Shell
Oil Co., 5th Cir. 1973, 488 F.2d 84. Since suit was filed within
thirty days of the receipt of the second suit letter, the Title
VII action was not barred by the § 706(e) limitations period.
We do not deal here with service of process or receipt of an
offer or acceptance to make a contract, but with the interpre
tation of Title VII. The courts have consistently construed
the Act liberally to effectuate its remedial purpose, and we
think this purpose would be poorly served by the application
of a “constructive receipt” doctrine to the notification proce
dure. More narrowly, the purpose of the statutory notifica
tion, which is “to provide a formal notification to the claimant
that his administrative remedies with the Commission have
6. The statute does not establish an aggregate ninety-day limitations
period (i. e., the aggregate of the maximum sixty-day conciliation
period and the thirty-day right-to-sue period) which begins to run on
the date the charge is filed. Miller v. International Paper Co., 5th
Cir. 1969, 408 F.2d 283. The statute does not specify any certain
limit on the time which may pass between the expiration of the
conciliation period and the statutory notification, which starts the
thirty-day period. See id.; see also 29 C.F.R. § 1601.25a.
FRANKS v. BOWMAN TRANSP. CO.
A6
been exhausted,” Beverly v. Lone Star Lead Construction
Corp., 5th Cir. 1971, 437 F.2d 1136, and to inform him that the
thirty-day period has begun to run, has not been accomplished
unless the claimant is actually aware of the suit letter. In
terms of the policy behind limitations periods generally, the
claimant can hardly be said to have slept on his rights if he
allows the thirty-day period to expire in ignorance of his right
to sue.
Our holding that the statutory notification is complete only
upon actual receipt of the suit letter accords with the view we
have expressed in prior cases that Congress did not intend to
condition a claimant’s right to sue under Title VII on fortui
tous circumstances or events beyond his control which are not
spelled out in the statute. Thus, in Beverly v. Lone Star Lead
Construction Corp., supra, we concluded that the EEOC’s
failure to find reasonable cause to suspect a Title VII viola
tion was not a jurisdictional barrier to a claimant’s Title VII
suit because Congress did not intend to make a claimant’s
statutory right to sue subject to “such fortuitous variables as
workload, mistakes, or possible lack of diligence of EEOC
personnel.” Id. at 1140. Similarly, in Dent v. St. Louis-San
Francisco Railway Co., 5th Cir. 1969, 406 F.2d 399, we held
that the EEOC’s failure to attempt to effect voluntary concili
ation did not bar a Title VII suit because a claimant’s right to
sue was not dependent on acts or omissions of the EEOC
which were “beyond the control of the aggrieved party.” Id.
at 403. In this case we are not confronted with any delay or
mistake on the part of the EEOC, but with the loss of the first
suit letter by Franks’ nine-year-old nephew. This loss must
be characterized as a fortuitous event, however, just as loss of
the letter in the EEOC office before mailing or loss by the
postal department would have been.
[2] As an evidentiary matter, a district court might prop
erly consider the mailing of a suit letter and the receipt
showing proper delivery as prima facie evidence that the
notice had reached the addressee. Where, however, it is
FRANKS v. BOWMAN TRANSP. CO.
A?
shown that the claimant through no fault of his own has
failed to receive the suit letter, and the district court has so
found, as in this case, the delivery of the letter to the mailing
address cannot be considered to constitute statutory notifica
tion.
[3] Our conclusion that Franks’ Title VII is not barred
does not end the matter, for special limitations considerations
apply to that aspect of the Title VII action which seeks back
pay. First, the proper limitations statute must be selected
and applied. Under the borrowing principle of Beard v.
Stephens, 5th Cir. 1967, 372 F.2d 685, when an action is
brought for back pay or similar damages under a federal
statute which contains no built-in limitations period, the fed
eral district court must apply the statute of limitations of the
state where it sits which would be applicable to the most
closely analogous state action. The instant case was brought
in a Georgia federal court. We have held in a recent case that
the Georgia statute governing a back pay award in a § 707
pattern or practice suit brought by the Attorney General or in
a § 706 private action such as the instant one, is Ga.Code
§ 3-704,7 which prescribes a two-year limitations period for
actions to recover wages, overtime, and damages due under
statutes respecting the payment of wages. United States v.
Georgia Power Company, 5th Cir. 1973, 474 F.2d 906, 924.
Under the Georgia Power case, then, it is clear that the
two-year statute applies.
[4] For Franks’ individual claim the statute began running
on the date of his dismissal May 10, 1968. The running of the
limitations period was tolled by the filing of a complaint with
7. Section 3-704 reads in pertinent part:
All suits for the enforcement of rights accruing to individuals
under statutes, acts of incorporation, or by operation of law, shall
be brought within 20 years after the right of action shall have
accrued: Provided, however, that all suits . . . for the
recovery of wages and overtime, subsequent to March
20, 1943, shall be brought within two years after the right of
action shall have accrued.
FRANKS v. BOWMAN TRANSP. CO.
a 8
the EEOC on May 13, 1968, three days later, and it remained
tolled “during such time as the processes of agency reconcilia
tion are at work and until notification to the complainant that
voluntary compliance cannot be obtained.” United States v.
Georgia Power Co., supra at 925. As we have indicated above,
the notification was not ultimately made until the second suit
letter was received on April 14, 1971. On this date the
limitations period began running again and continued to run
for twenty-one days, until suit was filed on May 5, 1971.
Thus the limitations period ran for a total of less than one
month, far less than the two year limitations period, before
the suit was filed.
Under the same borrowing principle of Beard v. Stephens,
supra, we conclude that Ga.Code § 3-704 applies to Franks’
action under § 1981, The first sentence of that section
providing a twenty-year period for “all suits for the enforce
ment of rights accruing to individuals under statutes
. ”, plainly did not bar Franks’ § 1981 action. The
proviso of the § 3-704 prescribing a two-year period for suits
to recover wages applies to the § 1981 action in the same way
as to the Title VII action. The running of the limitations
period was tolled during the period between the filing of the
May 13, 1968 complaint with the EEOC and the receipt of the
second suit letter on about April 14, 1971.
[5] One further matter relating to the time suit was filed
remains to be considered, and that is the applicability of the
doctrine of laches. Title VII empowers the federal district
court to
enjoin the respondent from engaging in such unlawful
employment practice, and order such affirmative action as
may be appropriate, which may include . . . rein
statement or hiring of employees, with or without back pay.
§ 706(g), 42 U.S.C.A. § 2000e-5(g). Thus, the action and the
relief authorized are essentially equitable in nature. This is
FRANKS v. BOWMAN TRANSP. CO.
true not only of traditional injunctive relief which may be
granted, but also of the back pay award.
The demand for back pay is not in the nature of a claim for
damages, but rather is an integral part of the statutory
equitable remedy, to be determined through the exercise of
the court’s discretion, and not by a jury.
Johnson v. Georgia Highway Express, Inc., 5th Cir. 1969, 417
F.2d 1122. The § 1981 action, insofar as it corresponds to the
Title VII action, must also be considered essentially equitable.
In an equitable action, equitable defenses may be raised, and
these include the doctrine of laches. In the proper case, laches
might be applied to bar a claim entirely, or it might bar only
part of the remedy sought, such as the back pay award or a
portion of it. See United States v. Georgia Power Co., supra
at 923. We do not intimate any view as to the applicability of
laches to this case, for the district court should make such a
determination in the first instance.
[6] Our holding that Franks’ individual claim was not
barred by limitations necessitates reversal of that portion of
the district court’s judgment dismissing it. Since the question
of Franks’ tardiness in initiating suit was called to the atten
tion of the district court, on remand it should specifically
consider the applicability of laches.8 Subject to its determina
tion as to the applicability of the doctrine of laches, the
district court should enter judgment for Franks and fashion
an appropriate remedy, since it has already found that he
established the factual bases of his claim.
II. Lee’s Individual Claim: Significance of
Arbitration Award
Lee, a Negro with seven years’ experience as a truck driver
and an excellent driving record, originally applied to Bowman
8. Appellants contend that the issue was not adequately raised
below. When the issue of tardy filing was brought sufficiently to
the attention of the court to be the ground for its ruling, however,
we think it must be considered to have been adequately raised.
A9
FRANKS v. BOWMAN TRANSP. CO.
A10
for a driving job in January of 1970, but he was not hired, the
district court found, because of his race. Upon learning that a
white driver had been hired shortly after his rejection, Lee
filed a complaint with the EEOC on February 26, 1970,
charging a racially discriminatory refusal to hire. In response
to the charge and to pressure from the Office of Federal
Contract Compliance, Lee was hired on September 18, 1970 at
the Birmingham terminal as one of Bowman’s first black
over-the-road truck drivers.
After working as a model employee for several months, Lee
was discharged on March 18, 1971. The facts surrounding his
discharge have been in dispute throughout this litigation.
When Lee brought his truck to the Bowman garage which
serves the Birmingham area, a “stinger” was found in the fuel
pump of his engine. A stinger is a wooden peg used to
override the engine’s governor, the device which limits the
maximum revolutions per minute and thereby the truck’s
maximum speed. Bowman claims that it discharged Lee
because of the stinger in his truck’s engine under a firm,
long-standing company policy requiring discharge of any em
ployee whose fuel pump has been altered. Lee denies any fuel
pump tampering and stresses the opportunities of others,
including Bowman’s white mechanics, to plant the stinger for
reasons of racial prejudice.
Lee’s discharge was submitted to binding arbitration under
contractual grievance procedures and on October 25, 1971 an
award favorable to Lee resulted. The arbitrator found that
although the “facts raise[d] a strong inference approaching a
presumption in the Company’s favor,” there was a “failure of
proof” because the possibility of fuel pump tampering by
other employees was not adequately eliminated. Reinstate
ment and back pay for one month, the maximum allowable
under the collective bargaining agreement, were ordered.
Bowman sent the back pay to Lee, and tendered reinstate
ment in his old Birmingham-based job on October 29, 1971.
Lee refused to accept reinstatement at Birmingham, however,
FRANKS v. BOWMAN TRANSP. CO.
A l l
and demanded a transfer to Atlanta and back pay for all
months from the time of his discharge. Bowman refused to
comply with these demands, and the district court found that
this refusal was not racially motivated.
Independently of the grievance procedures under the collec
tive bargaining agreement Lee filed a second complaint with
the EEOC on March 19, 1971, charging a discriminatory
discharge. Lee’s first EEOC charge, it will be recalled, wras
for the discriminatory refusal to hire. On June 22, 1971, Lee
received a suit letter authorizing a Title VII action because of
the discriminatory refusal to hire, and on July 12, 1971, he
received another suit letter with respect to the alleged dis
criminatory discharge. He filed a timely motion to intervene
in Franks’ suit and was subsequently permitted to intervene
on behalf of himself individually and other similarly situated
black Bowman employees and job applicants. Lee’s complaint
invoked the court’s jurisdiction under both Title VII and
§ 1981, as did Franks’ original complaint.
The district court found for Lee with regard to the original
refusal to hire and awarded him a total of $6,124.58 in back
pay. No appeal is taken from this part of the district court’s
judgment.
[7] In view of the undisputed fact that a stinger was
found in Lee’s truck and in light of Bowman’s mandatory
discharge policy for fuel pump tampering, the district court
found that Lee failed to prove his discharge was racially
motivated. On the basis of the evidence before it, it deter
mined:
The mandatory discharge rule for alteration of the fuel
pump is one of long-standing. Between 1967 and trial,
there were some 30 terminations or permitted resignations
for violation of this rule. Some of the discharged drivers
had received prior warnings for violations or other company
rules not leading to mandatory discharge; but some, like
Lee, had no prior warnings and possessed clean records at
the time. There was no requisite of previous offense to the
FRANKS v. BOWMAN TRANSP. CO.
A12
discharge. Most significantly, there is no indication and no
evidence that any other driver, Black or white was ever
NOT discharged for violation of the standing rule. It is
concluded that race was not a factor in the discharge of the
intervener Lee.
Appellant Lee challenges as clearly erroneous the district
court’s finding that the discharge was not racially discrimina
tory. Although the facts surrounding the discovery of the
stinger leave ample room for suspicion that the fuel pump was
altered by another employee besides Lee, on the record before
us we cannot hold the district court’s determination clearly
erroneous.
[8,9] The primary basis for Lee’s factual attack is his
contention that the district court erred in failing to give
greater weight to the arbitration award in his favor in making
its findings.9 We cannot agree. The federal court is the final
arbiter in cases involving Title VII rights, and “the arbitra
tor’s determination under the contract has no effect on the
court’s power to adjudicate a violation of Title VII rights.”
Hutchings v. United States Industries, Inc., 5th Cir. 1970, 428
F.2d 303, 313 (emphasis in original). Invoking contractual
grievance procedures does not constitute an election of reme
dies which automatically bars a Title VII claimant from the
court, and an arbitration award cannot be pleaded as a de
fense to a Title VII suit under the doctrine of res judicata.
See id. at 314; Rios v. Reynolds Metals Co., 5th Cir. 1972, 467
F.2d 54; Bowe v. Colgate-Palmolive Company, 7th Cir. 1969,
416 F.2d 711, 715.
[10] To be sure, arbitration awards and grievance determi
nations “may be properly considered as evidence” in a Title
VII case to the extent they are relevant to the questions
before the court. Hutchings v. United States Industries, Inc.,
supra at 314 n. 10. And when the same issues are presented
9. The district court concluded: “The court is not bound by the
arbitration award in any way. . . . This is especially true
where race was given no consideration by the arbitrator.”
FRANKS v. BOWMAN TRANSP. CO.
in arbitration as in a Title VII lawsuit, the court has discre
tion under certain circumstances to defer to the award, just as
the National Labor Relations Board may in a case properly
before it defer to an arbitrator’s determinations. See Lodge
No. 12, District No. 37, International Association of Machinists
v. Cameron Iron Works, Inc., 5th Cir. 1958, 257 F.2d 467, 473.
We have recently had occasion to delineate in some detail the
circumstances under which such discretionary deference by a
court is proper:
We hold that the federal district court in the exercise of
its power as the final arbiter under Title VII may follow a
like procedure of deferral [i. e., a procedure like that of the
NLRB] under the following limitations. First, there may
be no deference to the decision of the arbitrator unless the
contractual right coincides with rights under Title VII.
Second, it must be plain that the arbitrator’s decision is in
no way violative of the private rights guaranteed by Title
VII, nor of the public policy which inheres in Title VII. In
addition, before deferring, the district court must be satis
fied that (1) the factual issues before it are identical to
those decided by the arbitrator; (2) the arbitrator had
power under the collective bargaining agreement to decide
the ultimate issue of discrimination; (3) the evidence
presented at the arbitral hearing dealt adequately with all
factual issues; (4) the arbitrator actually decided the factu
al issues presented to the court; (5) the arbitration proceed
ing was fair and regular and free of procedural infirmities.
Rios v. Reynolds Metal Company, supra at 58.
[11] In this case it is clear that complete deference to the
arbitration award would have been improper. The contractu
al issue presented to the arbitrator was whether the company
proved, under a “strict proof” standard, that Lee had tam
pered with the fuel pump, and* not whether the discharge was
for racial reasons. The contractual right not to be dismissed
unless “cause” could be demonstrated was not identical to the
Title VII not to be discharged for reasons of race. Further,
A13
FRANKS v. BOWMAN TRANSP. CO.
Al4
FRANKS v. BOWMAN TRANSP. CO.
the arbitrator’s finding could be of little if any evidentiary
value. A finding that the stinger in the fuel pump was not
Bowman’s real reason for discharging Lee would have had an
important bearing on the question of racial motivation
presented to the court, but the arbitrator made no such
finding. Rather, the arbitrator found only that the company
failed to prove fuel pump tampering, and did not deal with
Bowman’s motivation. In arriving at this finding, the arbi
trator imposed on the company the burden of proof, and it
evaluated the evidence under a “strict” standard of proof,
under which “reasonable doubts should be resolved in favor of
the grievance.” Thus, in the final analysis, the arbitrator
determined only that the company’s asserted basis for the
discharge—that Lee had tampered with the fuel pump—was
not demonstrated beyond a reasonable doubt. This finding
could be of little value to Lee in carrying his burden of
proving racial motivation at trial or to the district court in
resolving the factual issues before it. It did not err or abuse
its discretion in failing to give greater weight to the arbitra
tion award.
Accordingly, the judgment of the district court insofar as it
relates to Lee’s individual claim is affirmed. III.
III. Adequacy of Relief to the Class
Appellants argue that the record in this case calls for
further affirmative relief to the class of discriminatees, be
yond that granted in the injunction of the district court.
Specifically, they seek (1) allowance of full company seniority
for employees who have been discriminated against, (2) the
temporary use of a mathematical formula to ensure the hiring
of more black over-the-road drivers in the future and the
ordering of public recruitment for black over-the-road drivers
and for black office workers, (3) mandatory training programs
to upgrade the skills of black employees and applicants, and
(4) retention of jurisdiction by the district court to ensure
compliance. Additionally, appellants contend the district
A15
court abused its discretion in refusing to award back pay to
non-named class members. We are compelled to agree that
further relief in some respects is required, as we indicate
below.
FRANKS v. BOWMAN TRANSP. CO.
A. Bowman’s Operations and Policies
Bowman is an interstate trucking business with its main
terminals located in Atlanta, Birmingham, Charlotte, and
Richmond. Its employees fall into four categories: (1) the
over-the-road (OTR) drivers, (2) city drivers and dock workers,
(3) Maintenance Department workers (including employees in
the Tractor Shop, the Trailer Shop, and the Tire Shop), and (4)
office, sales, and clerical employees. Employees in the first
three categories belong to the union, and the organizational
lines separating them are established in the collective bargain
ing agreements between Bowman and the union. The office
and clerical employees are not unionized, but, the district
court found, “in essence [they] constitute another department
at each terminal.” The OTR drivers are the long-distance
truck drivers; they number four hundred to five hundred
company-wide, and they earn the highest wage paid to non
management employees. The city drivers, of whom about
fifty are employed at the Atlanta terminal, drive trucks on
local missions at the respective terminals, and the one hundred
fifty to two hundred dock workers perform the manual labor
of loading and unloading trucks. The city drivers and dock
workers are at the middle of the wage scale. Within the
Maintenance Department, which has about one hundred twen
ty employees in Atlanta, the jobs in the Tire Shop require the
most menial work and bring the lowest pay, while the Tractor
Shop and the Trailer Shop jobs require mechanical skill and
pay more. Each terminal is a hiring center for OTR drivers,
who operate system-wide, as well as for other categories of
employees, whose work is localized at the terminal. In its
class aspects, this suit involves all OTR drivers throughout
Al6
Bowman’s system, and employees in the other three categories
at the Atlanta terminal only.
Before 1968 Bowman followed a conscious policy of keeping
its employees segregated according to race. With the excep
tion of two black “cleanup men” in the Trailer Shop, blacks
were employed only in the Tire Shop.1" This was the only
FRANKS v. BOWMAN TRANSP. CO.
10. The district court found that the following chart
represented accurately the distribution of jobs accord
ing to race at the times indicated:
Dept./Job
July,
Blacks-
, 196 5
-Whites
March
Blacks
, 1968
-Whites
August, 1971
Blacks-Whites
Office & 0 23 0 27 0 42
Managerial
Sales Personnel 0 6 0 5 0 5
Office/Clerical 0 27 0 63 0 53
Ship Parts Clerk 0 8 0 9 0 9
Over-the-Road
Drivers
At l a n t a Terminal 0 360 0 361 0 230
All Other 0 55 0 103 11 26 9
TOTAL 0 415 0 464 11 499
City Driver/
Dock Jobs
City Drivers 0 79 0 80 3 81
Checkers 0 23 0 127 4 103
Dock Workers 0 84 0 94 6 60
TOTAL 0 186 0 301 13 244
Shop Workers
Mechanics 0 70 0 92 0 63
Trailer Shop - - - 0 36
Grease/Oil Men 0 6 0 8 0 4
Tire Shop 7 1 9 3 16 2
Clean-up M e n 1 1 4 0
Janitors 0 1 0 2 1 1
TOTAL 7 78 10 106 21 106
TOTAL EMPLOYEES 7 743 10 1025 45 958
A17
FRANKS v. BOWMAN TRANSP. CO.
subdivision into which blacks were hired, and transfer to other
shops within the Maintenance Department or to other depart
ments was not permitted. The Tire Shop had predominantly
black employees and white supervisors. Since August 1968
Bowman has hired a few blacks into the previously all-white
OTR and City Driver and Dock Departments, but as of the
time of trial in March of 1972 it had not hired any blacks into
the higher paying mechanic jobs in the Maintenance Depart
ment or as office or clerical workers.
Before 1967 Bowman prohibited interdepartmental trans
fers flatly. The collective bargaining signed in 1967 eliminat
ed Bowman’s no-transfer policy and opened the way for
nonracial hiring in all departments, but the agreement contin
ued to recognize departmental seniority. The district court
found that the maintenance of the departmental seniority
“effectively penalized any Senior Blacks wishing to transfer
to a previously all-white department in favor of junior whites
already employed there.”
The first black was hired into the previously all-white City
Driver and Dock Department on August 15, 1968.
Despite the collective bargaining agreement provision man
dating hiring without regard to race, Bowman maintained
until September of 1970 a conscious unwritten policy of not
hiring blacks as OTR drivers. The apparent source of the
resistance to change in this department was the unwillingness
of the white drivers to “ride double” with blacks to train them
for the job or to share bunk and shower facilities with them
on the road. In 1970 the company began receiving greater
numbers of applications from blacks for OTR jobs. Under
pressure from the Office of Federal Contracts Compliance to
hire OTR drivers without regard to race, and partly in re
sponse to the EEOC charge filed by appellant Lee, Bowman
hired its first OTR driver on September 11, 1970. For about a
year black OTR drivers were hired only at the Birmingham
terminal, where Bowman housed them in separate facilities.
A l8
FRANKS v. BOWMAN TRANSP. CO.
Other black OTR drivers were first hired in Richmond on
September 12, 1971, in Atlanta on November 21, 1971, and in
Charlotte on February 15, 1972. The record reflects that
Bowman has been hiring black OTR drivers at a sharply
decreasing rate since the first hirings in September of 1970
under pressure. During the last four months of 1970, ten of
the thirty-six new OTR drivers hired, or 28%, were black.
During the twelve months of 1971, thirteen of one hundred
one, or 12%, of the new OTR drivers were black. In the first
two months of 1972, immediately before trial, Bowman hired
fifty OTR drivers, only four of whom, or 8%, were black. On
February 26, 1972, one month before trial 3.3% of the total
number of OTR drivers employed by Bowman were black.11
The provision of the 1967 collective bargaining agreement
abolishing the no-transfer rule and requiring hiring without
regard to race has had no effect in the Maintenance Depart
ment. Bowman has never hired a black mechanic in the
Tractor Shop or in the Trailer Shop, either “off the street” or
as a transfer from the Tire Shop. Bowman has not hired a
black as a “grease man” since that position became a training
step to the mechanic positions. When blacks have attempted
to transfer from the Tire Shop to better jobs in the Mainte
nance Department, management has discouraged the move by
informing the transfer-aspirant that he must resign for a
period of six weeks and then reapply, or simply that transfers
are not permitted. Further, although any Maintenance
Department employee may theoretically use his full depart
mental seniority in bidding on any Maintenance Department
11. The 3.3% figure is taken from a seniority list supplied by
Bowman shortly before trial. The district court found that “some
10%” of the OTR drivers were black at the time of trial, but it did
not indicate the source of this later statistic. Finding no basis in the
record for the 10% figure, we believe it must be the result of an
oversight, and we accept appellants’ unanswered contention that it
is clearly erroneous. In the absence of some evidence showing a
drastic increase in the percentage of black OTR drivers in the last
month before trial, the figure must be considered to have been about
3.3% at the time of trial.
A19
FRANKS v. BOWMAN TRANSP. CO.
job, inter-shop transfer attempts by seniority bidding are
largely prevented by the expedient of posting job openings
only in the shop where they occur, so that employees in the
other shops remain ignorant of them. For example, an open
ing in the Tractor Shop would be posted only in the Tractor
Shop area, so that Tire Shop employees with seniority would
not become aware of it and thus have a meaningful opportuni
ty to bid for it.
At the time of trial Bowman had never hired a black office
worker at the Atlanta terminal. Clerical job vacancies are
not advertised publicly, but are communicated by current
clerical employees to acquaintances by word of mouth. Only
three or four blacks applied for clerical positions in the five
years preceding trial. Until spring of 1971 Bowman used the
race-oriented Wonderlic test to screen clerical job applicants
and it rejected two black applicants on the basis of the scores
obtained.12
The district court found that Bowman had not practiced
racial discrimination in hiring office and clerical workers.11
12. The use of the Wonderlic test to screen job applicants was held
to constitute prohibited racial discrimination in Griggs v. Duke
Power Co., 1971, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 because
it yielded significantly different results for whites and blacks and
was not shown to produce job-related information. Bowman has
made no attempt to show that the Wonderlic test results were
related to the requirements of its clerical jobs. 13
13. The district court’s findings with regard to the office and clerical
workers were as follows:
The office employment situation stays rather stable and although
there is a substantial number of applicants each year, the hiring
rate is very low. In the past five years, there have only been a
total of three or four Black applicants out of an average of 25
each year. Each of these applicants has been treated no different
ly from any other applicant and race has not been a factor in the
employment policies in the Qffice. At time of trial, one Black
applicant has been deemed qualified and is waiting for an open
ing. There simply has been little interest by Blacks in clerical
positions at this company and no evidence is produced of racial
discrimination in this department.
A20
With regard to the OTR drivers, dock workers and city drivers
and Maintenance Department employees, it found that, while
discriminatory policies had existed in the past, they had, by
the time of trial, given way to “an official policy against
discriminatory hiring in all of its [Bowman’s] hiring prac
tices.” The departmental seniority system, however, perpetu
ated the effects of past discrimination.
B. Relief Granted by the District Court
The district court’s order defining the classes represented
and granting injunctive relief reads as follows:
In accordance with the findings of the Court, the defend
ant, BOWMAN TRANSPORTATION COMPANY, and the
defendants, INTERNATIONAL UNION OF DISTRICT 50,
LOCAL NO. 13600, ALLIED AND TECHNICAL WORK
ERS OF THE UNITED STATES AND CANADA and
INTERNATIONAL UNION OF DISTRICT 50, ALLIED
AND TECHNICAL WORKERS OF THE UNITED
STATES AND CANADA, their officers, agents, employees,
servants, and all persons in active concert or participation
with them, are hereby permanently enjoined and restrained
from discriminating against any Black applicant or Black
employee of the defendant, Bowman Transportation Com
pany at its Atlanta Terminal or elsewhere for over-the-road
drivers in violation of Title VII of the Civil Rights Act of
1964.
The defendants are enjoined from implementing a senior
ity system which would interfere with the rights under this
judgment of black employees in the classes herein defined.
AFFECTED CLASSES.
The affected classes are defined by the court as follows:
CLASS 1. All Black employees at the Atlanta Terminal
who were hired prior to August 15, 1968.
FRANKS v. BOWMAN TRANSP. CO.
A21
CLASS 2. All Black employees employed at the Atlanta
Terminal in the Maintenance Department prior to May 1,
1970.
CLASS 3. All Black applicants who applied for positions
as over-the-road drivers prior to January 1, 1972.
CLASS 4. All Black employees who applied to transfer to
over-the-road drivers positions prior to January 1, 1972.
ORDERS.
The members of CLASS 1 have all been restricted to jobs
in the Tire Shop prior to August 15, 1968, by the racially
discriminatory policies of the defendant company. Hereaf
ter any member of the affected class who competes with a
non-member in a bid to transfer or be promoted within the
company shall be entitled to compete on the basis of compa
ny seniority until such date plus any departmental seniority
thereafter, rather than departmental seniority only.
The members of CLASS 2 have been restricted to jobs in
the Tire Shop and prevented from transferring to the
Tractor and Trailer Shops within the Maintenance Depart
ment by the racially discriminating policies of the defendant
company. All such members shall be notified of the right to
bid within the department at the next annual bidding. If
bids are lodged and the member is deemed qualified, he
shall thereafter be credited with departmental seniority
from the date of original employment in all future bidding.
The members of CLASS 3 have been effectively denied
employment as over-the-road drivers prior to January 1,
1972. All Black applicants as revealed by the company
records prior to such date shall be notified in writing of
their right to be considered for employment by the company
within 30 days and given 30 days thereafter to indicate their
interest. If consideration is requested, then they shall be
afforded priority in consideration over all other applicants
until each such applicant, in chronological order, has been
accepted or rejected by the company. Two applicants,
FRANKS v. BOWMAN TRANSP. CO.
A22
Harbor and McLoughlin, shall be considered within 15 days
by the company. In any such applications, race shall not be
used by the company as a means of denying employment to
any applicant.
The members of CLASS 4, who sought to transfer from a
job as “city driver” or elsewhere to road driver shall like
wise be afforded priority in consideration for such employ
ment in chronological order along with the members of
CLASS 3.
A copy of this order, or such substituted order as agreed
upon by counsel, shall be posted in a conspicuous place in
each department and sub-department of the Defendant,
Bowman Transportation Company’s Atlanta Terminal and
in the office of each terminal and warehouse of the Defend
ant elsewhere for the period of 60 days. In addition, all
bids shall hereafter be posted in each sub-department and
shop in the Atlanta Terminal.
The court’s conclusions of law indicate that Franks rep
resented the first two of the “affected classes” and Lee
represented the second two. Analytically, a fifth class is*
implicit in the first paragraph of the district court’s order—
the class of all black job applicants and employees of Bowman.
The four enumerated categories may be considered subclasses
within this larger class. Their apparent purpose is to deline
ate the groups which the district court concluded were en
titled to a special affirmative remedy, beyond the general
prohibition against future discrimination. August 15, 1968,
the date used to define class 1, is the day the first black dock
worker at the Atlanta terminal was hired. The district court
evidently found that the discrimination barrier which exclud
ed blacks from employment in the City Driver and Dock
Department wholly dissolved on that day. The dates used to
define the remaining classes are not tied to concrete events in
the record; it appears that the district court believed discrimi
nation in the relevant areas ceased on approximately the days
FRANKS v. BOWMAN TRANSP. CO.
A23
indicated. Although appellants cast their arguments in terms
of remedy, and do not directly assail the definition of the
classes, or subclasses, and although we shall in the remainder
of this opinion speak in terms of remedies, it is clear that
modifications in the remedy afforded could necessitate re
drawing to some extent, the classes. Where appropriate, such
redrawing should be performed on remand. See Johnson v.
Georgia Highway Express Co., 5th Cir. 1969, 417 F.2d 1122,
1124.
FRANKS v. BOWMAN TRANSP. CO.
C. Standard of Review
The power of the district court to fashion an equitable
remedy is broad:
Once a right and a violation have been shown, the scope of
the district court’s equitable powers to remedy past wrongs
is broad, for breadth and flexibility are inherent in equita
ble remedies.
Swann v. Charlotte-Mecklenburg Board of Education, 1971,
402 U.S. 1, 15, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554. Generally,
the exercise of this equitable discretion will be disturbed on
appeal only for an abuse of discretion.
[12] The limits of the district court’s discretion are marked
by its duty to carry out within practicable limits the purpose
of Title VII, which is to make the discriminatee whole and to
remedy the effects of past discrimination. Vogler v. McCarty,
Inc., 5th Cir. 1971, 451 F.2d 1236, 1237; cf. Louisiana v. United
States, 1965, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d
709. To accomplish this end, the district courts are not
“limited to simply parroting the Act’s prohibitions.” Local 53
of International Association of Heat & Frost Insulators &
Asbestos Workers v. Vogler, 5th Cir. 1969, 407 F.2d 1047, 1052.
Rather they should order “such affirmative action as may be
appropriate.” § 706(g) of the Civil Rights Act of 1964, 42
U.S.C.A. § 2000e-5(g). If an appellate court can determine
from the record that the relief granted is not sufficient to
make the discriminatee whole as far as possible, then the
district court’s order falls outside the bounds of its discretion.
For some recurrent problems, we have had occasion in previ
ous cases to discuss the minimum appropriate remedy, and
such cases provide more specific limits and guidelines for the
exercise of discretion. See, e. g., Local 189, United Papermak-
ers and Paperworkers, AFL-CIO, CLC v. United States, 5th
Cir. 1969, 416 F.2d 980, cert, denied 1970, 397 U.S. 919, 90 S.Ct.
926, 25 L.Ed.2d 100 (seniority relief).
D. Asserted Inadequacy of the District Court’s Decree
1. Seniority Relief
The district court’s order allowed members of class 1 (all
present black employees at the Atlanta terminal who were
hired before August 15, 1968) to compete for jobs on the basis
of company seniority accumulated before August 15, 1968, the
date the first black dock worker was hired, and departmental
seniority accumulated thereafter. Appellants characterize
this aspect of the decree as “halfway seniority relief.” They
contend (1) that members of class 1 should be allowed to use
company seniority accumulated after as well as before August
15, 1968, (2) that members of class 4 (present Bowman em
ployees who applied to transfer to OTR positions before
January 1, 1972) who are hired as OTR drivers pursuant to the
court’s decree should be able to use company seniority for all
purposes in the OTR Department, and (3) that members of
class 3 (pre-January 1, 1972 black OTR applicants) who are
hired pursuant to the court’s decree should be awarded con
structive OTR departmental seniority beginning on the date
they would have been hired but for the discrimination.
[13-16] When a departmental seniority system perpetu
ates the effect of past discrimination it is an unlawful employ
ment practice proscribed and remediable under Title VII. E.
g., United States v. Bethlehem Steel Corporation, 2nd Cir.
1971, 446 F.2d 652; Robinson v. Lorillard Corp., 4th Cir. 1971,
A24
FRANKS v. BOWMAN TRANSP. CO.
441 F.2d 791, cert, dismissed 404 U.S. 1006, 92 S.Ct. 573, 30
L.Ed.2d 655; Local 189, United Papermakers and Paperwork-
ers, AFL-CIO, CLC v. United States, supra; Quarles v. Philip
Morris, Inc., E.D.Va.1968, 279 F.Supp. 505. Though not as
drastic as a rigid no-transfer rule, a departmental seniority
system discourages transfers and thereby locks a discrimina-
tee into his inferior job by threatening him with loss of his
accumulated seniority if he should transfer. “In any industry
loss of seniority is a critical inhibition to transfer.” United
States v. Jacksonville Terminal Co., 5th Cir. 1971, 451 F.2d
418, 453, cert, denied 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d
815. That the system is racially neutral on its face does not
save it under Title VII if its effect is to “cut into the
employees’ present right not to be discriminated against on
the ground of race.” Local 189, supra at 988; See also United
States v. Jacksonville Terminal Co., supra at 451. The federal
courts’ power to modify or suspend the operation of a discrim
inatory seniority system is not affected by the fact that the
seniority system has been established in a private, collective
bargaining agreement. Vogler v. McCarty, Inc., 5th Cir. 1971,
451 F.2d 1236. The only ground upon which a discrimination-
perpetuating seniority system may be defended is that of
business necessity. “When a policy is demonstrated to have
discriminatory effects, it can be justified only by a showing
that it is necessary to the safe and efficient operation of the
business.” Jones v. Lee Way Motor Freight, 10th Cir. 1970,
431 F.2d 245, 249; see Robinson v. Lorillard Corp., supra at
797; Local 189, supra.
In this case it is undisputed that the members of class 1
were originally relegated to inferior jobs in the Tire Shop as a
result of Bowman’s racially discriminatory hiring practices.
Further, it is clear that the departmental seniority system has
the forbidden effect of locking discriminatees into the pattern
thus created. Neither Bowman nor the union has attempted
to defend the seniority system as a “business necessity.” As
the district court recognized, class 1 members are entitled to
A25
FRANKS v. BOWMAN TRANSP. CO.
A26
relief from the locking-in effect of the departmental seniority
system. The question presented is what form the remedy
must take and how far it must go.
The leading case in this Circuit on seniority relief under
Title VII is Local 189, United Papermakers and Paperworkers,
AFL-CIO, CLC v. United States, 5th Cir. 1969, 416 F.2d 980,
cert, denied 1970, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100,
aff’g, E.D.La.1969, 301 F.Supp. 906. There, Judge Wisdom
endorsed for our Court the “rightful place” u approach to
seniority problems.
A “rightful place” theory stands between a complete
purge of “but-for” effects [and] maintenance of the status
quo. The Act should be construed to prohibit the future
awarding of vacant jobs on the basis of a seniority system
that “locks in” prior racial classification. White incumbent
workers should not be bumped out of their present positions
by Negroes with greater plant seniority; plant seniority
should be asserted only with respect to new job openings.
This solution accords with the purpose and history of the
legislation.
Id. at 988. He concluded that the decree entered by the
district court in that case accorded with the rightful place
interpretation of the Act. That decree “permanently abol
ished” the offending “job seniority system” and allowed discri-
minatees to compete for jobs on the basis of “mill seniority,”
which was to be computed from the beginning of the em
ployee’s service at the mill, regardless of the job slot he
occupied, up to the date of his bid. United States v. Local
189, United Papermakers and Paperworkers, AFL-CIO, CLC,
E.D.La.1969, 301 F.Supp. 906, 919.
In the United States v. Jacksonville Terminal Co., 5th Cir.
1971, 451 F.2d 418, cert, denied 406 U.S. 906, 92 S.Ct. 1607, 31
14. The “rightful place,” “freedom now,” and “status quo” theories
were first distinguished and analyzed in Note, Title VII, Seniority
Discrimination, and the Incumbent Negro, 80 Harv.L.Rev. 1260
(1967).
FRANKS v. BOWMAN TRANSP. CO.
L.Ed.2d 815, we applied the Local 189 principles and found
that the “craft and class” seniority system at issue in that case
was a discriminatory unlawful employment practice under
Title VII. We held that an appropriate remedial decree
should grant to discriminatees “qualified to fill vacancies
. the right to bid for . . . positions on the basis
of Terminal seniority (time worked for the employer) rather
than craft or class seniority.” Id. at 454. In laying down
guidelines which the decree should follow, we specified that
discriminatees should be allowed to use Terminal seniority
“until they successfully bid for, and retain after any on-the-
job probationary or training period (if required), positions
outside the craft or class which they occupy at the time of the
District Court’s decree.” Id. at 458—459.
In United States v. Bethlehem Steel Corp., 2nd Cir. 1971,
446 F.2d 652, the Second Circuit established similar guidelines.
Disapproving a discrimination-perpetuating departmental se
niority system, it allowed discriminatees to transfer with
seniority carryover “only once, and only during the next two
years.” Id. at 666. This once-only, two-year limitation was
considered adequate to allow the discriminatee an adequate
opportunity to break out of the racial pattern while not giving
him a preferential advantage or imposing an unnecessarily
unstable situation on the employer:
Because a transferee will have only one opportunity of
limited duration to transfer to a formerly “white” depart
ment, the Lackawanna plant will not be thrown into a
chaotic game of musical chairs. . . . Nor will any
employee have superseniority.
Id. at 666.
In each of these cases the court has allowed discriminatees
to use full company seniority to compete for job openings for
at least a reasonable time after the entry of the court’s
decree. In Local 189 the discriminatory system was “perma
nently abolished” and mill seniority substituted for discrimina
tees, presumably also permanently. In Jacksonville Terminal
A27
FRANKS v. BOWMAN TRANSP. CO.
A28
FRANKS v. BOWMAN TRANSP. CO.
discriminatees could use company seniority for transfer pur
poses only once but the use might possibly be delayed for a
lengthy period. In Bethlehem Steel the court imposed a
one-time or two-year limitation on discriminatees’ right to
transfer with full seniority carryover.15 *
[17] Both the precedents and the nature of the wrong, we
think, indicate that the remedy afforded by the district court
should allow to employees locked into old racial patterns by
the departmental seniority system the use of full company
seniority for transfer purposes for a reasonable time and for
all purposes after transfer in the new department. The
locking-in effect of departmental seniority on present em
ployees does not cease as of the date that discrimination as to
new hirees ceases. To allow for purposes of transfer—i.e.
bidding on a new job in a different department—the use of
company seniority accumulated only up to the date on which
discrimination in hiring at the terminal ceased in the past
would force discriminatees to compete with non-discriminatees
on an unequal footing in the present. To permit only partial
seniority carryover would only reduce the penalty which a
discriminatee would suffer by transferring, but would not
eliminate it. The district court’s decree should dissolve the
barrier to transfers completely by allowing the use of full
company seniority. Pettway v. American Cast Iron Pipe Co.,
5th Cir. 1974, ---- F.2d ---- [No. 73-1163, Apr. 29, 1974],
Further, the discriminatee should be allowed a reasonable
time for using company seniority to escape the racial patterns
created in the past. The right of the discriminatee to transfer
with seniority carryover on the basis of company seniority
need not be extended indefinitely into the future, but a
15. Compare Quarles v. Philip Morris, Inc., E.D.Va.1968, 279 F.Supp.
505, where the court required a prompt declaration of interest by
discriminatees and prompt screening to identify those who would be
able to bid on the basis of company seniority, but designated no
cut-off date in the future after which those discriminatees would no
longer be able to use company seniority.
A29
reasonable time after the entry of the decree must be al
lowed.16
This same reasoning applies to members of class 4 (black
employees who applied to transfer to OTR positions prior to
January 1, 1972) as well as other pre-January 1, 1972 black
employees who were excluded from OTR jobs at the time of
their original employment. Those who are found qualified for
OTR jobs should be allowed to bid for them on the basis of
company seniority and should not be penalized for accepting
them by loss of all or a portion of their accumulated company
seniority. They should be allowed to carry over accumulated
company seniority for all purposes in the OTR department.17
United States v. Bethlehem Steel Corp., supra.
In treating questions of seniority here, we do not, of course,
suggest that Bowman must hire without regard to qualifica
tion. “Secretaries must be able to type. There is no way
around that necessity.” Local 189, supra at 989. And truck
drivers must be qualified to drive. But transfer applicants
must be accepted or rejected, as the district court’s decree
requires, on the basis of valid, non-racial criteria.
[18] In seeking application-date seniority for members of
class 3 (black applicants who applied for OTR jobs before
January 1, 1972) appellants ask us to take a giant step beyond
permitting job competition on the basis of company seniority.
16. We believe a one-transfer-only limitation would be reasonable
also, either in conjunction with or in addition to the time limitation,
since the discriminatee stands on a substantially equal footing with
his white contemporaries once he has escaped the confines of the
racial pattern in which he has been trapped.
17. In Bing v. Roadway Express, Inc., 5th Cir. 1973, 485 F.2d 441, we
dated seniority for transferring road drivers from the date of qualifi
cation. In that case, Roadway had a flat requirement of one year’s
experience for road drivers, so that the qualification date was easily
calculable. ' To allow the use of company seniority before that date
would have placed the discriminatee in a better position than he
could have achieved without the discrimination. In this case, by
contrast, Bowman had no rigid one-year experience requirement. It
sometimes accepted OTR trainees with little or no prior driving
experience.
FRANKS v. BOWMAN TRANSP. CO.
A3G
FRANKS v. BOWMAN TRANSP. CO.
They ask us to create constructive seniority for applicants who
have never worked for the company. Granting that the black
OTR applicants who were rejected on racial grounds suffered
a wrong, we do not believe that Title VII permits the exten
sion of constructive seniority to them as a remedy. Section
703(h) of Title VII, 42 U.S.C.A. § 2000e-2(h), provides:
Notwithstanding any other provision of this title it shall not
be an unlawful employment practice for an employer to
apply different standards of compensation, or different
terms, conditions, or privileges of employment pursuant to a
bona fide seniority or merit system . . . provided that
such differences are not the result of an intention to dis
criminate because of race, color, religion, sex, or national
origin.
The discrimination which has taken place in a refusal to hire
does not affect the bona fides of the seniority system. Thus,
the differences in the benefits and conditions of employment
which a seniority system accords to older and newer em
ployees is protected as “not an unlawful employment prac
tice.” Facing this problem in Local 189, Judge Wisdom wrote:
It is one thing for legislation to require the creation of
fictional seniority for newly hired Negroes, and quite anoth
er thing for it to require that time actually worked in Negro
jobs be given equal status with time worked in white jobs.
. [Cjreating fictional employment time for newly-
hired Negroes would constitute preferential rather than
remedial treatment.
No stigma of preference attaches to recognition of time
actually worked in Negro jobs as the equal of white time.
. We conclude . . . that Congress exempted
from the anti-discrimination requirement only those senior
ity rights which gave white workers preference over junior
Negroes.
Local 189, supra at 995. We are guided by his reasoning here.
The district court did not abuse its discretion in refusing to
create constructive seniority for black OTR applicants who
were rejected as a result of Bowman’s discriminatory policy.
In conclusion, we agree with appellants’ contention that
present Bowman employees who have been discriminated
against in the past and remain locked-in to the racial pattern
by departmental seniority must be allowed to compete for jobs
in other departments on the basis of full accumulated compa
ny seniority, and that this remedy should be made available
for a reasonable time to permit them to take advantage of it.
On remand the decree should be modified in accordance with
these views. We do not agree that constructive seniority may
be created and awarded to those who are not employees.
2. Affirmative Hiring Relief
[19] Appellants next contend that the District Court’s
decree was deficient in failing to provide (1) that Bowman
must conduct an active recruitment campaign designed to
attract black OTR applicants and must hire one black OTR
driver for every new white OTR driver hired until twenty
percent of the OTR drivers are black, and (2) that Bowman
must actively recruit black office and clerical workers in a
manner specifically designed to inform the black community
of clerical job opportunities. Appellants included both of
these measures in a proposed decree which they submitted to
the District Court.
The record in this case shows that Bowman followed a
conscious policy of excluding blacks from its OTR Department
until September 1970, a time over five years after the effec
tive date of the Civil Rights Act of 1964. The District Court
found that Bowman, although aware of its legal obligations,
intentionally continued to follow its discriminatory policy and
put off hiring black OTR drivers as long as it could. It began
hiring black OTR drivers in 1970 only under pressure from the
OFCC and at least one EEOC complaint. As we have often
A31
FRANKS v. BOWMAN TRANSP. CO.
A32
FRANKS v. BOWMAN TRANSP. CO.
observed, actions taken under such pressure and in the face of
threatened or pending litigation are at best “equivocal in
purpose, motive and permanence.” Jenkins v. United Gas
Corp., 5th Cir. 1968, 400 F.2d 28, 33; see also Rowe v. General
Motors Corp., 5th Cir. 1972, 457 F.2d 348, even when they are
drastic and go far toward remedying the effects of past
discrimination. In this case, the sincerity and permanence of
Bowman’s conversion to nonracial employment practices are
all the more dubious in light of the steadily declining rate at
which Bowman has hired black OTR drivers after September
of 1970 and in light of the small percentage (3.3%) of the OTR
Department which was black at the time of trial.18 Public
recruitment has been granted previously as a remedy in
racial-discrimination cases,19 and we agree with appellants
that this case calls for such a remedy.
At the time the District Court entered its findings of fact,
conclusions of law, and order and decree in March, 1972, it did
not have the advantage of our en banc decision in Morrow v.
Crisler, 5th Cir. 1974, 491 F.2d 1053. Morrow considered the
precise charge made here: that the District Court failed to
order sufficient affirmative relief. The en banc court there
remanded for additional consideration where the events since
the District Court decree indicated the initial relief to have
been insufficient.
We would vacate so much of the District Court’s decree as
denies the request for additional affirmative relief and re-
18. See note 10, supra, & accompanying text.
19. Public recruitment aimed at blacks was held mandatory in United
States v. Georgia Power Co., 5th Cir. 1973, 474 F.2d 906, 926 and in
United States v. Sheet Metal Workers International Association,
Local 36, AFL-CIO, 8th Cir. 1969, 416 F.2d 123, 139-140. It was
also a part of the remedy granted in the following cases: United
States v. Ironworkers Local 86, W.D.Wash. 1970, 315 F.Supp. 1202,
aff’d 9th Cir. 1971, 443 F.2d 544, cert, denied 404 U.S. 984, 92 S.Ct.
447, 30 L.Ed.2d 367; United States v. Central Motor Lines, Inc.,
W.D.N.C.1971, 338 F.Supp. 532; United States v. United Association
of Journeymen, etc., Local No. 73, S.D.Indiana 1969, 314 F.Supp.
160. The power of the court under Title VII to order, as a remedial
measure, advertising and recruitment efforts aimed at minority
groups cannot be seriously questioned.
mand to the District Court to update the record in this case,
which is now over two years old, and to consider what, if any,
additional affirmative relief may be necessary in light of
current facts and our decision in Morrow.
The hurdle which appellants must clear in order to be in a
position to demand public recruitment of black office workers
is the District Court’s finding that Bowman does not discrimi
nate in hiring office workers. We conclude that appellants
have cleared this hurdle on the strength of their proof below
that Bowman had never hired a black office worker, relied on
word-of-mouth advertising to fill vacancies which became
available, and followed patently discriminatory practices in
connection with the employment of drivers by the Company.
The underlying findings upon which the District Court
relied in making its no-discrimination finding were: (1) only
three or four of the approximately twenty-five clerical appli
cants each year are black, (2) blacks have shown little interest
in office jobs, and (3) black applicants are treated no differ
ently than white applicants. Further pertinent facts appear
ing in the record, which are not disputed, are (4) that Bowman
had never hired a single black office or clerical worker in
Atlanta by the time of trial, and (5) Bowman did not publicize
office job vacancies but relied on word-of-mouth advertising
by the current all-white office staff.
The most vociferous figure regarding the office and clerical
workers in this case is that Bowman’s office staff was at the
time of trial and had always been one hundred percent white.
This statistic alone raises a question concerning racial discrim
ination in Bowman’s hiring of office workers. See United
States v. United Brotherhood of Carpenters and Joiners of
America, Local 169, 7th Cir. 1972, 457 F.2d 210, 214; United
States v. Hayes International Corp., 5th Cir. 1972, 456 F.2d
112, 120. It has not been shown to be the result of any
business necessity, or extenuating circumstances, or any cause
other than a preference for whites in hiring.
A33
FRANKS v. BOWMAN TRANSP. CO.
The suggestion that the all-white composition of the office
staff is due to lack of interest on the part of blacks or the
small number of black applicants is singularly unpersuasive in
view of Bowman’s heavy reliance on word-of-mouth recruit
ing. We recognized recently in United States v. Georgia
Power Co., 5th Cir. 1973, 474 F.2d 906, 925, that when all
current employees in a unit are white “word-of-mouth hiring
alone would tend to isolate blacks from the ‘web of informa
tion’ which flows around opportunities at the company.” Al
though this recruiting method is racially neutral in form, in
practice it operates as a “builtin headwind” to blacks. Id.;
Parham v. Southwestern Bell Telephone Co., 8th Cir. 1970, 433
F.2d 421; Clark v. American Marine Corp., E.D.La.1969, 304
F.Supp. 603, 606, 608. No business necessity for Bowman’s
exclusive reliance on this recruiting method has been shown or
argued.
Inasmuch as the record is clear as to the discriminatory
employment practices concerning drivers, we think that the
above evidence was sufficient to carry the plaintiff’s burden
of proof that discrimination in hiring office workers was
sufficiently shown to justify some relief.
Under the circumstances of this case we agree with appel
lants that the District Court’s failure to order some hiring
relief in the form of public recruitment to attract black office
and clerical workers, as well as to attract OTR applicants, was
an abuse of discretion, and that advertising of office job
vacancies through some medium designed to reach blacks
would be appropriate.
We do not specify the precise form which such recruiting is
to take. “[Advertisements of openings in newspapers and
periodicals accessible to the black communities of Atlanta and
other Georgia cities, and public notice that the company is an
equal opportunity employer, are common recruiting tech
niques which should be considered. . . We hold only
that the present word-of-mouth practice must be supplement-
A34
FRANKS v. BOWMAN TRANSP. CO.
A35
FRANKS v. BOWMAN TRANSP. CO.
ed or changed.” United States v. Georgia Power Co., supra,
at 926.
In summary, we conclude that this case warrants affirma
tive hiring relief for potential black OTR drivers in the form
of public recruitment, consideration of additional affirmative
relief in the light of our opinion in Morrow, and affirmative
hiring relief for potential black office workers in the form of
public recruitment. We leave to the District Court the task
and prerogative of devising the particular form these reme
dies should take and of framing an appropriate decree.
3. Mandatory Training for Discriminatees
[20] Appellants next ask that Bowman be ordered to es
tablish special training programs to upgrade the skills of
discriminatees and to facilitate their movement out of inferior
jobs.
Bowman’s record of denying training opportunities to
blacks is bad. From 1968 to 1971 Bowman hired 75 to 150
white OTR drivers with no prior truck driving experience and
trained them by assigning them to “ride double” with experi
enced drivers. At the same time, assertedly because of the
racial prejudice of all its white drivers, similar training oppor
tunities were denied blacks. Prior to August of 1968 blacks
were absolutely excluded from city driver jobs, which may
lead to qualification for OTR jobs. In the Maintenance
Department, black Tire Shop employees have been denied
access to jobs through which they might progress to mechanic
position.
At a minimum, an effective remedy in this case must allow
black applicants and new employees access to training oppor
tunities on an equal basis with whites in the future. This
requirement is implicit in the first paragraph of the district
court’s decree. It is little more than an echo of Title VII’s
general prohibition against discrimination in hiring and pro
moting. Further, if black Bowman employees who are pres
ently locked into racial patterns due to past discrimination are
to have a meaningful opportunity to advance, we think they
must be afforded special temporary remedial training oppor
tunities. A Tire Shop employee’s seniority will be of little use
to him in bidding on a mechanic’s slot so long as he lacks the
necessary skills. As the district court observed, “as a practical
matter, nobody in the tire shop can bump a mechanic.”
Heretofore Bowman has trained its employees on the job.
Inexperienced OTR drivers ride double with experienced driv
ers. Certain jobs in the Maintenance Department are train
ing steps to the mechanic jobs, and city driver jobs lead to
qualification for OTR jobs. On remand the district court
should identify those positions which are training grounds,
and impose conditions to ensure that a substantial number of
Bowman’s employees who have been discriminatorily relegat
ed to inferior jobs in the past are afforded a ready access to
them. Pettway v. American Cast Iron Pipe Company, supra.
In analogous employment discrimination cases, some courts
have ordered the creation, at company expense, of counselling
and training programs to which discriminatees must be admit
ted in certain numbers each year or according to a fixed ratio
until they hold a certain percentage of the skilled positions.
See Buckner v. Goodyear Tire & Rubber Co., N.D.Ala.1972,
339 F.Supp. 1108, 1124-1125; United States v. Ironworkers
Local 86, W.D.Wash.1970, 315 F.Supp. 1202, 1247-1250, aff’d
9th Cir. 1971, 443 F.2d 544, cert, denied 404 U.S. 984, 92 S.Ct.
447, 30 L.Ed.2d 367. From our appellate prospective, we
cannot say that the creation of special new training programs
is necessary in this case to afford discriminatees an opportuni
ty to overcome the effects of past discrimination. The inade
quacy of existing training methods to accomplish this purpose
is not demonstrated in the record. If the district court should
find, however, that further remedial measures are necessary
to afford adequate training opportunities, it may fashion and
grant them.
A36
FRANKS v. BOWMAN TRANSP. CO.
4. Retention of Jurisdiction
[21] Bowman maintained blatantly discriminatory policies
at least until September of 1971, over five years after the
passage of Title VII. Since that time it has moved some
distance toward complying with Title VII’s mandates, but
only under pressure from government agencies and in the face
of threatened litigation. These circumstances, as well as the
decreasing rate at which it has hired black OTR drivers,
necessarily cast some doubt on its intention to discontinue and
remedy its unlawful employment practices voluntarily. The
district court should retain jurisdiction of this case for at least
two years and require periodic reports from Bowman which
will enable it to ascertain that the remedial measures it
mandates are being carried into effect.
E. Back Pay
[22] The district court denied back pay to the affected
classes on the basis of its conclusions that such relief (1) would
be inconsistent with the purpose of Title VII to promote
conciliation rather than litigation where possible, and (2)
would not be “warranted” in a Rule 23(b)(2) class action,
which contemplates primarily injunctive and declaratory re
lief. In addition, the court stated back pay to non-named
class members was denied in the exercise of discretion. We
do not agree that either Rule 23(b)(2) or Title VII prohibits
back pay awards to non-named class members. Further, since
it appears that the district court exercised its discretion under
an erroneous view of the applicable law, we vacate its decree
insofar as it denies back pay to the class and remand for
reconsideration of this issue. Cf. United States v. Georgia
Power Co., 5th Cir. 1973, 474 F.2d 906, 921; Johnson v.
Goodyear Tire & Rubber Co., 5th Cir. 1974, 491 F.2d 1364;
Pettway v. American Cast Iron Pipe Co., supra.
A37
FRANKS v. BOWMAN TRANSP. CO.
A38
The remedies authorized in Title VII specifically include
back pay. As indicated above, the purpose of Title VII is to
make the discriminatee whole and eliminate the effects of
past discrimination as far as possible. Where the discrimina
tee has suffered economic injury in the form of lost wages,
back pay is normally appropriate relief. Harkless v. Sweeny
Independent School District, 5th Cir. 1970, 427 F.2d 319, 324.
The district court recognized this in awarding back pay to
Lee. One apparent source of its reluctance to extend this
remedy to class members was its view that to do so would
allow class members to circumvent EEOC concilatory efforts
and thus frustrate Title VII’s policy favoring resolution of
problems through conciliation rather than litigation where
possible. This view conflicts with what we said in Oatis v.
Crown Zellerbach Corp., 5th Cir. 1968, 398 F.2d 496, 499:
Racial discrimination is by definition class discrimination,
and to require a multiplicity of separate, identical charges
before the EEOC, filed against the same employer, as a
prerequisite to relief through resort to the court would tend
to frustrate our system of justice and order.
See also Miller v. International Paper Co., 5th Cir. 1969, 408
F.2d 283, 284-285. An EEOC complaint filed by the class
representative allows an adequate opportunity for resolution
of problems of the class through conciliation, Bowe v. Colgate-
Palmolive Co., 7th Cir. 1969, 416 F.2d 711, 720, and opens the
courthouse doors for the class. While Oatis and Miller did not
focus particularly on the back pay relief sought, we see no
basis for treating a back pay claim as unique and requiring
each class member to file his claim with the EEOC before
asserting it in the courtroom. The Seventh Circuit has
reached the-same conclusion on this issue:
The clear purpose of Title VII is to bring an end to the
proscribed discriminatory practices, and to make whole, in a
pecuniary fashion, those who have suffered by it. To
FRANKS v. BOWMAN TRANSP. CO.
permit only injunctive relief in the class action would frus
trate the implementation of a strong Congressional purpose
expressed in the Civil Rights Act of 1964. To require that
each employee file a charge with the EEOC and then join in
the suit would have a deleterious effect on the purpose of
the Act and impose an unnecessary hurdle to recovery for
the wrong inflicted.
Bowe v. Colgate-Palmolive Co., 7th Cir. 1969, 416 F.2d 711,
720. We believe this view is correct, and we hold that neither
the letter nor the spirit of Title VII precludes back pay
awards to non-named class members when only the class
representative has filed an appropriate EEOC complaint.
Nor does Fed.R.Civ.P. 23(b)(2) prohibit back pay awards to
non-named class members in a class action under that subdivi
sion of the rule. Pettway v. American Cast Iron Pipe Co.,
supra; Robinson v. Lorillard Corp., 4th Cir. 1971, 444 F.2d 791,
802, cert, dismissed 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655.
It is true that Rule 23(b)(2) refers only to “injunctive relief or
corresponding declaratory relief” and “does not extend to
cases in which the appropriate final relief relates exclusively
or predominantly to money damages.” Advisory Committee’s
Notes, 1966, 39 F.R.D. 69, 102 (emphasis added). But this
Title VII action cannot be characterized as one seeking “ex
clusively or predominantly money damages.” As we have
pointed out above, back pay awards under Title VII (and
under § 1981 to the extent that a § 1981 corresponds to a Title
VII action) are not damages, as such, but an integral part of
the equitable remedy. Even if back pay is considered as
equivalent to damages under Rule 23, in this case back pay is
not the exclusive or predominant remedy sought.
The district court should devise an appropriate procedure
for adjudicating the claims of non-named class members for
back pay awards. Johnson v. Goodyear Tire & Rubber Co.,
supra. Reliance on a master may be appropriate. Pettway v.
A39
FRANKS v. BOWMAN TRANSP. CO.
American Cast Iron Pipe Co., supra; of. Robinson v. Lorillard
Corp., M.D.N.C.19T0, 319 F.Supp. 835, 843, aff’d 4 Cir., 444
F.2d 791, cert, dismissed 404 U.S. 1006, 92 S.Ct. 573, 30
L.Ed.2d 655. Insofar as the district court’s judgment denies
back pay to non-named class members it is reversed, and this
issue is remanded for reconsideration in light of the principles
enunciated above.
A40
FRANKS v. BOWMAN TRANSP. CO.
IV. Summary
In summary, we hold:
(1) Franks’ individual claim was not barred by limitations,
and, subject to the district court’s determination as to the
applicability of laches, the district court should on remand
enter judgment in his favor and grant him an appropriate
remedy;
(2) the district court’s determination of the facts relating to
Lee’s individual claim was not clearly erroneous;
(3) the class and subclasses represented are entitled to
further affirmative relief than was afforded by the district
court’s decree, including the use of full company seniority for
black Bowman employees who currently remain locked into
old racial patterns, public recruitment aimed at potential
black OTR drivers and clerical employees, temporary meas
ures to ensure access to training opportunities for discrimina-
tees, and such Morrow type affirmative hiring relief as the
district court deems appropriate. The district court should
retain jurisdiction of this case and require compliance reports
from Bowman for at least two years. The district court’s
denial of back pay to non-named class members is reversed
and the issue is remanded for reconsideration in light of this
opinion and Johnson v. Goodyear Tire & Rubber Co., supra.
FRANKS v. BOWMAN TRANSP. CO.
Costs on appeal will be taxed one-tenth against Lee, three-
tenths against the union, and six-tenths against Bowman.
Appellants’ attorneys are entitled to an award for fees earned
in the prosecution of this appeal under 42 U.S.C.A.
§ 2000e-5(k). On remand the district court should determine
an appropriate fee award.
The district court’s judgment is affirmed in part, reversed
in part, vacated in part, and remanded.
A42
Judgment o f the United States Court o f Appeals
for the Fifth Circuit
FRANKS v. BOWMAN TBANSP. CO.
Appeal from the United States District Court for the
Northern District of Georgia
Before THORNBERRY, AINSWORTH and RONEY,
Circuit Judges.
JUDGMENT
This cause came on to be heard on the transcript of the
record from the United States District Court for the North
ern District of Georgia, and was argued by counsel;
ON CONSIDERATION WHEREOF, It is now here or
dered and adjudged by this Court that the judgment of the
said District Court in this cause be, and the same is hereby,
affirmed in part, reversed in part, and vacated in part;
and that this cause be, and the same is hereby remanded
to the said District Court in accordance with the opinion
of this Court.
It is further ordered that intervenor-appellant Lee be
condemned to pay one-tenth of the costs on appeal to be
taxed by the Clerk of this Court; and that defendant-
appellee the union be condemned to pay three-tenths of
said costs; and that defendant-appellee Bowman Transpor
tation Company be condemned to pay six-tenths of said
costs.
Issued as Mandate: June 3, 1974
A43
Order o f United States Court o f Appeals for the
Fifth Circuit Denying Petition for Rehearing
FRANKS v . BOWMAN TRANSP. CO.
Appeal from the United States District Court for the
Northern District of Georgia
ON PETITIO N FOR R EH EA RIN G
(Filed July 15, 1974)
Before THORNBERRY, AINSWORTH and RONEY,
Circuit Judges.
PER CURIAM:
IT IS ORDERED that the petition for rehearing filed
by defendant-appellee Bowman Transportation, Inc. in the
above entitled and numbered cause be and the same is
hereby denied.
A44
Order o f United States Court o f Appeals for the
Fifth Circuit Denying Petition for Rehearing
FRANKS v. BOWMAN TRANSP. CO.
September 12, 1974
TO ALL COUNSEL OF RECORD
Re: 72-3239—Franks, et al., vs. Bowman Transportation
Co., et al.,
Dear Counsel:
This is to advise that an order has this day been en
tered denying the petition ( ) for rehearing, and the Court
having been polled at the request of one of the members
of the Court and a majority of the Circuit Judges who are
in regular active service not having voted in favor of it,
(Rule 35, Federal Rules of Appellate Procedure; Local
Fifth Circuit Rule 12) the petition ( ) for rehearing en
banc has also been denied.
See Rule 41, Federal Rules of Appellate Procedure for
issuance and stay of the mandate.
Very truly yours,
Edward W. Wadsworth
Clerk
By / s / Arvin G. Parens
Deputy Clerk
A45
Opinion o f the United States District Court
Northern District o f Georgia
Atlanta D ivision
FRANKS v, BOWMAN TRANSP. CO.
(Filed June 29, 1972)
This is a suit brought under Title VII of the Civil
Rights Act of 1964 (42 U.S.C. §2000e ff), alleging racial
discrimination in various employment practices of the de
fendant company at its Atlanta Terminal and through its
collective bargaining agreement with the defendant union.
The petition was originally brought by the plaintiff
Franks, after processing of his complaint by the EEOC,
both on his individual claim and as a class action. Sub
sequently, the court permitted the intervention of Johnnie
Lee on his individual claim, also processed by the EEOC,
and on behalf of another class of employees not repre
sented by Franks. As finally constituted, the case presents
A46
the class questions of racial discrimination in the hiring,
transfer, promotion and discharge practices1 in the follow
ing departments:
(a) Over-the-road drivers
(b) Dock and City drivers
(c) Maintenance
(d) Office and clerical.
In the individual claims, Franks seeks redress for his
discharge from the Maintenance Department on or about
May 10, 1968. Lee seeks redress for an original failure to
hire, for failure to transfer, and for discharge as an over-
the-road driver on or about March 19, 1971. On the evi
dence presented the court makes the following
FINDINGS OF FACT
The Class Action.
The defendant, Bowman Transportation, Inc., (the
Company) is a licensed common carrier operating along
the eastern seaboard and in certain areas of the midwest
under ICC and state regulations. It operates major termi
nals at Atlanta, Richmond, Charlotte and Birmingham. Its
principal office and garage has been located at Gadsden,
Alabama, but is in process of being transferred to Atlanta.
Each major terminal operates as a hiring center not only
for terminal employees but for over-the-road drivers who,
of course, operate system wide. After a bitter struggle, the
company was unionized by the other defendants and col
1. Originally, the petition attacked the use of a high school
education requirement and certain testing as employment requi
sites in the office. However, this issue has been mooted by the
company’s abolition of such requirements over a year prior to
trial.
A47
lective bargaining agreements were sucessfully negotiated
in 1967 and 1970,
By their terms, the job classifications at the Atlanta
terminal are divided into three departments: (a) Over-
the-road drivers; (b) City Drivers and Dock Workers; and
(c) Maintenance Department, which embraces the Tractor
Shop (including engine repair), the Trailer Shop (includ
ing body repair), and the Tire Shop. Road drivers
throughout the system constitute a single department. Of
fice, sales and clerical jobs are non-union, but in essence
constitute another department at each terminal. Thus, this
suit in its class aspects involves all road drivers system-
wide and all other employees at the Atlanta terminal
(Dock, Maintenance, and Office Departments).
Prior to 1968, the company was almost totally segre
gated by race. Each department and sub-division did its
own hiring and adhered to strict racial lines. Moreover,
transfers from one to the other were discouraged and vir
tually prohibited by management. Only an approved
“hardship case” warranted a transfer of any kind and this
was a rare occurrence. Prior to 1968, no Black person had
ever been employed in any job outside the Maintenance
Department. With the exception of two “clean up men”
in the Trailer Shop, all Black employees were assigned to
the Tire Shop which was predominantly Black with white
supervision. The percentage of Black employees at the
Atlanta terminal remained at 1% or less until that time.
By August, 1971, it has risen to only 4.5%.
The following represents an accurate distribution of
jobs by race as of the dates indicated:
A48
July, 1965 March, 1968 August, 1971
Dept./Job Blacks-Whites Blacks-Whites Blacks-Whites
Office &
Managerial 0 23 0 27 0 42
Sales Personnel 0 6 0 5 0 5
Office/Clerical 0 27 0 63 0 53
Ship Parts Clerk 0 8 0 9 0 9
Over-the-Road
Drivers
Atlanta Terminal 0 360 0 361 0 230
All Other 0 55 0 103 11 269
TOTAL 0 415 0 464 11 499
City Driver/
Dock Jobs
City Drivers 0 79 0 80 3 81
Checkers 0 23 0 127 4 103
Dock Workers 0 84 0 94 6 60
TOTAL 0 186 0 301 13 244
Shop Workers
Mechanics 0 70 0 92 0 63
Trailer Shop - - - - 0 36
Grease/Oil Men 0 6 0 8 0 4
Tire Shop 7 1 9 3 16 2
Clean-up Men - - 1 1 4 0
Janitors 0 1 0 2 1 1
TOTAL 7 78 10 106 21 106
TOTAL EMPLOYEES 7 743 10 1025 45 958
By wage, Blacks were consistently frozen into the
lower paying jobs. The following represents an accurate
distribution of wage classifications by race as of the dates
indicated.
A49
March, 1968
Number Number
of of Percent
Weekly Wage: Blacks Whites Blacks
More than $150 0 464 0.0%
(Road Drivers)
$125-150 (Terminal Employees) 0 393 0.0%
Less that $125 (Terminal) 10 12 45.5%
TOTAL 10 869 1.1%
August, 1971
Number Number
of of Percent
Weekly Wage: Blacks Whites Blacks
More than $225 (Road Drivers) 11 499 2.2%
$125-210 (Terminal Employees) 13 343 2.7%
$175 (Terminal) 20 6 76.9%
TOTAL 44 848 4.9%
In its hiring policies, the company relied largely on
referrals from other employees or “walk-in.” The former
ordinarily applied in the department to which he was re
ferred and this perpetuated the racial make-up of the re
spective departments. With the exception of an insignifi
cant number of Black applicants specifically applying for
office jobs (four), the walk-ins were ordinarily referred to
departments by race. Blacks were specifically directed to
the Tire Shop.
Partly because of existing ICC/ODT requirements the
company exercised greater selectivity in the employment
of over-the-road drivers. Qualifications of age, health, ex
perience and mechanical ability were required. For awhile
written ODT tests were required. In addition, the com
pany sought to impose stricter standards for references
and clean traffic records. Following personal interview
and approval, the new employees, if experienced, “ride
double” for a required period and if inexperienced obtain
on-the-job training in the same fashion. These policies re
A50
quired the sharing of cabs and bunk-rooms and showers on
the road. As a result there was considerable driver re
sentment against the hiring of Black road drivers. Prior
to 1970, management discussed the situation many times
and, fearful of driver reaction, adopted an unwritten policy
against hiring Blacks for such jobs. Only a handful ap
plied and they were not really considered. Similarly, any
efforts of a city-driver to transfer to the road were effec
tively discouraged. By different methods, the hiring of
Black road drivers was “put off as long as could” by the
company. With the exception of a few lease-truck opera
tors, no Blacks ever served as road drivers until 1970.
In 1970, the company began receiving substantial num
bers of Black applicants for the position of road driver. In
response to mounting pressure and partly due to the filing
of an EEOC complaint by the intervenor Lee in Birming
ham, the company finally relaxed its policy. Black road
drivers were hired at the several terminals for the first
time on the following dates: Birmingham, September 11,
1970; Richmond, September 12, 1971; Atlanta, November
21, 1971; Charlotte, February 15, 1972. Prior to such dates,
the company had available Black applicants who, if other
wise qualified, had experience with the same equipment as
city drivers or with other transportation companies. At
least two Blacks, Harbor and McLaughlin applied in late
1970 or early 1971 and were told there were no openings
when in fact there were. On the facts, each appears ex
perienced and not obviously disqualified and were entitled
to consideration for employment at the time.
The company presently employs no racial discrimina
tion in hiring road drivers and some 10% of such drivers
are now Black. The policy has worked out satisfactorily
and “a whole lot better” than management thought.
A51
Meanwhile within the- terminal, the 1967 collective
bargaining agreement effectively removed the “no trans
fer” policy formerly in existence and concurrently opened
the way for Black hirings in all departments. As a result
Blacks were first hired into former all-white jobs in the
Dock department as checker on August 15, 1968; as dock
worker on October 21, 1968; and as city driver on June 20,
1969. While the contract provided for interdepartmental
transfer for the first time, it recognized a departmental
seniority system. This effectively penalized any Senior
Blacks wishing to transfer to a previously all-white depart
ment in favor of junior whites already employed therein.
While the open transfer provision has worked well in
the Dock department since that time, it has not proven out
in the maintenance department. The contract provides
departmental bidding only and for an annual bidding in
August and, in fact, all open jobs are posted. The process
ing of actual bids is in accordance with the contract and
without racial discrimination. However, the efforts of
Blacks to transfer out of the Tire Shop into the Tractor or
Trailer shops have been significantly discouraged by man
agement. The latter two shops, of course, require con
siderable mechanical skill and experience. As a result,
most hirees are off the street or from outside garages.
However, it is possible to begin as a “grease man” and no
prior experience is necessary. From that job it is possible
to progress to a C mechanic’s job (essentially a helper) to
B mechanic and finally to A mechanic. The “grease man”
job is somewhat distasteful and for that reason many em
ployees, including the vast number of Blacks in the Tire
Shop, simply do not want it, even at the loss of an opportu
nity to progress out of a virtual “dead-end” job in the Tire
Shop to the learning of a skilled trade. Some, however, do
wish this opportunity. Upon inquiry they have been ad
vised that it is necessary to resign for a period of six weeks
and reapply, or that a straight resignation and reapplica
tion is necessary, or toid that he could not transfer. As a
result, some Blacks failed to bid for openings in the Tractor
and Trailer Shops in which they were genuinely interested.
This practice on the part of the company has effectively
maintained an all-white Tractor and Trailer Shop. There
is no evidence of a failure to hire qualified Black mechanics
who originally applied for employment in the Tractor or
Trailer shops.
The office employment situation stays rather stable
and although there is a substantial number of applicants
each year, the hiring rate is very low. In the past five
years, there have only been a total of only three or four
Black applicants out of an average of 25 each year. Each
of these applicants has been treated no differently from
any other applicant and race has not been a factor in the
employment policies in the office. At time of trial, one
Black applicant has been deemed qualified and is waiting
for an opening. There simply has been little interest by
Blacks in clerical positions at this company and no evi
dence is produced of racial discrimination in this depart
ment.
The company now has an official policy against dis
crimination in all of its hiring practices.
CONCLUSIONS OF LAW
The court has jurisdiction of this action pursuant to
Section 706(f) of the 1964 Civil Rights Act, 42 U.S.C.
|2000e-5(f). The defendant, Bowman Transportation Com
pany, is an employer engaged in industry affecting com
merce within the meaning of Section 701(b) of the Act,
42 U.S.C. §2000e(b). The defendant Unions are labor or
A53
ganizations engaged in industry affecting commerce within
the meaning of Section 701 (d) (e) of the Act, 42 U.S.C.
§2000e(d) (e).
The evidence shows a pattern of racial discrimination
in the hiring, assignment, transfer, and discharge policies
of the company and such practices as perpetrated by the
Bargaining Agreement with the unions constitute unlaw
ful employment practices under the Act. 42 U.S.C.
§2Q00e-2(a). E.g. Bing v. Roadway Express, Inc., 444 F.2d
687 (5th 1971); United States v. Hayes International Corp.,
514 F.2d 1038 (5th Cir. 1969).
The action is maintainable as a class action under Rule
23(b) (2). E.g. Johnson v. Georgia Highway Express, Inc.,
417 F.2d 1122 (5th Cir. 1969). The plaintiff Franks rep
resents all Black applicants/employees hired at the Atlanta
Terminal and who sought employment/transfer to the
Dock Department prior to August 15, 1968, or transfer
within the Maintenance Department prior to May 1, 1972.
The intervenor Lee represents all Black applicants who
sought to be hired or to transfer to over-the-road driver
positions prior to January 1, 1972.
Appropriate injunctive relief for such past discrimina
tion, as provided in the attached decree is ordered. This
will include credit for departmental seniority prior to the
dates each such practice terminated plus preferential re
application rights for identified applicants for certain
positions.
The plaintiffs also pray for lump sum awards for back
pay to any member of an affected class plus retroactive
seniority to any rejected applicant. This court was faced
with such claims in United States v. Georgia Power Com
pany, ...... F. Supp.......... (N.D. Ga. 1971), 3 EPD H8318 and
discussed the problem at length. Suffice it to say here, the
A54
court concludes that such relief is not warranted in class
actions. The claims for back-pay presuppose an opening,
qualification and performance for every member of the
class. The claims for retroactive seniority also presuppose
a vacancy, qualification, and perfomanee by every member.
There is no evidence on which to base these multiple con
clusions. More importantly, they bypass the statutory ad
ministrative prerequisites to personal suit established by
the Congress and any appropriate statute of limitations. In
essence, they seek to give individual compensation to the
class in gross under circumstances where an individual
could not qualify alone. The emphasis on private settle
ment in the Act is also thwarted by this device. See Oatis
v. Crown Zellerbach, 398 F.2d 496 (5th Cir. 1968); Jenkins
v. United Gas Corp., 400 F.2d 28 (5th Cir. 1969). For these
reasons as well as in the exercise of discretion, these
remedies are rejected. Of course, where appropriate they
will be afforded the individual claimants here under 42
U.S.C. §2000e-5(g).
Plaintiffs’ attorneys are entitled to an award of fees
for successful prosecution of this action. The court finds
that plaintiffs’ attorneys have reasonably spent approxi
mately 200 hours in preparation and trial of this case. Con
sidering the nature of the case, the results obtained, and
the experience of the attorneys involved, the court finds
in its discretion, such services to be reasonably worth the
sum of $7,500.00. Such fees are assessed $6,000.00 on de
fendant Bowman and $1,500.00 on the remaining defen
dants. All statutory court costs are assessed on defendant
Bowman upon presentation and approval of a proper cost
bill.
A55
THE INDIVIDUAL CLAIMS
The Franks Claim.
Plaintiff Harold Franks was hired as a Tire Man in
Bowman’s Atlanta Terminal Tire Shop on September 13,
1960. With the exception of one year beginning in 1961,
during which plaintiff worked as a Grease Man, plaintiff
was employed in the Tire Shop as a Tire Man. During
1965, plaintiff resigned due to injury and was rehired on
May 16, 1966. In accord with Bowman’s policy of assign
ing Blacks to the Tire Shop, plaintiff was again hired as
a tire man earning $2.15 per hour.
Shortly after his return in 1966 he made several in
quires about transfers to the Tractor and Trailer Shop and
the Dock Department. In accordance with the then com
pany policy, he was advised that transfers were not per
mitted. After the 1967 contract became effective he again
inquired about transfers and was again told he could not.
Plaintiff Harold Franks filed his first charge of racial
discrimination against Bowman with the EEOC on March
25, 1968, alleging that Bowman’s no transfer rule was part
of the company policy of restricting employment for Blacks
to the Tire Shop.
Thereafter, EEOC officials investigated Franks’ charge,
visiting Bowman’s Atlanta Terminal and talking with com
pany officials on April 23, 1968, and May 10, 1968. The
second visit occurred during the morning hours; Franks
was discharged during the afternoon of the same day by
his supervisor, Charlie Andrews, for “unauthorized bob
tailing”, or the use of company vehicles for personal use.
Tire Shop employees are required, as part of the job,
to drive tractors to and from the tractor parking areas for
service. It is a commonly accepted practice for employees
A56
to do brief personal errands while driving the tractors on
these occasions. Wth the exception of plaintiff Harold
Franks, no Bowman employee has ever been discharged
for “bobtailing” (driving tractor without trailer) on com
pany property. All other discharges for unauthorized bob
tailing occurred off of company property. This discharge
Was for reasons of race.
At the time, Franks was being paid at the rate of $2.60
per hour. However, it is not unreasonable to assume that
by the end of 1967 he could legally have transferred to the
position of Dock Worker, the entry level job in that de
partment, the company having hired in excess of 50 during
that year. A normal work week by the Union contracts is
45 hours and the pay in such job was $3.03 per hour.2 Thus
Franks would ordinarily be entitled to recover the differ
ence in a wage calculated as a dock-worker and his interim
earnings.3
However, the defendant has moved to dismiss the in
dividual claim for failure to file suit within the 30-day pe
riod following issuance of the suit letter. This motion
arises out of a confusing set of circumstances. Franks filed
two separate EEOC charges: the first on March 25, 1968,
alleging, among other things, failure to promote, i.e. trans-
1967 — $3.03 1970 - - $3.94
1968 — $3.23 1971 - - $4.34
1969 — $3.43 1972 - - $4.74
Which are
1968 Harper Motor Lines, Inc. $ 3,641.16
1969 Harper Motor Lines, Inc. 6,344.79
Georgia-Alabama-Florida Transportation Co. 1,348.97
1970 Harper Motor Lines, Inc. 3,592.75
Georgia-Alabama-Florida Transportation Co. 5,576.45
1971 Georgia-Alabama-Florida Transportation Co. 9,587.96
$30,092.08
A57
fer; the second on May 13, 1968, alleging a discriminatory
discharge. By the end of 1969 these charges had been fully
acted upon by the EEOC. Meanwhile, on March 21, 1969,
Franks’ then attorney requested the issuance of a suit letter
on both charges. On the same day the suit letter4 was
mailed out to Franks. At the time, he resided at 5339
Victory Drive, Morrow, Georgia, but used 5319 Victory
Drive, Morrow, Georgia, where his grandmother, sister and
nephew, Calvin High, age 9, resided as his “mailing ad
dress” and all his mail was customarily delivered at the
latter address. The suit letter was duly delivered there on
March 22, 1969, and receipted by the nephew. Franks per
sonally never saw the letter, but learned that High had
signed for some letter at the time.
No suit was filed within 30 days after the March 21,
1969, suit letter and Franks’ then attorney did nothing.
Approximately 1-1/2-2 years later, Franks consulted his
present attorneys. In the spring on or about March 2,
1971, apparently at their direction, he filed an “amended
charge” reiterating the same charges (D 84-85), but re
ferring to the two previous charges and citing May 10,
1968, as “the most recent date” on which discrimination
occurred. A new suit letter issued on April 14, 1971, and
this action was timely filed thereafter.
On these facts, the court concludes that the class as
pects of the complaint, being continuing in nature, are
viable under the 1971 suit letter, but the individual claim,
being fixed in time, is barred.
Conclusions.
Title VII of the Civil Rights Act of 1964 has a built-in
90 day limitation in individual claims in that the charge
4. Strangely, this letter and receipt were expunged from
the EEOC file furnished counsel.
A5 8
must be filed with the Equal Employment Opportunity
Commission within 90 days after the alleged unlawful em
ployment practice. 42 U.S.C. §2000e-5(d). Likewise, suit
must be filed within 30 days after receipt of the “suit-
letter.” 42 U.S.C. §2000e-5(e). For the purposes of indi
vidual relief, in a long line of cases each has been held to
be jurisdictional. See Hutchings v. United States Indus
tries, Inc., 428 F,2d 303 (5th Cir. 1970); Culpepper v.
Reynolds Metals Company, 421 F.2d 888 (5th Cir. 1970);
Goodman v. City Products Corp., 425 F.2d 702 (6th Cir.
1970); King v. Georgia Power Company, 295 F. Supp. 943
(N.D. Ga. 1968); Colbert v. H. K. Corporation, 295 F. Supp.
1091 (N.D. Ga. 1968); Boudreaux v. Baton Rouge Marine
Contracting Co., 304 F. Supp. 240 (E.D. La. 1969). Both of
these limitations apply to an isolated completed act of dis
crimination such as failure to transfer or discharge, be
cause they are not continuing in nature. Upon their hap
pening, each complainant is immediately entitled to file
charges with the EEOC and the limitations begin to run.
See various rulings of The General Counsel of the EEOC:
Dec. 2, 1965, LRX 1892a; Nov. 26, 1965, LRX 1892a; Jan.
11, 1966, LRX 1892a. In this instance, the two individual
acts occurred no later than May 15, 1968. They were duly
reported. At the request of plaintiff, a suit letter on both
individual complaints issued on March 21, 1969. However,
no action was filed until May 5, 1971, over two years sub
sequent to the issuance of the all-important suit letter.
It is true that Franks did not see his notice personally.
However, it was delivered as all of his other mail was de
livered and the defendant ought not to be penalized on that
account. Moreover, it has long been considered that the
acts and omissions of an attorney are the acts and omissions
of the client. In truth, Franks’ failure was that of his se
lected attorney, but the court knows no solution for such
A59
failure absent fraud. From the defendant’s point of view,
the delay has deprived it of an opportunity to settle the
claims at an early stage or, at the least, to mitigate the
dollar damages. It would be unfair to allow the stale
claims to be resurrected by securing a second “suit letter”
as was done here. Accordingly, the claims for individual
relief are barred by failure to file within 30 days of the
issuance of the suit letter of March 21, 1969. Miller v.
International Paper Co,, 408 F.2d 283 (5th Cir. 1969).
The same result would be reached on the basis of
§1983 jurisdiction because of the expiration of over two
years between the “wrong” and the filing of the action in
Georgia. E.g. Shank v. Spruill, 406 F.2d 756(1) (5th Cir.
1969). Ga. Code §3-704.
However, the class claims attacking the general em
ployment practices of the defendant are viable under the
second suit letter because they are continuing in nature.
E.g. Jenkins v. United Gas Co., 400 F.2d 28 (5th Cir. 1968);
Banks v. Lockheed-Georgia, 46 F.R.D. 442 (N.D. Ga. June,
1968). Thus, they could be reported within 90-days of any
day they exist and a suit letter thereon followed by a
timely action would be allowed.
For the reasons stated, no back-pay or individual re
lief is awarded to plaintiff Franks and defendant is entitled
to judgment thereon.
The Lee Claim.
Johnnie Lee, the intervenor is 38 years old. Prior to
1970, he had extensive experience driving trucks and
tractor-trailers, principally in the Pensacola area. Included
in his job history was some “over the road” experience
with private carriers and some “city driver” experience
with a common carrier. On or about January 5, 1970, he
a 6 o
applied at Bowman’s Pensacola office for any kind of
driving job. At the time, he was told there were no
openings, but given a “city driver” application. He sent
the application to the Atlanta Terminal on January 13,
1970, and it was returned with an “over-the-road” applica
tion. This application was also completed, but upon return
on January 26, 1970, he was notified of his rejection. In
February, 1970, he heard that a white road driver had been
hired subsequent to his application and confirmed this per
sonally. Thereupon, he filed a complaint with the EEOC.
In early August, 1970, the company first notified him to go
to the Birmingham Terminal. Following two additional
letters he reported and was first hired as a road driver as
signed to that Terminal on September 18, 1970. He worked
continuously in that capacity until December 18, 1970,
when he took a personal leave of absence on account of his
wife’s illness until early February, 1971. Upon return, he
determined that his family situation could better be
handled if he were assigned to the Atlanta Terminal. He
contends that he asked for a transfer, but his testimony in
this regard is extremely vague and the evidence fails in
this respect. There is no written evidence of any such de
sire. Under the hardship rule regarding transfers, all
must be approved by Mr. Dwight Rice, the company Di
rector of Safety and Personnel in Atlanta and, as such, the
virtual top supervisor of all road drivers. The Birmingham
dispatcher positively testifies that no request, oral or writ
ten, was made to him and none was made to Rice. The
court therefore must conclude that no valid request for
transfer was made by Lee.
Lee continued to work out of the Birmingham Termi
nal after his return for several weeks using regularly
Tractor No. 277. His service up until March, 1971, was
entirely satisfactory to management and he had a good
a 6 i
record. Between March 11th and March 16th, Tractor No.
277 was given a complete 50,000 mile check at the Gadsden
general garage, which services Birmingham. As a part of
this process, the fuel pump is set so as to limit or “govern”
the maximum RPM of the engine at moderate ranges of
approximately 2000-2200. This, of course, limits the speed
at which the unit can be driven. Following this procedure,
Tractor No. 277 was checked and the fuel pump sealed at
the proper RPM setting. The metal seal is designed to show
if the fuel pump has been opened or tampered with outside
of official garages. On or about March 16, 1971, Lee picked
the unit up and made a regular run to the midwest. At
about 6:00 A. M. on March 18th, he returned the Tractor
to the Gadsden garage, and wrote a work order for addi
tional repairs (failure to start and stiff gears), leaving it
on the unit. Approximately one hour later, at 7:00 A. M. a
B mechanic appeared on the scene and by 7:10 A. M. had
checked in the unit. About 8:45, he commenced the re
pairs ordered by Lee. During the course of such repairs,
it was necessary to accelerate the engine and in so doing,
the mechanic noticed that the RPM was very high. He
immediately called the shop foreman and together they re
checked the RPM which proved out at 2700-2800, far in
excess of that officially allowed. Upon the foreman’s in
structions, the fuel pump was examined. The seal was
broken and upon removal the fuel pump was found to have
a block of wood, or “stinger” placed inside which effec
tively by-passed the governors. The incident was reported
to the Birmingham safety supervisor, Woods. He immedi
ately confronted Lee with the charge and it was denied.
Nonetheless, Lee was immediately terminated under firm
company policy which made discharge mandatory for any
fuel pump tampering while the unit was in the driver’s
custody. The thrust of the policy is apparently aimed not
only against personal guilt on the part of the driver, but
A62
also to impose on the driver the responsibility to see that
the governors are not overridden while the vehicle is in his
custody.
Through the contractual grievance procedures, Lee’s
discharge was eventually submitted to binding arbitration.
On October 25, 1971, the arbitrator found for Lee. In the
finding (P #9), he rejected the company rule of absolute
liability and concluded that while the “facts raise a strong
inference approaching a presumption in the Company’s
favor”, there was a “failure of proof” in that it did not ex
clude the possibility of other employees tampering with
the fuel pump between 6:00 A. M. and the discovery of the
stringer at 8:43 A. M. or during some other unknown period
following the 50,000 mile check and Lee’s receiving the
unit. Reinstatement and back-pay were ordered. On Octo
ber 29, 1971, reinstatement was tendered by the defendant
and subsequently back-pay was forwarded to Lee in ac
cordance with the contract. However, he refused to accept
reinstatement at Birmingham and demands an assignment
at Atlanta plus back pay until October 29, 1971.
The mandatory discharge rule for alteration of the
fuel pump is one of long-standing. Between 1967 and trial,
there were some 30 terminations or permitted resignations
for violation of this rule. Some of the discharged drivers
had received prior warnings for violations of other com
pany rules not leading to mandatory discharge; but some,
like Lee, had no prior warnings and possessed clean records
at the time. There was no requisite of previous offense to
the discharge. Most significantly, there is no indication
and no evidence that any other driver, Black or white, was
ever NOT discharged for violation of the standing rule. It
is concluded that race was not a factor in the discharge of
the intervenor Lee.
A63
Between the filing of Lee’s first application with Bow
man on January 13, 1970, and his hiring on September 18,
1970, he would have been employed 248 days, or 35-%
weeks. On the basis of his later employment, he earned
an average of $271.66 per week, or a total of $9,643.00 in
projected gross earnings for the period. He actually earned
$3,518.42 during that period. Thus, he lost a net amount
of $6,124.58 by the Company’s failure to hire when the ap
plication was first filed.
Conclusions.
As seen, the court finds that Lee was harmed by the
failure to hire and is entitled to recover $6,124.58 by way
of lost wages due to the discrimination involved. Con
versely, the court finds that there was no racial discrimina
tion in the failure to secure a transfer from Birmingham to
Atlanta in February, 1971, and no racial discrimination in
his discharge of March, 1971. As to the latter, the court is
asked to assume with no proof whatsoever that Lee’s unit
was “doctored” by other employees with racial motivation
and, more importantly, to assume that the first assumption
was caused by racial motivation on the part of manage
ment. This the court cannot do. Consequently, no award
is made for any period of time subsequent to March 18,
1971. The evidence is clear that Lee was treated the same
as any other white driver under similar circumstances and
race was no factor in the discharge.
The court is not bound by the arbitration award in any
way. The theory adopted in this Circuit is that contractual
grievance procedures are independent of all rights under
the Act and the two may proceed concurrently without
either affecting the other on the merits. Culpepper v.
Reynolds Metal Company, 421 F.2d 888 (5th Cir. 1970);
Hutchings v. United States Industries, Inc., 428 F.2d 303
A64
(5th Cir. 1970). This is especially true where race was
given no consideration by the arbitrator. Whatever rights
the intervenor presently has, if any, must be governed by
the Collective Bargaining Agreement.
Accordingly, the intervenor Lee may recover of de
fendant Bowman Transportation Company the sum of
$6,124.58. No interest is allowed.
IT IS SO ORDERED.
This the 28th day of June, 1972.
/s / Sidney O. Smith, Jr.
Sidney O. Smith, Jr.
United States District Judge
A65
Order and Decree o f the United States District Court
Northern District o f Georgia
Atlanta D ivision
FRANKS v. BOWMAN TRANSP. CO.
ORDER AND D EC R EE
(Filed June 29, 1972)
In accordance with the findings of the Court, the de
fendant, BOWMAN TRANSPORTATION COMPANY, and
the defendants, INTERNATIONAL UNION OF DISTRICT
50, LOCAL NO. 13600, ALLIED AND TECHNICAL
WORKERS OF THE UNITED STATES AND CANADA,
and INTERNATIONAL UNION OF DISTRICT 50, AL
LIED AND TECHNICAL WORKERS OF THE UNITED
STATES AND CANADA, their officers, agents, employees,
servants and all persons in active concert or participation
with them, are hereby permanently enjoined, and restrained
A66
from discriminating against any Black applicant or Black
employee of the defendant, Bowman Transportation Com
pany at its Atlanta Terminal or elsewhere for over-the-
road drivers in violation of Title YII of the Civil Rights
Act of 1964,
In particular the defendants collectively are enjoined
from implementing any seniority system or Collective Bar
gaining Agreement which conflicts with the rights of any
member of an affected class as defined herein.
AFFECTED CLASSES.
The affected classes are defined by the court as fol
lows:
CLASS 1. All Black employees at the Atlanta Termi
nal who were hired prior to August 15, 1968.
CLASS 2. All Black employees employed at the At
lanta Terminal in the Maintenance Department prior
to May 1, 1970.
CLASS 3. All Black applicants who applied for posi
tions as over-the-road drivers prior to January 1, 1972.
CLASS 4. All Black employees who applied to trans
fer to over-the-road driver positions prior to January
1, 1972.
ORDERS.
The members of CLASS 1 have all been restricted to
jobs in the Tire Shop prior to August 15, 1968, by the
racially discriminatory policies of the defendant company.
Hereafter any member of the affected class who competes
with a non-member in a bid to transfer or be promoted
within the company shall be entitled to compete on the
basis of company seniority until such date plus any de-
A67
The members of CLASS 2 have been restricted to jobs
in the Tire Shop and prevented from transferring to the
Tractor and Trailer Shops within the Maintenance Depart
ment by the racially discriminating policies of the defen
dant company. All such members shall be notified of the
right to bid within the department at the next annual
bidding. If bids are lodged and the member is deemed
qualified, he shall thereafter be credited with departmental
seniority from the date of original employment in all future
bidding.
The members of CLASS 3 have been effectively denied
employment as over-the-road drivers prior to January 1,
1972. All Black applicants as revealed by the company
records prior to such date shall be notified in writing of
their right to be considered for employment by the com
pany within 30 days and given 30 days thereafter to indi
cate their interest. If consideration is requested, then they
shall be afforded priority in consideration over all other
applicants until each such applicant, in chronological order,
has been accepted or rejected by the company. Two appli
cants, Harbor and McLoughlin, shall be considered within
15 days by the company. In any such appplications, race
shall not be used by the company as a means of denying
employment to any applicant.
'The members of CLASS 4, who sought to transfer
from a job as “city driver” or elsewhere to road driver
shall likewise be afforded priority in consideration for such
employment, in chronological order along with the mem
bers of CLASS 3.
A copy of this order, or such substituted order as
agreed upon by counsel, shall be posted in a conspicuous
partmental seniority thereafter, rather than departmental
seniority only.
A68
place in each department and sub-department of the De
fendant, Bowman Transportation Company’s Atlanta Ter
minal and in the office of each terminal and warehouse of
the Defendant elsewhere for the period of 60 days. In
addition, all bids shall hereafter be posted in each sub
department and shop in the Atlanta Terminal.
IT IS SO ORDERED.
This the 28th day of June, 1972.
/s / Sidney O. Smith, Jr.
Sidney O. Smith, Jr.
United States District Judge
A69
Judgment o f the United States D istrict Court
Northern District o f Georgia
Atlanta D ivision
FRANKS v. BOWMAN TRANSP. CO.
JUDGMENT
(Filed July 14, 1972)
This action came on for trial before the Court, Honor
able Sidney O. Smith, Jr., United States District Judge,
presiding, and the issues having been duly tried and a
decision having been duly rendered,
It is Ordered and Adjudged as follows:
1. Each of the defendants herein is hereby enjoined
from discriminating against any job applicant or employee
of Bowman Transportation Company at its Atlanta Ter
minal or elsewhere for over-the-road drivers because of
race in violation of 42 U.S.C. 2000e, et seq.
2. Each of the defendants is enjoined from imple
menting a seniority system which would prevent Black
employees at Bowman’s Atlanta Terminal from trans-
A70
fering to formerly all white job classifications. Black em
ployees hired by the Company before August 15, 1968 shall
use company seniority prior to that date and departmental
seniority thereafter in bidding on such jobs. Any em
ployee hired into the Maintenance Department prior to
May 1, 1970 who obtains a transfer to a formerly all white
job within that department shall thereafter have credit for
departmental seniority to his original hire date with Bow
man Transportation.
3. Black applicants and present employees who
sought positions as road drivers before January 1,1972 shall
be notified of their right to priority consideration for such
jobs within 30 days.
4. Plaintiff Harold Franks shall take nothing for his
back wages claim. Intervenor Johnny Lee shall recover
$6,124.58 from defendant Bowman as lost wages resulting
from the company’s refusal to hire him, but shall recover
nothing as a result of the company’s discharge of him.
5. Attorneys for plaintiff and intervenor shall recover
as attorneys’ fees a total of $7,500.00, $6,000.00 of which
shall be paid by defendant Bowman and $1,500.00 by the
remaining defendants.
Dated at Atlanta, Georgia, this 14th day of July, 1972.
Ben H. Carter
Clerk
By: /s / Jerry W. Evans
Deputy Clerk
MEILEN PRESS IN C — N. Y. C. 219