Littles v. Jefferson Smurfit Corporation (US) Petitioners Reply Brief in Opposition to Certiorari

    I n  the

Bupnmz (Enurt at %  U n ited  S t a t e s
October Term 1972 

No. 72-1436

U nited  T ransportation  U nion  L odge N um ber  550, et al.,

Petitioners,
—vs.—

R obert R ock , et al.,
Respondents.

BRIEF IN OPPOSITION TO CERTIORARI

V ictor J . A she 
Suite 702 
Plaza One 
Norfolk, Virginia

R obert B elton

237 West Trade Street 
Charlotte, North Carolina

J ack  G reenberg 
W illiam  L . R obinson  
M orris J . B aller

10 Columbus Circle 
Suite 2030
New York, New York 10019

Attorneys for Respondents



I N D E X

PAGE

Question Presented for Review ......................................  1

Statement of the Case....... ...............................................  1

A rg u m en t  .........................................................................................  8

Conclusion ...............................    17

Certificate of Service ........................................................

Cases:
T able of A uthorities

Bailey v. American Tobacco Co., 462 F.2d 160 (6th 
Cir. 1972) ............. .....................................................  16

Griggs v. Duke Power Company, 401 TJ.S. 424 (1971) 11
Griggs v. Duke Power Company, 420 F.2d 1225 (4th 

Cir. 1970) ..................................................................  16

Local 189, United Papermakers and Paperworkers v. 
United States, 416 F.2d 980 (5th Cir. 1969), cert, 
denied 397 U.S. 919 (1970) ....................... .............10,16

Quarles v. Philip Morris, Inc., 279 F.Supp. 505 (E.D.
Va. 1968) ............................................    15

Railroad Trainmen v. United States, 41 LW 3377
(1973) ...................................................     15

Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 
1971), cert, dismissed 404 U.S. 1006 (1971) ........ 11,16

United States v. Bethlehem Steel Corp., 444 F.2d 652 
(2nd Cir. 1971) ....................................................... 11,16



11

PA G E

United States v. Chesapeake & Ohio Railway Co., 471 
F.2d 582 (4th Cir. 1972), cert, denied 41 LW 3554
(1973) .............................................. .........8,10,11,14,16

United States v. Hayes International Corp., 456 F.2d
112 (5th Cir. 1972) ........... ......................................u ,  16

United States v. Jacksonville Terminal Co., 451 F.2d 
418 (5th Cir. 1971), cert, denied 31 L.Ed. 815 
(!972) .......... -....... -..... - ................................. ...11,14,16

United States v. N.L. Industries, Inc.,------F.2d -------,
5 EPD 1T8529 (8th Cir. No. 72-1143, March 28,
1973) ............... ...... ............................ ............... 11,15,16

United States v. St. Louis-San Francisco Ry. Co.,
464 F.2d 301 (8th Cir. en banc 1972), cert, denied 
41 LW 3377 (1973) ............... ...........................11,14,15

Statutes and Other Authorities:

Title VII of the Civil Rights Act 
42 U.S.C. §§2000e et seq. ...
42 U.S.C. §§2000e-2(h) .......

Employer’s Liability Act
45 U.S.C. §§ 51 et seq. ........................................  12

Seniority Discrimination and the Incumbent Negro,
80 Harv. L. Rev. 1260 (1967) ................ ................  10

.passim

....  2

..... 3



In the

S u p r e m e  (Enurt 0! tljp Hniti'i*
October Term 1972 

No. 72-1436

U nited  T ransportation  U nion  L odge N um ber  550, et al.,

—vs.—■
Petitioners,

R obert R ock , et al.,
Respondents.

BRIEF IN OPPOSITION TO CERTIORARI

Question Presented for Review

Where a railroad employer has practiced racial discrim­
ination in hiring and initial job assignment of employees 
into separate, racially identifiable yards, and railroad and 
unions have locked these employees into the separate, segre­
gated yards by means of a restrictive seniorit}1- system, was 
it error for the court of appeals to order as its Title VII 
remedy a merger of the separate seniority units on the 
customary basis of “ Company seniority” !

Statement of the Case 

A. Statement of Proceedings

Respondents filed this action in the United States Dis­
trict Court for the Eastern District of Virginia, Norfolk 
Division, on June 2, 1969, and amended their complaint on



2

December 30, 1969 (11).1 In the complaint as amended 
Respondents Robert Rock, Ezell B. Johnson, and Russell 
C. Walker (hereafter “plaintiffs” ) sued under Title VII of 
the 1964 Civil Rights Act, 42 U.S.C. §§2000e el seq., to en­
join practices of employment discrimination by Petitioner 
United Transportation Union Lodge Number 550 (here­
after “Lodge 550” ), Petitioner United Transportation 
Union (hereafter “UTU” ), and the Norfolk and Western 
Railway Company (hereafter “N & W ” )2 * and to obtain 
other appropriate relief from those practices (4-10). The 
plaintiffs sought specifically to enjoin and remedy the de­
fendants’ maintenance of racially separate work areas and 
seniority rosters, defendants’ seniority system which per­
petuated the racially segregated areas and rosters, and de­
fendants’ denial to black workers of equal opportunities 
for regular work, advancement, training, and assignment 
to more desirable jobs in the Norfolk Terminal Yards (id.). 
The case was filed, tried, and decided as a class action on 
behalf of all black employees similarly situated to plaintiffs 
and members of the plaintiff UTU Lodge Number 974 (21).s

The district court tried the action on April 13-16, 1971, 
and on January 20, 1972 handed down its Memorandum 
Opinion (A. 1-21).4 The court found that the defendants 
had practiced past and present discrimination in the hiring 
and initial assignment of employees (A. 11-15) and in main-

1 All page citations in this form are to pages of the Respondents’ 
(Appellants’ ) Appendix on Appeal to the Fourth Circuit,

2 Lodge 550, UTU, and N&W will be referred to collectively 
herein as “ defendants.”

This lodge, which was virtually all-black, is no longer in exis­
tence. The district court ordered it merged into the predominately 
white lodge 550 (A. 18-19). This ruling was affirmed on appeal 
and is not challenged in this Court,

4 Citations in the form of “A . ------ ” are to pages of the Appendix
to the Petition for a Writ of Certiorari.



3

taming certain barriers to the promotion of black workers 
to higher paying and more desirable positions (A. 15, 20). 
It further found that UTU had discriminated against black 
members by maintaining separate, racially segregated local 
lodges (A. 17-18). The district court ordered apparently 
adequate relief with respect to those discriminatory prac­
tices, which is incorporated in its Amended Decree entered 
April 28, 1972 (A. 22-35).

With respect to the defendants’ seniority arrangements 
which is the heart of this case, however, the district court 
made no explicit finding of discrimination. It apparently 
based the failure to find discrimination on a finding that 
the black and white yards involved entirely different 
“crafts” and work (A. 15-17, 19), and that the defendants’ 
seniority system was “bona fide” , cf. 42 U.S.C. §2000e-2(h) 
(A. 16, 19). The court nevertheless ordered the seniority 
barriers between the black and white yards partially re­
duced by means of a merger of the “top and bottom” type 
(A. 19); and in the April 28, 1972 decree it incorporated 
such a plan drawn up by the defendants (A. 23, 36-39). 
Finally, the district court denied plaintiffs’ request for back 
pay and awarded them $15,000 as counsel fees (A. 20-21, 
34-35).

Plaintiffs appealed to the Court of Appeals for the 
Fourth Circuit on May 8, 1972 (78) and all defendants 
cross-appealed on May 22, 1972 (79-80). Plaintiffs sought 
a more adequate seniority remedy of the “dovetailing” 
type, instead of the “top and bottom” plan, as well as back 
pay and an additional amount as attorney’s fees. Defendant 
N&W sought to reduce the award of attorney’s fees and to 
require a greater share thereof from the union defendants. 
Defendants UTU and Lodge 550 also attacked the attorney’s 
fee award, but principally sought to contest even the limited



4

and partial relief granted by the district court with respect 
to discrimination in promotion opportunities.

The court of appeals issued its opinion on February 13, 
1972 (A. 40-55). It affirmed the district court’s finding of 
hiring discrimination (A. 47-48) and its conclusion that the 
maintenance of segregated lodges violated Title YII (A. 
53). It further found the district court’s seniority remedy 
inadequate, as plaintiffs contended, and ordered that the 
“dovetailing” remedy be substituted for the “top and bot­
tom” plan (A. 48-53).6 In its discussion of the seniority 
remedy issue, the court of appeals strongly rejected the 
lower court’s conclusion that the black and white jobs were 
dissimilar (A. 50-51). The court of appeals found that no 
legitimate reasons of business necessity warranted denial 
of the “dovetailing” remedy, and that “ such merger is an 
appropriate remedy under the circumstances of this case” 
(A. 51). The court of appeals also added the following 
instructions to guide the district court’s formulation of the 
dovetailing remedy on remand:

A single terminal seniority roster would necessarily 
provide for the preservation of the rights of all incum­
bent employees at both yards and would permit no 
displacement of incumbent employees. It would be lim­
ited in operation to bidding for future vacancies in 
either yard and, as plaintiffs concede, would remain 
subject to the overriding consideration of basic job 
competency. With particular reference to the right of 
Barney Yard brakemen to qualify for promotion to 
conductors, any decree should, while protecting Barney 
Yard brakemen from prejudice in connection with pro­
motion to this higher classification, not give such 
men any higher or broader rights than those enjoyed

6 This is the only aspect of the Fourth Circuit’s order of which 
the Petition for a Writ of Certiorari seeks review.



5

or granted to OT Yard brakemen, who had qualified 
for promotion to conductors. Recognizing the com­
plexities of railroad employment, the actual formula­
tion of the specific terms and provisions of a merged 
terminal seniority roster, covering both yards, should 
be the task of the District Court, which could, before 
so doing, afford the parties themselves an opportunity 
to submit their own proposed “dove-tailing” merger 
plans. (A. 52)

The court of appeals remanded the back pay and attorney’s 
fees issues to the district court for reconsideration (A. 
53-55). It rejected sub-silentio both cross-appeals.

Lodge 550 and the UTTT sought and, on March 9, 1973, 
obtained a stay of the Fourth Circuit’s mandate (A. 56). 
The Petition for Certiorari was filed on or about April 20, 
1973.

B. Brief Summary of Facts

At its Norfolk, Virginia Terminal, defendant N & W 
maintains two adjacent terminal yards—the Barney Yard, 
which is limited solely to coal-dumping operations, and the 
much larger CT Yard, which handles a variety of freight, 
including coal (A. 43). As the Petitioners readily concede, 
“ The facts are clear that the CT Yard is primarily white 
and the Barney Yard is primarily black” (Petition at 10).6

6 In fact, the statistics were (30-31) :
Barney Yard

White employees Black employees
July, 1965 3 173
January, 1971 9 131

CT Yard
July, 1965 299 3
January, 1971 363 15



6

The court of appeals, in affirming the district court’s find­
ing of Title VII violations, correctly attributed the exis­
tence of this extreme degree of segregation in the first 
instance to N&W’s discriminatory hiring practices (A. 
44-45, 48).

Operating employees in both Yards are classified in any 
of three jobs: brakeman, conductor, or ear retarder oper­
ator. Beginning with brakeman, these three jobs form a 
promotional sequence with increasing rates of pay. Hourly 
or daily pay rates are the same for both Yards in each 
classification (A. 44). Within each yard, the racial compo­
sition of each job classification reflects the racially uniform 
character of the Yard (30-31).

The seniority structure of the yards exactly parallels the 
lines dividing the two yards (A. 44)—and, not coincident- 
ally, the two races.7 Thus, the court of appeals found, 
employees’

seniority rights, also, attach only to the yard in which 
they were originally employed and are not exercisable 
in the other contiguous yard. Thus, an employee in the 
Barney Yard has seniority rights in that yard, dating 
from the time of his employment in that yard, but has 
no seniority rights in the CT Yard. (A. 44)

As a practical matter, since “ seniority rights are the most 
important property in the professional life of a railroad 
man” (Petition at 12), this dual seniority system effectively 
blocked any movement by black Barney Yard employees 
into the nearly all-white CT Yard. The disincentive to 
transfer results from the fact that, in the dual system, a

7 The unlawful division of the UTU employees into two racially 
segregated local lodges also followed the lines of the Barney Yard/ 
CT Yard separation (A. 44).



7

Barney Yard man would have to give up his seniority and 
enter the CT Yard as a new man, in order to transfer. This 
barrier becomes particularly restrictive for the more senior 
black workers. In fact, only two or three of the younger 
Barney Yard workers had ever transferred to the CT Yard.

Although the district court purported to hold this system 
as lawful, it ordered the two seniority rosters “ topped and 
bottomed” . In granting the more effective “dovetailing” 
remedy sought by plaintiffs, the court of appeals neces­
sarily accepted as its predicate that the seniority system 
was unlawful.

Barney Yard and CT Yard jobs are not only separate, 
but also unequal. Plaintiffs produced detailed statistical 
evidence, which was fully confirmed by competent testi­
mony, proving that:

i) Work is more plentiful in the CT Yard than in the 
Barney Yard. Consequently, Barney Yard men have less 
job security and less regular work, suffer more frequent 
layoff (or “furlough” ),8 and make less overtime.

ii) Promotions from brakeman to the higher positions 
come more quickly and frequently in the CT Yard than in 
the Barney Yard. A substantially higher proportion of the 
CT Yard men have attained promoted status and work in 
promoted positions on a given day.9 Promotion comes far 
sooner in the career of a CT Yard worker than for his

8 See, e.g. 98-99, 167, 174-175, 186-187, 231-232, 522-524, 552-554 
558-562, 775, 854-904.

9 See, e.g. 29-31, 805-823, 824-853, 776. In 1971 about 55.5% of 
the CT Yard men had promoted status, compared to only 27.1% 
of Barney Yard men. On two randomly chosen 1971 dates, about 
four and six times as many CT Yard men, overall, actually worked 
in promoted positions.



Barney Yard counterpart.10 The district court found dis­
crimination inherent in these facts, in that Barney Yard 
men were, relative to CT Yard workers “locked out” of 
promoted positions (A. 15, 20).11

iii) As a result of the disparities summarized in (i) and 
(ii) above, CT Yard workers enjoy higher income than 
Barney Yard men, as N & W’s counsel admitted at post- 
trial argument (777).

The defendants did not contest the proof of inequality 
summarized in the preceding three paragraphs.

ARGUMENT

The Petitioners raise, in two different formulations, a 
single question: whether the broad instructions of the court 
of appeals as to the proper seniority remedy for defen­
dants’ unlawful practices were improper. The remedy as 
to the seniority issue is the only aspect of the Fourth Cir­
cuit’s order from which Petitioners seek review.12 Contrary 
to Petitioners’ position, the dovetailing remedy was a fully 
proper minimal seniority remedy.

1. A brief summary of the differences between “topping 
and bottoming” and “dovetailing” clearly shows why the

10 Typically, CT Yard men were promoted after as little as three 
years, and an average of six to seven years. Barney Yard men had 
to wait 13-15 years. (776, 805-823; cf. 708, 718 to 207, 768, 771, 
84-85, 198, 360).

11 The district court also found discrimination in the nearly total 
(one of 18) absence of blacks from the non-union supervisory posi­
tion of Yardmaster [trainmaster], to which seniority is not strictly 
relevant (A. 15, 20).

12 This Court has recently refused to review this issue on sub­
stantially the same facts in United States v. Chesapeake and, Ohio 
Railway Company, 471 F.2d 582 (4th Cir. 1972) cert, denied 41 
Law Week 3554 (1973).



9

Court of Appeals was compelled to find the former inade­
quate and the latter necessary. The court of appeals aptly 
summarized the pertinent differences

In [topping and bottoming], each employee would re­
tain his existing position on the seniority roster of the 
yard where he is presently employed and would be 
placed at the bottom of the roster in the other yard 
as to the date of the merger. This would mean the 
continuance of two seniority rosters; for example a 
Barney brakeman with ten years’ seniority at such 
yard would retain that seniority in the Barney Yard 
but would acquire seniority at the CT Yard only as of 
the date of the merger. . . . Railroad employment is 
contracting and the opening up of new jobs is becom­
ing increasingly rare. If a Barney Yard brakeman 
were to be relegated to the bottom of the seniority 
list at the CT Yard, it is unlikely that he would ever 
find an acceptable opening at the CT Yard which he 
could claim under the seniority rights that would be 
given him at the CT Yard. For these reasons, the 
plaintiffs press for what they call a “dove-tailing” form 
of merger of the two seniority rosters. Such a merg­
ing would create a single terminal seniority roster for 
both yards, thereby permitting the employees at both 
yards to compete for any job vacancies at either yard 
on the basis of their terminal (as distinguished from 
yard) seniority, established by the date of their em­
ployment. (A 48-49)

After noting the essential differences, the court of ap­
peals correctly stated, “It cannot be gainsaid that the relief 
demanded by the plaintiffs would more effectively remove 
the effects of the unlawful discrimination than that granted 
by the limited change made in the seniority systems in the 
two yards by the District Court” (A. 50). None of the



10

defendants, including Petitioners here, has anywhere ques­
tioned the accuracy of this assessment.13 The district court 
apparently understood this as well, although it failed to 
draw the obvious legal conclusion (77a-4 et seq.).

2. Petitioners incorrectly assert that the court of appeals 
decision embraces the “freedom now” theory of seniority 
relief, instead of the judicially accepted “rightful place” 
type of remedy (Petition at 16).14 In fact, the court of 
appeals tailored its seniority remedy with great care to 
take account of the limitations inherent in “rightful place” 
relief. See, e.g., A. 52, text set forth at pp. 4-5, supra, and 
part (3) of this Argument. The court of appeals’ adherence 
to “rightful place” relief is further demonstrated by its 
reliance, in the part of the opinion dealing with the dove­
tailing remedy (A. 48-53), on several major cases which 
applied rightful place” relief: Local 189, United Paper- 
makers and Papenvorkers v. United States, 416 F.2d 980 
(5th Cir. 1969), cert, denied 397 U.S. 919 (1970) [at A.52 
n.5]; United States v. Chesapeake & Ohio Railway Co., 
471 F.2d 582 (4th Cir. 1972), cert, denied 41 LW 3554

13 The Petitioners do, inaccurately and misleadingly, cite evi­
dence tending to show that topping and bottoming would result 
in some relief in a reasonable” time (Petition at 13). It remains 
beyond dispute that dovetailing would accomplish the desired 
merger much more expeditiously.

14 Under the “freedom now” black employees who have been de­
nied job opportunities in violation of Title Y II mav be allowed, 
under some circumstances, to displace incumbent employees. Under 
the “rightful place” theory, black employees get an adjustment of 
their seniority standing with regard to future job vacancies arising 
ngthe ordinary course of an employer’s business. The two terms 
originated and are thoroughly discussed in Note, Title VII, Senior­
ity Discrimination, and the Incumbent Negro, 80 Harv. L. Rev. 
1260,1268 (1967). The terms were judicially discussed and applied 
m the seminal ease of Local 189, United Papermakers & Paper- 
workers v. United States, 416 F.2d 980, 988-989 (5th Cir 19691 
cert, denied 397 U.S, 919 (1970). ' ’ ’



11

(1973) [at A. 49 and A. 52 n.6] ; Robinson v. Lorillard 
Corp., 444 F.2d 791 (4th Cir. 1971), dismissed 404 U.S. 
1006 (1971) [at A. 51]. There is no substance to Petition­
ers’ unsupported allegation as to the theory on which dove­
tailing relief was founded.

3. Petitioners assert, in the face of all the evidence, that 
“business necessity” precludes the merger of separate 
seniority rosters by dovetailing (Petition at 9-10, 13). The 
“business necessity” test,15 endorsed by this Court in Griggs 
v. Duke Power Company, 401 U.S. 424, 431 (1971), is 
applicable wherever any employment practice has an ex- 
elusory impact on black employees, as the dual seniority 
structure obviously did here. “If an employment practice 
which operates to exclude Negroes cannot be shown to be 
related to job performances, the practice is prohibited” 
{id.).

On this record, it is abundantly clear that the petitioners 
have failed to demonstrate any reasons of business neces­
sity which should be accepted as a bar to the dovetailing

15 The Fourth Circuit most fully spelled out this test in Robinson 
v. Lorillard Corp., supra, at 798:

The test is whether there exists an overriding legitimate busi­
ness purpose such that the practice is necessary to the safe 
and efficient operation of the business . . . [t]here must be 
available no acceptable alternative policies or practices which 
would better accomplish the business purpose advanced, or 
accomplish it equally with a lesser differential racial impact.

All the other Circuits which have formulated a business necessity 
standard are in substantial accord. E.g., United States v. Bethle­
hem Steel Corp., 446 F.2d 652, 662 (2nd Cir. 1971) ; United States 
v. Jacksonville Terminal Co., 451 F.2d 418, 451 (5th Cir. 1971), 
cert, denied 31 L.Ed. 2d 815 (1972) ; United States v. St. Louis- 
San Francisco By. Co., 464 F.2d 301, 308 (8th Cir. en banc 1972), 
cert, denied 41 LAV 3377 (1973); United States v. N.L. Industries,
Inc.,------ F .2d------- , 5 EPD 1)8529 (8th Cir. No. 72-1143, March 28,
1973). See also United States v. Chesapeake & Ohio By. Co., supra 
at 586.



12

remedy. The most conclusive proof is that the N & W, 
which under the Federal Employer’s Liability Act, 45 
U.S.C. §§ 51 et seq., and applicable ICC regulations has the 
primary responsibility to assure safe and efficient opera­
tion of the railroad (Petition at 10), has repeatedly taken 
the position that dovetailing is a practicable remedy. At 
trial, N & W, representatives testified that dovetailing is 
feasible (579, 603, 608, 631) and that N & W had in fact 
even proposed dovetailing to the UTU (579, 603, 610). On 
appeal, N & W held to this position and made it part of its 
defense. The court of appeals appreciated the weight of 
this evidence (A. 50).

The court’s opinion also aptly stated the additional rea­
sons for rejecting any business necessity defense here:

As a matter of fact, the qualifications for employment 
as a brakeman, the entering classification in both yards, 
are the same in both the Barney and CT Yards. And 
the breaking-in period for a CT Yard brakeman, hired 
without prior experience, is a mere five and one-half 
days. If an inexperienced employee can qualify with 
such limited training, it is inconceivable that an ex­
perienced Barney Yard brakeman would be unqualified 
to work as a brakeman in the CT Yard, particularly 
since one official of the railroad stated that the duties 
of a brakeman in the two yards were “basically sim­
ilar” . Moreover, at various times during emergencies, 
Barney Yard employees have been transferred to work 
in the CT Yard. There was no suggestion by the rail­
road or the union that their work was unsatisfactory. 
(A. 50-51)

In short, the fact is that Petitioners’ dark and gloomy pre­
dictions of impending chaos are mere hobgoblins, conjured 
up for the sole purpose of preserving discriminatorily- 
maintained advantages for its white union members.



13

The court below adopted the business necessity standard 
requiring that the employment practice “ ‘must not only 
foster safety and efficiency, but must be essential to that 
goal’ .” It then properly concluded that, “The record herein 
will not support a finding of business necessity . . .  as a 
warrant for denying unto the plantiffs a [dovetailing] 
merger” (A. 51).

4. Contrary to the clear language of the court of appeals’ 
instructions, Petitioners contend that the dovetailing rem­
edy would result in the displacement of “bumping” of in­
cumbent white employees (Petition at 17-19). Neither the 
opinion itself nor the applicable authorities lend any weight 
to Petitioners’ submission, and in fact plaintiffs were not 
and are not requesting the displacement of white incumbent 
employees as part of the relief.

The court of appeals plainly and clearly stated:
A  single terminal seniority roster would necessarily 
provide for the preservation of the rights of all in­
cumbent employees at both yards and would permit 
no displacement of incumbent employees. It would be 
limited in operation to bidding for future vacancies 
in either yard, and, as plaintiffs concede, would remain 
subject to the overriding consideration of basic job 
competency. . . .  (A. 52)

The court then remanded the matter to the district court 
with the further precaution that in formulating a final 
decree “the complexities of railroad employment” be recog­
nized ; and that the parties be given full opportunity, with 
hearing, to submit proposed dovetailing plans (A. 52-53). 
If, despite the court’s clear language, the Petitioners fore­
see a serious possibility that certain provisions within the 
dovetailing scheme would offend the court of appeals’ pre­
cautionary language, their remedy is clear. It is to present



14

their specific points to the district court on remand—not 
to resort in vague generalities to this Court for a Writ of 
Certiorari.

Petitioners’ contention that the nature of railroad em­
ployment makes “dovetailing” impossible (Petition at 18) 
cannot be countenanced here. Implicitly conceding that this 
type of seniority merger would be proper in an industrial 
plant situation (id.), Petitioners’ argument would exempt 
all railroads from the law of this land, applicable to all 
other unionized employees. Even more provocatively, Peti­
tioners apparently suggest that this exclusion take the form 
of a blanket rule of law articulated by this Court. To 
state the proposition sufficiently demonstrates its absurdity. 
As the courts of appeals have recognized,16 railroad indus­
try seniority systems, while somewhat different from 
industrial seniority systems in their specific form, are 
nevertheless subject to scrutiny and remedial modification 
under the same principles of law. (See pp 15-16, infra.) 
There is no exemption from Title VII relief for discrimina­
tory railroad employers and railroad unions. The full 
measure of relief should be granted as in other industries.

Indeed, the railroad yard situation is on the facts not 
fundamentally different from the industrial plant situation. 
Petitioners object to the provision of the dovetailing which 
would open a job for competitive bidding “if this job is 
abolished or they [incumbents] attempt to move to any 
other job in the CT Yard” (Petition at 18). In that case, 
the job would be “vacant” in the sense recognized by Title 
VII courts as triggering the operation of a non-discrimi- 
natory job competition. See United States v. Hayes Inter­
national Cory)., 456 F.2d 112, 117-119 (5th Cir. 1972). Any

16 E.g., United States v. Chesapeake & Ohio By Co., supra at 
587 n. 13; United States v. St. Louis-San Francisco By. Co., supra 
at 307; United States v. Jacksonville Terminal Co., supra at 450-451.



15

contrary definition of a vacancy, such as the one implied 
by the “top and bottom” plan advocated by Petitioners, 
would make it “unlikely” , as the court of appeals found, 
“ that he [a Barney Yard brakeman] would ever find an 
acceptable opening at the CT Yard which he could claim 
under the seniority rights that would be given him at the 
CT Yard” (A. 49). In the name of an illusory “bumping” 
threat, Petitioners would “freeze an entire generation of 
Negro employees into discriminatory patterns that existed 
before the Act,” Quarles v. Philip Morris, Inc., 279 P.Supp. 
505, 516 (E.D. Va. 1968).

The court of appeals order assures no “bumping” ; it 
therefore presents no grounds for review on that issue.

5. The circuits are in full accord with the dovetailing 
remedy granted by the Fourth Circuit Court of Appeals 
in this case. Petitioners’ argument that this decision con­
flicts with the relief formulated by the Eighth Circuit in 
United States v. St. Louis-San Francisco Ry. Co., 464 F.2d 
301 (1972), cert, denied sub nom., Railroad Trainmen v. 
United States, 41 LW 3377 (1973), crumbles under analysis. 
First, the St. Louis-San Francisco case involved transfer 
of employees between two different crafts, 464 F.2d at 303, 
304—porters and brakemen. Here, however, all the brake- 
men are of a single craft. Second, the Eighth Circuit did 
grant carry-over seniority (albeit partial) to black porters, 
based on their length of service on the railroad, 464 F.2d 
at 311. Thus, the Eighth Circuit agrees with the Fourth 
Circuit that merger of seniority roster on a more effective 
basis than simple “topping and bottoming” may be required 
in railroad cases.17

17 The decision in United States v. N.L. Industries, Inc., supra, 
wherein full carry-over seniority was ordered, demonstrates that 
the Eighth Circuit believes that entire (not partial) merger is 
appropriate where the inter-craft transfer problem is not present.



16

Other decisions are in full accord. The Fifth Circuit, 
on facts less compelling as to job similarities than those 
present here, ordered a full dovetailing remedy, United 
States v. Jacksonville Terminal Co., supra at 457-460. A 
different panel of the Fourth Circuit fully explored these 
remedial issues and arrived at virtually the same result in 
United States v. Chesapeake <& Ohio Ry. Co., supra. There 
is no significant difference among the Circuits in dealing 
with railroad seniority remedies.

Moreover, the dovetailing remedy in the railroad con­
text is precisely the same as the “company seniority” 
remedy in the industrial plant situation. “Dovetailing” is 
merely the railroad man’s term for merger by company 
seniority date. The company seniority remedy has been 
adopted by all Circuits which have had to consider the 
issue, including the Fourth Circuit in that part of Griggs 
v. Duke Power Co., that this Court upheld, 420 F.2d 1225, 
1230, 1236 (1970), noted at 401 U.S. 429 n.4. See, e.g., 
United States v. Bethlehem Steel Corp., supra (2nd Cir.) ; 
Robinson v. Lorillard Corp., supra (4th Cir.); United 
States v. Hayes International Corp., supra (5th C ir.); 
Bailey v. American Tobacco Co., 462 F.2d 160 (6th Cir. 
1972); United States v. N.L. Industries, Inc., supra (8th 
Cir.). Each of these cases flows from the landmark Local 
189 decision of the Fifth Circuit, 416 F.2d 980. This Court 
can hardly consider overturning now so basic and widely 
accepted a minimum remedy as the company seniority 
principle. Yet, in challenging dovetailing, Petitioners sug­
gest that this Court do exactly that.



17

CONCLUSION

The petition for a Writ of Certiorari should be denied.

Respectfully submitted,

V ictor J . A she 
Suite 702 
Plaza One 
Norfolk, Virginia

R obert B elton-
237 West Trade Street 
Charlotte, North Carolina

J ack  G reenberg 
W illiam  L. R obinson 
M orris J . B aller

10 Columbus Circle 
Suite 2030
New York, New York 10019 

Attorneys for Respondents



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