Capers v. Long Island Railroad Joint Appendix Volume I
Public Court Documents
January 1, 1977
Cite this item
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Brief Collection, LDF Court Filings. Capers v. Long Island Railroad Joint Appendix Volume I, 1977. 75e421be-ac9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/c7c47559-2804-4e7e-9695-98de2912e26c/capers-v-long-island-railroad-joint-appendix-volume-i. Accessed July 04, 2025.
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77-7174
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
FRANCES JOY CAPERS, et al.,
SPlaintiffs-Appellants,
against
LONG ISLAND RAILROAD, et al.,
Defendants-Appellees .
On Appeal from the United States District
Court for the Southern District of New York
JOINT APPENDIX
VOLUME I
Pages A-l — A-263
Of Counsel:
Thomas McGanney
Richard J. Holwell
Todd 8. Sollis
Ronald M. Hershkowitz
Robin Colin-Greene
JACK GREENBERG
Legal Defense Fund
Attorneys for Plaintiffs-AppeHants
10 Columbus Circle
Suite 2030
New York, New York 10019
WHITE & CASE
14 Wall Street
New York, New York 10005
732-1040
TABLE OF CONTENTS
Docket Entries. ........................................ .
Order to Show Cause with Temporary
Restraining Order signed by Judge
Owen, dated August 23, 1974 ...................... A-ll
Affidavit of Thomas McGanney in Support
of Order to Show cause and Temporary
Restraining Order, dated August 23 , 1974 ......... . A-13
Affidavit of Edward E. Harris in Support
of Plaintiff's Motion for a Temporary
Restraining Order dated, August 23, 2974 .... ....... A-15
Exhibit A - Equal Employment Opportunity
Commission Determination,
dated July 16, 1973.... ............. A-25
Affidavit of Nelson D. Peters in Opposition
to Plaintiff's Motion for a Preliminary
Injunction, dated August 28, 1974................... A-28
Affidavit of Nelson E. Steele in Opposition
to Plaintiff's Motion for a Preliminary
Injunction dated, August 28, 2974................ - . A-34
Exhibit A - Letter from Steele to Harris
dated August 21, 1974................ A-37
Summons, dated October 1, 1974 ....... . A-38
Substituted and Amended Complaint, filed
October 1, 1974 ....................................... A-41
Order to Show Cause signed by Judge Gagliardi,
September 17, 1975............... ................... A-77
Affidavit of Thomas McGanney in Support of
Order to Show Cause and Temporary Restrain
ing Order, dated September 16 , 1975 ................. A-80
Page
(i)
TABLE OF CONTENTS
(Continued)
Affidavit of Edward E. Harris in Support of
Plaintiff's Motion for a Temporary Restrain
ing Order, dated September 16, 1975........... . A-82
Exhibit 2 - Letter from Gaynor to Harris,
dated September 12, 1975....... . A-88
Excerpts from the Proceedings of U.S. District
Court held on October 1-3, 7, 10 and November
11 , 1975 ...................... ............*........ A~89
Page
Witnesses
Edward E. Harris
Direct.... ............ . ....... ....... *........ . • • A-90
Joseph Shearer
Direct. .......................................... A-134
Cross............... A-14Q
Edward E. Harris
Cross. ............................ *................. A-141
Redirect. ........................ A-187
Recross. ................ A-196
Redirect............................... A-198
Merrill L. Stewart
Direct. . ............ A-199
Lawrence W. Dixon....................... ......... .
Cross. ................ A-204
Robert R. Lansperg
Direct.............. A-205
Cross. ................................... *......... . A-207
Louis J. Rizzacasa
Direct......... A-214
Cross. ........................... A-228
(ii)
TABLE OF CONTENTS
(Continued)
Paae
Joseph J. Gaynor
Direct. .......... ....... *........... ............... A-239
Cross..... ......................................... A-2 50
Colloquy ..................................... ......... A-261
Robert E. Peterson
Direct. ........................... .................. A-263
Order to Show Cause with Temporary
Restraining Order (unsigned),
dated November __, 1976 .............. ........... * • • • A-264
Affidavit of Richard J. Holwell in Support
of Order to Show Cause and Temporary
Restraining Order, dated November 17 , 1976 ...... . A-266
Affidavit of Edward E. Harris in Support
of Plaintiff's Motion for a Temporary
Restraining Order dated, November 16, 1976.......... A-270
Excerpts from the Proceedings of U.S. District
Court held on December 10-15, 1976 and January
3-4 , 1977 .......................... .................. A-281
Witnesses
Edward E. Harris
Direct. ........................ ........ ............ A-282
Cross ............ .................................. A-308
Edmund Lehr
Direct. .......... A-325
Cross. ................ A-355
John Segreto
Direct. ..................... A-357
Cross. ....... ........................ ........... A-3 64
( iii)
TABLE OF CONTENTS
{Continued)
Page
Witnesses
Raymond Jacques
Direct....... A-367
Al Rubin
Direct
Cross.
A-36 9
A-37 2
Edmund Lehr
Redirect.
Recross..
A-3 7 5
A-37 6
Colloquy A-377
Louis E. Satter
Direct.......
Cross........
Redirect....
A- 3 7 8
A-38 3
A-38 3
Vincent Civitillo, Jr.
Direct....... .
Cross...............
A-383
A-393
Patrick J. Quinn, Jr.
Direct.............
Cross..............
A-412
A-415
Vincent Civitillo, Jr.
Cross................
Redirect... . ........
Recross.............
A-418
A-420
A-421
James T . Hodges
Direct...... A-421
Joseph Shearer
Direct......
Cross......
A-427
A-435
(iv)
TABLE OF CONTENTS
(Continued)
Witnesses
James R. Bloomfield
Direct... ...... ........ ........................... A-436
Joseph J. Gaynor
Direct..... ................................. . A-447
Cross..... . ...... ............ ............ . ....... A-461
Redirect. ........................................... A-485
Recross. .......... .................................. A-494
Louis J. Rizzacasa
Direct............................................. A-496
Cross. ............................ A-504
Lawrence W. Dixon
Direct.......................................... A-516
Cross. .................................... A-535
Redirect.... ........... A-581
Edward J. Zeman
Direct.............................................. A-583
Cross.......................................... . A-590
Redirect........................ ................... A-59 6
Edward E. Harris
Redirect. ..................... ............... . A-597
James R. Bloomfield - Deposition
Testimony. ........................ ...... ............. A-6G3
Opinion Memorandum and Order of Judge Gagliardi,
dated March 25, 1977 ........................... . A-604
Notice of Appeal, dated April 14, 1977................. A-629
Page
(v)
TABLE OF CONTENTS
(Continued)
EXHIBITS
Exhibits from the Proceedings of U.S. District
Court held on October 1-3, 4, 10 and November 11,
1975 .................. ................ .............. A-632
Plaintiff's 1975 Exhibit 2 - Letter from Harris to
House, dated August 2, 1967........... . A-633
Plaintiff's 1975 Exhibit 3 - Letter from Wainwright
to Harris, dated Janaury 17, 1968................. A-634
Plaintiff's 1975 Exhibit 4 - Letter from R.W.M. to
Harris, dated November 21, 1968.,................. A-635
Plaintiff's 1975 Exhibit 5 - Notice from Valder to
T.P. Moore, dated September 1 , 1974 ............... A-636
Plaintiff's 1975 Exhibit 7 - Note from Gaynor to
Harris, dated July 22 , 1974 .... ................... A-638
Plaintiff's 1975 Exhibit 7A - Handwritten Letter
from Harris to Gaynor, July 30, 1974 ........ . A-639
Plaintiff's 1975 Exhibit 8 - Memorandum from
Rizzacasa to Harris, dated August 13, 1974 ....... A-640
Plaintiff's 1975 Exhibit 9 - Book of Rules
Examination taken by Harris on August 21,
1974 .................................... .......... A~641
Plaintiff's 1975 Exhibit 10 - Note from "Gene"
to "Bob", dated August 11 , 1975 .................. • A-649
Plaintiff's 1975 Exhibit 11 - EEOC Reports
from 1968-73 ..... .......... ....................... A-650
Plaintiff's 1975 Exhibit 12 - Transcripts of
conversations between Rizzacasa and King.......... A-663
Page
(vi)
TABLE OF CONTENTS
(Continued)
Plaintiff's 1975 Exhibit 13 - Memorandum from
Rizzacasa to Steele, dated August 5, 1974......... A-666
Plaintiff's 1975 Exhibit 14 - Letter from Gaynor
to Harris, dated September 12, 1975 .............. . A-667
Plaintiff's 1975 Exhibit 19 - Series of letters
of reprimand or instructions to assistant
stat ionmasters....................... ............. A-668
Defendant's 1975 Exhibit A - Transcript of
Channel 4 Announcements from Tape*................ A-687
Defendant's 1975 Exhibit B - Memorandum from
Gaynor to Harris, dated November 15 , 1974 ........ A-689
Defendant's 1975 Exhibit C - Memorandum from
Gaynor to Harris, dated October 2 , 1974 ......... . A-690
Defendant's 1975 Exhibit D - Memorandum from
Gaynor to Harris, dated January 28, 1975.......... A-691
Defendant's 1975 Exhibit E - Memorandum from
Gaynor to Harris, dated October 7 , 1974 ........... A-692
Defendant's 1975 Exhibit F - Memorandum from
Partridge to Gaynor, dated October 11, 1974*...... A-693
Defendant's 1975 Exhibit G - Memorandum from
Gaynor to Harris, dated November 7, 1974......... A-694
Page
* This document, although not part of the Record on Appeal
stipulated to by the parties, was before the Court below
and is reproduced herein at the request of the appellee.
(vii)
TABLE OF CONTENTS
(Continued)
Defendant's 1975 Exhibit H - Memorandum from
Gaynor to Harris, dated November 8 , 1974 ........ . A-695
Defendant's 1975 Exhibit I - Memorandum from
Gaynor to Harris, dated November 22, 1974 ........ A-696
Defendant's 1975 Exhibit K - Memorandum from
Gaynor to Harris, dated February 20, 1975........ A-697
Defendant's 1975 Exhibit L - Memorandum from
Gaynor to Harris, dated March 26, 1973............ A-698
Defendant's 1975 Exhibit M - Letter from
Steele to Harris, dated August 21, 1974 ........... A-699
Defendant's 1975 Exhibit N - Determination
and Order of State Division of Human Rights,
dated December 29, 1967.......... ........... . A-700
Defendant's 1975 Exhibit 0 - Complaint,
Harris v. LIRR, State Division of
Human Rights, dated August 31, 1968*............ A-703
Defendant's 1975 Exhibit P - Determination
and Order by State Division of Human Rights,
dated January 1, 1969.... ....... ............ . A-705
Defendant's 1975 Exhibit Q - Complaint Harris
v. LIRR, State Division of Human
Rights, dated March 1, 1971........................ A-707
Defendant's 1975 Exhibit R - Notice of Order
After Hearing, State Division of Human Rights,
dated April 28, 1972 ... ........................... A-708
Page
* This document, although not part of the Record on Appeal
stipulated to by the parties, was before the Court below
and is reproduced herein at the request of the appellee.
(viii)
TABLE OF CONTENTS
(Continued)
Defendant's 1975 Exhibit "R-l" - Decision of State
Division of Human Rights, dated July 12, 1973*.... A-714
Defendant's 1975 Exhibit S - Memorandum from
Stewart to Harris, dated July 23, 1971............ A-717
Defendant's 1975 Exhibit T - Memorandum from
Stewart to Harris, dated February 28, 1972........ A-718
Defendant's 1975 Exhibit U - Memorandum from
Stewart to Harris, dated March 3, 1972........... A-719
Defendant's 1975 Exhibit V - Memorandum from
Stewart to Harris, dated April 1, 1971............ A-72G
Defendant's 1975 Exhibit W - Memorandum from
Stewart to Harris, dated October 6, 1971......... A-721
Defendant's 1975 Exhibit X - Calculation of
Pay Rolls, dated September 17, 1975*.............. A-722
Defendant's 1975 Exhibit Z - Memorandum from
Landsperg to Gaynor, dated September 17, 1975..... A-724
Defendant's 1975 Exhibit A-A - Memorandum from
Diaz to Partridge, dated December 24, 1974....... A-726
Defendant's 1975 Exhibit A-B - Memorandum from
Diaz to Gaynor, dated September 11 , 1975 .......... A-727
Exhibits from Proceedings in U.S. District
Court held on December 10-15, 1976 and
January 3-4 , 1977 ...... ............. ............ . A-728
Plaintiff's 1976 Exhibit 1 - Stationmaster's
Record Sheets, (page 1), dated November 10,
1976 ....... .................. ....... ......... .... A-729
Page
* This document, although not part of the Record on Appeal
stipulated to by the parties, was before the Court below
and is reproduced herein at the request of the appellee.
(ix)
TABLE OF CONTENTS
(Continued)
Plaintiff's 1976 Exhibit 3 - Stationmaster's
Log Book October 12, 1976 - December 10, 1976
(page 21), dated November 9-10, 1976......... . A-730
Plaintiff's 1976 Exhibit 5 - Unsigned Statement
by Lehr to Gaynor, dated November 9-10, 1976.... . A-731
Plaintiff's 1976 Exhibit 6 - Shearer Statement
addressed to "To Whom It May Concern",
dated November 11, 1976............ ....... ...... A-7 3 2
Plaintiff's 1976 Exhibit 7 - Memorandum from
Gaynor to Harris, dated December 24, 1975........ A-733
Plaintiff's 1976 Exhibit 8 - Memorandum from
Diaz to Terminal Superintendent, dated A-7 34
Plaintiff's 1976 Exhibit 9 - Dental Note from
A-7 35
Plaintiff's 1976 Exhibit 11 - Chart: "Black/
Total Workers, Numbers and Percentage"........... A-736
Plaintiff's 1976 Exhibit 12 - Chart: "Dis
tribution of LIRE Employees by Department,
Union, Race, and Job with Major Department A-7 3 7
Plaintiff's 1976 Exhibit 13 - Extracts from
Management Personnel Files submitted pur
suant to Judge Gagliardi's direction
(January 4, 1976 at page 623 of trans- A-7 46
Louis E. Satter............. ....... . A-74 7
A-750
A-755
(x)
TABLE OF CONTENTS
(Continued)
J.B. Howe........... A-758
David C. Roberts......... .......... A-765
John H. Roman...... ...... ................... A-767
R.E. Drumm.................. ........... . A-768
_______ _ D . Lawrence............ ................ • A-770
Lea H. Duryea..... ........ ........... ....... A-771
Charles R. Calederazzo.......... A-773
William J. Thomson............................... A-775
R.R. Lansperg ........ ...................... A-776
Plaintiff’s 1976 Exhibit 15 - Offer of
Deposition Testimony........ . A-111
Defendant’s 1976 Exhibit B - Stationmaster's
Train Record Sheets, (pp. 1-3), dated
November 11, 1976..................... A-780
Defendant's 1976 Exhibit I - Report: Bloomfield
to Gaynor, dated November 10, 1976............... A-783
Defendant’s 1976 Exhibit J - Report: Bloomfield
to Gaynor, dated November 11, 1976 .... ........... A-785
Defendant’s 1976 Exhibit K - Report: Gaynor to
Dixon, dated November 11 , 1976 .................... A-786
Defendant’s 1976 Exhibit L (Last Column not in
Evidence) - Memorandum from Dixon to Files,
Subject: "Disqualification of Management
Employees", dated September 16, 1975............ A-79Q
Page
(xi)
TABLE OF CONTENTS
(Continued)
Defendant's 1976 Exhibit M - Tietjen Report to
Dixon? Steele, Gaynor, Allen, file? dated
November 10 , 1976 .................................. A-792
Defendant's 1976 Exhibit P - Transcript of
Recorded Telephone Conversations ............ ...... A-794
Page
(xii)
A -l
r ....-... ..y e ■”■ T "̂ern -r "' t" >̂«?9?̂«9?5 m̂r-;
Jurj demand date: ' i ' Z u v .
'©ra No. IOC Rev.
TXTLJS OF CAS* •i
"■Tor plaintiff:
ranees Joy Capers, Vivian Wright,
irshall Jackson, Edward Harris,
rnest Brown, John Diggs, Charles
Lien, Kenneth Morris, James Van
ass, Albert Stroman and Howard
uterbridge, each individually and r
n behalf of all others similarly situated.
-JAGK-GRERiBEitt
ID -Golurabas- -G-irole- -
-Oreoih -
jamacASE.
14 Vail St.KY REctor 2-1U4U
plaintiffs.
- v -
ong Island Railroad, a corporation;
rotherhood of Railway, Airline and
t^^mship Clerks, Freight
repress and Station Employees, an
nincorporated association;
unrise Lodge #90, Brotherhood of Rail-
ay, Airline and Steamship Clerks,
reight Handlers, Express and Station
Tiployees, an unincorporated association;
ocal 0177, Brotherhood of Railway,
irline and Steamship Clerks, Freight
andlers, Express and Station Employees,
a unincorporated assocation;
ransportation-Communication Division, rotherhood or Railway, Airline and
teamship clerks. Freight Handlers,
xpress and Station Employees, an
^incorporated assocation;
rotherhood Railway Carmen of America,
n unincorporated association;
ocal 836, Brotherhood Railway Carmen of
T,”rica/ an unincorporated association;
international association of machinists
nd Aerospace Workers, an ur;ineorperated ssociation;
Deft Geo r fte H.Onken
-936*4321-
Jamalea Station,Jamaica,NY 11435
:m Rs_ (L I R a i lroad )
..."asked. 1 Loll.:
::____ _ _
* For defendant:
ff>o ni <* Cr̂ mt-r” ?<*,harden Ci tv,*?''
11533- 274-0254(Peft.lIRR) *
; REILLY, FLEKIHL fc RTILLY
• lu.ll ,vfcnue ~of the Ijnerlcgŝ
sj.yTCTnIy . 16 019
cT j 7~T1 er.in:
’IwT5~~L\~e7~oz~the ArnerTce£’
~ i7 c 7~T jc 11 '75g^?TT3~fbr cirt¥r.' ~'
v.v.ion~ ceft s . ___________ _______ .. ■ •
AEtflypFleffil ngSReTlly---------- --- 7-------
~1414 Ave.of Americas,KYlf>0i9
Loe a1 Lodge £91,Railroad Ya~3mast«rs of Aar
caT
-Vhite.-XCa s.e....
b05 Third Ave.KYlOOlS MU 2-6077 1
r
*^I7=:
: j p v
u t ^
*!A A cp.
H- —
tion arose at:
'(Witness fees
i Depositions
J _ j .
NAME OH
RECEIPT NO. REC. D1SB.
V X -
•rxes Joy Capers* e t a l vs . Long Island Railroad e t a CIV. s 16 8
PROCEEDINGS
1--72 ri2gd_c.gtpla ir t and. issued-SdDncna* —----
|7_"? t~~ " A-ended Complaint issued_sm®ricns*_
» Order or
\ Juiirx*#{• N*»<
li-~2: - ile ^ _ A Ig-- ~ ^ _ ± L ± _ i ± l . . 7777 — T-=, ^^J-D =^=^r3 IB̂ ?2
;:a-
ffs'Tirsi Iiterrogat'oria to oeTt. long Island lia lT r a aS ., with re halm
:of of service,
Lcp?Z~ rTTe3" sumons with marshals return.. Xong Island r̂ -̂£3-jroa.d. Jamaica^ N.Y. B"IQ—72 SHRTEDij
V-ji'dis to s r.?, Brotherhood of Railwa y T ^ riins Jteamship Clerks^reig^t Handl§re, _ei£«—
q i=xlea^anencie£ srunsrtons wit»*i ruLrsrî Xs pB lutti * f̂er̂ tred. 3roI^qTtiqqd ox &xXwpy ^xipJOigs^
rreivht ’*andl5rs, etc^ Served 9-5=7?
r Unite d“TranS port alio n Urn onH-2U~7^
rve<r^lntern iTohal Sss6cIation“dfT"achinist3 ana~gerospace~ Workers*» 9-6-72
rfwlrtcai YSU IntXXssoc of"Kachini3 ts" etc* 7-6-72
Serve2*i 3“Tdfhsfhood Railway Carmen o fA m erlca * S-2 3-72*7
£ ,-r> -j2?d hef t s _ ipula+.ion to .extend or oi±£rHisK-.mnvE—aga-ln^t— amended comp la in t-y -
-i-rein 3s extended u n t i l.the__ 7 c l l i -3 2* . do., -----------------—
f i l e d 'p i t f f s f i r s t in te rroga to r ies to o e it nong x s lm n n n a n ire a a ______________2j-72‘-T—r»- .r •’“’TC* ""A"£ j?bcnrhrXRlBî "Ĵ -dr£ijieTdon'foF-pre » inh.
:eu r.eci;:1 .- .cr ar.c’jB -in—e-r>eosit.iory t s nrreioft-rW —;.m-. —in.i . - ( f e r -o a.
=T
7T77271?iled T»11rf s~ 'Response V c T ^ s . ' repTy^^orandum. _____ _______
tv 6-72 I H eq^ Z Ifid av it o f ~Ce5brpH~K. Gre~h5efg, in opposition to the Motion to dismiss dr "e x t t
End Machinist laoorTarg im zational
ov’21-'~— .-'i le d re p i y~fT^»~r-Tid.zrr~p-
T=;^H5niiarra7ris=cpTorrt^'t^^
a ltern ative fo r suranary ^uamen.
:c"71-^— filed 'Answ er o f d e lls ^ 'rrtr-rh ood o f la
ind 0177 i t opposition id no. ref f s ’ to nor:
r.d firline-O l'-'rrrs vra - Br?c - I
Tt~this—rrre^tro— k* ** t -rtteire-i-'-es—e
in rurport o f o rro s it io n to motion Si.
‘-’173 T.O OBITHl
!.ov2L-,l
ls erse to "re"maintained as .. c la ss action*
•ilad a f f id a v i t " o f 'Jose ph 1 . O a tti who sta te that on Nov 17th, 1972 d id sertae 1
Lthin n-'enorandun nr.dUnsve- on Dehora Dree risers Ksa*
a ->: fid ~ v jp o f Joan Zelm n , that on Kov l ?th, 1972 she did serfre memorandum 1
;S entire .ten, md sue itios-ia--
opposi t i o n to t he motion to dismiss o f jd e fts__a3 in d icated}. ___
fee£—72 - i le d p l t f f s f i r s t in te rroga to r ies to d e ft long is land ra ilr o a d*Lnterroga
ZeclI-72 ~7jlad fie ply of Points ard Authorities^of dafts 3 rotherhood of Railwg
~ -‘--tH.Ab' ̂ lerks" and Brae Lodges ho3 . 90 and 017 7 to supplemental and substituted
memorandum of pltffs in opposition to motions.
0 ar_ii r riled nltffs -•ot.ice cf '.lotion._:-Q.31S.[-itompiaint purs to Buie 1ft (a) nf thf
J?~ ? >
-3u72i=i: F iled Aniinn ' Elmira 3 »t.. an !__II. in IQfJd 110$ re ; .3arv» P It fs * .F irs -!
-5ei__n
"mg6-73 F iled OPINICN rTl g S ^ G arlia rd i, J.~ Motion o f d e ft , labor ori^nizatipn_s^p.
dismiss the comolamt fo r fa ilu re to s ta te acclaim is granted> P lt f s 1 .motion
that th is act ion be maintained as a Aula 2 3T3)(2T~cla3S a c tion Is conditions
granted; os t f s 1.motion fo r leave t o add the l rotherhood o f Locomotive Snginei
as a party d e ft , i s a n ie a ; P l t f s . are directed_tP_file-.arL-ainend
in corsorating the croocsed amendments w it 111 n IQ davs from -date.o f thi s d e c ia lc ii.----
VSL
JG.
1?-
>r ~T'̂ p~=r*-=Tj- So ordered. (axailed notice).
ic a m c r v i t o:: s'tes in response to pltfr7s motion .
'• -6-73 Filed addicional answers to olttf̂ s interrogs.
A--3.
OCKCT Per? -'I lit/:; V " !
DATS riUNGH—TROCtCDINGC / j AMPJHT WFLKTCO 1.4 tMÔ cMLNT *n t!Rf.s
Arr.lB-7: Filed deft's ansvert to rltff's irter-nggApr. 18-7:
A.pr ,lp-73
Filed Renort of U. S. Lap 1 slrr t «. Rrbv.
riled an notion papers flit d 2/27/73. lie: pectfiilly referred to I
Ka'istrate Baby to lio;.r ar.c n port. —
Juns 1,' 73
._l:/3.0/?3* fiction rrcnteu to extent indicated in report of
MaEi&lxate Htx. dated L/ll/23. GatlitrUi, J. -
Filed notice of taking of deposition of Long Island Railroad bv At tvs
r
•
for Pltffs-
Jun.26-73 Filed pltff's affidavit & notice of motion for leave to fil#>
amendment of the complaint ret. 7.-3-J3.
PA" ni Filed transcript oi record os proceedings, datug - y / y c /-> ? ." ■
iv9-73 Filed First document request prusuant to Rule 34 FRCivT* bv riifff i
fF.J. Capers,etal to deft long Island Railroad.
if h a Ineeu-tW/LzA_ r : s r J tiL tu u J u U ,t . 1 11
Janll-74 Filed opposition of deft Brotherhood of Railway and Airline
----- 1— -----i
Cier!fs_fnd lt:s local lodges Nos. 90 and 0177 to moti<o nu - p x l i. rs exj vac a re prxtnr •order dxsnn. ssimg ctrmpxaxntr .. £ rant leave to f ' le a substituted comnlri-nt-. "and {
Janll-74 Filed opposition of deft Carmen and Machinist Labor Organizations'
to pltffs motion to vacate the Court's order of 3^8^737 to
complaint. j
1714*74 Filed pltffs’ reply memorandum in support of their motion r p l ■
Pa^^1es and for leave to file a subsituted amended complaint.
/1 0 / 7 4
, .. ...— *— ■—■——|— ■— ■—----- —
iXl^i_Eltff_H. Oouterbridge1s motion re: preliminary injunction 1
. . ret: 4/23/74. | t
! .t '... ....... .-.- _ j 1
/1 0 / 7 4 Filed _plt ff H. Outerbridged memo of law insupnort of motion for ;
preliminary' injunction. '
7^26/74 Filed affdvt of Edmand__}\ BeCeck it
. ..7 3 7 - 7------- -of^^ur.£rhrid^£^£cr-aHpr£lin3m5ry 1 r.junction^.agj*/7-t j Fli_eA_PLtffs_' notice- of jpgcatance of atty for pltffs.
Mayl4/7f — - * ivAA.CP—LegaJ_ft f en c; f» PimH,_appearan _ ______
J'lbi-tO. &_ _&?sQj— 1 4 W fe 1J_ S U 1IYQ_10005__ZJi2r!Q4IL_
•Z-iI/77
-Etlod K A ACP Lt:.ga.l--if£3a^X42-IlutuiI-S _not-ir-e_gf__dcpn.qi rinn npnn nra 1
£Z^rtiELlcrL__of _£jef t_. lon^JLsland .Railroad on 5/28/74. f£. Z etnan^__
£i^-KAAC£^agal_J3afgn£i^undl.^QjJxtit^f_xL»nrKirfnn »Pnn nr.i--_ „ —• A 4 . -UAA a
^amlnailciLpL_dalt3.£dEund P. DcCr-rk nr. s /0 4 ^ 7 4
d . c. no TTdnt * d on page~#4'
. / • X .
12 Civ 3158 Frances Joy Caners.etal vs. Long Island RR,, etal 72 Civ
Page k i iv ’ r ■ ■‘I" " • -- -... • - ' ■ ----- --- ----r̂»*sp=ê a=r=̂ i=l
DA~Z riUNCS—RROCEEDiNG* 1} 3* 1-4. vl .U^Umount TiMOLUMI.NTRETURNS
.1.24/*'4. Filiid_pltf fs . ' not •' of motion re- .cornel nrni!„rH™ Ar,r*
- .. - ret: 7/;?/74.
3~. .
I-2-/"- Filed pltffs.' memo, of law in support of pltffs.' motion to compel
- -....-- .. product'' tv of iDcum^rt s .
_.~r—j. i l.-gd—d eft yl kR s aftiyt in opposition to nltff.’s motion for di sen ;prvand inspection.etc. 4-CX->---
,16-74 Filed Memo-endorsed on pltffs motion filed 7-24-74 Re: docum ents:
This matter!is respectfully referred to Magistrate »
Schreiber for hearing & report. Gagliardi,J,
• 23-74 Filed pltrf s affidavits ft show ramp order for a rrol^u.r,, (rH,r
ret. 8-28-74 RM. 506 At 2;P.M. before Connor , , J. *
.28-74 Filed deft’s Long Island RR Co. memorandum of law.
.28-74 Filed affidavit of N.D. Peters in opposition to pltffs mot lotu
JZ24 Ftl-gd.-PItf fs . ' nu,Lic^Qi_,,d^ot.iiLLQii._upon oral examination.
-23j^._fiJ^^epii5iJLLarLj2f_difrJfLarig_J^land_ilallroad by Nelson G. :
— dat£.d_S/lQ/14
ifiiarsc____
.21/"'- Filed pltrf s. ’ notice of motion to add parties and for leave to f.Lie
a substituted and amended complaint. i
L-21/7- Filed memo, of law in support of pltffs.’ motion to add parties deft.
and ior leave to file a substituted.amended complaint. to ioin as
ths_Brotherhood of Locomotive Engineers and the
u
additional
HLPJ3s_.nanied Jlerein, and_to add Howard Outerbridge as a named pltff
-gr.ar.tĵ Lu,- _ctmplalnr--aan£Lax5-on-JJL3_face to be s
:s . -an
|jfflcj.ent7
ettLed arvii_t±£.s.ub^Li£uted and amend'ed co^plAint
rn.,all par Liu j_^i£hia-LCLdaviS-.__CagIiardfJ^_miL
•3d-21±--- - tied _CQMPLdlNT. and issued summons,
..9/74. Filed Scia. & Order that d a s for oltffs. to serve the subst Ltuted and
amended complaint shall be extended for 30 days until ll/5/|4.
Gagliardi,J.
LLL--—oj.deposition upon oral examination of &gft .
*» ̂
on Il/4/7d.
alnd :,ailrĉ sl_l-y_.RabsLtiL Partridge on 11/4/74.
-S-£ A JPJliIi:l.Qn_Q£_Lap,d Island Railroad bjr D. ^azzano11
:.,2ZL Filed._af£dvt^_._QX^j;incim£_S^_Ei£xpatrick.Jr. in renlv to t-he affdv
of Edmund P. DeCeck.
■t iv/?*/ frariscrft cf roco:i cl cceaTn-m, /-pj/
IOH»v. Ctrl) Pockrt CoBt!nu»0<io Page 5 V U U U4.
nt PROCEEDINGS
~.ZdlA
. 8/7̂ Filed deposition of Edmund P. DeCeck dated 7/10/757 mn
M l A ±__Filed Stip. & Qrd£IL_ti3aL_the_£ime
L37T4
13774
T8777
Filed Stip. & Order that the time of pltffs. to serve the substitu :ed
___and amended complaint shall be extended fro~70 days until +
12/5/74 , Gagliardi , J.___
Dm Us Order o
J ud gmect Not*
Filed Stip. & Order that the time for deft. International Brotherhood
of Teamsters toanswer is ext, to 12/2774. GagliardjrJ.
Filed Stip. & Order that the time for untion defts. to plead to
the substituted and amended complaint is~extT. to~12/2774TGagliardi,J.
Filed Stip. & Order that the notice to take deposition of d
U^Paiiroad_is a cQpuj-p e d_t oJL.271^ he_dep.cs ±£i onof def t_.„LJL._Eai 1 r o a d (EL_ Ma zzapp t fcil s__ ad 1 q rr e d to 12 /2/74.Gagliardi.J.Filed ORDER ~ that" the relevant- dr% r*f *’rtnrj f- n v"'T oof (pg r> py q o ]L£â'\
rtridge
7 L A
of train service and bldck operator~employees~my be examine?
and copied by the pitffs., at pitffsT1 expense, at the~offTce of'
the Long island Railroad atJamaica Station, Jamaica ,N ,Yetc. Gagliardi,J.
;a Stip. G Order that the noti ce to t ake depcs it I on of deftTL.I
Tailroad by R. Partridge,_is adjourned to 1/15/75,etc. GagTiard i t J ,
111L
US..
H Z 2
1C- / ~ 5
Filed Stip. <F Order that the time of the pItffs. to serve the
sues ti ituted__5
until 1/15/75. Gagliardi,J
icnded complaint shall be extended for 41 dayjs
riled it ip. Order that the time for the unicn~c!ef ts~« to plead
is e::t. to 12/30/74. Gagl 1 ardi , J,"lied stip L orecr that the time for deft International Brotherhood
of teams tc rs_ to answer is extended to Dec. Ib, ii>74 .Gagiiai
,Filed AKShLF Lcfl,,,, Erp.thrrhQ'i :- of. LqcJ3tiotive Engineers to
Xil£d_AKSl
.suhft:' tutc: d_ a.nd_aamdc d_„£ c ".plaint.
r ■ 7 "7 its Local Lodges No. 90 and
5 Fil ec'i Stip. L Q'drr that the_
- _____ etc ._v;it.h ”esDcct to th<
.fltute£_l - d amended ccr.plaint.ho vnior. certs, to move
dlTJi
er.t. t- 1 /n- .
iled AFSV:~- of
Garli ardi. J .
sttut r-u emended conplaTnt is j
rrctx_r t ' s . to “Hr r ;ir rtiru^td cmcncei
n 5
__ T .. -•f.-ii-U- . 1 L-
/75
IJ- led ANSWER of Def t . Local Lod^et91 LKei_l road Yardmasters o f America to S u b s t i -
______ tuted~and amenoed complaint. ’ I RF&Si
Summon*! \iith Marshai * r Returnr 1_ thru 26:
---- it -'fejr.fm.znj y. nn 11/73/74________ __
121 Brotherhood oj ..KaUw^ctc, l " Thom.?; _________ —
ill_£it^ k S.F rfcl&h t Hand 1 era. tS.tnli cn_ r.xn l̂ r/o.. Jxar.k._Lpn2iu .FvmSrcnhan.. .BJ io .or, 10/2a/76
■‘e ~Gl-e-rk-»»̂ teTre-/o Pcme4d-VeMman;
fcc£ndpflvnr-1D/76/7R1
1A1 l.ineifaeanxhix .Clerkx.nt.c/o._L'ur_cL...by. Hurl: n-nr , ie/7i pM.
-pi_Brothcrhood F.gJ Ivnir.Carnea of. Jjicrica. cdo.Ji anxo pprsnnal ly, in /Q/7A|
■ ii- t°.C£ 1_€86jBjr>thoih00J_itailVMV..Ca.XH.cr of Ar.firi ra ___________ J_
— — — —(71 Intnl .Axxr.C,. P-f.hfxilinttts&Arrpypr-cj; Workers,c/o Jnseph Burns by Mrs. i
_ All en _on_] 7/1S/7 5.
til Imri ^c:or.of 7‘frhini t̂s Monw-unex. End ,10/10/74
(ror.td pr 6$
A*e
. •4r■Vf
72 C i v . 3153
ET AL VS. LI RAILROAD,ETC. ET AL
rns>r.r •
?! > T ? p r n * ♦>
W w i X —
72 C?
DATS proceedings
etui 14 J iaxa ll l ls -- lo t-urns l .xo i itd) Served:
------ L 'Xliac3 1 _ I 5 i l i n t s l —!L§lI l_o f_HachintstsAAerospace Workers -c/o B u rn s ,J r . p e r -
' ~̂ son a l ly on 12/18/74 ’ 1 ! ”
I>%tf <L
Judgzn*
S3 VLoeal 754 ,e t c . c /o Monvy - unex.Endeavor 10/10/74
(7 ) United T ran sp o r ta t io n Onion by Canavan p e r s o n a l lv ,10/17/74 ~~~
4 ~ ;? 4 - i °Ca- l - i i 7 A »Lni tod _Tran spo r t a t ion Uni on , by” Can a var.Tpi F iona FlyTIU fYTTTL-m-T—t ----— r._ _V— s-anavan,persons
1 1 i j urotnerhood o f LocarnotiTe engineers oy Hr. BoyTe~~7TTJ79775~
-T?)-----LLH _Loea l_ M 5jUni .ted T ransportation Union by Canavan, 1/23/75_______
t i l X-J-oraJ -----— --- -—-— -------------------- lie/o—Quipn-unex.End. 10/2 3/74
J-I3X
0 4 )
iB_4 inl£iuL
(15)
-1311, 0 4
---— —--------------- — ------- —--------- --- » ~ 8 ~ ** J *-P •
.12.. — __651 .Aaerican Railway Sups. Assn,c/o De Masi,by~BarbarFDeMaslT
«s ■» 1 *- -=,. «,U «► ̂ — 3 rt M l #1/ ~~ ------------- —— — ----------- L_adu lt daughter on 10/21/74
STT)^' ~85lA American R a U ^ y ^ ^ 7 A ^ T E 7 5 ~ T E ^ T ¥ E lc by MaW Stvs 1 acTT
f i '
_____ Aon,i0/10/?4
: 0 3 p o cal Lodge 757^AaerIcln~” "
M ’ nrcJo Ar t e r p e rso n a lly , 12/4/74
( 19) •• »* ** •» ii Fi----- iTTi------------ ----- ----•----- —----- ----------—-psnvv— — r-r---T-TS---r— r r , ,, Arter -unex. Endeavor-10/17/74
, 1 ? Le ^ n a t i^n a [ E?777erTi7bd ol' E le c T ^ o r le r s bv H r .B o v e . 10/9/74 ----
^^"Team s te rs by Robert B a p t is te .10/17/74
.1. . ? ) ( 22) Local 808 , I n tn l.
i m
Teamsters bv John Mahoney. 12/9/74
-X=—i— ^ ay^^bhs7For^rs£lieTperV~¥iir'?f<̂ en stMochrte^wlfeTl/2/75’
t U n e x ° cl̂ E nig,ay p r a-1 Q/9 .2 2 A11/5/74r. 1 x>% C l(« — V. ... a _ t £1 a s
-Intnl-.TErLtlexbxLOjLa£_aQ±IEXTaakfix̂ TIrmt-ShlpLaBui 1 ders.ro. rial » m n -un_ax.I-ndeavax -10/71/"4
(2 4)__Loca L..Lndga_»5&retx^xia .JaT-ea.5-Qrtll».-nexsnnally-Qn.-lQZll./Z4.
Xjl-iin^irA^c^.EayJ-ariaarsimaLIv. 1 /10/7S
„ bv Onken, 12/20/ >«•
m n
1LU Z1
l l j ’ Sheet T i e t i O o r l s r s ^r7tnl KssnVcJo’ R a cc X o p p l^ p e rso n lr (y l^ ?
" ” " ^Hi^ir*5d7iW2l775j V» -c, * * Q OV ■-■ ̂“
- *)CU' L£LLL
/-^ cô»irr?enf ̂t 7« r̂ r . 1 / • ! / 7 1TO * ■*> v 4 o - c --nxtlll.— „ - a LIra ad fcn
/■> /-K nen t -ailr̂ vH,
O / 'i
̂r. t r> — • \ '-i■ ».
0/7; 1 “ I
'- ~"1 Rro*h°rbood of Teanste*-? ,«tc.
Assoc. *'artlinisC3EAerosoace sorters
' V "
/3.0 -
21/7 5
,0/75
"Ho /l ~ -1-9 ̂sUS. _ : 5 j J r ar Railway Sun r > As sn ,
' V n ^ r c a n 1a i l vav Suprs»Assn
/ 3 / - r ed~ ̂a
IT“
O 2rr* 1 can
' O 11 a : Iroad y a ran ’ ^ te rs ot Aurserxca
/ 3 / 7 c
/l/'s ' i l e d
.r- ted 7 -rsnsportatlon Union
O /'A
' 3 / ' 5
7 J T T
' 3/~5
~ i led
I n - a 1 51' _ __ _ _ _
___ ___'■ *7 Unit :d T ran sp o r ta t io n Union
^ 0 3 1 , U n i t - 1 " ---------
»• ' ^ 3 4 •• » " n------
od iSjOP _ arotherhood Af R s i Iw av ..U r lin eA S F e7r shio e'' i • •• a! nr ■ .; —— — ■ !------
"t I - s l odge 15~', Brothereoorf of Rat lvav bignaiHaflT
./ 3 I- < •*; ̂ aH Trar,-o.Cocri’• n7caition D i v i s ’ on et~TT
-nn1 54ia_Ca:f: Pd ..rrar.soortati»w tTM-m
-ftrontd pi 7)
Ar?
1 _ ;T*VvA Hi ■
; CIVIL DOCKET t-p r i — 1 ~ . w t**-* -U LAi
DATK riUNOS—rHDCCJtpSNQJS
AMOUNT *CPOATCD IW IHOLUMIWT RETURN*
2/13^75 [F iled ANSWER o f Dcf t . In te rn a t iona l Brotherhood o f Teamsters ^ w&c
7/7 / n S - S l A D .....'
FIT «d d e f t *s H o tic * t o iaJea depos it ion /deft. T'.- T. RR.l
r
1
' SPSTSWSLtt r - 1
3/27/75,'"
ox i |
F iled A f fd v t o f Richard R.Stokes fo r Deft.LIRR C o .in oppos it ion to p l t f f * s
V / f 7 i motion fo r pre lim inary r e l i e f . i
1/37/75 F fU d A ffdv t o f Edvard J.Zeman fo r 1.TRR Co-fn aw am lH on to a 1 f f f « a. bm=Uv
1
W - ...j.....
fo r p re lim inary r e l i e f . . _ ...______________________ ... * . ‘
4/4/75 F iled A f fd v t o f Richard H.Stokes f o r D eft URR Co. in "op p o 1* 111an _ta_p li£ :e ls____
motion to compel production o f document*. 1
Ijt/77/7 5
Express and S ta t ion Employes to p l t f f s .
3/31/75 Filed P l t f f s 1st In terrogs to d e f t . In tn l Onions. ■
4-1-75 F iled " request fo r admissions set l . 1
4-1-75 F iled " in tvrropa *dt 7
-3/^ V/^-i ! - rLlJ- u '>C« fcji'3u- P^ n , ' p y
4/l5/75 F iled Pre-Hearing Ketnorandura in suppcrft o f motion 61 p l t f f Edward V. f
Harris fo r a prelim inary in junction .
6/9/75
by R.W.Strachen
4/16/75 F iled Suppl.Memorandum in support o f P l t f f Howard O u te rb r id je 's Motion
fo r prelim inary in junction . V.
4/21/75 Filed Stlp&Oroer extending time fo r p l t f f t o answer to in te rrogsv tr i t | - - 1
*• • to' 5/30/"’ 5,Gapliardi .J ' ’
4/17/75 F iled Memo End.on motion o f 4/17/75. Resper t f u l l y re fe r red to M»^>4
1
Jacobs fo r hearing and repo rt .G ag l ia rd i .J(mn> / A ■ < .
, 05-06-75 .. Tiled L e fts Response to Pltffs 1st interror-,.___:__ ___z+ 1 • * ' ■ .
05-22-75 F iled ANSWER L e f t .LIE Co to inf.Tr^r- tt I ■ •
06-30-75 F i l e d p l t f f s . 1 n o t i c e o f m o t io n r e ! o r d e r i r e p o s in g s a n c t i o n s ; , e t c .
r e t : 7-8-75. • !
06-30-75 Filed memo, i n s u p p o r t o f th e m o t i o n b y p l t f f s . for aactiona - j
e t c .
..Q7-..1S-21 Filed Answers o f Deft.Brotherhood to f R«1 IveyAAirl i"e to pltffs
1st in terrogs to d e f t . In te rn a t io n a l unions.
0 1 K-• an » Vi U» F iled Reply o f cer ta in Union Defts .Reply o f c e r ta in Union d e fts to p i t
motion to compel answers to in te rrogs .
07-25-75 F iled P l t f f s answers to Brae In te rrogs . 1
—
J . f ,
d.c. 110 (contd pg 8 )
W ' -
> •
L W
72 C!▼. 3168 FRANC2S JOY_ CAP ERS _ET_ALJ/S.L CW.3168
ll'-if- . , 3 - r S C C S I D I N G *
pr. a
? 5 Flleddeftj^apaverj to, 1st. interrogs.to-local s-of&RAC
09-17-75__ FI lid P_lt£t!s.Order, to-Shaw Cause for. prelinUnary— ln]um:tioar'i,»mporary -
restraining order and to expedite discovery ret.09-24-7S.GagllardltJ.
hIL _hY_ 6i
[-0; ' iFiled OPINION=J93357 .Court at this juncture must deny not LQn̂ pendî g_iiffarJ_ng-c>a-L
sharply controverted factural_issues
f ^ d Sroxiacagt d 3>»gpid of pigcwdirgs. dated
■i9-'
So OrderedtGaglLtciJUl^iml.
’r_l9riL/_
Tiled Deft1s Notice to take deposition of lioward Quterbrl'lge . ___
f«^d " ____ ____ l_.!Ll>aU^^Cherxy^i4ie__Eiay4-
v nri= -• -r
' irLOzOjIH.
i: n z2 » X^e3 transcript of record of croc&edfng3; dated A . . . d _
' ? ' * a / f / / y
03-09-76 Filed Pltffs notice to take deposition of Deft.TLong_I3 land Railroad,
,c 3 ^ 7 7 i'S'lsd tron̂ crist ci :?.r:I V . A - . —________ ——
—J
09-08-76 Filed Pltffs document_requ5 st to dsft•.
0 5
« le d transcript of record of 7ro~,ny*dtr ;-r:. : •!~‘ '■__fZ ? _ '5~Ẑ L
riinssring'-,
-06-75 F i l ed ANSVIR o f Def t .
ri! 2- -/^ cl
JDi.!.
C
; - | !oy-admissions*
07-26-76 Filed M notice_o£ iepositin of.deft.
•97-26-76 Filed " " __________ Harold J.Pryor
07926-76 Filed Deft.United Transportation Union request for production of do Quasar... *
07-26-76 Filed ** " " " ___” _ Def t.LIRR produce and parmlt such
.̂ 2
" United Transportation Tlnion ,or attys to inspact© »
=rr'-rf-c Z'— _-_-___ __-?=g-gHlAL.<!Gff?=R3WS- r=v3-
03-23-7 6 Filed pltff s notice of d epo sicion of Harold J.Pryor.
’ .-ilea _n o tice _ m take __ _ ot d e 115 / p t: o t n e r D 0 o a or ttai i 2 v ..Al.rl ineoAtf
<ilarks,r re i gnt nann Lars, ~xp re 5 serration Employees Local Lodge i-io.JU/ar&unrise
ansnl;
Local rtO.'iU
u - ' - z s -/o r u e d r i t r r s ..otice ot pendency ot c la s s a c t ion .
Oct,.? 2-7 6_ Filed Pltffs' re guesJL_f2x_.pxc.iu ot ion .of—drummejita-— — ---- — — _---- -—
. -03 -7 6 F i le d ** a f fd v t6 notice o f motion fo r an p_r.de C_disjnis_^ng^«;__tiptLjd_SJl_EitiuilZL
as against deft.Local 1934 United Transportation Union and amending summon3 .corapl.:
& all papers on file by striking therefrom neme of Local 1934 tunl :ed Transporter?
Union as daft, ret.11/16/76,4:00P.M.
11-03-76 Filed Plttf3 Memorandum ot Law in support of motion to dismiss.
DAT®
A -9
■ • ̂ v* _ v i
PROCXEPINGB
_____
.1-15-76
LLiliJLL.
Filed Affdvt by Laurence H.Rubin for fleft.̂ n opposition to pltf f.sVmnLlntt- to. d is-
tnlss complaint.
11=15=26— Filed Memotandutn of Law on behalf _of United Transportatian Union ,an unincorporated
___ gjj£0elation 1 n opposltion b pltffs motion to dismiss pltffs complaint as tolocal 1934,United Transportation Onion. __ __________ ____
!i-21=26
771
LU19.rJZ£_
11-19-76
11-22-76
Filed Affdvt by Donald E.Lanpson for pltff in opposition to pltff's motion permittin
jyo liinlaxy. d i $mi s.s al_, e t e,
portation Union from 11/16/
Filed Deft's
-guesls- for..admissions..
-irnlons— i-n— fee—121i+UILL̂ S- deft..____________________ __
■Ilr.22.-76_
-11=22=21..
Filed affdvt by Kevln P.Oui11_for defts in opposltion to pltffs motion dated
11/1/76 seeking an order to disciIss this action with prejudice as against
Local 1934 pursuant to Rule I5(a)216.41(a)(2) ,
-111 ed Deltr..Mgcor.ajiduim-cd2Lavc.
FUpH ". «dd1.answers to pitffs*combined set of interrogs.document recuests&requests
11-23-76
f1-30-76
11-30-76 Fid
for ad.ni s-slgp.s.Filed Pltff's notice of deposition of Penn Central Co..Issued Subpoena. _Fid Answers to Pltff! 1st interrogs by Sheet HetaT~Wofkers7lntnI 7.ssn IocaT2TtTion 13?
" " " " " "American Railway SupervIsors’TSssn Local LodgekeT:'
12-02-76 _El<L£ltfI.,5. _no ti C£....tQ .. take _d epos i.tlnp nf- .Amt rakyLuhpa&na—i-snued,/ 7 .. .■ c i y‘4 \.m *■ . i ~~ —'
-12-01=76
.12-03=72.
12-03-/6
12-03-76
J2.716.-26
£ld_ArLsiccjcs_XLf--deft. Local 1934. United Transpox fa ti or, _Un ipn_t°Pit ffs’lst intrrrog.Fid "_ " f’___" 64ri(vhi rh Includes 'I7A6645R) United Transportation Union to__
ElxfJLslLs t _i nt cxr.ci
T) d - An s.wr r_r_. of . n e fl_ Loco 1.2121 PI t f f s • I-frt -ir-t erregr-- T. U,— to - com pi a ino.iJi-/73WFF_j2_ rief t s .locals 671,31 7A,63fl 2-8312914..
-i—Fled Reply *ffrivr of Fnnal d ’i. Hrrshkovi t? for pltffs in support 'of pi tf fs’notionI fox an o-r.dcx.. _Ln_di_sm.ixs... th i s, .ac t i£>n_._
H2rQ6j2fL-_Eld_Eltf£= 21m ] ox a ncu C-.oi2L ek.. 1 rv-s up p c r.L_cif..
12=216=26 Eldllmarauduis of Taw on beha_lf.p£__Peft.Long Island Railrosd Company.
12-28-76
01-14-77
-01.-1-4-77.
01-14-77
01-23-77
01-23-77
-Q.3.21-.7 7
-OJS.rDJ_
Jtr£necripu.2 )fL.xe.cnrd.. D2 _proceeding£-^_dai6ad.L.
___Dec ember 1 0 ,1 .1 ,1 a ,’! 5_, lb.7 . 6 _______
JLiled_Pi tftl.s_.notlce oL.appearance4dctcand_»..
Led_PLtf f .John _Di&gs .notice ot. Change of situs, of exsro__frpffl.liiAZ77j2:_00JP.H*_
___ to same time but to be held- at offices of deft.LlR4Oeneral_CoyB.sel_'a Dept.
.Jamaica Station,HY_
Filed Pltff John Duggs request for production of documents&records.
Filed Deft's Brief
_Filed. Fost-Hearing Memorandum in support of motion of pltff Edward E.Harris for
________Preliminary Injunction. _______ _________ _________________ ________
C+'OS
— Pried 261 tff Is- not±r.c_to -take deposition. of . w
f— traJiFGTipf-Gt- r&c-ord-ol x m : d a ted 7. - ? 7/-
- 2 - ~~>u. w uUoa.. <? .___
Railroad.
A ‘ . -.n * , — .1 r--- e a.* -71̂ — ~ / 3 c) —' / £
- Q-,C|-T|r< T t - - . i — f ;- Tty4 / = ' / JT _ "7’ ^
.6 .r <__i___,_____________________
XI.'.j— _____.J_2.__ _________aC> /
*- - / y - ^
n v---^ S
D. C. 10n Chrnlml Ct,ntinu»Urjo Sh<-tt
(cont d over)
PROCEED TNG3 f\-ilO
77 PILED OPINIOH#4578Q._Court Las found tfatt pltff was not deprived of 14th inw»r>f4mT̂ y
©u«~process-rights.because ©f-LIRR's-failure to- granthi» hearing.Therefora,-- -
torr-is denied in alt TeapectS-So OrderedTp-ltf fJ 3- tno
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-77
to the class and runner of notice. not
Fiied 1 e^ter_ cated_ Ju 1 v _28A.1976 from plaintiffs to all counsel informing rh^m of T.,iy ;
hearing before Judge Gagliardifre; notice to class)
A-ill
: K .IK D STATUS DISTRICT COURT
; soutjieri; ' d is t r ic t o r ijsv; yorx
I’RA:ICES JOY CAPERS, et al. , each :
individually end on behalf of all
, other persons sinilarlv situated, : 72 Civ. 316S {LPG>
f- Plaintiffs, :
r -against- : ORDER TO SUCH CAUSE
t LOh’G ISLAUD RAILROAD, et al. , jk:
Defendants. :
I
I
ii
;i
Upon the annexed Affidavits of Thomas McGanney, Esc.
. i* and Edward E. Harris, sworn to August ?i, 19 74,I i
| And it appearing to the Court tnat auniuadiate and ] .* \
' irreparable injury', less or damage will result to plaintiff ! ■
I if Reward E. Harris if defendant is not restrained frcca raraov— 1
| ; Ij ino said plaintiff from his position of Assistant Station
I 'f: Master in that he will be unable to re-attain that position ;
I i
[ once having lost it, and it further appearing to the Court
I, . I, that counsel for plaintiff has complied with the notice re
quirements of Rule 65 of the Federal Rules of Civil Procedure,
i . {;It IE ->• !
't ORDERED, that defendant show cause in Room 5&(,of the
LUnited States Courthouse, Foley Square, Borough of Manhattan,
S ■ ̂ * XooP.M. 1
Q, ; City of Hew York, on the 53* day of August, 1974 at 10 A.-r.k> I;;; • \ or as soon thereafter as counsel can be heard why an order
| : I: should not be entered herein pursuant to Rule 65 on rule of!i |
’ the Federal Rules of Civil Procedure for a oreliminary injunc-
‘ ii . ‘ Itior. enjoining during the pendency' of this action defendant* ' i
.'and their officers, agents, servants and employees and all
! ■ ) I ■ t$ i
i
A rlZ
(?■<
persons acting uidor their control and each of then from
removing Hr. liarri3 from his present position as Assistant
Station Master, and it is further
ORDEHFD, that pending hearing an d determination of
said notion, defendant and its officers, agents, servants
and employees and all persons acting under their control
and each of then are temporarily restrained from taking any
action to remove Mr. Harris from his position of Assistant
Station Master. ary-nrcstraining ''order Ts >;-• ■’
upon the condition that plaintiff file an raking for
a bond as required by Federal 5.ul*££ Civil Procedure 65(c)
in the amount of for the payment of such
cost and daraSges h at may be incurred or suffered by any
party i.** romxr~tro bTr~vrrmT^jTTrHy eh^dhod ox
Sufficient cause ai-'pesring therefor, service on defendant
of a copy of this Order to Show Cause, together with copies j
of the supporting papers on or before the asj day of August,j #.4- iv.oo®/**.
1974 ̂ shall be deemed sufficient service.
fet &.cJUaJI„
U.S.D.J.
J
'A-ilJ
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
FRANCES JOY CAPERS, et al., each
individually and on behalf of all
other parsons similarly situated,
Plaintiffs,
-against-
L013G ISLAND RAILROAD, et al. ,
Defendants.
72 Civ. 3168
(LPG)
AFFIDAVIT
STATE OF NEW YORK )
COUNTY OF NEW YORK j ss. :
THOMAS KcGANNFY, being duly sworn, deposes:
1. I am a member of the Bar of this Court and
of the firm of White & Case, attorneys for FRANCES J O Y -
CAPERS, et al., each individually and on behalf of all
other persons similarly situated, plaintiffs in this
action. I make this Affidavit in support of the annexed
Order to Show Cause and Temporary Restraining Order, and
in compliance with Rule 65 of the Federal Rules of Civil
Procedure.
2. Plaintiffs seek their Order to Show Cause
before this Court as the Honorable Lee P. Gagliardi, to
whom this action is assigned, is currently on vacation.
3. The relevant facts are set forth in the
Affidavit of Mr. Edward E. Harris annexed to the Order to
Show Cause. The Affidavit states that the defendant, in
retaliation for Mr. Harris' suit against the defendant and
as a further act of discrimination against him, has removed
o
him from his position of Assistant Station Master on the
grounds that he failed a certain written examination al
though, on Jlr. Harris's information and belief, such pro
cedure has never been resorted to with respect to wnite
employees similarly situated.
4. I have been informed by Richard J. Hoiweil, Esq.,
an associate of ’<hite £ Case that discussions relating to
this matter have been carried on between Lawrence Rubin,
Esq., staff •tterney for the'Long Island Railroad, represent
ing defendant and Mr. Kolwell, representing Mr. Harris. On
August 22, 1974 when Mr. Rubin indicated that defendant
would not reinstate Mr. Harris as an Assistant Station
Master, he was advised by Mr. Colwell that plaintiff wogld
apply to this Court for a Temporary Restraining Order at
10:30 a.n. on August 22, in Room 506. 1
5. Ho peevious application for this relief has been
J. MICHMTL BROWN
KOTAKt ►nj'illC. nTM‘ fit .itW YORK
Ho. 31*4 0>2i>4
Quatilied »r>Ntw io<k County
Ctmrntsj.tn tipifti jO, i97S
made
Sworn to before me this
fiSj day of August, 1974
J
A-:15
UNITED STATES DISTRICT CO'ViT
SOUTHERN DISTRICT OF 1TSV? YORK
FRANCES JOY CAPERS, et al.,
each individually and on
behalf of all other persons
similarly situated.
Plaintiffs,
-against-
LONG ISLAND RAILROAD, et al..
Defendants.
i
t
*.
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t
t
t
X
x
72 (LEG) Civ.
31G8
AFFIDAVIT
State of New York )
t
County of New York ) ss. t
EDWARD E. ILARRI3. being duly sworn, says*
1. X am a black citizen of the United States,
cuid an employee of defendant. Long Island Railroad (the
"Railroad"), and a member of a class of plaintiffs
bringing this lawsuit. I make this affidavit in support
of my motion for a temporary restraining order restraining
the Railroad from future violations of icy rights under
Title VII of the Civil Rights Act of 1964 and ordering
the Railroad to reinstate me in the position of Assistant
station Master,
2. I have been a steady employee of the Railroad
since I was initially hired as a mail handler and
soon became an usher which position I remained In for over
12 years without permanent promotion. The position of
“Tf
*’ <
r
A'il6
usher is the top union job in the line leading to the
job of Assistant Station Master ("ASM") which is the
first management level, nonunion job. During my many
years as an usher, 1 persistently sought promotion as an
ASM. This position had previously been an "all-white"
job as had been all management positions at the Railroad.
The Railroad and its personnel with equal persistence
sought to continue its policy of excluding blacks from
the position I sought. Among ether contrivances, the
Railroad required me to take a written examination that
theretofore had never been required of other applicants
for ASM. Thereafter I was required to meet certain regu
lations involving work-training at all the Railroad's
terminals which "regulations" were not in force before
or after I sought assignment as an ASM. Even after X
satisfied all the previously unknown "objective" standards,
I was still rejected because of my "personality".*
3. I was finally qualified as an ASM in November
of 1968. I continued to work as an usher, filling in on
temporary vacancies in ASM positions as an extra ASM.
Even when functioning as an extra ASM, however, I received
♦During the period that the Railroad refused to promote
me to ASM while whites with far less experience and
qualifications than I were promoted to the same job, I
filed complaints with the New York State Division of
Human Rights. The Division dismissed these complaints
and, upon the advice of my attorney, I sought relief by
bringing charges with the Equal Employment Opportunity
Commission. On July 16, 1973, the Commissiongiving
substantial weight to proceedings before the Division of
Human Rights, determined that there was reasonable cause
to believe that the Railroad had violated Title VII by
excluding myself and blacks as a class from management
positions. (See Exhibit A.)
A)17
*
less pay than other ushers performing the same extra ASM
function. The Railroad "corrected" the situation by
prospectively lowering the rate for all extra ASMs. The
Railroad refused to promote me to regular ASM until
November 29, 1972. . By that time, four whites had been
assigned as ASMs ahead of me. Furthermore, I had been
working fulltime as an "extra" for over eight months
covering a permanent ASM job that had been left vacant
all that time. The facts concerning the Railroad’s
continuing campaign of blatant discrimination are set
forth in the Determination of Reasonable Ouse by the
Equal Employment Opportunity Commission on July 16, 1973.
I have attached a copy of this report to my affidavit.
4. Now the Railroad is again seeking to intensify
its campaign of discrimination and retailiation against me
by demoting me from my permanently assigned ASM position
ito that of an usher on patently spurious grounds. The. t
Railroad’s past discrimination in refusing to promote me
ito an ASM position is the subject of my initial complaint
against the Railroad which has been brought in the form
of a class action. It is the dilemma of my recent demotion
on retaliatory and discriminatory grounds that brings me
|
to court at this time. The facts surrounding this most
recent incident are set forth in the following paragraphs.
i
5. It is the practice of the Railroad to re
quire certain of its employees to periodically attend
i"Book of Rules” classes for the purpose of reviewing the
operational aspects of the Railroad that are within the I •
scope of each employee's job. The pertinent information
I
I. \
. ' • t
- 3-
A-jlS
is set forth in a publication entitled "The Book of Buies".
Since I have been qualified as an ASM I have attended
three such classes. The first class was given seme time
in early 1969 shortly after my qualification as nn ASM.
X next attended a Book of Rules class about three years
ago in the spring of 1971. The last such class X attended’
was held on Wednesday of thi3 week, August 21, 1974 and
resulted in my demotion to the position of usher.
I
6, The first class I attended was conducted by
!
♦John Gjtggjt $ fclio of Rules * examiner1* Th@ c Xqss was i»attended by fifteen or twenty other employee® of the j
Railroad who held various jobs such as trainmen9 block
i
operators# conductors# and so forth. Xn conducting the i
class, Mr. Greer would address certain questions to indi- i
viduals ir. the group that doalt with subject matter rela— !I
tive to that individual’s position with the Railroad. For
I
example, tho fow questions addressed to mo wore related to
administrative aspects of the Railroad’s operation. The
class was conducted in an informal and friendly atmosphere
and Mr. Groer used the questions and answers in an instruc
tive or educational manner. That is, ho would generally
take a given answer and would expand upon it or clarify it.
In situations where individuals did not know the answer,
he would either explain the answer himself or turn to
another member of the group for the appropriate answer.
During tho entire period, no references wore ever made to
j
marks, grades, examinations or anything of that cort. Mo j
test was ever givon, no grades were received and no one
pacsod or failed. As X indicated, an individual who did
4-
A
not know the answer to a question or gave an improper
answer was sinoly instructed by lx. Greer as to what was
in th© Book of Rules on that particular subject. ' At the
end of the session, tha class was simply dismissed.
7. The format of tha second Book of Buies class .
was identical to that of the first. However, instead of
being attended by employees from di cferent areas of the
Railroad, this session was attended only by ono Station
Taster and throe Assistant Station rasters. As I recall,
a fourth Assistant Station raster, Ralph Dias, sat in at
the class for his own personal edification. Th© class
lasted for the same period of time, or from about 9 jOO a.ra.
till noon. I'x. Greer continued his procedure of using
questions and answers as a method of refreshing and up
dating our knowledge. The only difference I recall is
that Mr. Greer restricted his questioning to subjects
that were more related to our specific jobs as Station
Master and Assistant Station Master. Again, there was
no question of anyono taking an examination. Rather, the
class was administered in the same instructive and educa
tional manner aa the previous class. Ho tests were given,
no narks or grades received, and no one passed or failed.
If an individual did not know the answer to a question,
Kr. Greer would simply seek the answer from someone else
or elaborate himself on the subject.
0. On July 22, 1974, I received a handwritten
notice from Kr. J. J. Gnynor, the Terminal Superintendent
directing mo to attend n third Book of Rules class on
A 4 2 0
%
7*ugu3t 1, 1971 at 9*00 a.m. at Jamaica Station. VJhen I
received tho notice# X irirr.ediately vent to .G**vak to Kr.
I#ou Rizzacasn, the Terminal Trainmaster at Penn Station,
and asked bin if it would bo possible for r,e to attend a
different class. X explained to him that X worked tho
night shift fzons UsOO p.m. to 7 tOO a.ra. and that it would
bo somewhat of a hardship for re to attend a class in the
early rooming. X stated that I felt I could got roar© out
of such a class if X could attend on on© of my days off.
Kr. Kiczacnsa advised re that this would not bo possibl®
and g o on tho rooming of August 1st, I traveled t o Jamaica
Station after finishing my assignment at Perm Station at
7 *00 a.ro. As I arrived about on hour and a half before
the class was to If eg in, I bought a cup of coffee .and sat
in my car to wait. Having just gotten out of work, X was
fatigued and fell asleep in my car. Upon awakening at
about 11*50 a.n., I realized that X had slept through
the class and returned hone, having decided to advise my
superior of what happened that evening when X went to work.
X reported to work at my usual time that evening, and was
advised by Robert Partridga, the Stationaaster, that he
had been directed by Mr. Rizzacasa to send mo homo. ’.Then
X asked why, Kr. Partridge replied that he did not know,
that ho was just doing what ho was told to do. V?hen X
asked if X was to come back to work the next day, Kr.
Partridge advised roo that ho did not knew, that I would bo
contacted by Jamaica Station. Realizing that there was
nothing I could do, X roturned homo. This was -idrioroy night,
- 6 -
9. It was not until Monday rooming, August 5,
19 7", that I received a call from the Railroad. ::r. Charley
O'Brien, the Assistant to the Terminal Superintendent,
called mo at 7:90 a.n. and ordered mo to rexxirt to kelson
j
Steele, the Assistant Superintendent of Passengers, at.
Jamaica Station at 10:00 a.is. When I arrived to see Hr. * ,!
Steele, he advised me thfet they were aware that I had missed
the hook of Pules class and on this basis had assumed that
I was not going to handle rry assignment that night and brought
in another man. I adviced lir, Steele that there i3 a regularI
procedure whereby a man who ig not going to cover his assign-
imenu calls in and so advises the Railroad. I said that this j
iprocedure had always been followed and therefore there was
no reason to call in a new’ ran to replace me. Mr. Steele
advised mo that he considered the Book of Rules class to be
an "assignment" and on this basis ordered in a replacement
for me.
10. After returning to work, I received a notice
. |on August 3, 1974 from Ur. Rincaeasa who directed me to
attend a Book of Rules class to be held on August 2?., 1974. i
Although this was again scheduled in the early morning
|
following my all-night shift, 1 knew that it was useless to
attempt to hava it rescheduled. Prior to attending the class,
I had the opportunity to speak with a fellow Assistant
• * . j
; Station Master, Ralph Dies who had attended the class on
; - '' ‘
August 1. It was apparent from my conversation with Mr.
*Dias that the class he attended was identical to out prior
i! .classes, That is, the material was reviewed in a constructive
f| 'manner, no enor.dnations were given, no grades received, and 1
1 . no one passed or failed.
4t-
A H Z
11. Upon arriving for the Book of Rules class
August 21, 1974 I quickly realised that the usual procedure
for the class was going.to be changed that day. As Mr.
Greer was apparently on vacation, a Mr. F. Peters' conducted
the class. I use the word "class* loosely as I was the
only member. After reviewing ray Book of Rules to ensure
that it was in order, Mr. Peters began grilling no as to
the meaning of different signals used out on the tracks.
Frankly, I was completely taken aback by this procedure.
The interprerations of signals out on the tracks is hardly
the type of information that an ASM, responsible for the
administration of a station, has on his finger tips. As a
result, I was unable to answer many of the questions cor
rectly. After continuing this interrogation for
about a half hour, Mr. Peters left the room for a few
'imoments, and upon returning, told me that I was now to take
*a written examination. The examination that Mr. Peters i
gave me covered a wide variety of topics such as signals,
duties of a conductor, the equipment a opcrcTur should
carry, and so forth. 1 admit quite readily that 1 was i
totally unprepared for any type of examination and the
results of the test reflect this fact. I
12. After 1 completed the examination Mr. Peters
graded the exam in my presence and then turned to me and iIsaid: No, no good. Come on we will have to go up and see
I
Mr. Steele." Mr. Steele advised me that I did not pass the I
* I should point out that I had already passed a written
examination in 19GO in order to qualify as an ASM. As
I have indicated, this examination was instituted only
after I sought to attain the position of station master.
- 8 -
a m
the test, and that "va can't have that." He then advised
me that he was going to reduce re back to the status of
an usher and that I should go to see the Station Master for
an assignment. I was advised by Mr. Steele that I could
be restored to my former position only if £ were to pass
another written examination.
13. I have been a steady employee of the Railroad
for many, many years and have suffered a great ajaount of
abuse during this time. 'The P.ailjpoad new seeks to further
humiliate me by denoting me from the position of A T ,• a
position which I struggled for many years to achieve. I
know of no other situation in which an AS” or Station
Master has over been forced to take or pass a written exami
nation on the Hook of Rules after qualifying for his position
14. As a result of this disparate and obviously
discriminatory treatment, I must now go back to work as an
usher at a significant reduction in pay. In addition to the
loss of money and the humiliation is the fact that the Kail-
road may attempt to fill my position with another employee.
Once this is done, of course, the Railroad willhhavo raised
yet another barrier to regaining a position that was wrong
fully taken from me. Lqually unjust is the fact that I
am once again being faced to meet standards and pass exami
nations that have never been required of any Station Master I
or ASM in the past.
15. On the basis of this affidavit I request
the Court to order the Railroad to immediately cease its
continuing discriminatory and retaliatory tactics against
i. *
-9-
P * s u
no and to irrjedictely reassign ro to cy forcer position
as an ASH.
(S/ l -
Kuv/uxcl t . Ltirx ifi
Sworn to before no this
X U day of August/ 1974
J. MlCHASt B~y,VN
"0 T«y ttlJUC, STATI cf stw tsag Ma. 3S4S322M 0®tt»‘««»u^r0rtCeiisty^ jj-jj
CERTIFIED MAIL £299154
£299155
C/P
R
yV 1VPLC,vNr
%1Y CO
E Q U A L EM P LO Y M E N T O P P O R TU N ITY COMMISSION
NEW Y O R K D I S T R I C T O F F I C E
24 F E D C R A L P L A Z A , ROOM 4002
(A* F o i « y Square)
N E V Y O R K , NEW -YORK 10007
. 264 - 3840
Edward E. Harris Charge No. TNY 1-1259
187 - 15 Nashville Elvd. . Case No. YNY 4-004
Springfield Gardens, New York 11413
y e . Charging Party
Long Island Rail Road
Jamaica Station
Jamaica, New York 11435
Respondent
DETERMINATION
Under the authority vested in me by. Section 1601.19b (d) of
the Commission’s Procedural Rules, 29 CFR 20165 (September
27, 1972), 1 issue, on behalf of the Commission, the follow
ing Determination as to the merits of the subject charge.
Respondent is an employer within the meaning of Title VII of
the Civil Rights Act of 1964, as amended, and the timeliness
and all other jurisdictional requirements have been met.
Substantial weight has been accorded the findings of the New
York State Division of Human Rights.
Charging Party alleges that he was denied promotion, first as
an "extra" then as a permanently assigned Assistant Station
Master (ASM) because of his race (Black).
The record shows that Charging Party sought this assignment
for over 5 years from August 2, 1967 until his permanent
appointment on November 29, 1972.
The record shows that in his efforts to he promoted Charging
Party faced numerous obstacles and discouraging incidents which
either deliberately, or through extreme coincidence, were not
faced by Caucasians seeking the same positions. These included
t
*. »
6 * H ' e> « T ” k
I
Long Island Rail Road
Case No. YNY 4-004 Page 2 I v
a written test required for Charging Party but not for
X those who had previously been qualified as an "extra"
̂ institution of a regulation that one must
be qualified to work at all three principal terminals
•1 before being permitted to vork any. This "regulation"
1 docs not appear.to have been in force either before or
\ after Charging Party sought his initial assignment.
The record shows that Respondent had no publicized estab
lished system of posting vacancies, accepting bids or
determining who should be selected for permanent assignments
bc>ond the subjective judgment of management. The record
!nC7 S- v e,.reaSOn cited for Passing over Charging Party was that the Caucasian official making the selection felt him
lacking a take charge” personality. The record shows
Charging Party s work as an extra ASM to be as satisfactory
S® * , d \ thC Caucasian extras and, further, that Charging
. Iarty “ad been 3 satisfactory and reliable employee of
ent.^or ^ar longer than many of the Caucasian extras and that his original craft was one which traditionally
furnishes the A.S.M. candidates.
The record shows that at least four Caucasians were permanently
assigned between the time Charging Party first sought and
tinaily received the position. The record shows that the slot
barging Party was ultimately appointed to was left' vacant
from Larch 16, 19.70 until November 28 , 1972. The record shows
that Charging Party functioned in this position as an extra
■ca a virtually full-time basis from May 19 71 until his
appointment, and that he "held down” the position from March .1,
i-vn. The record docs not show that Respondent regularly
requires extra ASMs to work and/or "hold down" a position for
,UC a on8 period of time prior to their permanent appointment;
further, the ASM position had been an all "Caucasian job"
historically; with respect to both extra and permanent
assignments. The record shows that for a prolonged period
arging Party was paid at a lower rate than the Caucasian extras
and that Respondent "corrected" this by lowering the rate for all extra ASMs.
Long Island Rail Road
Case No. VNY 4-004 Tage 3
The record shows that Charging Party's complaint of race
discrimination to an appropriate state agency became
"common knowledge" among his co-workers and supervisors.
The record does not indicate that it was Charging Party
who made this information "common knowledge".
The record shows that Charging Party is the first and only
Black to be a permanently assigned ASM. The record shows
that approximately 20 other persons hold or have held this,
position since 1967.
The record shows that the ASM position is considered a
management position. The record shows, as of April 1972,
that fewer than 01.2% of Respondent's 267 managerial and
fewer than 04.6% of Respondent's 559 office and clerical
employees were Black although at the same time nearly 12.02
of Respondent's total work force was Black.
Based on the foregoing I conclude that there is reasonable
cause to believe that Respondent violated Title VII as alleged,
and by restricting Charging Party and Blacks as a class
generally from management positions.
Having so determined the Commission now invites the parties
to join with it in a collective effort toward a just reso
lution of this matter. A representative of the Commission
will be in contact with the parties with regard to the
settlement of this matter.
On Behalf of the Commission
J
0
w /17 a - 4 $,iS-W,V
UNITED S TA TE S D ISTR IC T COURT
SOUTHERN D IS T R IC T O r NEW Y O R K
TR AN C E S JOY C A PE R S , et. a l. , .each
individually and on behalf of all other
persons s im i la r ly situated,
P la in t i f fs ,
-a ga in s t-
DO MG IS LA N D R A IL R O A D , et a l . .
Defendants.
72 C iv . 3168 (L P G )
A F F ID A V IT
S T A T E O F NEW Y O R K )
t C O U NTY OF QUEENS )
p s . :
>o mt cn\i i 1 D r rrr i> c u, ,1- A —
I ani employed by The Long Is land Ra il Road Company as
Supervisor - Transportat ion Rules and P r o c e d i " e , and 1 make this a f f i
davit in opposition to p la in t i f f 's motion for a p re l im inary injunction seeking
to enjoin The Long Is land P.ail Read Company from rem oving p la intif f from
i
his position as A ssistant Station M as te r (ASM ).
A s Superv isor - T ransporta t ion Rules and P rocedu re , I am
responsible for g iv ing both in it ia l and pe r iod ic examinations to a l l em p loyees
whose duties per ia in to the operation arid m ovem ent o f tra ins. These
period ic examinations a r t g iven at least e v e ry three years to a l l T r a n s
portation Dcpa itm ent personnel and a l l such em p loyees a re expected to
bo h in it ia i ly - iu a l i fy and pe ns an examination on the Book of Rules and to
maintain ouaiif icutions on the Book o f Ru les . Em ployees ir. m ore respon s i
ble. po sitior.s are tested m o re frequently as recurred fo r the safe and
V..
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effic ient operation ©-r tl'-c Ra i lroad . The p rocedure fo r g iv ing the per iod ic
> *
examination consists of o ra l d iscussion on the Book o f Rules in o rder to
determ ine, genera l ly , the em p lo yee ’ s knowledge in this a rea . In m o s t
cases, this d iscussion is a ll that is r equ ired , since usually in the course
c f such discussion the em p loyee is able to demonstrate his competency on
the Book of Ru les . H ow ever , i f the ora l d iscussion revea ls that the e m
ployee is un fam iliar with a number of the fundamental aspects of his job,
I w i l l , as a matter of course , adm in ister a m ore fo rm a l written exam ina
tion in o rder to determ ine his competency. ,
On August 21, 1974, M r. Edward Ha r r i s a r r iv ed for his per iod ic
examination. During m y ora l d iscussion, 1 was shocked that the answers
of a man, who had reached the m anager ia l leve l o f responsib il ity , coulc be
of such poor quality. Some o f the m ore g la r ing areas of incompetency w ere
fa ilure to r ecogn ize a stop signal; fa i lu re to recogn ize a stop and proceed
supnal; and lack, of knowledge of speed reon ired on a stop and n—noeed
signal.
A s a resu lt of this evidence of h is lack of knowledge, I decided to
g ive M r , H a r r is a written examination in o rder to further determ ine his
competency. Th is is a standard procedure i f an employee demonstrates a
fundamental lack of knowledge in the o ra l d iscussion. The passing grade
on the w ritten examination is 75 percent. M r . H a r r is achieved a grade of
52 percent, and I b e l ie v e he would not have even scored that well i f we had
not p rev ious ly d iscussed seve ra l questions o ra l ly . A copy of the exam ina
tion with M r . H a r r is ' answers is annexed here to as Exhibit A . I then v
in fo rm ed Nelson Stee le , Ass istant Superin tendent-Passenger, o f the un
sa t is fac tory grade achieved by M r . H a r r is on the examination.
0
M r. H a r r is states that the examination was given at 9 a. m. and
he was not given perm iss ion to have the examination changed to a d ifferent
- 2 -
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hour. A l l examinations a re g iven at 9 a .m . and a l l personnel, whether
*
lab o r or management, a r e requ ired to attend at this t im e . M r . H a r r is a lso
states that con tra ry to norm al R a i lroad p rac t ice , he was g iven the e x a m i
nation by h im se lf . M r . H a r r is was o r ig in a l ly scheduled fo r o ra l e x a m i
nation with M r . Ralph D iaz and had M r . H a r r is a r r iv e d on the date of the
o r ig ina l examination, he would have taken the examination with another
em p loyee . By the time he took the o ra l examination, the other ten AS M 's
had been examined, and he was exam ined alone m e r e ly because he fa iled
to appear fo r the p r io r scheduled examination. •
M r . H a r r is im p l ie s that he i s the only em p loyee on the Ra ilroad
who was requ ired to pass a w r it ten examination in o rder to qualify for or
retain a g iven posit ion . Th is i s untrue. A l l new tra in s e r v ic e em p loyees
on the R a i lroad must a ch ieve a passing grade o f 75 percen t on a Book of
Ru les test that i s much m ore d if f icu lt than the test that was given to
severa l weeks into the ir em ploym ent. Many t ra in ees fa i l theses tests and
must be d ism issed f rom the R a i lroad . On prev ious occas ions, Ra ilroad
em p loyees have taken and fa i led p e r iod ic examinations and have been
demoted f r o m their posit ion .
i
In the case of two conductors, E . E . McConnell and J. E . W il l iam s ,
each demonstrated incompetency in the a rea o f the Book o f Ru les and w ere
requ ired to take the w ritten exam ination . Both conductors fa i led the
examination and w e re demoted to the position of t icket c o l le c to rs . Copies
o f their examinations a re annexed here to as Exhib its B and C. The position
*
of conductor, although not a management posit ion , i s a posit ion o f high
respons ib i l i ty , which c o ve rs the safe and prom pt m ovem ent of individual
9
t ra in s , ltj demonstrating their lack of qua li f ica t ion , these men w e re placed
in posit ions where they would not be responsib le fo r genera l public safety.
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A
On prev ious occas ions, train d ispatchers . %vl,o .-re responsib le
fo r the safe and prompt movement o f a l l tra ins , have fa i led ora l exam ina
tions anu have been requ ired to take w ritten exam inations in o rd e r to
continue in their posit ions. Cop ies of standard exam inations that are given
to train d ispatchers are annexed here to as Exhibits D and E. On another
occasion, A . J. Madison, a brakeman, demonstrated incom pctcncy in the
area of the Book of Rules. He was requested to t a ie a written examination,
at which time he res igned rather than take the examination. A copy of the
in te r -o f f ic e m em o noting the fa i lu re of the exam ination by M r . Madison is
annexed hereto as Exhibit F .
M r . H a r r is a l le ges in his a f f idav it that the examination that was
given to him on August 23, 19 <4, did not test the type o f in form ation that
an ASM would be responsible fo r . The questions a re s im i la r to those
g iven during the ora l examination o f an A S M and is a spec i f ic test given to
A S M 's . It is o f such an e lem en tary nature, how ever , that 1 would exoect
a l l Transportation Department em p loyees to pass it e a s i ly . Certa in ly , a
management em ployee , holding a position of respons ib i l i ty such as
M r . H a rr is , who superv ises so many others, should have had no difficulty
with the examination.
Some g lar ing exam ples of the la ck o f Itnowledge include:
1. Question 18 - M r . H a r r is states that the m axim um authorized
speed fo r a train in B rook in ter lock ing is 60 m. p .h . B rook in terlock ing
is at the entrance to the Flatbush Avenue Station in B rook lyn . The m ax i
mum authorized speed is 5_m. p .h . A train going 60 m . p. h. into the
station would probably end up smashing into the bumper block at the end
o f the track causing seve re in ju r ies to both passengers and c rew . An
Ass istant Station M aster qualif ied in Brooklyn must be fa m i l ia r with the
maximum authorized speed in the station and appurtenant t ra ck com plex
/
KO a s to b e a b l e t o ju d g e h o w q u i c k l y t r a in s can be c l e a r e d in an d out o f the
» -•
station, pa r t icu la r ly when delays or mechanical p rob lem s have fouled up
the a r r iv a l and departure schedules when the ASM must make on-the-spot
dec is ions in rega rd to o rd e r ing trains in and out of the p la t fo rm .
2. Question 11 - M r . H a rr is proposes to hang a red lantern on
the front of a tra in. Reel lanterns are s tr ic t ly confined to the re a r of
tra ins and a red light on the front of a tra in would cause a serious safety
hazard.
3. Question 16 - M r . H a rr is is exp ress ly responsib le for the*
equipment of a ll em p loyees working fo r him. In addition to not l is t ing the
red f lag and white l ight so e lem entary to the function of a flagman, he
l is ts torpedos, which have not been used by the R a i lroad since 1972.
4. Question 13 - M r. H a rr is c la im s that the ringing of an
engine be l l ind icates an em ergency , whereas, to the con trary , it indicates
thrt trnin ir rc-dy ^jj
5. Question 9 - In his a ff idavit, M r . H a r r is c la im s that as an
Ass istan t Station M as te r , he is not responsib le fo r knowing about engine
signals. Th is is absolute ly not true, fo r an Ass istan t Station M aster is
requ ired to be p a r t icu la r ly fam il ia r with the four and f ive whistle signals.
The f ive whistle signal indicates that a train needs a ca r inspector and
often this can resu lt in train delays requ ir ing im m edia te dec is ional action
by the ASM . The four whistle signal is notice from the tra in that it is
re^dy and able to p roceed but cannot because of an a dve rse aspect on the
lighted track signal. P a r t icu la r ly in com m iss ion hours, the ASM had bette
take im m edia te steps to find out why a p roper track s ignal has not been
displayed and to get the situation co rrec ted or the scheduled a r r iv a ls and
departures w i l l end up in a chaotic situation.
M r . H a r r is states that a per iod ic examination is m e re ly a
5-
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per iod ic rev iew s im ila r to instruction c lass . However, the nook of Pu les
d e a i i y i Unrs in Rule C, ’’ that em ployees whose duties retjui re thorn *o be
fatrJ liar with the Book of Buies and T im etab le most pass a sa t is factory
exa mi notion within the time spec if ied by the head of the department. E m
p loyees m ay be re-examined when directed by proper au thor ity .” It i s not
m e r e l y an instruction class but a fo rm a l examination necessary fo r the
safe operation of the Railroad.
M r. H a r r is has fa iled to retain the required knowledge of the
Book of Rules. Th ere fo re , in the in te res t of public safety and the w e l fa re
of all em p loyees under his supervision, he cannot he allowed to continue
in h is present position until he demonstrates competent knowledge of the
Book of Rules. Another examination has been scheduled for September 20,
1974.
NELSON D. PE TE R S
S E A L
Sworn to be fo re me this
28th day of August, 1974.
N o ta ry Public
MAPSHA A. JENKINS
NOTASY F'JcUC. 5I**« cl N*” » ® «
Nfr. 30-<S!fcAt4 Qual;lird a, 'liiun C.;;«y
Comfr.i„ion M*ich Jw. IY7A
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U N IT E D S T A T E S D ISTR IC T COURT
SOUTHERN D ISTR IC T O T NEW YORK
--------- ----------- -------------- ---x
F R AN C E S JOY C A PE R S , et a i. , each
individually and on behalf o f a ll other A F F ID A V IT
persons s im i la r ly situated,
P la in t i f fs , 72 C iv . 3163 (L P G )
-aga in s l-
LONG IS L A N D R A IL R O A D , et a l. ,
Defendants.
------------------------------------------------------------------ -------~--x
S T A T E OF NEW Y O R K )
: s s . : . ■'
C O U N TY OF QUEENS )
N ELSO N E. S T E E L E , being duly sworn, deposes and says:
T r" 1____ ,i y .. v , t „ i — r> ; i p ^ _ j -----------y
Assistant Superintendent - Passen ge r , ' and I make this a ff idav it in opposi
tion to p la in t i f f 's motion fo r a p re l im ina ry injunction seeking to enjoin The
Lcng Island Ra i l Road Company from rem ov ing p la intif f f r o m his position
as Assistant Station M aster (ASM ).
i
A s A ss is tan t Superintendent - P a ss en ge r , 1 am responsib le for
the entire passenger operations o f the Ra i lroad .
On August 5, 1974, M r . H a rr is reported to m y o f f ic e . He e x
plained that on Thursday morning. August 1, 1974, a f te r completing his
Wednesday assignment, he intended to report to Jamaica at 9:00 a .m . for
his Book of Rules examination. M r . H a rr is had been g iven at least 5 days ’
notice of the upcoming examination. He did not appear fo r the scheduled
test and explained that he had fallen as leep in h is car outside Jamaica
Station and did not awaken until 11:50 a .m .
itt!
I
! W hile I the] not be labor the point of h i ;» fa ll ing asleep. I did
r •
! question his fa ilure to r c co ju i re h is respons ib il i ty to notify his superiors
of the reason for his not report ing fo r the Rules examination and whether
or not he intended to cove r h is assignment that evening. M y o f f ice is in
Jamaica Station, and M r . H a r r is could have eas ily contacted me after he
had awakened in his c a r . It was explained to him that absent any in fo rm a
tion as to his whereabouts, m y f i r s t concern was the needs o f the Railroad;
there fo re , X ordered his job cove red by an extra man fo r that evening.
M r . H arr is a r r iv e d fo r b is assignment that evening but was sent home*
since an extra man had a lready been ca lled to cover his job fo r the evening.
M r. H a rr is did not repor t fo r twork on August 2 or August 3, and
did not in form the R a i lroad that he would not be in. August 4 was his r e l ie f
day. On Monday, August 5, he a r r iv e d in m y o f f ic e . M y further con ve rsa
tion with him on that day' c o ve red M s respons ib i l i t ies as a m em ber of
payment to him for those days on which he had not p e r fo rm ed any se rv ice .
T )ie discussion ended am icab ly and lie was told to resume cover ing his
assignment. A s far as 1 was concerned, the incident was closed.
On August 21, 1974, M r . Ne lson P e t e r s , Superv isor-T ransporta t i i
t
Rules and P rocedures , in fo rm ed m e that M r . H a r r is ' rep l ie s during an
ora l examination on the Book o f Ru les w ere of such poor quality that he
decided to g ive him a w ritten examination in o rder to further determ ine.h is
' competency. The resu lt o f the test (attached to M r . P e t e r s ' a f f idav it as
ExMbit A ) was that M r . H a r r is ach ieved a m ark o f 52 percent. The
passing grade i s 75 percent.
A f t j r the conversation with M r . P e t e r s , as w e l l as rev iew ing
the examination resu lts , I in fo rm ed M r. H a rr is that I was fo rced to return
him to his fo rm er position o f station usher as a resu lt ol his poor showing
V A-136
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on the cxamiiiatiCn. Th is demotion is normal Ra ilroad procedure and har
boon done in the past when on employee lias failed the exa mination.
I in fo rm ed M r . H arr is th; t.1 would schedule an additional
examination in approx im ate ly 30 days in o rder to provide h im with an
opportunity to rega in his status as Assistant Station M as te r , and I assured
h im that i f he passed, he would be put back in the same job.
That sam e day, a cert i f ied le tter was sent notify ing M r. H a rr is
to repor t for this examination on September 20, 1974. Said le t te r is
annexed here to as Exh ib it A . I f M r . H arr is passes this examination, he
w i l l ge t back his f o rm e r position as Assistant Station M aster . However,
the Ra ilroad cannot a l low a man who has demonstrated such a fundamental
lack o f knowledge to rem ain in a position where the safety .and w e l fa re
o f both the public and other Railroad employees may be jeopard ized .
Since the tem pora ry o rder made on Fr iday to return M r . H a r r is to his
position o f AS M , I have had no'a lternative but to ass ign a second man to
cover his position in o rder to safeguard the public and assure the e ff ic ient
operation of the station.
NELSON E. S T E E L E
Sworn to b e fo re m e
this 28t’n day o f August 1974.
MARSH* A JENKINS
NOTARt FUSUC. S - .‘ . cl N.W Tork
Mo. 30-<S«fc6H>Qo.ia.ci :» Him- chur,T1„I
Comma,.on £ »? “ • » M * rt* 33' ' " 7*
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IN Tin: UNITKI) STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Frances .loy Capers, Vivian Wright, Marshall
Jackson, Edward Harris, Ernest Brown, John
Diggs, Charles A llen , Kenneth Morris, James
Van Ness, A lbert Stroman and Howard
Outerbridge, each ind iv idually and on
behalf o f a l l others s im ilarly situated.
A - 3 S
p la in t i f fs .
Long Island Railroad, a corporation;
Brotherhood o f Railway, A ir lin e and
Steamship Clerks, Freight Handlers, Express
and Station Employees, an unincorporated
association;
Sunrise Lodge #90, Brotherhood o f Railway,
A ir lin e and Steamship Clerks, Freight
Handlers, Express and Station Employees,
an unincorporated association;
Local 0177, Brotherhood o f Railway,
A ir lin e and Steamship Clerks, Freight
Handlers, Express and Station Employees,
an unincorporated association;
Transportation-Communication D ivision ,
Brotherhood o f Railway, A ir lin e and
Steamship Clerks, Freight Handlers, Express
and Station Employees, an unincorporated
association ;
Brotherhood Railway Carmen o f America, an
unincorporated association;
Local 886, Brotherhood Railway Carman o f
America, an unincorporated association;
International Association o f Machinists
and Aerospace Workers, an unincorporated
association;
Local 754, International Association o f
Machinists and Aerospace Workers, an
unincorporated association;
United Transportation Union, an unincor
porated association;
Local 517A, United Transportation Union,
an unincorporated association;
'Brotherhood o f Locomotive Engineers, an
unincorporated association;
L.P.G.
C iv i l Action
No. 72-3168
SUMMONS
1
64$, U n ited T r a n s p o r t a t io n Union , an ?
p u n in c o rp o ra te d a s s o c i a t i o n :
| L o c a l 64SB, U n ited T r a n s p o r t a t io n Union, an
f! u n in c o rp o ra te d a s s o c i a t i o n :
|
r L o c a l 1831, U n ited T r a n s p o r t a t io n Un ion , an ;
^ u n in c o rp o ra te d a s s o c i a t i o n ;
ft V :
r L o c a l 1834. U n ited T r a n s p o r t a t io n Union, an
I u n in c o rp o ra te d a s s o c i a t i o n : - .
1 L o c a l Lodge 851. American R a i lw ay Super- ;
i;:v i s o r s A s s o c i a t i o n , an u n in co rp o ra ted
5; a s s o c i a t i o n ;
.jj L o c a l 851A, Am erican Railway S u p e r v is o r s -
iij A s s o c i a t i o n , an u n in co rp o ra ted a s s o c i a t i o n ;
[| L o c a l Lodge 853, American R a i lw ay Super
v i s o r s A s s o c i a t i o n , an u n in co rp o ra ted *
a s s o c i a t i o n :
L o c a l Lodge 857. American R a i lw ay Super
v i s o r s A s s o c i a t i o n , an u n in co rp o ra ted z
j a s s o c i a t i o n ;
I :
;i I n t e r n a t i o n a l B rotherhood o f E l e c t r i c a l
|j W orkers , an u n in co rp o ra ted a s s o c i a t i o n ; ;
I I n t e r n a t i o n a l B rotherhood o f T eam ste rs , an r
|| u n in c o rp o ra te d a s s o c i a t i o n ;
ij L o c a l 808, I n t e r n a t i o n a l B rotherhood o f
| T eam s te rs , an u n in co rp o ra ted a s s o c i a t i o n ; ;
I n t e r n a t i o n a l B rotherhood o f B o i l e rm a k e rs , ;
! I r o n Sh ip B u i l d e r s , B la cksm ith s , F o rg e rs
]and H e lp e r s , an u n in co rp o ra ted a s s o c i a t i o n ; ;
' L o ca l Lodge #56, B rotherhood o f R a i lw ay ;
j S igna lm en ;
j L o c a l Lodge #31, R a i l r o a d Ya rdm asters o f
|j A m er ica : and .
|| L o c a l 138, S h ee t M e ta l Workers I n t e r n a - ;
i t i o n a l A s s o c i a t i o n :
i -
D e fen d an ts .
~ — ~ — * — - — — - — — — — — - — - — — — - x
1■is
I
T o th e above named D e fendan ts :
You a r e h e r e b y summoned and r e q u i r e d t o s e r v e upon
Thomas McGanney, Fsq .
R ichard J . H o lw e l l . E sq .
j
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1
!p la in t i f f* s attorneys, whose address is
14 Wall S treet
New York, New York 10005
fan answer to the complaint which is herewith served upon
I
:i. you, within 20 days a fte r serv ice o f th is summons upon
[you, exclusive o f the day o f serv ice . I f you fa i l to do
I
so, judgment by defau lt w i l l be taken against you for the
r e l ie f demanded in the complaint.
Clerk \pf Court
■I , ' )
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iI
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V. t*
Deputy Clerk
/Seal of Court/
INOTE:-
|
This summons is issued pursuant to Rule 4 o f the
Federal Rules o f C iv i l Procedure.
t
t
r
I
l
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
M l
Frances Joy Capers, Vivian Wright,
Marshall Jackson, Edward Harris,
Ernest Drown, John Diggs, Charles
A llen , Kenneth Morris, James Van
Ness, A lbert Stroman and Howard
Outerbridge, each ind iv idua lly and
on behalf o f a l l others s im ilarly situated.
P la in t i f fs ,
- v -
Long Island Railroad, a corporation;
Brotherhood o f Railway, A ir lin e and
Steamship Clerks, Freight Handlers,
Express and Station Employees, an
unincorporated association;
Sunrise Lodge #90, Brotherhood o f R a il
way, A ir lin e and Steamship Clerks,
Freight Handlers, Express and Station
Employees, an unincorporated association;
Local 0177, Brotherhood o f Railway,
A ir lin e and Steamship Clerks, Freight
Handlers, Express and Station Employees,
an unincorporated assocation;
Transportation-Communication D ivision,
Brotherhood o f Railway, A ir lin e and
Steamship Clerks, Freight Handlers,
Express and Station Employees, an
unincorporated assocation;
Brotherhood Railway Carmen o f America,
an unincorporated association;
Local 886, Brotherhood Railway Carmen of
America, an unincorporated association;
In ternational Association o f Machinists
and Aerospace Workers, an unincorporated
association ;
Local 754, In ternational Association of
Machinists and Aerospace Workers, an un
incorporated association;
United Transportation Union, an unincor
porated association:
Local 517A, United Transportation union,
an unincorporated assoc_ation;
L.P.G.
C iv i l Action
No. 72-3168
Substituted and
Amended Complaint
(Class Action)
s*
*i>i<:
*is
ts;s
t>
ts:
t
t:Brotherhood of Locomotive Engineers, an un
incorporated association: ' ,<
t
Motions fo r Leave to F ile Amended Complaints submitted to th is
Court on the 17th day o f A p ril, 1973 and the 3rd day o f July
• 1973 as w e ll as those amendments for which p la in t i f fs seek
approval in th e ir Motion to Amend Complaint and Add Parties
f i le d herewith.
1. JURISDICTION
a ! 43
1. Jurisd iction o f th is Court is invoked pursuant to 28 U.S.C.
§§1337 and 1343 (4 ); 42 U.S.C. §2000e-5 ( f ) and 28 U.S.C. §§2201
and 2202. This is a su it in equity authorized and institu ted
pursuant to T it le V II o f the Act o f Congress known as "The
C iv i l Rights Act o f 1964” as amended, 42 U.S.C. §§2000e e t .
seq. The ju r isd ic t ion o f th is C ourt'is invoked to secure pro
tection o f and to redress deprivation o f righ ts secured by:
A. 42 U.S.C. §§2000e et seq ,, providing fo r in junctive and
other r e l i e f against ra c ia l d iscrim ination in employment:
B. 42 U.S.C. §1981, providing fo r the equal righ ts o f a l l
persons in every state and te r r ito ry w ithin the ju r isd ic tion
o f the United States, to make and enforce contracts;
C. 42 U.S.C. §1983 which establishes a cause o f action
for individuals whose righ ts under the Constitution and laws I
o f the United States have been in fringed upon by the misuse
or abuse o f power or authority conferred by a state; .
D. 45 U.S.C. §§151-163, based on v io la tion s o f the duty
o f fa ir representation owed to p la in t i f fs and the class they
represent.
CLASS ACTION ALLEGATIONS
2. a) Plaintiffs allege that this class action is maintainable
under F.R.Civ.P. Rule 2 3 (b )(2 ).
b) The class consists of Black persons who have been or
are employed, or might be employed by defendant Long Island s'
Railroad (hereinafter referred to as "LIRR").at any of its
facilities in New York State, and who are members or might
become members of defendant unions, who have b een and cont. nue
to be or might be adversely affected by the practices complaine:
3
of herein.
c) It is not p ossible to enumerate members of the class
%
exactly but they number over eight hundred. it is clear that
the class is so n umerous that joinder of all members is im
practicable.
d> The individual plaintiffs are Black persons w h o either
have been or are employed, o r h ave applied for employment by
defendant U R R and are mem b e r s or m i g h t become members of
defendant unions. T h ese individuals w ill fairly and adequately
protect the interests of the class. Their claims are typical
of the claims of the class.
e) There are q u e stions of law and fact w h ich are common
to the class. The com m o n questions of fact include;
(i) The extent to w h i c h defendant BIRR's employment
practices in the areas o f recruitment, hiring, testing,
application of standards, job a-ssignment, seniority,
promotion, pay, training and discipline, discriminate
against Black employees, or persons who might b?come
employees;
(ii) The extent to w h i c h defendant unions h ave violated
their duty o f fair representation b y acquiescing or
participating, in defendant BIRR's discriminatory
employment practices;
(iii) The extent to w h i c h the promotional and seniority
systems established pursuant to the terms of the col
lective bargaining agreement entered into between
defendant B I R R and the respective defendant unions con
tinue and preserve the defedants' policy, practice,
custom and usage of limiting the employment and p r o
motional opportunities of Black employees.
The common questions o f law include; ^
Ai
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X
V‘>
.
A l45
( i ) Whether defendant's discrim inatory employment
p ractices v io la te T it le V II o f the c i v i l Rights Act o f
1964, as amended. 42 U.S.C. §§2000e e t seq., the C iv il
Rights Act o f 1866, 42 U.S.C. §§1981 and 1983 and the
Railway Labor Act, 45 U.S.C. §§ 151-163.
(ii) The legality o f unions' acquiescence and partici
pation in an employer's discriminatory employment
practices ;
( i i i ) The legality o f a promotion and sen iority system
which continues and preserves a p o licy , practice,
custom and usage o f lim itin g the employment and pro
motional opportunities o f Black employees; and
( iv ) The appropriateness o f the r e l i e f to be ordered in
behalf o f the class.
f ) The defendants have acted or refused to act on grounds
genera lly applicable to the class, thereby making appropriate
f in a l in junctive or corresponding declaratory r e l ie f with
respect to the class as a whole.
I I . PARTIES
3. P la in t i f f Frances Joy Capers is a Black c it izen o f the
United States and is a resident o f the Borough o f Queens, City
and State o f New York. At a l l times pertinent herein P la in t i f f '
Capers was employed by defendant L .I.R .R . at i t s fa c i l i t ie s
in Jamaica, Borough o f Queens, New York C ity as a Personnel
Interviewer-Employment and/or as a Clerk in Employee Benefits.
4. P la in t i f f Vivian Wright is a Black c it iz e n o f the United
States and a resident o f Lido Beach, Nassau County, State o f
New York. Since June 10, 1965, P la in t i f f Wright has been
employed as a clerk in defendant LIRR's o f f ic e located in ^
Jamaica, Borough o f Queens, New York C ity . At a l l times
9
pertinent herein. P la in t i f f Wright has been a member o f
- 5 -
I
defendant Local 0177, Brotherhood o f Railway, A ir lin e and
Steamship Clerks, Freight Handlers, Express and Station
Employees and defendant Brotherhood o f Railway, A ir lin e and
Steamship Clerks, Freight Handlers, Express and Station
Employees.
5. P la in t i f f Marshall Jackson is a Black c it izen o f the
United States and a resident o f the Borough o f Queens, City
and State o f New York.
6. P la in t i f f Edward Harris is a Black c it izen o f the united
States and a resident o f the Borough o f Queens, C ity and state
o f New York. Since 1954, P la in t i f f Harris has been employed
by defendant L .I.R .R . as a mail handler or as an usher. At
a l l times pertinent herein. P la in t i f f Harris has been a member
o f defendant Sunrise"Lodge #90, Brotherhood o f Railway, A ir lin e
and Steamship Clerks, Freight Handlers, Express and Station
Employees and defendant Brotherhood o f Railway, A ir lin e and
Steamship Clerks, Freight Handlers, Express and Station em
ployees.
7. P la in t i f f Ernest Brown is a Black c it izen o f the United
States and a resident o f the Borough o f Brooklyn, C ity and
State o f New York. From July, 1967 u n til A p ril, 1972, Plain
t i f f Brown was employed by defendant L .I.R .R . in its Jamaica,
New York f a c i l i t y as a brakeman. At a l l times pertinent here
in P la in t i f f Brown has been a member o f defendant Local 517A,
United Transportation Union, and defendant United Transportation
union.
8 . P la in t i f f John Diggs is a Black c it izen o f the United
States and a resident o f Wyandach, Long Island, New York.
From January, 1950 u n til on or about May 23, 1972, P la in t i f f
Diggs was employed by defendant L .I.R .R . as an upholsterer in
i t s f a c i l i t y at Morris Park, Borough o f Queen's. C ity and State
o f New York. P la in t i f f Diggs, at a l l times pertinent herein.
6
A -'4
was a member o f defendant Local 006, Brotherhood Railway Car
men o f America and defendant Brotherhood Railway Carmen o f >
America.
9. p la in t i f f Charles Allen is a Black c it iz e n o f the United
States and a resident o f the Borough o f Manhattan, C ity and
State o f New York. P la in t i f f A llen has been employed by defendant
L .I.R .R . as a machinist since 1966. At a l l times pertinent
herein P la in t i f f Allen has been a member o f Local 754 In te r
national Association o f Machinists and Aerospace Workers, and
the International Association o f Machinists and Aerospace
Workers.
10. P la in t i f f Kenneth Morris is a Class A machinist who has
beer, employed by defendant L .I.R .R . as a machinist since 1962.
P la in t i f f Morris is a Black c it iz e n o f the United States and
a resident o f Jackson, New je rsey .
11. P la in t i f f James Van Ness is a Black c it iz e n o f the United
States and a resident o f the Borough o f Brooklyn, C ity and
State o f New York. P la in t i f f Van Ness is employed by
defendant L .I.R .R . as a machinist. At a l l times pertinent
herein P la in t i f f Van Ness has been a member o f defendant In te r
national Association o f Machinists Local 754 and the In te r
national Association o f Machinists.
12. P la in t i f f Albert Stroman is a Black c it iz e n o f the United
States and a resident of the Borough o f Queens, C ity and
State o f New York. P la in t i f f Stroman has been employed by
defendant L .I.R .R . since September, 1961 as a crossing watchman,
a trackman, a fireman or apprentice engineer and a regular
locomotive engineer.
13. P la in t i f f Howard R. Outerbridge is a Black c it iz e n o f the
United States and is a resident o f the Borough oT Manhattan,
C ity and State o f New York. P la in t i f f Outerbridge has been
employed by defendant L .I.R .R . since A p r il, 1955 as a crossing
7
A :
watchman, laborer, blacksmith helper, blacksmith mechanic and
coach c leaner. He has been a member o f defendant Internationa^
Brotherhood o f Boilermakers and Blacksmiths and is presently a
member o f defendant Brotherhood o f Railway Carmen and its
Local 886.
14. Defendant L .I.R .R . is a commuter and passenger ra ilroad
operated by the M etropolitan Transity Authority, an agency o f
State q. New "York. Defendant ra ilroad maintains i t s head
quarters and certa in other f a c i l i t i e s in Jamaica, Borough o f
Queens, and does business at Pennsylvania Station, Borough o f
Manhattan, C ity and State o f New York. Having approximately
7,400 employees defendant L .I.R .R . is a "person* w ithin the
meaning o f 42 U.S.C. §2000e-(a) and an employer w ithin the
meaning o f 42 U.S.C. 2000e-(b ). Defendant L .I.R .R . is subject
to the p rovis ions o f 42 U.S.C. §§1981 and 1983.
15. Defendant Brotherhood o f Railway, A ir lin e and Steamship
Clerks, Freight Handlers, Express and Station Employees (here
in a fte r re fe rred to as "B .R .A .C .*) is an unincorporated
association and a labor organization w ithin the meaning o f 42
U.S.C. §§2000e- (d) and 2000e-(e) in that defendant B.R .A .C .
ex is ts fo r the purpose, in part, o f dealing with defendant
L .I.R .R . concerning grievances, labor disputes, wages, ra tes o f
pay and other terms or conditions o f employment. Defendant
B.R.A.C. has more than 25 members, is engaged in an industry
a ffe c t in g commerce, and is subject to the provisions o f 42
U.S.C. §1981 and 45 U.S.C. §§151-163.
16. Defendants Sunrise Lodge #90, Local 0177, and Transportatio n
Communication D iv is ion , B.R.A.C. are unincorporated associations
and labor organizations w ithin the meaning o f 42 U .S .C .
§§2000e-(d) and 2000e-(e) in that defendants Sunrise Lodge,
Local 0177 and Transportation-Communication D ivision ex is t fo r
the purpose, in whole or in part, o f dealing with defendant
8
A ^ a
L .I.R .R . concerning grievances, labor disputes, wages, rates
o f pay and other terms or conditions o f employment.
Defendants Sunrise Lodge, Local 0177, and Transportation-
Communication D iv is ion are agents and part o f defendant B.R.A.C.
They are engaged in an industry a ffe c tin g commerce; each has
more than tw en ty -five (25) members and is subject to the pro
v is ion s o f 42 U.S.C. §1901 and 45 U.S.C. §§151-163.
17. Defendant Brotherhood Railway Carmen o f America (herein
a fte r re ferred to as “B .R .C .") is an unincorporated association
and a labor organization w ithin the meaning o f 42 U.S.C.
§§2000e-(d) and 2000e-(e) in that defendant B.R.C. ex is ts fo r
the purpose, in part, o f dealing with defendant L .I.R .R . con
cerning grievances, labor disputes, wages, rates o f pay and
other terms or conditions o f employment. Defendant B.R.C. is
engaged in an industry a ffe c tin g commerce, has more than twenty-
f iv e (25) members, and is subject to the provisions o f 42
U.S.C. §1981 and 45 U.S.C. §§ 151-163.
18. Defendant Local 886, B.R.C. is an unincorporated association
and a labor organization w ithin the meaning o f 42 U.S.C. §§2000e-
(d) and 2000e-(e) in that defendant Local 886 ex is ts fo r the
purpose, in whole o r in part, o f dealing with defendant
L.I.R.R. concerning grievances, labor disputes, wages, rates
o f pay and other terms or conditions o f employment. Defendant
Local 886 is an agent and a part o f defendant B.R.C. I t is
engaged in an industry a ffe c tin g comnerce, has more than twenty-
f iv e (25) members and is subject to the provisions o f 42 U.S.C.
§1981 and 45 U.S.C. §§151-163.
19. Defendant In ternationa l Association o f Machinists and
Aerospace Workers (h ere in a fte r re ferred to as "I.A .M . “ ) is an
unincorporated association and a labor organization w ith in the
meaning o f 42 U.S.C. §§2000e-(d) and 2000e-(e) in that
defendant I.A .M . ex is ts for the purpose, in part, o f dealing
9
A
c
with defendant L.I.R.R. concerning grievances, labor disputes,
wages, rates o f pay and other terms or conditions o f employ
ment. Defendant I.A.M . is engaged in an industry a ffe c t in g
commerce, has more than tw en ty-five members and is subject to
the provisions o f 42 U.S.C. §1981 and 45 U.S.C. §§151-163.
20. Defendant Local 754, I.A.M . is an unincorporated
association and a labor organization w ithin the meaning o f 42
U.S.C. §§2000e-(d) and 2000e- (e ) in that defendant Local 754
ex is ts fo r the purpose, in whole or in part, o f dealing with
defendant L .I.R .R . concerning grievances, labor disputes,
wages, ra tes o f pay and other terms or conditions o f employ
ment. Defendant Local 754 is an agent and a part o f
defendant I.A .M . I t is engaged in an industry a ffe c t in g com
merce, has more than tw en ty-five (25) members and is subject
to the provisions o f 42 U.S.C. §1981 and 45 U.S.C. §§151-163.
21. Defendant United Transportation Union (h ere in a fter re
ferred to as "U .T .U .") is an unincorporated association and a
labor organization w ithin the meaning o f 42 U.S.C. §2000e-(d)
and 2000e-(e) in that i t ex is ts fo r the purpose, in part, o f
dealing with defendant L .I.R .R . concerning grievances, labor
disputes, wages, rates o f pay and other terms or conditions
o f employment. Defendant U.T.U. is engaged in an industry
a ffe c tin g commerce, has more than tw en ty-five (25) members and
is subject to the provisions o f 42 U.S.C. §1981 and 45 U.S.C.
§§151-163.
22. Defendants Locals 517 A, 645, 645B, 1831 and 1834 U.T.U.
are unincorporated associations and labor organizations w ith in
the meaning o f 42 U.S.C. §§2000e-d(d) and 2000e-(e) in that
they e x is t fo r the purpose, in whole or in part, o f dealing
with defendant L .I.R .R . concerning grievances, labor disputes,
wages, rates o f pay and other terms or conditions o f employment
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A
with defendant L .I.R .R . concerning grievances, labor disputes,
wages, rates o f pay and other terms or conditions o f employ-
Defendant I.A .M . is engaged in an industry a ffe c t in g
commerce, has more than tw en ty-five members and is subject to
the provisions o f 42 U.S.C. §1981 and 45 U.S.C. §§151-163.
20. Defendant Local 754, I.A .M . is an unincorporated
association and a labor organization w ith in the meaning o f 42
U.S.C. §§2000e-(d) and 2000e-(e) in that defendant Local 754
ex is ts fo r the purpose, in whole or in part, o f d ea ling w ith
defendant L .I.R .R . concerning grievances, labor d isputes,
wages, ra tes o f pay and other terms or conditions o f employ
ment. Defendant Local 754 is an agent and a part o f
defendant I.A .M . I t is engaged in an industry a ffe c t in g com
merce, has- more than tw en ty-five (2 5) members and is sub ject
to the p rovis ions o f 42 U.S.C. §1981 and 45 U.S.C. §§151-163.
21. Defendant United Transportation Union (h ere in a fte r re
ferred to as "U .T .U ." ) is an unincorporated associa tion and a
labor organ ization w ith in the meaning o f 42 U.S.C. §2000e-(d)
and 2000e-(e) in that i t ex is ts fo r the purpose, in part, o f
dealing w ith defendant L .I.R .R . concerning grievances, labor
disputes, wages, ra tes o f pay and other terms or cond itions
o f employment. Defendant U.T.U. is engaged in an industry
a ffe c t in g commerce, has more than tw en ty -five (25) members and
is subject to the provis ions o f 42 U.S.C. §1981 and 45 U.S.C.
§§151-163.
22. Defendants Locals 517 A, 645, 645B, 1831 and 1834 U.T.U.
are unincorporated associations and labor organ izations w ith in
the meaning o f 42 U.S.C. §§2000e-d(d) and 2000e-(e) in that
they e x is t fo r the purpose, in whole or in part, o f dea ling
with defendant L .I.R .R . concerning grievances, labor d isputes,
wages, rates o f pay and other terms or conditions o f employment
10
A - 51
Defendant Locals 517A, 645 645B, 1831 and 1834 are agents and
parts of defendant U.T.U. They are eng a g e d in an industry affect
ing commerce, h a v e more than t wenty-five (25) members, and are
subject to the pr o v i s i o n s of 42 U.S.C. §1981 and 45 U.S.C. §§
151-163.
23. Defendant Brotherood o f Locomotive Engineers (hereinafter
re ferred to as "B .L .E .“ ) is an unincorporated association and a
labor organization w ith in the meaning o f 42 U.S.C. §§2000e-(d)
and 2000e-(e) in that i t e x is ts fo r the purpose, in whole or in
part, o f dealing with defendant LIRR concerning grievances, labor
disputes, wages, ra tes o f pay and other terms or conditions o f
employment. Defendant B.L.E. is engaged in an industry a f fe c t
ing commerce, has more than tw en ty -five (25) members and is sub
je c t to the provis ions o f 42 U.S.C. §1981 and 45 U.S.C. §§151-163.
24. Defendants Local Lodges 851, 851-A, 853 and 857, American
Railway Supervisors Association (h ere in a fte r re ferred to as
" A .R .S .A . , are unincorporated associations and labor organi
zations w ith in the meaning o f 42 U.S.C. §§2000e-(d) and 2000e-(e)
in that they e x is t fo r the purpose, in whole or in part, o f dea l
ing with defendant L .I.R .R . concerning grievance, labor disputes,
wages, rates o f pay and other terms and conditions o f employment.
They are engaged in an industry a f fe c t in g commerce, have more
than f i f te e n (15) members and are subject to the provisions o f
42 U.S.C. §1981 and 45 U.S.C. §§151-163-.
25. Defendant In ternationa l Brotherhood o f E le c tr ic a l Workers
(h ereinafter re fe rred to as "I.B .E .W .") is an unincorporated
association and a labor organ ization w ith in the meaning o f 42
U.S.C. §§2000e- (d) and 2000e-(e) in that i t e x is ts fo r the
purpose, in whole or in part, o f dealing with defendant LIRR
concerning grievances, labor disputes, wages, rates o f pay and
other terms or conditions o f employment. Defendant I.B.E.W. is
engaged in an industry a ffe c t in g commerce, has more than twenty-
five (25) members and is subject to the provisions o f 42 U.S.C.
§1981 and 45 U.S.C. §§151-163.
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26. Defendant International Brotherhood of Teamsters (herein
after referred to as "I.B.T.") is an unincorporated association
and a labor organization within the meaning of 42 U.S.C. §§2000e-
(d) and 2000e-(e) in that defendant I.B.T. exists for the pur
pose, in part, of dealing with defendant b.I.R.R. concerning
grievances, labor disputes, wages, rates of pay and other terms
or conditions of employment. Defendant I.B.T. is engaged in an
industry affecting commerce, has more than twenty-five (25)
members, and is subject to the provisions of 42 U.S.C. §1981 and
45 U.S.C. §§151-163.
27. Defendant bocal 808, I.B.T. is an unincorporated association
and a labor organization within the meaning of 42 U.S.C. §§2000e-
(d) and 2000e-(e) in that defendant bocal 808 exists for the
purpose, in whole or in part, of dealing with defendant b . I . R . R .
concerning grievances, labor disputes, wages, rates of pay and
other terms or conditions of employment. Defendant bocal 808
is an agent and a part of defendant I.B.T. It is engaged in an
industry affecting commerce, has more than twenty-five (25)
members and is subject to the provisions of*42 U.S.C. §1981 and
45 U.S.C. §§151-163.
28. Defendant bocal bodge #56, Brotherhood of Railway Signalmen,
is an unincorporated association and a labor organization within
12
A^53
the meaning o f 42 U.S.C. §§2000e-(d) and 2000e- (e ) in that
defendant Local L od ge #56 ex is ts fo r the purpose, in whole or in
part, o f dealing with defendant L .I.R .R . concerning grievances,
labor disputes, wates, rates o f pay and other terms or con
d ition s o f employment. I t is engaged in an industry a ffe c t in g
commerce, has more than tw en ty-five (25) members and is subject
to the p rovis ions o f 42 U.S.C. §1981 and 45 U.S.C. §§151-163.
29. Defendant Local 311, In ternational Brotherhood o f Fireman
and O ile rs , Helpers, Roundhouse and Railway-shop Laborers is an
unincorporated association and a labor organ iza tion w ith in the
meaning o f 42 U.S.C. §2000e-(d) and 2000e-(e) in that i t ex is ts
for the purpose, in part, o f dealing w ith defendant L .I.R .R .
concerning grievances, labor d isputes, wages, ra tes o f pay and
other terms or conditions o f employment. Defendant Local 311 is
engaged in an industry a ffe c t in g commerce, has more than twenty-
f iv e (25) members and is subject to tho p rov is ion s o f 42 U.S.C.
§1981 and 45 U.S.C. §§151-163.
3Q. Defendant Local Lodge #91, Railroad Yardmasters o f America,
is an unincorporated association and a labor o rgan iza tion w ith
in the meaning o f 42 U.S.C. §§2000e-(d) and 2000e-(e) in that
i t ex is ts fo r the purpose, in whole or in p a rt, o f dea ling w ith
defendant L .I.R .R , concerning grievances, lab or d isputes, wages,
rates o f pay and other terms or conditions o f employment.
Defendant Local lodge #91 is engaged in an industry a ffe c t in g
commerce, has more than twenty—fiv e (25) members, and is sub
je c t to the provisions o f 42 U.S.C. §1981 and 45 U.S.C. §§151-16;.
3 l . Defendant Local 138, Sheet Metal Workers In tern ationa l
Association is an unincorporated assoc ia tion and a labor organi
zation w ith in the meaning o f 42 U.S.C. §§2000e-(d) and 200Ce-(e)
in that i t e x is ts fo r the purpose, in whole or in part, o f deal
ing with defendant LIRR concerning grievances, labor disputes,
wages, rates o f pay and other terms or cond itions o f employment.
13
A-54
Defendant Local 138 is engaged in an industry a ffe c tin g commerce,
has more than tw en ty-five (25) members and is subject to the
provisions o f 42 U.S.C. §§1981 and 45 U.S.C. §§151-163.
32. At a l l times m ateria l herein defendant unions and defendant
lo ca ls have been the c e r t i f ie d recognized representatives under
the Railway Labor Act o f the p la in t i f fs and the class they repre
sent and, as such, have the duty under the Railway Labor Act
to act im partia lly and to fa ir ly represent the in terests o f
p la in t i f fs and the c lass they represent.
33. A l l matters regarding compensation, terms, conditions and
p r iv ile g e s o f employment o f the p la in t i f fs and the class they
represent have been, at a l l times m aterial to th is action,
governed and con tro lled by c o lle c t iv e bargaining agreements en
tered in to between defendants labor organizations and defendant
L .I.R .R .
I I I . CAUSE OF ACTIOS
34. From January’ 13, 1969 u n til on or about June 22, 1972,
P la in t i f f Frances Joy Capers was employed by defendant L .I.R .R .
as Personnel In terv iew er, with resp on s ib ility fo r processing
applications fo r employment. Despite her lack o f experience
in personnel work. P la in t i f f Capers was h ired, in part, to
ass is t defendant L .I.R .R . in i t s purported e f fo r t to secure more
black and m inority employees. Although P la in t i f f Capers was
promised tra in ing by defendant L .I.R .R ., such tra in ing was never
g ranted. For her work in Personnel, P la in t i f f Capers received
no salary increase other than mandatory c o s t-o f- l iv in g ra ises .
Defendant L .I.R .R .*s fa ilu re to tra in P la in t i f f Capers to
function with optimum e ffec tiv en ess is in d ica tive o f i t s lack o f
in terest in securing black employees. Defendant L .I.R .R .*s f a i l
ure to grant P la in t i f f Capers salary increases in lin e with
<r
those received by other comparable management le v e l employees
1 4
'.j
constituted d iscrim ination against P la in t i f f Capers because o f
her race and c o lo r . P la in t i f f Capers was r e a r e d to partic ipa te
xn the r e fe r ra l arrangement, more fu lly described in „ 65 and 6 6 .
established and maintained by defendant L.I.R.R. and defendant
unions. This requirement constituted a discrim inatory term and
condition o f her employment, a ffe c tin g the quality o f her da ily
l i f e , in that i t operated continuously to in su lt her and to in jure
other Blacks.
35. on or about dune 22, 1972. subsequent to P la in t i f f Caper’ s
rece ip t o f a le t t e r from the Equal Employment Opportunities
Commission, authorizing the in it ia t io n o f th is action . Defendant
L .I.R .R . removed P la in t i f f Capers from her position as Personnel
interviewer,Employment, and placed her ixr the less desirab le
position o f Clerk in Employee Benefits. P la in t i f f Caper’ s new
position was created by defendant L .I.R .R . by combining duties
customarily performed by clerks and secretaries . in said
position P la in t i f f Capers is given less resp on s ib ility and no
opportunity to in terv iew applicants tor employment, the primary
function which she came to defendant L .I.R .R . to perform. P la in
t i f f s b e lieve and a lle g e that the removal o f P la in t i f f Capers
from her pos ition in personnel was re ta lia to ry and constitu ted
iiscrim ination against P la in t i f f Capers because she opposed
defendant L . I .R .R . ’ s unlawful employment p ractices and she made
charge, t e s t i f ie d , assisted and partic ipated in an investiga tion
proceeding and hearing under T it le V II o f the c i v i l Rights Act
3f 1964 as amended.
36. On or about June 10. 1971. P la in t i f f Vivian Wright form ally
applied fo r the position o f maintenance o f way inspector, an
advanced c le r ic a l pos ition . Despite the fact that as a clerk
l a in t i f f Wright had performed the same or substan tia lly the
ame duties as the maintenance o f way inspectors. P la in t i f f
r igh t was advised that maintenance and way inspectors were
allegedly required to go out and inspect tracks and that such
duties were unsuitable fo r a woman. P la in t i f f Wright was so
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A^55
A-
advised despite the fa c t that the white males who occupied the
position o f maintenance o f way inspectors were not required to
actually go out and inspect ra ilroad tracks. P la in t i f fs are.
informed and on the basis o f such information a llege that
maintenance o f way inspectors are not currently required to
inspect tracks. P la in t i f f W right’ s app lication was denied in
June, 1972 and the opening fo r which she applied was f i l l e d by
a white, male c lerx jun ior to p la in t i f f Wright in sen iority and
experience. Defendant L. I.R .R . thus unlawfully abridged, lim ited
and re s tr ic ted P la in t i f f V ivian W right's employment oppor-
tu n ities for- reasons o f xr3 ce# coXoxr and sex.
37. The pos ition o f maintenance o f way inspector is under the
ju r isd ic t ion o f defendant United Transportation Union, i f
p la in t i f f Wright were perm itted to transfer to the white, male,
job o f maintenance o f way inspector, she would be required, under
the c o lle c t iv e bargaining agreement entered in to between United
Transportation Union and the L . I . R . R . , to relinquish the
sen io rity b en e fits she has already gained. She would be at a
com petitive disadvantage for purposes o f promotion, demotion, e tc .
v:*-s JL vts white male employees who have always had an
opportunity to accrue s en io r ity in the position o f maintenance
o f way inspector. At leas t u n til 1960 the Constitution o f the
United Transportation Union e x p l ic i t ly excluded Blacks from
membership. Thus the sen io r ity system embodied in the c o lle c t iv e
bargaining agreements between U.T.U., its lo ca ls , and L . I . R . R .
operates to lim it and c la s s ify p la in t i f f Wright in a way which
deprives, or tends to deprive her o f employment opportunities,
adversely a ffe c ts her status as an employee, and perpetuates
past patterns o f d iscrim ination based on race, color and sex.
38. On or about June 24, 1970, P la in t i f f Marshall Jacksor
f i le d an app lication fo r the position o f fireman with defendant
16
n r.ii 1 road. At defendant ra ilro a d 's insistence P la in t i f f Jackson
l!
.! .submitted to a physical examination, which included a v is ion te s t.
M
! p la in t i f f Jackson’ s v is ion , as measured by the defendant ra ilroad ,
t
j was found to be below the 2 0 / 2 0 le v e l a lle g ed ly required by de—
j fendant ra ilroad fo r prospective firemen, and P la in t i f f Jackson's
J application was re jected ostensib ly because h is v is ion fa ile d
| to meet defendant ra ilro a d 's putative standard o f 20/20. P rio r
j to p la in t i f f Jackson’ s re je c tio n , no fewer than four (4) white
I applicants fo r the pos ition o f fireman had been accepted and hired
despite the fa c t that each and a l l o f them had v is ion less than
j 20/20 as measured by defendant ra ilroad . Although two of said
applicants were given subsequent re-examinations on which they
a lleged ly scored 20/20, P la in t i f f Jackson was not advised of his
right to a re-examination. The other two said white applicants
were never re-examined but were hired despite th e ir apparent
visual d e fic ien c ie s . A l l o f the white applicants so accepted
despite th e ir fa ilu re to meet defendant ra ilro a d 's a lleged visual
standards were sons o f engineers in the employ o f defendant rail
road. Moreover, the white applicants had become aware of the job
openings e a r lie r than p la in t i f f Jackson, having been re ferred for
employment by defendant B.L.E. pursuant to the re fe r ra l arrange
ment described in 5 J 65 and 6 6 .
39. Although defendant L .I.R .R . refused to employ
P la in t i f f Marshall Jackson in the position o f fireman ostensib ly
because he fa ile d to meet defendant L . I .R .R .•s a lleged 20/20
vision requirement, defendant had then and has s t i l l employed as
firemen men whose v is ion was and is less than 20/20. P la in t i f fs
ate informed, and on the basis o f that information a lle g e that
defendant L .I.R .R . has not removed from the position o f fireman
ar>y man who, upon re-examination, was found to have less than
20/20 v is ion .
40. P la in t i f f Jackson f i le d a complaint with the D ivisionm
° f Human Rights o f the State o f New York on July 1, 1970, making
17
the a llega tion s contained hereinabove in paragraph? 1 9 and 40.
On February 0. 1972. the D iv is ion o f Human Rights, a fte r conduct
ing four public hearings, found that P la in t i f f Jackson had su ffer*
unlawful d iscrim ination at the hands o f defendant L .l.R .R .
Defendant L . l.R .R . appealed the ru ling o f the D ivision o f Human
Rights. By order dated June 11, 1973. the State Human Rights
Appeal Board a ffirm ed the Order o f the D iv is ion o f Human Rights.
a
The L .l.R .R . appealed to the Appella te D iv is ion o f the State o f
New York, and the matter is now under submission
41. P la in t i f f Edward E. H arris has been employed by
defendant L . l.R .R . as a mail handler and an usher fo r more than
seventeen (17) years. The p os ition o f usher is the threshold jo l
o f assistan t s ta tion master (ASM) and is the top union job in the
lin e leading to the p os itio n o f stationm aster. P e tition er Harris
since 1967 sought to be appointed an ASM, but despite h is long
years o f e x c e llen t s e rv ic e as an usher P la in t i f f H arris ’ e f fo r ts
to become an ASM were fru s tra ted by defendant L . l.R .R ’ s determin
ation to deny him that p os it io n . Defendant L .l.R .R . required
that P la in t i f f H arris pass a s e r ie s o f examinations (th ereto fo re
not required o f other app lican ts fo r ASM) and then denied him the
position anyway. P la in t i f f H arris f i le d complaints with the New
York D iv is ion o f Human R ights (NYSDHR) in December 1967 and
August 1968. in March 1971 P la in t i f f H arris f i le d a th ird
complaint w ith the NYSDHR a lle g in g that defendant L .l.R .R . was
r e ta lia t in g against him fo r the f i l i n g o f the 1967 and 1968
complaints by re fu sing to promote him from ’’extra" to regu lar
ASM and by paying him less than a l l the other "ex tra " ASMS. As
i t did in 1967 and 1968, the NYSDHR dismissed P la in t i f f Harris*
complaint in an Order dated A p r il 28. 1972. The NYSDHR Order
was affirm ed by the S ta te Human Rights Appeal Board.
4 2 . P l a i n t i f f H a r r i s , from Ju ly 1969 t o Novem ber 2 9 .1 9 7 2 .
f u n c t i o n e d as an " e x t r a " ASM w i t h r e s p o n s i b i l i t y f o r f i l l i n g fo r
- 18 -
A 58
regular ASMs in the event o f e ith e r il ln e s s , vacation, retirement
or death. S tarting in or about November. 1968 "ex tra " ASMs
received the same pay as regulars whose jobs they cover, and upon"
the retirem ent o f a regular ASM. the "ex tra " covering h is job
was allowed to take the job over on a permanent b as is . However,
when P la in t i f f H arris began functioning as an "e x tra " ASM he
received a lesser rate o f pay. in January. 1970. when he
discovered that "ex tra " ASMs were rece iv in g more pay fo r the same
work that he was performing, he complained to defendant LIRR.
In or about March, 1970. the pay o f other "ex tra " ASMs was cut
back to the pay which P la in t i f f Harris had been rece iv in g .
P la in t i f f Harris covered the job fo r a re t ired ASM since approxi
mately February 16, 1972. Despite P la in t i f f H arris ' ample
experience and q u a lif ic a t io n , defendant LIRR p e rs is ten tly refused
to promote him to regu lar ASM u n til November 29, 1972. Defendant
LIRR's fa ilu re and re fu sa l e a r l ie r to promote p la in t i f f Harris
to the ASM job on a permanent basis and to pay him according to
the work he ac tu a lly did was because o f h is race and co lo r, and
in r e ta lia t io n fo r h is f i l in g o f charges o f d iscrim ination before
the NYSDHR.
43. On or about October 4, 1971, P la in t i f f Ernest Brown,at
that time employed by defendant L .I.R .R . as a brakeman, in com
pliance with the defendant L .I .R .R 's ru le that brakemen qu a lify
fo r the pos ition o f conductor, undertook to q u a lify as conductor
by en ro llin g in defendant L . I .R .R ’ s preparatory class fo r the con
auctors examination. Despite the fa c t that P la in t i f f Brown pass
the w ritten examiration requ ired ’ fo r e l i g i b i l i t y fo r the position
o f conductor he was subjected to add itiona l o ra l examinations
by defendant L .I.R .R . on or about A p r il 5. 1972. and June 18.
1972. Said o ra l examinations were not given to any other
applicant in P la in t i f f Brown's class but were administered to
P la in t i f f Brown in an a rb itra ry and h igh ly sub jective manner.
/via
« d
19
A
P la in t i f f Brown " fa i le d " both ora l examinations, and on the basis
o f such " fa ilu re s " was denied admission to the rank o f conductor,
and was suspended from tra in service in accordance with defendant
L .I.R .R 's ru les .
44. As o f May 23, 1972, P la in t i f f John Diggs had accumulatec
some 18 years o f s en io r ity as an upholsterer in defendant L .I.R .R '
M ill and Upholstery shop. In the M ill and Upholstery shop de
fendant L .I.R .R . has tra d it io n a lly assigned upholsterers the
r e la t iv e ly l ig h t duties o f cutting and sewing material s t r ic t ly
on the basis o f s en io r ity . Despite the fact that P la in t i f f Diggs
18 years experience made him th ird man in terms o f sen io rity as
an upholsterer defendant L .I.R .R . repeatedly passed over P la in t if i
Diggs and assigned the coveted cutting and sewing tasks to
workers jun ior to P la in t i f f Diggs in experience and sen iority .
Defendant L . I .R .R 's den ial o f the customary p r iv ile g e s o f
s en io r ity to P la in t i f f Diggs was carried out so le ly for reasons
o f race and co lo r.
s
45. On May 23, 1972, P la in t i f f Diggs became involved in an
a lterca tion with a fe llow employee o f defendant L .I.R .R ., one
Martin Kubis, who is white. Neither Kubis nor P la in t i f f Diggs
was seriou s ly injured in th e ir b r ie f confrontation. On May 25,
1972, a "hearing" was held to determine P la in t i f f D iggs' g u ilt
or innocence o f "conduct unbecoming an employee." Despite
c o n flic t in g testimony as to the cause o f the a lterca tion and
the manner in which each man struggled, a fte r the hearing
P la in t i f f Diggs was dismissed from h is job . P la in t i f fs b e lieve
and a lle g e that no "hearing" was held fo r employee Kubis, and
Kubis was allowed to continue working as an upholsterer.
P la in t i f f Diggs was dismissed because o f h is race and co lo r.
As a resu lt o f said unlawful discharqc P la in t i f f Digga w i l l be
teen
denied eight/years o f accumulated employee b en efits to which he
20
would otherwise be en t it le d upon retirement a fte r twenty years
o f serv ice.
46. P la in t i f f Charles A llen has worked as a machinist in
defendant L .I .R .R 's Morris Park, Queens, New York fa c i l i t y
for approximately 6*5 years. Since December, 1969, P la in t i f f
A llen has sought unsuccessfully to be promoted to the supervisory
position o f gang foreman. As a gang foreman. P la in t i f f Allen
would be in charge o f a crew o f machinists and certain other
sk illed craftsman engaged in the maintenance and repair o f d iesel
locomotives. Despite P la in t i f f A lle n 's formal instruction in
and ample on the job experience with the maintenance and repair
o f d iese l locomotive engines, defendant L .I.R .R . has repeatedly
passed over him and denied him a promotion to gang foreman, even
though on severa l occasions P la in t i f f A llen was the senior machin
is t bidding on the job . The most recent such denial occurred on
or about June 21, 1972. Defendant L .I.R .R 's fa ilu re to promote
P la in t i f f A llen has been so le ly because o f his race and color.
47. ' P la in t i f f Kenneth A. Morris is a Class A machinist and
has worked for ten (10) years as a machinist for defendant L . I .R . l .
P la in t i f f Morris has taken classes in d iese l repair, has taken
courses in leadership and has been "high-rated" or allowed to
temporarily substitute fo r gang foremen three (3) times. Despite
P la in t i f f M orris ' experience, tra in ing and h igh-rating, defendant
L .I.R .R . has p ers is ten tly refused and continue to refuse to pro
mote him permanently to gang foreman. On’ the other hand, defend
ant L .I.R .R . has promoted to that_coveted position white workers
with less sen io r ity and experience than P la in t i f f Morris. Def
endant L .I .R .R 's fa ilu re to promote P la in t i f f Morris to gang
foreman has been so le iy because o f h is race and co lo r.
48. P la in t i f f James Van Ness entered defendant L .I.R .R *
apprenticeship program for machinists in June or July, 1963.
In fu lfillm en t o f the requirements o f that program; P la in t i f f
Van Ness spent almost 5 years in an on -the-job -tra in ing program,
the coverage-of which included the machanics o f d iese l
locomotives, a ir equipment and study o f the appropriate regu
lations o f the In te rs ta te Commerce Commission. P la in t i f f Van
Ness completed the apprenticeship program in March, 1968 and
automatically became a machinist with one yea r 's sen io r ity . In
selecting gang foremen,.defendant L .I.R .R . has tra d it io n a lly
given preference to bids from men who i t has trained in i t s
apprenticeship program. Since February. 1972. P la in t i f f Van
Ness has been "h igh-rated" or allowed to tem porarily substitute
fo r gang foremen without taking over th e ir jobs. However,
despite P la in t i f f Van Ness* completion o f the apprenticeship
program, h is high ra ting and h is eleven (11) years experience
with d iese l locomotives (2 years in trade school studying
d iese l repa ir and maintenance. 5 years in defendant L .I.R .R 's
apprenticeship program and 4 years as a mechanic), defendant
L .I.R .R . has p e rs is ten tly denied him a promotion to gang
foreman. Defendant L .I.R .R . has refused to promote P la in t i f f
Van Ness to gang foreman so le ly because o f hi.s race and co lo r.
49- P la in t i f f A lbert Stroman was f i r s t employed by
defendant L .I.R .R . in September 1961, as a crossing watchman.
In September 1964 defendant L .I.R .R . abolished p la in t i f f Stroman’
job and la id him o f f . In March 1965 defendant L .I.R .R . ca lled
p la in t i f f Stroman back in to the track department as a track
maintainer, a job under the ju r isd ic t io n o f defendants In te r
national Brotherhood o f Teamsters and i t s Local 808. In January
1970 Stroman was permitted to enter engine serv ice , an area from
which blacks had previously been excluded, as an engineer
apprentice. Engine serv ice is under the ju r isd ic t ion o f defen
dant Brotherhood o f Locomotive Engineers. Pursuant to the
c o lle c t iv e bargaining agreement entered in to between Uelendant
22
A-63
B.L.E. and defendant L .I .R .R ., P la in t i f f Stroman's sen io r ity
fo r purposes o f promotion, demotion and la y -o f f began on the
day he entered engine se rv ic e .
50. In accordance w ith defendant L .I.R .R .*s requirements,
in September, 1971 P la in t i f f Stroraan passed an examination
covering operation ru les , s igna ls and other m aterial with which
engineers are requ ired to be fa m ilia r . By passing the examina
tion , P la in t i f f Stroraan “q u a lif ie d " fo r work as a regular
en g in ee r ..«Although he q u a lif ie d in September, 1971, P la in t i f f
Stroman was not allowed to make h is f i r s t solo run as an engineei
u n til on or about December 25, 1971. Because o f P la in t i f f
Stroman's lack o f experience he was accompanied by Road Foreman
M ille r , a supervisor. A fte r the run. M ille r submitted an un
favorable report on P la in t i f f Stroman's performance and in
January, 1972 P la in t i f f Stroman was suspended from engine service
and required to r e -q u a lify . In February, 1972 P la in t i f f Stroman
passed the examination again, thereby “re -q u a lify in g " fo r work
as an engineer. In March, 1972, P la in t i f f Stroman was again
suspended from engine se rv ic e fo r a lleged v io la tio n s o f operat
ing ru le s . He submitted to specia l tra in ing by three L .I.R .R .
instructors, and a t the end o f the extra-ord inary tra in ing
session P la in t i f f Stroman was given a "do-or-d ie " t r i a l run by
L .I.R .R . Supervisor Matarazzo who recommended that P la in t i f f
Stroman be again suspended from engine serv ice on L . I .R .R . 's
main lin e s . As a re su lt o f Matarazzo's report. P la in t i f f Stromas
was in A p r il, 1972 permanently suspended from main lin e engine
serv ice and r e s tr ic te d to duties in defendant L . I .R .R . 's yard
f a c i l i t i e s . Since P la in t i f f Stroman had less s en io r ity than
whites who always had the opportunity to accrue s en io r ity in
engine serv ic e , he was unable to secure a job in the yard
f a c i l i t i e s . Thus the s en io r ity system embodied in the c o lle c t iv e
bargaining agreement between defendant B.L.E. and defendant
- 23 -
L .I.R .R . has operated to deprive P la in t i f f Stroman o f employment
opportunities and perpetuates past patterns o f d iscrim ination,
i . e . , the exclusion o f blacks from engine serv ice .
51. Defendant D .I.R .R . has refused to permit P la in t i f f
Stroman to develop as an engineer by gaining frequent experience
tn tbe operation o f d ie s e l locomotives, ye t i t has removed him
from engine serv ice fo r making a lleged errors attribu tab le to
his lack o f experience. P la in t i f f s a lle g e that the operational
e rro rs , i f any, committed by P la in t i f f Stroman were errors
commonly committed by novice engineers, and that P la in t i f f
Stroman s removal from engine serv ice constitutes -discrimination
against him because o f h is race and c o lo r .
52 . P la in t i f f Stroman was, a t the time o f his employment
in engine serv ice , a member o f the Brotherhood o f Locomotive
Engineers, which was, and is , the represen tative o f locomotive
engineers for the purpose o f c o l le c t iv e bargaining with the
L .I.R .R . The c o l le c t iv e bargain ing agreement then in e f fe c t
between the defendant L .I .R .R . and defendant B.L.E ., contained
provisions mandating the holding o f a fa ir and impartial inves
tiga tion and hearing w ith in 15 days o f any v io la tio n o f the
°Pera^tng ru les . No dism issal or suspension may take place
without such in ves tiga tio n . The c o lle c t iv e bargaining agreement
s p e c if ic a lly p-rovides fo r union representation o f the accused
during the course o f f a i r and im partial in vestiga tion .
53. P la in t i f f Stroman was never accorded a fa ir and
im partial in ves tiga tion . The B.L.E. never attempted to intercede
m his behalf as i t was ob liged to do by the terms o f the c o l
le c t iv e bargaining agreement. Although P la in t i f f Stroman com
plained to the union on numerous occasions, the union never
challenged e ith er the fa ilu r e to hold the mandatory in vestiga tio r
or the unusually severe sanctions imposed bn Stroman by the
2 4 -
A 65
L .I.R .R . On numerous occasions white engineers have committed
v io la tion s o f the operating rules more serious than the ones o f
which P la in t i f f Stroman is accused. Nevertheless, the sanctions
imposed on these white engineers were not as severe as those
imposed on Stroman. On these occasions, defendant B.L.E. in te r
ceded in behalf o f i t s accused white members, thereby reducing
the severity o f the d isc ip lin a ry sanctions. The Brotherhood o f
locomotive Engineers has, therefore, fa ile d to abide by the duty
o f fa ir representation i t owed p la in t i f f Stroman. This fa ilu re
constituted discrim ination against P la in t i f f Stroman because o f
h is race and c o lo r .
54. P la in t i f f Howard R. Outerbridge. was f i r s t employed by
defendant L .I.R .R . in A p ril .1955, as a crossing watchman, a
position then under the ju r isd ic t ion o f the Brotherhood o f
Maintenance o f Way. He made repeated attempts to get various
shop jobs that he heard were ava ilab le , but was always to ld by
defendant L .X .R .R .'s personnel manager that there were no open
ings. In August 1964 defendant L .I.R .R . abolished P la in t i f f
Outerbridge’ s job and assigned him to a laborer job. In October
1964 Outerbridge was permitted to transfer to the Locomotive
Shop, an area from which blacks had previously been excluded, as
a blacksmith helper. Although he was high-rated as a mechanic,
i . e . , temporarily assigned to the job o f mechanic, several times
starting in 1965, he was not promoted to the position o f mechanic
u n til 1971. A less senior white, R. D. Gearing, was promoted to
mechanic before P la in t i f f Outerbridge was promoted. On or about
June 26, 1973, defendant L .I.R .R ., once again abolished defendant
Outerbridge*s job, purportedly to accomplish a reduction in
force . Subsequently a white helper, D 'Esposito, who was not
qu a lif ied as a mechanic, was temporarily assigned to perform the
job which L .I.R .R . had purported to e lim inate, Outerbridge was
furloughed from the blacksmith shop because he had the least
I
2 5 -
-■aring had lesssen iority as ~ blacksmith mechanic, R. D.
sen iority in the blacksmith shop and was not furloughed. No
black ever held the job o f blacksmith mechanic u n til 1'969. Thus,
the sen iority system embodied in the c o lle c t iv e bargaining agree
ments between defendant In ternational Brotherhood o f B o ile r
makers and defendant L .I.R .R . has operated to deprive P la in t i f f
Outerbirdge o f employment opportunities and perpetuates past
patterns o f discrim ination, namely, the exclusion o f blacks from
the blacksmiths shop, and, in particu la r, from the job o f black
smith mechanic.
55. According to an agreement between defendant L .I.R .R .
and defendant in ternational Brotherhood o f Boilermakers re la tin g
to the reduction in force , p la in t i f f Outerbridge should have been
placed on a preferred h ir in g l i s t fo r re-employment in any pos i
tion for which he was qu a lif ied , p la in t i f f Outerbridge is
qu a lified to perform, with the customary tra in ing, the jobs o f
trainman, block operator and car repairman, among others.
Defendant L .I.R .R . has refused to re-employ P la in t i f f Outerbridge
in the positions o f trainman and block operator on the ground
that he wears eye-g lasses. Defendant L .I.R .R . employs white
trainmen and block operators who wear eye-glasses.
56. On July 25, 1973 P la in t i f f Outerbirdge applied fo r
ten d iffe ren t positions that were posted. The award b u lle tin
fo r those postings states that no bids were received on two
car repairman positions, even though P la in t i f f Outerbridge
applied fo r those pos ition s . On information and b e l ie f .
P la in t i f f Outerbridge was not awarded a car repairman job be
cause he is not, under the provisions o f the c o lle c t iv e bar
gaining agreement in e f fe c t between the defendants Brotherhood
o f Railway Carmen and it s Local 886 and L .I.R .R ., e l ig ib le to
bid on such job even though he is q u a lif ied to perform such
job. Pursuant to said agreement, defendant L .I.R .R . may place
in car repairman jobs only employees who are on a l i s t fu r
nished to the L .I.R .R . by defendant B.R.C. This r e fe r ra l arrange
ment has a discrim inatory impact upon blacks. Thus the provisions
o f said agreement operate further to lim it P la in t i f f Outerbridge' s>
Ar.66
I
t
26 -
! employment o i'oorcum ties ana to perpetua the e ffe c ts o f past
! discrim ination by defendants L.X.R.R. and International Brother-
i ' •
hood of Boilermakers.
‘ j
i 5 7 . Not having been able to obtain another assignment,
| p la in t i f f Outerbridge had been placed at the bottom o f the Coach
| cleaner's ro s te r . His pay has been reduced from $247 per week
which he received as a mechanic to $184 per week. Although he
has been employed by the defendant L .I.R .R . fo r 19 years,
p la in t i f f Outerbridge*s sen io r ity fo r purposes o f promotion and
la y -o ff dates from the day he became a coach cleaner. P la in t i f f
Outerbridge has been required to pay an in it ia t io n fee o f $150
to the Brotherhood o f Railway Carmen, which has ju r isd ic t ion
over the coach cleaner job .
58. Most o f the job categories o f defendant L .I.R .R . f a l l
within classes or c ra fts which have been tra d it io n a lly e ith er
white or black. Blacks have been excluded from, in te r a l ia , the
more desirab le and better-paying jobs o f road passenger conductor,
yard conductor, yard foreman, yard brakeman and maintenance o f
way inspector, which jobs are under the ju r isd ic t ion o f defendant
U.T.U., from the jobs o f road passenger engineer and motorman,
under the ju r isd ic t ion o f defendant B .L.E ., from o f f ic e and
c le r ic a l jobs, and the jobs o f agent and block operator, under
the ju r isd ic t ion o f defendant B.R.A.C., from the jobs o f car
repairman and car inspector, under the ju r isd ic t ion o f defendant
B .R .c., from the job o f e le c tr ic ia n , under the ju r isd ic t ion o f
defendant I.B .E .W ., from the job o f machinist, under the ju r is
d iction o f defendant I.A .M ., from the jobs o f gang foreman,
foreman, techn ical engineer, a rch itec t and draftsman, under the
ju r isd ic t ion o f defendant A.R.S.A. lo ca ls , from the jobs o f
boilermaker and blacksmith, under the ju r isd ic t ion o f defendant
I.B .B ., from the job o f yardmaster, under the ju r isd ic t ion o f
defendant Local Lodge #91, Railroad Yardmasters o f America, from
the jobs o f signalman, signal maintainer, and signal technician,
under the ju r isd ic t ion o f defendant Local lodge #56, Brotherhood
* w
°f Railroad Signalmen, from the job o f sheetmetal w o r k e r under
the ju r isd ic t ion o f defendant Local 138, Sheet Metal Workers
27
A* 68.
International Association, and from the job of bridge and build
ing mechanic, under the jurisdiction of defendant International
Brotherhood of Teamsters.
59. Defendants Brotherhood o f Railway Carmen, Brotherhood
o f Locomotive Engineers, United Transportation Union, Brotherhood
o f Railway, A ir l in e and Steamship Clerks, In ternational
Association o f Machinists, In ternationa l Brotherhood o f B o ile r
makers, and th e ir lo ca ls , and defendants Local Lodge #56,
Brotherhood o f Railway Signalmen and Local Lodge #91, Railroad
Yardmasters o f America have, in the past, excluded Blacks from
membership by con s titu tion a l or r itu a l p rovis ion , have maintained
segregated lo ca ls and separate s en io r ity rosters fo r whites and
blacks, and/or have entered in to c o l le c t iv e bargaining agreements
excluding blacks from the more d es irab le , higher paying jobs.
Defendants In tern ationa l Brotherhood o f E le c tr ic a l Workers and
Local 138, Sheet Metal Workers In ternationa l Association, have
had a p o lic y and p rac tice o f excluding blacks from membership.
60. Pursuant to sen io r ity systems embodied in the c o l
le c t iv e bargaining agreements in force between defendant L .I.R .R .
and the defendant unions, members o f the c lass represented by
the named p la in t i f f s " cannot tran sfer from tra d it io n a lly Black
classes and c ra fts to tra d it io n a lly white classes and c ra fts
without los in g th e ir accumulated s en io r ity . Thus the sen io rity
systems operate to lock Blacks in to t ra d it io n a lly Black classes
and c ra fts and to put those who are w il l in g to transfer to those
classes and c ra fts from which blacks have, by defendants* p o lic ie s
and p rac tices , been excluded at a com petitive disadvantage with
regard to promotions, demotions, s h ift se lec tion , job assignment
and la y - o f f v i s - a-v is whites who have always had an opportunity
to accrue s en io r ity in those classes and c ra fts . The discrim ina
tory e f fe c t o f the s en io r ity systems is i l lu s tra te d by the
* r
a llega tion s o f P la in t i f f V ivian Wright, S37, P la in t i f f A lbert
Stroman, ^5 0 , and P la in t i f f Howard Outerbridge, 554.
*
i
i
- 28 -
I
Af63
61. Defendant L . l.R .R . has in s titu ted and/or maintained
p o lic ie s , p rac tices , customs and usages made unlawful by the
C iv il Rights Act o f 1954 as amended, including but not lim ited
to the use o f screening procedures in the h ir in g o f new person
nel that d iscrim inate against black applicants fo r c le r ic a l and
operating c ra fts p os it io n s . Job applicants must apply fo r s p e c ifi
positions, and vacancies in these pos ition s are not posted. As
indicated by the a lle ga tio n s o f p la in t i f f Marshall Jackson, 538,
re la tives and friends o f present employees are given f i r s t know
ledge o f openings, and pu tative company "standards" set fo r
those positions have been frequently lowered o r waived to f a c i l i
tate the employment o f persons so re fe rred . Said p ractice has
resulted in the perpetuation o f a predominantly white work force
in c le r ic a l and operating c ra fts pos ition s and the concommitant
denial o f employment opportun ities to Black applicants fo r said
positions.
62. Defendant L . l.R .R . has estab lished requirements and
conditions fo r employment in and promotion to certa in positions
that are not demonstrably re la ted to the safe and e f f ic ie n t
performance o f the jobs upon which they are imposed. As in d i
cated by the a lle ga tion s o f p la in t i f f Marshall Jackson, ^38, and
p la in t i f f Howard Outerbridge, 555, said requirements and con-
tions have been used by defendant L . l.R .R . to segregate, lim it,
c la ss ify , r e s t r ic t and discrim inate against Black applicants
for employment and Black employees seeking promotions at defen
dant L . l .R .R . 's f a c i l i t i e s and have deprived and continue to
deprive them o f equal employment opportun ities, and otherwise
adversely a f fe c t th e ir status as employees because o f th e ir race
or co lo r.
63. Defendant L .l.R .R . has from time to time posted bxds
for jobs as they became vacant in various departments and/or job
categories. As ind icated by the a lle ga tion s o f p la in t i f f ^rT1
Brown, 543, applicants fo r such jobs may be required to pass
- 2 9 -
battery o f tes ts before they become e l ig ib le to bid fo r the job
vacancies. P la in t i f f s b e lie ve and a llege that the tests are not
p ro fess ion a lly developed a b i l i t y tests within the meaning o f
42 U.S.C. §2000e-2 (h) and that the use o f said tests , th e ir
adm inistration and action upon the resu lts is intended to and
does d iscrim inate against Black employees hecause o f race and
co lo r.
64. Defendant L.X.R.R. has established and maintained a
genera l p o lic y o f s e lec tin g employees fo r certain c le r ic a l and
supervisory pos ition s on the basis o f employee experience and
sen io r ity in threshold positions which require the performance o f
tasks s im ilar or id en tica l in nature to those performed in the
higher c le r ic a l and supervisory positions. Black employees o f
defendant L .I.R .R . who occupy threshold positions are denied
promotions' to advanced c le r ic a l and supervisory positions while
white employees with less experience and sen iority in threshold
positions than th e ir black co-workers are promoted, as indicated
by the a lle ga tion s o f p la in t i f fs Vivian Wright, J36, Edward
Harris, 541, Charles A llen , 546, Kenneth Morris, 547 and James
Van Ness, 548. Defendant L . I .R .R . ‘ s b latan tly discriminatory
promotional p rac tices l im it , r e s tr ic t and adversely a ffe c t the
employment opportun ities o f Black employees because o f th e ir
race and c o lo r .
65. The c o l le c t iv e bargaining agreements in e f fe c t between
defendant L .I.R .R . and defendants Brotherhood o f Railway Carmen,
Sheet Metal Workers Association, United Transportation Union,
Brotherhood o f locomotive Engineers, International Association
o f Machinists and Brotherhood o f Railway Signalmen and In ter
national Brotherhood o f E le c tr ic a l Workers and their loca ls pro
vide fo r the establishment and operation o f formal tra in ing and
apprenticeship programs fo r the c ra ft jobs o f car repairman,
sheetmetal worker, conductor in passenger service, engineer.
30 -
machinist, signalman and e le c tr ic ia n . Only persons e l ig ib le for
membership in the respective unions and who were hired into the
sp ec ific trainee positions can p a rtic ip a te in the train ing pro
grams. The defendant L .I.R .R . se lects trainees on the basis o f
re fe rra ls and recommendations by the unions. Defendants have
almost to ta l ly excluded Blacks from p artic ip a tion in said tra in
ing and apprenticeship programs, thereby lim itin g th e ir
opportunities fo r both in i t ia l employment and fo r advancement to
c ra ft jobs.
66. in addition to the formal re fe r ra l system embodied in
the provisions o f the c o lle c t iv e bargaining- agreements re la ting
to train ing programs, defendant L .I.R .R . and defendant unions
have established and maintained an informal arrangement whereunder
white individuals who are re la t iv e s and friends o f members o f the
defendant unions are re fe rred to company by defendant unions for
employment in the c ra fts represented by defendant unions. As a
resu lt o f the informal re fe r ra l arrangements between the
defendant L .I.R .R . and defendant unions, white applicants for
employment are informed o f, and thus have the opportunity to
aPPly fo r job vacancies before black applicant class members can
<3o so and are given preference fo r such job vacancies. As
alleged in 538, P la in t i f f Marshall Jackson was denied equal em
ployment opportunity when four white applicants who were sons o f
engineers in the employ o f the defendant ra ilroad were informally
re ferred fo r the pos ition o f fireman and were p re fe ren tia lly
hired in sp ite o f the fa ilu re o f at le a s t two o f the applicants
to meet the defendant ra ilro a d 's putative v is ion standards.
Having applied fo r and been h ired into sp e c if ic positions as a
resu lt o f th is re fe r ra l system the whites so hired are then
e l ig ib le to p a rtic ip a te in tra in ing and apprenticeship programs.
Said arrangement by the defendant unions in concert with the
defendant L .I.R .R . unlawfully lim its , segregated and c la s s if ie s
- 31 -
black applicants fo r employment in a. way that tends to deprive
them o f employment opportu n ities by excluding them from the
re fe r ra l arrangement and from tra in in g and apprenticeship pro
grams because o f th e ir race and c o lo r .
67. Defendant unions and defendant lo ca ls have v io la ted
and continue to v io la te th e ir duty o f f a i r representation im
posed upon them by the Railway Labor Act in that they have
acquiesced and/or jo in ed in the unlawful and discrim inatory prac
tices complained o f herein and they have fa i le d to p rotect the
Black workers o f defendant L .I .R .R . from said discrim inatory
p o lic ie s and p ra c tic es . The company has knowingly partic ipated
and acquiesced in said v io la t io n o f the duty o f f a i r represen
ta tion .
68. Pursuant to the terms o f the c o l le c t iv e bargaining
agreements, mentioned in paragraph 60 the defendants have
established a promotional and s en io r ity system which has the pur
pose and e f f e c t o f continuing and preserving the defendant's
p o lic y , p ra c tic e , custom and usage o f lim it in g the employment
and promotional opportun ities o f p la in t i f f s and other Black
employees because o f th e ir race and c o lo r .
XV. E.E.O.C. COMPLIANCE
69. On August 28, 1970 p la in t i f f Frances Joy Capers sub
mitted w ritten charges under oath on beh a lf o f members o f the
class with the Equal Employment Opportunity Commission, a lleg in g
denial on account o f race by defendant Long Island Railroad and *
those unions which have ju r is d ic t io n over i t s employees o f
p la in t i f f s ' r igh ts under T i t l e V II o f the c i v i l Rights Act o f
1964, 42 U.S.C. §§ 2000e e t . seq. In accordance with § 706(d)
o f T i t le V II o f the A ct, the Commission deferred the charges
to the New York State D iv is ion o f Human R ights. On September
5, 1972, p la in t i f f V iv ian Wright submitted a wr.itten charge
under oath w ith the Equal Employment Opportunity Commission
- 32
a lle g in g den ia l by the defendant bong Island Railroad o f her
r igh ts under T i t l e V II on account o f sex. P la in t i f f Diggs has
also f i l e d tim ely charges with the MYSDHR. On January 13, 19^2/'
the Commission found reasonable cause to b e lieve that defendant
Long Island Railroad and defendant Unions had committed v io la
tions o f the Act. A copy o f said find ing is attached hereto as
Exhib it "A ".
70. By le t t e r dated A p ril 24. 1972. p la in t i f f Capers was
advised that she was en tit led to in s t itu te a c i v i l action against
defendant L .I .R .R . in the appropriate Federal D is tr ic t Court
w ith in 90 days o f her rece ip t o f said l e t t e r . By le t te rs dated
December 13, 1972, p la in t i f f Capers was advised that she was
en tit led to in s t itu te c i v i l actions against the fo llow ing unions:
Brotherhood Railway Carmen o f America;
Brotherhood o f Locomotive Engineers;
Brotherhood o f Railway, A ir l in e & Steamship
C lerks, Freigh t Handlers, Express &
Station Employees;
In tern ationa l Association o f Machinists and
Aerospace Workers,
m the appropriate Federal D is tr ic t Court w ithin 90 days o f her
re ce ip t o f said le t te r s . By le t te rs dated January 2, 1973,
p la in t i f f Capers was advised that she was e n t it le d to in s titu te
c i v i l actions against the fo llow ing unions:
Local 0177, Brotherhood o f Railway, A ir lin e
& Steamship Clerks, Freigh t Handlers,
Express & Station Employees;
754, ln t '1 o f Machinists & Aerospace
Workers;
United Transportation Union;
Local 517A, United Transportation Union;
Sunrise Lodge #90, Brotherhood o f Railway,
A ir l in e & Steamship Clerks, Freight
Handlers, Express & Station Employees;
Local 886, Brotherhood o f Railway Carmen o f America, in the
ppropriate Federal D is tr ic t Court w ithin 90 days o f her rece ip t
o f said le t t e r s . By le t te r s dated September 27, 1973 p la in t i f f
473
i
- 33 -
A74
Capers was advised that she was en tit led to in s t itu te c i v i l
action against the fo llow ing unions:
Local Lodges 851, 851a , 853, and 857,
American Railway Supervisors Association
Local 138, Sheet Metal Workers In ternational
Association
Local #56, Brotherhood o f Railway Signalmen
Local Lodge #91, Railway Yardmasters o f
America
Transportation - Communication D ivision
o f BRAC
Local 808, In ternational Brotherhood
o f Teamsters
In ternationa l Brotherhood o f Teamsters [
In ternationa l Brotherhood o f Boilermakers
and Blacksmiths
In ternationa l Brotherhood o f E le c tr ic a l
Workers
Locals 645, 645B, 1831 and 1834, United
Transportation Union.
This su it was w ith in 90 days o f p la in t i f f Capers rece ip t o f
the Notice o f Right to Sue defendant L . I .R .R ., **nd motions to
amend to add the unions as defendants were tim ely made.
71. As a resu lt o f defendants* customs, p ractices , tra d i
tions and arrangements p la in t i f fs and the members o f th e ir c lass
have been, are and w i l l continue to be lim ited , c la s s i f ie d and
discrim inated against in ways which deprive them o f equal employ
ment opportun ities and otherwise adversely a f fe c t th e ir status
as employees because o f th e ir race and co lo r.
v. PRAYER FOR RELIEF
72. P la in t i f fs and the class they represent have no p la in ,
adequate or complete remedy at law to redress the wrongs a lleged
herein , and th is su it fo r a prelim inary and permanent injunction
34 -
A75is th e ir only means o f securing adequate r e l i e f . P la in t i f fs and
the class they represent are now suf.ferning and w i l l continue to
su ffe r irreparable in jury from the defendants' p o lic ie s , p ractices ,
customs and usages as set forth herein .
W5IEREF0RE, p la in t i f fs resp ec tfu lly pray th is Court to
advance th is case on the docket, order a speedy hearing at the
e a r lie s t p racticab le date, cause th is case to in every way be
expedited and upon such hearing to :
A. Grant p la in t i f fs and the class they represent a declara
tory judgment that the actions complained o f herein v io la te the
righ ts o f p la in t i f fs and the class they represent guaranteed by
T i t le V II o f the C iv i l Rights Act o f 1964, 42 U.S.C. §§2000e e t
seq.. the C iv i l Rights Act o f 1866, 42 U.S.C. §§1981 and 1983, and
the Railway Labor Act 45 U.S.C. §§151-163.
B. Grant p la in t i f fs and the class they represent a pre
lim inary and permanent in junction proh ib itin g the defendants,
th e ir agents, successors, employees, attorneys and those acting in
concert with them from engaging in the p o lic ie s and p ractices com
plained o f herein, or any ra c ia lly or sexually discrim inatory em
ployment p ractices , in v io la tion o f .T i t le V II o f the C iv i l Rights
Act o f 1964, 42 U.S.C. §§2 000e e t seq.. the C iv i l Rights Act o f
1866, 42 U.S.C. §§1981 and 1983 and the Railway Labor Act, 45
U.S.C. §§151-163.
C. Grant p la in t i f fs and the class they represent fu l l
r e l i e f from the e ffe c ts o f defendants' past discrim ination, in
cluding:
i ) Promotional opportunities fo r p la in t i f fs and other clast
members s u ffic ie n t to allow them to gain th e ir r igh tfu l plac
with respect to th e ir employ without loss o f sen io r ity ;
i i ) An award o f back pay representing the amount o f due
compensation lo s t by p la in t i f fs and other class members as
a resu lt o f defendants' acts and practices o f discrirainatior
i i i ) Rate protection s u ffic ien t to assure that Black employ
ees w i l l not be economically discouraged, prevented, or
e
- 35 -
. \
penalized in th e ir e f fo r ts to atta in th e ir r igh tfu l place in
L .I .R .R . 's employ;
D. Retain ju r isd ic t io n fo r a period s u ffic ien t to assure
fu l l compliance with the terms o f the decree prayed for herein and
a l l other requirements o f fed era l law. and during -he period o f
such retained ju r isd ic t io n requ ire fu l l and regular reporting o f
information pertain ing to such compliance;
E. Award p la in t i f fs and the class they represent the costs
o f th is action together with reasonable attorney s fees ;
F. Grant p la in t i f fs and the class they represent such
other r e l i e f as may be deemed necessary and proper to a fford
p la in t i f fs fu l l and e f fe c t iv e r e l i e f from a l l the e ffe c ts o f
defendants' unlawful acts and p ractices .
Respectfu lly submitted.
JZCK GREEN
DEBORAH M. GREENBERG
10 Columbus C irc le
New York, N. Y. 10019
RICHARD'HOLWELL
VINCENT FITZPATRICK
14 Wall Street
New York, N. Y. 10005
Attorneys for P la in t i f fs
- 3 6 -
J A77
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
. FRANCKS JOY CAPERS, e t a l „ , each
in d iv id u a lly and on behalf o f a l l
other persons s im ila r ly situated,
P la in t i f f s ,
D 5
72 C iv. 3160 (LPG) ■
ORDER TO SHOW CAUSE
-aga in st-
y
& \ L LONG ISLAND e t a l - •
• Defendants.
i'Y ’J
Upon the annexed A ff id a v its o f Thomas McGanney,
Esq. and Edward El Harris, sworn to September 16, 1975,
And i t appearing to the Court that immediate and
irreparab le in ju ry , loss or damage w i l l re su lt to p la in t i f f
'-Edward E. Karris i f defendant is not restra ined from remov-
|ir.g said p la in t i f f from his pos ition o f Assistant Station
I
Master in that he w i l l be unable to re -a tta in that position -
|once having lo s t i t , and i t further appearing to the Court
I that counsel fo r p la in t i f f has complied with the notice re
quirements o f Rule 65 o f the Federal Rules o f C iv i l Procedure,
a . ■ i
jj.it is
J „ ORDERED, that defendant show cause in Room
lo f the United States Courthouse, Foley Square, Borough o f
^Manhattan. C ity o f New York on the 2H& day o f September, 19.-5,
Jat /O'-OOi& fA, , or as soon th erea fte r as counsel can be
heard why an order should not be entered herein pursuant to
Rule 65 on ru le o f the Federal Rules o f C iv i l Procedure fo r
a prelim inary in junction en join ing during the pendency o f thx^
% 9 _ s
action defendant ana th e ir o f f ic e r s , agents, servants ai.
\f '
/V78
, ,, _ : r rnntro l and each o f them froma ll persons acting under th e ir con tro l
, v,; - n r p s e n t po s i t i o n as A s s istantremoving Mr. Harris from his pre s e n t P
Station Banter and awarding to Sir. Harris reasonable course
toes in connection w i t h bringing this motion, and it as further
. ■ i s hereby granted expeditedORDERED, that p la in t i f f is nexeor ̂ >
, tWA-iflberroqaterie6-Atfcache3
discovery so. t h a t -answer - .
hereto-be - answered—by--the—Railroad—and-served""upon-plal.htlf s
H ____________ -j—19 7 5 i”- that'"thfecounsel -b y -r.o later t h a n ---- -----
' document-request -attached hereto be complied with by tb .-R .r l-
road no- later-than -
# -~.197S> the deposition o f
t 'V a u ------ -------- JV/sO P - ■’ rft L Cl t ' * '1 '*
the Railroad by the employee L J. R iz r .o .s a / o 'b e
^ ^ w’- '* ■ 1 -u e n ie a t—to —the—p a r t i e s —pr-iar-^fco^ ^
s~ ■ , VO'a'a -r ^ ^ '^ 'V ^ C a r in ^ n - th e -p ^ o g r e s1975, a n d - th a t^ s ^ tu s -n ^
CoU«ba u>: ^M ^'^^.-'-covery be" held before th is Court in of such expedited d iscovery oe
! Cf V/C V a ; '■ • ' 11A______ _ _ _ _ _______ T 975, and-i-t-i-s—furthe*
Room------- - ■
vO P i*E R E trr^ ^ T tn d in g ^ iea r in ^ r'Q--<]eterrriin ^
said-motion, defendant and i t s o f f ic e r s , agents,
employees and . U persons acting under ^ c o n t r o l
of th e. are-tem porarily restra ined from ^ah in , any action
i •. f > ^stant Station
' .. Unrrid from h is pos ition o f Assi jremove Mr. Harris rrom u i v = ,
i -ro^training order is granted upon th.
tMaster.. This temporary r e s tra in ! g
5 , , n t i f f f i l e . ^ undertaking fo r a bond a-
condition th a t 'p la in t i f f V ' .
i procedurevC5(c) m the
required by Federal Rules o f Ci \ _
S fo r the payment o\sucn co
amount o f $ \
and d a m a g e s ^ »ay be incurred or su ffered by a n y ^
who ip^found to be w rongfu lly enjoined or restra ined
s ' m ——— " ' Jp- k ant
who ls 'iouna to oe _ x __ ;
/ ._____ — — ‘ • c'^ ~ ^ 7 ~ 3 e ' f e n d a n t _ o f _ a. c o p i >
ci^nt-caus‘e_appearing thereror.
- 2-
papers
975 sSsTI-T.^deemed jarff-icient-service/
2 ,_ together.-wifch-copies erf-the;-
l P Q >
UNI T E D STATES DISTRICT C O URT
SOUTHERN DISTRICT OF N E W Y O R K
A - 80
FRANCES JOY CAPERS, et a l . . each
individually and on b e h a l f of all
other persons similarly situated,
i Plaintiffs,
-against-
L O N G ISLAND RAILROAD, et al,.
Defendants.
72 C iv . 3168
(LPG)
A F F I D A V I T
S’ STATE O F NEW Y ORK )
, COUN T Y OF NEW Y O R K j
ss. :
THOMAS McGANNEY, being duly sworn, deposes:
1, j am a member o f the Bar o f th is Court and o f
the firm o f White & Case, attorneys for FRANCES JOY CAPERS,
' e t a l . , each in d iv id u a lly and on behalf o f a l l other persons
s im ila r ly situated, p la in t i f fs in th is action . I make th is
} .
; A f f id a v it in support o f the annexed Order to Show Cause and
&
- 'i
'Temporary Restraining Order, and in compliance w ith Rule 65
i •
, o f the Federal Rules o f C iv i l Procedure.
2. The re levant facts are set forth in the
f. A f f id a v it o f Mr. Edward E. Harris annexed to the Order to
?
I Show Cause. The A f f id a v it states that the defendant in
r
| re ta lia t io n for Mr. H arris ' su it against the defendant and
̂as a further act o f d iscrim ination against him, has removed
l him from his position o f Assistant Station Master without
j a hearing on the grounds o f insubordination and improper
' announcement and posting o f track changes on September 12.
"‘ 1975. although, on Mr. H arris ' information and b e l i e f , no
s im ila r ly situated white employee has ever been taken out
n ' • r
o f serv ice for such reasons. I
If
J
A 81
3 _ f,s set out more fu) 1> in Hr. H er.is * ? f f id a v it ,
on September 20, 1974 th is Court conducted an ev id en tia ry
hearing in connection w ith a p r io r app lica tion fo r a
prelim inary in junction on beh a lf o f Mr. H arris. In August
1974 the defendant removed Mr. Harris from serv ic e as an
Assistant Station Master ("ASM") a t Penn Station fo r a lleged
fa ilu re o f a B o o h o f Rules examination which p la in t i f f s
contended was conducted in a manner never p rev iously re
sorted to w ith respect to white employees s im ila r ly s ituated .
During the course o f Mr. Harris* d ire c t examination at that
hearing, and at the Court's suggestion, the matter was
;iresolved when the defendant agreed to continue Mr. H arris
|»
as an ASM i f he passed a Book o f Rules examination given
'* to a randomly selected group o f employees s im ila r ly s ituated .
|Mr. Harris subsequently received the h ighest score o f the
|seven Assistan t S tation Masters.taking the te s t and was
continued in the p os ition .
4. I have been informed by Todd B. S o l l is , Esq.,
an associate o f White & Case, that discussions re la t in g to
| th is matter have been carried on betw een Lawrence P. Rubm.
I Esq., a s ta f f attorney fo r the Long Island R ailroad , repre-
|sentihg defendant and Mr. S o l l is . representing Mr. H arris .
| On September 16. 197 5 when Mr. R ub in indicated that
| defendant would not re in s ta te Hr. Harris as an Ass istan t .
jS ta t io n Master, he was advised by Mr. S o ll is that p la in t i f f
I would apply to th is Court for a Temporary Restrain ing Order I
I s . no previous app lica tion fo r th is r e l i e f has
lb .™ made Other than the r e l i c t nought in 197i as discussed
in paragraph 3 herein .
Sworn to before me th is
t | \p day o f Septem ber, 1975.
s ~XhOTras~McGanney " V
J! Notary Public
i H e i . n f , , , k» t;.,r\ i t a ;• Krw Yo*k Cow***
|«! CommmUm l«*»*** ^
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
A-85
' FRANCES JOY CAPERS, e t a l . ,
each in d iv id u a lly and on behalf
o f a l l other persons s im ila r ly
* s ituated .
P la in t i f f s ,
-a ga in s t-
LONG ISLAND RAILROAD, e t a l . ,
j Defendants.
72 C iv. 3168 (LPG)
AFFIDAVIT
t _ _ _ _ — X
i
! State o f New York )
• : s s .:
\ County o f New York )
* ’
| EDWARD E. HARRIS, being duly sworn, says: _
1. 5 am a black c it iz e n o f the United States, and
I
1 an employee o f defendant. Long Island Railroad ttha R a il-
3 road "), and a member o f a c lass o f p la in t i f f s bringing th is
! law su it. I make th is a f f id a v it in support o f my motion fo r
! a temporary res tra in in g order restra in ing the Railroad from
\ future v io la t io n s o f my righ ts under T i t le V II o f the C iv i l
v Rights Act o f 1964 and ordering the Railroad to re in sta te me
l in the p os itio n o f Assistan t Station Master ("ASM").
2. This is the second tin e in s l ig h t ly over twelve
| months that I have been forced to appear before th is Court to
\ seek in ju n c tiv e r e l i e f as a re su lt o f the R a ilroad 's r e t a l i -
*■ atory measures taken against me as a p la in t i f f m th is action.
I was forced to seek in ju n ctive r e l i e f in August -1974 when
: the Railroad attempted to remove me on spurious grounds from
[ my pos ition o f ASM. The h isto ry o f the R a ilroad ’ s d iscnm m -
S atory a c t iv i t ie s against me is contained in my a f f id a v it which
’ was submitted in support o f that 1974 motion, a copy o f which
1 .,? is attached hereto as Exhibit 1. and the Court is resp ectta lly
A 83
d irec ted to that Exh ib it.
3. Generally speaking, 'the Railroad attempted to
remove me in 1974 from ASM to the lower-ranking "usher"
status on the purported grounds that I had " fa ile d " an exam
in ation which the Railroad demanded that I take and which
examination was not required o f other ASM's. As a resu lt
o f my motion, th is Court ordered that the Railroad immedi
a te ly maintain me in my position o f ASM with the same sen ior-
i t y and pay status pending the outcome o f a hearing on the
» prelim inary in junction motion. During the course o f my te s t -
i
imony on September 20, 1974 at the prelim inary in junction£
hearing, and at the suggestion o f the Court, the matter was
resolved when the Railroad agreed to maintain me as an ASM
|f •
i f I-passed another Book o f Rules examination which would be
?
j administered to me and‘ s ix o f the eleven other ASM's. I took
■3 th is examination and scored higher than any other ASM selected
! to be s im ila r ly te s ted . 1
| 4. The Railroad was apparently unsatisfied with
* th is resu lt and has continued th e ir pattern o f harrassing
> ta c t ic s in r e ta l ia t io n fo r my decision to be a p la in t i f f in
th is .T i t le V I I action against them. On September 12, 1975
l I was taken out o f serv ice on the a lleged charge o f corcmit-
i , -
t in g an "insubordinate a c t ." (See the le t t e r o f J .J . Gaynor
i
t to me dated September 12, 1975 attached hereto as E xh ib it 2 ).
p
5. The "insubordinate act" to which the l e t t e r
i re fe rs concerns an a lle g ed ly tardy announcement o f a change
o f tracks fo r a departing tra in - an incident which undoubt-
s .
̂ ed ly occurs thousands o f times every year v?ithout repe,cus-
*■ sion as a resu lt o f any number o f human or mechanical f a i l
le ures. Such an in ciden t, to the best o f my knowledge, has
< rever before resu lted in anyone being removed from serv ice .
- 2-
6. On the evening o f Thursday, September 11, 1975,
when I began my work as ASM at Penn Station , my immediate
superior on the night s h if t , Mr. Bob Landsperg, an Assistant
Terminal Trainmaster a t Penn Station , to ld me that he had
received a le t t e r from Mr. Picaut, another Assistant Terminal
-Trainmaster at Penn Station , stating that Mr. J.J. Gaynor,
Terminal Superintendent; had ordered a procedure change in
the departure of two tra in s : tra in number PWA-648, a non-
passenger tra in departing at 6:48 a.m. and tram 708, a
passenger tra in , normally departing from Penn Station at 6:51^
̂a.m. Both tra ins depart'from the same platform - one on a
track 15, the other right across the platform on track 16.
^The le t t e r stated that Mr. Gaynor had decided that xf i t ,
"appeared that there would be any delay in the a rr iva l o f
i equipment to be used fo r PWA-648 or any other delays on that
j t r a in , plans were to be made to transfer equipment from ^
"number 708 which normally would depart at 6:51 and to use _
f that equipment as tra in number PWA-648. In essence, the j
! equipment fo r 708 was to be used as PWA-648 and the equipment^
* which normally arrives in the station as tram 1611 and which_
* would have been used as PWA-648 would then be used as P « - •
i '
senger train number 708. j
7. Early Friday morning, September 12, 1975, Mr. ^
'Landsperg and I were informed by Harold tower that the in - (
I coming tra in (number 1611) which would eventually be used as ,
i PWA-648 would be la te in a rr iv in g at Penn Station. We there
•> fo re commenced to carry out Mr. Gaynor's instructions and
; decided to switch the tra in scheduled to depart as number
■I 708 fo r that which would normally have been used
i . fV.i_ -n«ant that passengers fo r the648. Again, m essence, th is meant t t
$ , . _, r . n -* rn would he recjuired
! number 7 08 tra in departing at
a to cross the platform to a tra in on the track opposite from
jj that which th e ir tra in normally departed. .
j tLn crews of both, trains 8. 1 personally informed the crews o
i
- 3 -
A-$5
|
o f the switch and the equipment which would have been number
708 departed as PWA-648 at approximately 6:40 a.m. P rior to
th is time I spoke to Mr. Sherer, the usher on the platform,
and to ld him to post and verba lly announce the change. I
also ca lled Mr. Simmons, in the t ic k e t o f f i c e , and to ld him
o f the track change. Apparently Mr. Sherer did not immedi- .
a te ly post the change, although he did make the public .
announcement to those passengers.
9 . While I was attempting to fin ish my paper work
and conclude my work day at the normal qu ittin g time o f 7:00 (
a.m., Mr. L. J.’ Rizzacasa, the Terminal Trainmaster burst j
in to the o f f ic e screaming "Why haven 't you made the track .
change announcement". I asked him what changes he was re fe r
r in g to because I had already taken care o f the switch con
cerning tra in 708. He continued to rant and rave at me |
"u n til I reminded him that Mr. Landsperg, [my boss and his ^
jsubordinate] was in charge. When I am On duty, I mutt
i fo llow Mr. Landsperg's instructions. His rep ly to me was
"Don' t t e l l me who is in charge, you are responsible for
&
■making track changes, and you are out o f serv ice.
| 10. 1 was so shocked by h is statement in l ig h t of
j-the common place nature o f the a lleged error and the fa c t
• that I had fu l f i l l e d my re sp on s ib ility in that regard, that
“ I packed up my belongings and l e f t . As I reached the p la t
Hform fo r my tra in home, I noticed that the usher was in the
^process o f posting the change in tracks and I heard the
^announcement being made by the usher. X boarded number 708,
''the very tra in over which the controversy leading to my
termination had centered, and by my watch i t was righ t on
*!time in departing the s ta tion . Indeed, some passengers were
.'.already asleep on the tra in by the time I boarded i t .
j 11. in l ig h t o f the R ailroad 's discrim ination
a .
A 86
against me in the past fo r my ro le as a p la in t i f f in th is
action , in l ig h t o f the de minimus nature o f the harm re s u lt
ing from th is common s lip -u p , and in l ig h t o f the nature o f
the "insubordinate act" fo r which I was removed from s e rv ic e ,
I can only conclude that i t is only a part o f the R a ilroad ’ s
plan to continue to punish me fo r my p a rtic ip a tion as a class
member in th is case. Although I have been a lo ya l Railroad
employee fo r 21 yea rs , th e .R a ilroad 's r e ta lia to ry measures
leave me w ith only my s en io r ity o f an usher. A l l s en io r ity
fo r purposes o f future la y o ffs and promotions which I accrued
as an ASM w i l l be lo s t . In add ition to my great reduction
in pay and the hum iliation I have su ffered as a re su lt o f
th is continuing pattern o f d iscrim ination and r e ta l ia t io n , i t
’ is h igh ly l ik e ly that the Railroad w i l l attempt to f i l l my
I
‘ p os ition w ith another employee. Once th is is done, the R a il-
; road w i l l have ra ised ye t another b a rr ie r to regain ing a
| pos ition that has tw ice been w rongfu lly taken from me.
^Equally unjust is the fa c t that th is r e ta lia t io n centers upon
I my p a rtic ip a tion in an action which seeks to compel the
Fi
Railroad to obey the laws o f the United S tates.
12. On the basis o f th is a f f id a v it and the p r io r
h isto ry o f th is action , 1 request th is Court to order the
Railroad to immediately cease i t s continuing d iscrim inatory
fi
and' r e ta lia to ry ta c t ic s against me, to immediately reassign
:me to my former p os ition as an ASM w ith the s tip u la tion that
ino fu rther such actions be taken against me by the Railroad
except upon order o f th is Court and fo r good cause shown
pending the outcome o f th is action and to award me counsel
fees in connection w ith the bringing o f th is motion
Edw«ir3EJ Harris
-5-
t
A 87
Sworn to before me th is
16th day o f September, 1975.
Q&iUtn 7
‘"Notary Public
JANET M. FA1ES
Notary Public. Stote of New York
No. 52-521922
Ouatllicd tn Su'fol'; County
Cert'f.^or? fi'aC iiii.'ev; i t . rU County
CojiVTuts .n r.xpj.ei ârcii 30. 197£
Th e Long island
Rail Road
M«mbcn ©f lli« Board
Chairman and
Cnie* Cxetut»ve Orttco» David L. Vunich
lawfence R. Bailey
Leonard Er*un
William L. Butcher
Donald H. E lliot!
Justin N. Feldman
Haro’d L. Fisher
Mortimer J. Glecson
Edwin G. MichaeUan
Ebcn W. Fyne
Constantine S*damon-Eri*toff
Jamaica Station Jamaica. Nnw York 11435 Phon® 212 JAmaica 6-0900
September 12, 1975
Mr. E. E. H arris
187-15 N ash v ille Boulevard
S p r in g fie ld Gardens, N. 7.
Dear S ir : -
This is in accordance with your i n . ^ f ^ S L e t f o r a o r
Mr. L. J. Rizzacasa, Terminal Trainmaster^ ^ ceM „ ts e f f e c t -
to you to make the proper track changes and accou:
ing tra in 1708 on th is date.
Your rep ly to Mr. ^ z a c a s a was This being
y o u r ^ r e s p o n s ib il i t y °a s "A s s is ta n t Station Master should have been
complied w ith but you refused to do so.
E ffe c t iv e a , o f 7 :0 ! A.H. . S . “ '
d irec ted by me to exerc ise your sen io r ity 9
Very tru ly yours,
• eaynor
in a l Superintendent
JJG:lg
EXCERPTS FROM PROCEEDINGS OF
U. S. DISTRICT COURT HELD
ON OCTOBER 1-3, 7, 10 AND
NOVEMBER 11, 1975
(Pages A-90 to A-263 following)
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MR. HOLWELL: That's correct, your Honor.
THE COURT: All right, proceed.
MR. HOLWELL: The plaintiffs would like to call
Mr. Edward Harris to the stand.
E D W A R D H A R R I S , called as a witness,
after having been first duly sworn, was examined
and testified as follows:
DIRECT EXAMINATION
BY MR. HOLWELL: '
Q Mr. Harris, would you state your age, please?
A 54.
Q What is your race?
A Black.
Q Could you tell us what your educational back
ground, Mr. Harris, is as far as schools you have attended?
A I finished high school and acquired a scholar
ship for four years at City College, business administra
tion, and I was working for the Railroad at the time and
managed to complete only about two of those years.
Q Did you have any other educational training?
A Yes. I am a graduate of the American Theatre
Wing.
Q By whom are you employed, Mr. Harris?
SOUTHERN DISTRICT COURT REPORTERS, US, COURTHOUSE
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[8]
rgjb
A
Harris-direct f\ 91
A Long Island Railroad.
Q How long have you worked for the Railroad?
A About 21 years.
Q What was the first job you had with the Rail-
road?
A Mail handler.
0 How long did you stay in that job?
A From 1954 to approximately '63.
Q What job did you move to after working as a
mail handler?
A The job as an usher.
Q Is the usher a union job, Mr. Harris?
A It is.
Q What union has jurisdiction over that job?
A The Brotherhood of Railway Clerks.
Q Could you explain to me in your own words what
duties and functions an usher performs?
A The usher is the right arm of the station
master. He operates, he gives information in the station.
Q Continue, Mr. Harris.
A He gives information in the station in regards
to train departures and arrivals, if he knows at the time,
and he puts up signs to explain the time of departure of
trains, their destination. Ushers are the man that you
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[9]
r g j b Harris-direct
will come in contact with in uniform in the railroad
station. These are the men that will tell you where to
go if you wish to take a particular train.
Say, for instance, you are going to Long Beach,
you ask an usher where is the next train to go to Long
Beach. lie will give you the time and the place and he
facilitates the whole operation of the station.
Q How long did you work as an usher, Mr. Harris?
A Excuse me just a moment.
Q Sure.
A In addition to this he also announced the trains
and their destinations.
0 Is there anything else that he does or is that
a general description of his duties?
A That’s generally what he does.
Q How long did you perform these duties as an
usher, Mr. Harris?
A From ’63 to *72.
Q After working as an usher for nine years what
was your next position in the Railroad? r
A My next position was stationmaster. Assistant
stationmaster, I am sorry.
Q Is the assistant stationmaster1s job a union
job; is it covered by a collective bargaining agreement?
A- 9 2
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[10]
rgjb Harris-direct A- 93
A No, it is not.
Q Is it considered a management job?
A It is considered a management job.
Q Perhaps you could describe in your own words
again what the duties and functions of an assistant station
manager are.
MR. STOKES: Excuse me, your Honor, I thought all
witnesses were excluded from the courtroom.
THE COURT: So did I.
MR. STOKES: I believe there is still a witness
in the room, or are you not going to call Mr. Sherer?
MR. HOLWELL: We moved to exclude your witnesses,
not ours.
MR. STOKES: Then I will so exclude all witnesses.
THE COURT: Yes, all right.
Q I am sorry, Mr. Harris, you were telling us what
your duties and functions as an assistant stationmaster
are.
A In general an assistant stationmaster administers
the operation in the station under the direction of the
trainmaster or the terminal superintendent, in this case,
or both as is the case at Penn Station. We have a terminal
superintendent and a terminal trainmaster, as well as
assistant trainmasters.
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[11]
rgjb Harris-direct
Now, the assistant stationmaster functions under
these individuals and his duties are generally to administer
the operation of the station to see that the order and
protection of passengers are maintained, to see that the
station is policed, to record inbound and outgoing trains,
to see that the station is cleaned and the general opera
tion of the station, to see that various announcements are
made in relation to the train departures, et cetera.
MR. HOLWELL: I have Exhibit 1, your Honor.
Would you like to look at these exhibits before we hand
them to the witness?
THE COURT: Yes. All the other pages are some
what similar to page number 1, is that so?
MR. HOLWELL: That’s correct, your Honor.
Q Mr. Harris, I show you Plaintiff's Exhibit 1 and
I ask you if you recognize the document.
A Yes, I do.
Q Can you tell me what it is?
A It’s a stationmaster's train record sheet.
Q Is this a document that you would keep in the
normal course of your business?
A That's correct.
MR. HOLWELL: We would like to offer this into
evidence, your Honor.
SOUTHERN msi.-ICT COURT RFPORTI RS. UV COURIIIOUM
_ FO!TV M’ .MU NKW Y( *KK '
Harris-direct A-95
THE COURT; No objection?
HR. STOKES; I have no objection.
THE COURT: Received.
(Plaintiff's Exhibit 1 received in evidence.)
MR. STOKES: The only question I would ask coun
sel is is that for a specific day?
MR. HOLWELL: The document reads on the top of
it effective 5/20/74.
MR. STOKES: No, I mean the sheets—
THE COURT: Let Mr. Harris look at it and he
will know.
Q Can you explain to me—
THE COURT: Is- that for a specific day?
THE WITNESS: This is a train record sheet for—
in this case, this is Monday to Friday only, weekdays.
Q Could you explain to me, Mr. Harris, what functions
*
you perform in keeping this record and what that record is
for?
A This is a record sheet that tells us when our
trains are approaching the station. When it reaches Long
Island City we have a Harold Tower. This tower reports
to us whether that train is on time or not. This is re
corded at that time as well as when this train arrives
in the station. It also records the departure of trains
[12]
rg jb
SOUTHERN DISIHCT COURT REPORTERS. US. COURTHOUSE
that are leaving or eastbound trains. If a train leaves
on time it is recorded. If it leaves late, the amount of
lateness if recorded.
THE COURT: When do you get this sheet?
THE WITNESS: This sheet is kept in the station-
master's office and when I report to work at night I take
the starter sheet for each day. The sheet lasts 2 4 hours.
TKK COURT: It is nothing you get in advance,
it's a running record as to what's happening; is that it?
THE WITNESS: That's correct.
THE COURT: It is when they arrive at certain
towers, is that it?
THE WITNESS: Yes.
Q Is this typical of the type of job that you per
form as an assistant station manager, Mr. Harris?
A This is typical.
Q _ Do you recall the exact date, Mr. Harris, that
you became a permanent assistant stationmaster?
A On November 29, 1972.
Q Prior to November 29, 1972, when you became a
permanent assistant stationmaster, had you ever done any
work as an assistant stationmaster?
A Yes, I had.
Q What capacity did you work during that period of
[13]
rgjk Harris-direct 36
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[16]
rkas Harris ~ direct
4-97
iMR. HOLWELL: I would like to show to the Cour u
Plaintiffs' Exhibit No. 2.
THE COURT: What is the date of that?
MR. HOLWELL: August 2, 1967.
MR. STOKES: No objection.
0
(Plaintiffs' Exhibit 2 received in evidence.)
I show you Plaintiffs' Exhibit 2. Is that the
letter you sent to Mr. House and others at the railroad?
A This is the letter.
Q Did you get any response from the railroad after
you wrote this letter, Mr. Harris?
A Yes, I did receive a letter from Mr. A. B. House.
Q What did Mr. House advise you?
A He said that he had spoken to Mr. Valder at
that time who was terminal superintendent at Penn Station
and he expressed interest and would contact me upon my
return to work.
Q Did he contact you?
A He did.
Q Did you go see him?
A I did go to see him.
Q What transpired?
A Well, he invited me up to his office on
Seventh Avenue along with some of the other personnel,
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the stationmaster, Mr. Milroy, Mr. Zwonick, who was
assistant to the terminal superintendent and Mr. Roger
Milroy who was his assistant. They asked me some questions
in regards to the stationmaster' s job and he wanted to
find out why did I go to the trouble of writing all of
these various people. My answer was that I wanted
everyone to know my desire. He told me after a short
conversation that 1 was accepted, but I would have to
post for the job on my days off and I asked him what
should I do besides posting or what could I read up on
and so .forth and he said just read everything. From that
point on I began posting on my days off.
Q . Did he tell you whether or not you would have
to take any kind of examination at that time?
A Yes, he did tell me after I posted for a while,
I should tell him that I felt ready and he would set up
a date for an examination.
Q . Had Mr. Valder or anyone else set up a posting
*
schedule for you?
A No, they did not.
Q Could you describe what you did in posting on
. your own time?
A On my days off I would come in and observe
the operation in the stationmaster's office. I would also
[17}
rkas2 Harris - direct A- 38
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Harris direct
[20]
rk a: r- Harris - direct
or not
A ' 3 9
any other applicant for the position of assistant
stationmaster has ever been required to go out and post
on his own time without any kind of a posting schedule?
A Not to my knowledge.
Q At the time you applied for your job in
August of 1967, had any other applicant for position of
assistant stationmaster ever been told he had to take
an examination to qualify?
A
Q
One person, the first black, Mr. A. E. Johnson,
how long did you post on your own time,
Mr. Hai r i s ?
A I did.
Q How long did you do that?
A Before the examination, approximately six weeks.
Q You then took an examination?
A Then I took an examination.
Q
A
Q
Where was this examination administered?
In the office of Mr. J. C. Valder.
Mas i.he examination oral or was it in writing?
A It was oral.
Q Who was in the office during the administration
of this oral exam?
A I would like to correct something. The first
exam was in the same office. I must say Mr. J. C. Valder's
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[21]
rkas6 Harris - direct A- 100
former office because he had been elevated to another
position, trainmaster at Jamaica and was replaced by
Mr. J. W. Wainwright at that time.
Q And that is where the examination was held?
A This is where the examination was held.
Q Do you recall who was present during this
examination?
A Mr. John Wainwright, Roger Milroy and
Mr. Charlie Zwonick.
Q Who administered the examination?
A Mr. Roger Milroy.
Q How long was the examination, Mr. Harris, do
you recall?
A Three hours long.
Q What kind of questions were you asked?
A Questions on train, train numbers, eastbound
trains, westbound trains, physical characteristics of
the station. Questions on yards, tracks, platforms,
number of platforms, where various things in the station
were located, the duties of the stationmaster.
Q What were the results of that examination?
A I failed.
Q Who advised you you failed?
A Mr. Roger Milroy.
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[22]
rkas 7 Harris - directrkas 7 Harris - direct A • 1C1
Q Did he advise you at that time or at a later tine?
A At a later time.
Q Did he advise you why you failed?
•
A He said I was a little weak on the special
operation section of the timetable.
Q Was anything else said by Mr. Milroy to you
at that time?
A He advised me to keep posting. They still had
me in mind, to keep posting, and when I felt I was ready
again to let him know and they will set up another
examination.
r\ . Were you to post on your own time, Mr. Harris,
or were you to post on the railroad's time?
A I continued to post on my own time.
Q Was there a posting schedule set up for you?
A Mo, there was not.
Q
A
Did you continue to post?
I continued to post.
Q Do you recall approximately how long you posted
the second time?
A The second time I posted from that point up to
sometime in December.
Q During this time, did you work at Penn Station?
A Shortly after this, I was bumped off my job by
/•
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[23]
rkas8 Harris direct A 1 0 2
a senior usher, a senior who had more seniority than
myself, and I went to the Jamaica station and shortly,
or about shortly after I went to the Jamaica station,
I went on vacation and after I returned, I was told by
one of the ushers at Jamaica that the railroad had
established a program of posting for Mr. Robert Partridge
and that he was posting in that program and was placed
on the job afterwards.
Q Did you have any conversations with anyone in
management with regard to Mr. Partridge?
A Yes. After I came back, shortly after I came
back, I bidded the job back into Penn Station and after
I arrived there Mr. Milroy approached me and told me
that he was sorry, that they had filled the position of
assistant stationmaster and they had no need for anyone
else at that time but they would still keep me in mind
and thanking me very much.
Q What is Mr. Partridge's race?
A He is white.
Q Had he been required to post on his own time?
A No, he was not.
Q Had Mr. Partridge been required to take an
examination prior to becoming an assistant stationmaster?
A No.
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[24]
rkas9 Harris - direct A- 103
Q After Mr. Partridge was appointed to the
position, what if anything did you do?
A Then I went back to the Human Rights Commission.
Out of that hearing the railroad —
Q Were you represented by an attorney at this
hearing?
A No, I was not.
Q What was the result of it?
A The railroad was told, or rather the railroad
promised at the suggestion of the commissioner that they
would set up a similar type of program for me that they
had set up for Mr. Partridge.
Q Do you recall when this occurred? Can you
place it in time?
A Very near Christmas in December of 1967.
Q Did the railroad then set up a program?
A They promised that they would at the beginning
/
of the year, which they did.
Q Could you describe the program that was set up
for you, how long it lasted, what you did during the
Program?
A They did set up a program for me. I posted for
V''
four days. At the end of the week Mr. John Wainwright
told me that I would take the exam the following Monday.
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[28]
rkas Harris direct
A-104
A This was done at the Jamaica station.
Q Had the others been done at Jamaica or
Penn Station?
A The others were done at Penn Station.
Q Was this an oral examination or written
examination?
A This was an oral and a written examination.
Q Do you know of anyone else who took an
examination that day?
A I was told that Mr. Robert Partridge took it on
the same day.
Q And Mr. Robert Partridge had been working prior
to that as an assistant stationmaster?
A He had been working about eight months prior
to this.
Q Could you describe what the examination was
iike, how long it was, who it was administered by?
A The examination was about three and a half
hours long and dealt with the movement of trains and
rules and regulations that govern train movements from
Penn Station to Jamaica and from Brooklyn to Jamaica
and back, our signals in the tunnel, phones and
phone placement throughout the tunnel and locations.
1'ards at Jamaica, the various yards at Jamaica, the number
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[29]
rkas Harris direct K 105
of tracks in the various yards, their purposes. A
conglomeration of things that have nothing to do with
being a stationmaster.
Q Who administered the examination?
A Mr. John Greer.
Q What was the result of your examination?
A I failed the examination.
Q Do you know how Mr. Partridge fared on the
examination?
A Mr. Partridge also failed.
Q Were you then permitted to work as an assistant
stationmaster?
A No, I was not.
Q Do you know if Mr. Partridge after failing
this examination was permitted to work as an assistant
stationmaster?
A He had already been working as an assistant
stationmaster and he returned to his usual job.
Q Did there come a time, Mr. Harris, after May 6,
1968 when you took another examination to qualify as
an assistant stationmaster?
A After I went back to the Human Rights
Commission again. The hearing was October 16, 1968.
Q Were you represented by an attorney at that time?
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[30] a. inrrkas Harris - direct A 1UU
A No, I was hot. And at that hearing the Long
Island Railroad was given until the 16th of November
to set up the examination.
Q Did you take an examination?
A I did at that time.
Q When?
A The 16th of November.
Q Did anyone else take that examination?
A No.
Q Do you know whether or not Mr. Partridge took
another examination?
A No, I do not. I know he did not take it on that
day.
Q What was the result of that examination?
A I passed.
Q Where was this exam administered?
A In what was called the book of rules examiner’s
office,
Q Is that in Jamaica or Penn Station?
A At Jamaica.
Q Who administered it?
A John Greer.
Q What were the results of the examination?
A I passed.
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[31]
rkas Harris d irect A- 1 07
Q Who advised you that you passed the exam?
A Mr. Roger Milroy.
MR. HOLWELL: Would you mark this.
(HIsiritiffs Exhibit 4 received in evidence.)
Q Is that the letter you received from
Mr. Wainwright, Mr. Harris?
A From Mr. Roger Milroy, yes. ^
Q After passing this examination, Mr. Harris,
were you then qualified to work as an assistant
stationmaster?
A ' Yes, I was.
Q Were you put on the extra list?
A I was placed on the extra list.
Q When was this? When were you placed on the
extra list?
A As of the time I received that letter.
Q I would like to direct your attention,
Mr. Harris, to a period of time when you were working as
an extra assistant stationmaster between July of 1969
through March of 1970. Did you work as an extra assistant
stationmaster during this period of time?
A Yes, I did.
Q Do you recall what your rate of pay was?
A The daily rate of pay was $38.59.
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[32]
r k a s Harris directL jv ci o
Q
A - 108
Do you know whether or not there were other
ushers who were working as extra assistant stationmasters
during this period of time?
A Yes.
Q What was their rate of pay, if you know?
A $42 .
Q How did you discover they were receiving $42
and you were receiving $38?
A By discussing the matter with them.
Q After you discovered this discrepancy, what if
anything did you do?
A I called Mr. Roger Milroy and spoke to him
about it. He promised me he would take care of it.
Q Did you hear anything further from management
after your complaint?
A The next thing I heard Mr. Charlie Zwonick
approached me and told me I was getting the correct day's
pay.
Q Was that the end of the matter?
A No. Shortly thereafter I found out that in
an effort to cover themselves, management had reduced
the other extra assistant stationmasters' rate of pay
to what I was getting.
%
MR. STOKES: I ask that the witness be
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rkas
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Harris - direct
directed to stop making remarks such as "in an effort
to cover themselves."
MR. HOLWELL: Your Honor —
A 1 0 3
THE COURT: Let's not have any argument. This
is nonjury and I can understand the objection.
Conclusions are not legally admissible and I can certainly
make that determination.
Q Did the railroad pay you the differential
for the months in 1969 and 1970 during which you had been
paid the low rate?
A No, they did not.
Q Did you ever get paid for that differential?
A I did finally. I went back to the Human Rights
Commission again in 1972.
Q How were you advised you were going to get paid
this differential in 1972?- Did you receive a letter?
A I received a letter from Mr. Larry Dixon.
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[34]
rgjb 1
MR. HOLWELL: I would like to have this marked
Harris-direct 4- n o
for identification.
THE COURT: Is there any objection?
MR. STOKES: No objection.
THE COURT: There being no objection it may be
received.
(Plaintiff's Exhibit 5 received in evidence.)
q Mr. Harris, I show you Plaintiff's Exhibit 5
in evidence. Do you recognize that letter?
A Yes, I do.
q is that the letter advising you that you would
be paid the differential?
A That's correct.
Q Who is it from?
THE COURT: It speaks for itself. Really, coun
selor. I have seen it, it's in evidence, I know.
A It's from J.C. Valder.
q Once you get on the extra assistant station-
master ' s list, Mr. Harris, how do you go about becoming a
permanent assistant stationmaster?
A When a vacancy occurs.
Q Between the time you applied for the job ori
ginally in August of 1967 and the time you were appointed
permanent assistant stationmaster in November of 1972,
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[35]
ry jb 2 Harris-direct /l* 111
were there any vacancies that were filled in the ranks of
r
1permanent assistant stationmasters?
A To my knowledge, three.
iQ Who were those three?
I
!
A Mr. John Gallagher, Walter Kempsky and Mr. Bob
Partridge.
Q When did Mr. Gallagher become a permanent assist
ant stationmaster during that period of time, Mr. Harris?
i
A During this period of time, 1969.
Q Where is he assigned as a permanent ASM? j
A At Penn Station. |
I
Q What was his position immediately before getting .
this job as a permanent ASM at Penn Station?
A He was an usher.
Q Had Mr. Gallagher ever worked at Pehn Station
t
as an assistant stationmaster before?
♦
A No. ' |
G Had Mr. Gallagher ever been required to post '
on his own time and pass examinations with regard to all
three stations before being allowed to work at Penn ^
Station? . j
i
A No.
Q When you were assigned in November of 1972 as
a permanent ASM how did the vacancy that you filled open
. #
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[36]
rgjb 3 Harris-direct
A- 112
up?
A Hr. Ginsinger, the stationmaster, retired and I
filled his vacancy.
Q Do you recall when Mr. Ginsinger retired?
A He retired officially January or February 16th
of .the same year.
Q Is that when he left the job?
A He left the job before then because he had
vacation time, five weeks, and I covered it from that time
until I was appointed.
Q You worked permanently as an assistant station-
master in Mr. Ginsinger's job from March until November?
A Right, and even before.
THE COURT: From January, didn't you say that?
THE WITNESS: Yes, I said January or February
16th, I am not quite certain of which, but it was one of
those months, but Mr. Ginsinger actually left his job
five weeks prior to that time which was his vacation time
and it was then that I was placed on his job.
MR. STOKES: What year was this?
THE COURT: Late '71 or early '72.
THE WITNESS: Correct. . •
Q During this time when you were working full time
as an assistant stationmaster were you working as an extra
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[37]
rgjb 4 Harris-direct U 3
or were you permanently assigned to that position?
A I was working as an extra.
Q Was the rate of pay that you received as an
extra different from the rate of pay that you would have
received as a permanent ASM?
A The rate of pay was different.
Q Do you know of any other instance in which an
extra ASM has been required to hold down such a position
such a length of time before being appointed to it
permanently?
A No, I don * t. j
Q Mr. Harris, are you familiar with a book entitled j
The Book of Rules published by the Long Island Railroad? j
IA 'Yes, I am. j
MR. HOLWELL: This has not been marked yet for
identification.
(Plaintiff's Exhibit 6A received in evidence.)
Q Is this a copy of The Book of Rules, Mr. Harris?
A That's correct.
Q Are there any rules which state when an employee
must carry a Book of Rules?
A Yes. While he is on duty.
Q Why is he required to keep this Book of Rules?
A So that he will have it as a means of reference.
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Q Can you tell me, Mr. Harris, what subjects are
covered by The Book of Rules? What areas does it treat?
!
i
A The various operational areas of the Railroad.
There are portions of it that deal with the tower's
operation, trainmen's and conductors' operation and areas
i
that deal with just simply managerial operations.
Q But the entire book does not refer to just one
job, it refers to a variety of jobs?
rgjb 5 Harris-direct A- 1 1 4
i
A Right.
Q Are there any portions of it that refer to your
l
job as an assistant stationmaster?
A Yes, there is.
0 What rules would those be? You don’t have to
look at the book, but just offhand.
A Mostly rules that deal with the station or the
way crewmen handle themselves in the station or their
dress uniform, whether they should participate in any
use of alcohol or narcotics or things of that type, you
know, and nature.
Q Mr. Harris, during the time you have been a
qualified assistant stationmaster have you ever been re- j
quired to attend a class on The Book of Rules, a Book of
Rules class? j
. • ‘ ' !
A Yes.
• " I
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Harris-direct A- 115
Q Could you tell us if you recall the first such
class you attended after you became a qualified assistant
stationmaster in November of 1968?
A It was sometime at the beginning of '69, the
spring of *69.
Q Who conducted that class?
A Mr. John Greer.
Q Where does he conduct his classes or where did
he conduct that class?
A At Jamaica station.
Q Who was Mr. John Greer?
Q He is what is referred to as The Book of Rules
examiner.
. Q Did you attend this class by yourself, Mr. Harris,
or were there other employees there?
A No, there were approximately 15 or 20 persons.
Q Were they all assistant stationmasters like your- j
self? I
A No, they were not. I was the only assistant j
stationmaster in the room. The others were trainmen,
conductors.
Q
A
Q
How long did that particular class last?
From nine to twelve.
Could you describe in your own words how that
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rgjb ? Harris-direct a , „
lie
class was conducted?
A Very informally. Hr. Greer would choose a per
son at random, ask him a question. If he couldn't answer
it he passed it on to another individual and it went around
the room until someone answered it or if no one answered
it he would use the question as a means of instructing the
class on that particular rule.
Q Were you asked any questions during this period?
A As I recall only two or three. One I recall
vividly. It was on the meaning of a blue tag on a piece
of equipment.
Q Were trainmen asked questions about performance
of the job of assistant stationmaster, administrative
aspects of running the station?
A Not at all.
Q Were you asked any questions about conductors*
duties out on the track?
A No, not at that point.
Q During the class, Mr. Harris, did Mr. Greer at
any time ever indicate or intimate that the members of
tbe class were being tested?
A No, not at all.
Q Were any tests given?
A There were no tests given.
[40]
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[41]rgjb 8 A- 117Harris-direct
Q Were any grades handed out at the end of the
class?
A No grading at all.
Q Were people told at the end of the class whether
they had passed or whether they had not passed?
A Not at all.
Q Was there any mention of grades or marks or pass
ing or failing?
A No. This was not mentioned.
Q After this first Book of Rules class in 1969 did
there come a time when you attended another Book of Rules
class?
A Yes, there was. j
Q Do you remember approximately when that was?
A Approximately 17.
Q Where was this class held, Mr. Harris?
A In the same office.
Q Who conducted it?
i
A Mr. Greer.
Q How was present at this class? Were you by
yourself or were others in attendance?
A No. At this one we had I believe three assistant j
I» J
stationmasters and one stationmaster.
Q How long did the class last?
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Q hhat did Mr. Rizzacozza advise you with) regard
to your request?
A I explained the same thing to him and asked him
to reschedule the exam. He said it has already been set
up and that's it. Just be there.
Q Was he aware of what your shift is, Mr. Harris?
A Yes, he is quite aware of it.
Q On the morning of August 1, 1974, which is the
date you were directed to report to the Book of Rules
examination, what did you do upon completing your job?
A I took the train to Jamaica.
Q What train would that be? I
A That would be the 7:10.
Q When did you get in, then, to Jamaica station?
A I arrived at the Jamaica station approximately
t
20 minutes afterwards. I
I
Q What did you do after you arrived? |
A After I arrived there I went downstairs to the
i
coffee shop and got a piece of Danish and a cup of coffee
and went into my car with the intention of relaxing there
until it was time for the examination, which was 9:00.
I had the coffee and Danish and afterwards I dropped to
sleep.
Q When did you wake up?
[46]
rgjb Harris-direct A' 1 1 8
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A When I awoke it was about 11:00, 11:30, something
like that,
Q What did you do then?
A Realizing it was too late to do anything about
the Book of Rules, then, I decided that I would just go
home and when I came in that night I would a letter written
to leave on Mr. Rizzacozza's desk explaining the situation
the following morning when he came in.
Q Did you go in to work that night, Mr. Harris?
A I did go in to work that night.
Q What happened when you arrived there?
A When I arrived there Mr. Robert Partridge, the
stationmaster, was waiting and he told me that he had
orders from Mr. Lou Rizzacozza to take me out of service.
Q Did you ask him why?
A Yes, I did. He said he did not know why. He
just had orders to take me out of service. 1 then asked
him for how long. He said, “I don't know that either,
i just have orders to take you out of service."
He said, "Jamaica will contact you." So I
thanked him and while he didn't know how long I was going
to be out of service he knew to tell the relief assistant
stationmaster— the extra assistant stationmaster who had
traveled to Penn Station along with me on the same train
[47]
rqib Harris-direct
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[51]
rgjb
A Excuse roe?
Harris-direct
A - 120
Q Were you scheduled to work the night before this
was supposed to take place?
A Yes, I did work the night before the exam.
q Was Mr. Rizzacozza aware of your weekly schedule?
A He was aware, yes.
Q On the morning of the 21st, the day of the exami
nation, after you finished your job what did you do?
A I took the usual train to Jamaica and after I j
got there, realizing what had happened before I just
walked around the neighborhood until it was time for the ̂
examination.
Q How long did vou do that?
' . ' IA Well, until about five minutes to nine. From
about 7:20 until about five minutes to nine. (
Q Did you then report to the class at 9:00? i
!
A I beg your pardon?
Q Did you then report to your class at 9:00?
A At about five minutes to nine.
!
Q Was anyone else in attendance at this class?
A No, I was the only one. ,
Q Did Mr. Greer conduct the class?
A No. At this time it was a Mr. Peters. I .believe;
it’s Nelson Peters.
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rgjb Harris-direct A' 121
Q Do you know what his position is with the Rail
road?
A I am sorry.
Q Do you know what his position was with the Rail
road?
A I think he is Mr. Greer’s assistant.
Q Can you describe to me in your own words, Mr.
Harris, how the class began and how it continued, what
he said to you and what you said to him?
A Well, I walked in and said, "Good morning." Mr.
Peters grunted and said nothing; I asked, "Is this the
Book of Rules class?" He said, "Yes, it is," and he asked
me my name and I gave him my name.
He told me to have a seat and I could see right
away, I was told not to say certain things, but again I
can only describe what I s a w T h e atmosphere was hostile.
Q Perhaps you can just describe what happened
after that. Did he begin discussing the Book of Rules
with you?
A Yes. Mr. Peters then placed a miniature signal
apparatus on the table and began to ask me various signal
indications. In other words, he would flick a signal and
ask me what does this mean, what does that mean and he
proceeded along that line. Whether.I was right or wrong
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I didn’t know, he just kept flicking, what does this mean,
what does that mean.
Q He didn't advise you whether or not an answer
was right or wrong?
A No, he did not.
Q I assume that he didn't explain to you any
errors you had in your answers?
.
A What? ■
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Q He didn't explain to you any mistakes you may
" i
have made?
A No, he did not.
Q Do you have any idea how many you answered right |
i
or how many you answered wrong?
A No, I don’t. After about 15 minutes of this
Mr. Peters got up and left the room for a little while.
He came hack and then he handed me a folder with questions
and answers in it.
He said, "Look that over quickly and answer the
questions. **
Q Did you in fact answer the questions, Mr. Harris? |
A I then proceeded to do just that. I looked it
over and proceeded to answer the questions to the best of
my ability.
0 How long did you spend on the exam, Mr. Harris?
SOUTIIIRN Oi lMCT COURT RTPORITRS US COURHIOUM
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Q What did you do, Mr. Harris, after you finished
the examination?
A After the examination, Mr. Peters looked it
over and in a couple of minutes decided that I failed.
Q What did he say?
A He said, "This won't do. You didn’t make
75 percent." Then he got up and I assume he called
Mr. Steel.
Q Why do you say that?
A Because shortly thereafter he told me we will
have to go upstairs and see Mr. Steel.
Q Did you in fact go up to see Mr. Steel?
A We did go up to see Mr. Steel.
Q Did both of you then go in to see him?
A No, he went in to see Mr. Steel first. He told
me to sit down in the lobby and wait for a while. They
were in there for a while and finally he came out and
told me to come in. By that time I was sleeping. I just
don't know how long he was in there.
Q When you went in to Mr. Steel, what did
Mr. Steel say to you?
A He said, "Harris, you didn't make 75 percent.
We can't have this. You have to make 75 percent in order
to pass," and I said, "Pass what?" He said, "You didn't
[55]
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[56]
rkas Harris - direct A- 124
pass your book of rules examination. You have to make
75 percent on that in order to remain on your job.
Since you didn't pass, I will have to call Mr. Danny
Mazzenotti." He said, "I will have to send you over to
see Mr. Danny Mazzenotti and have yourself set up to go
back working as an usher."
Q In other words, he removed you from serving
as an assistant stationmaster?
A That is correct.
Q Mr. Harris, prior to August 1, 1974, had any
other stationmaster or assistant stationmaster or
extra assistant stationmaster or other member of
management ever been required to take an exam on a book
of rules?
A No, not to my knowledge.
Q Since August 21, 1974, had any stationmaster,
assistant stationmaster or extra assistant stationmaster,
other member of management ever been advised if he didn't
do well in a book of rules class, he would be given an
examination?
A Since then?
Q Prior to that.
A No one. As a matter of fact, when it was even
mentioned to anyone, they felt it was the strangest thing
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anybody ever heard of.
Q Let me go back a second, Mr. Harris, to the
initial part of your book of rules class with Mr. Peters
when he was showing you signals on a signal machine.
In your job as an assistant sta tionmas ter, Mr. Harris,
is it your function to read track signals on a regular
basis?
A No, it is not.
Q Do you walk down on the tracks? Is your office
down on the tracks?
A No, it is not.
Q In the course of your work, do you ever get
down on the tracks?
*
A Yes, I do, once in a while.
Q When you are down there, do you occasionally
look at a signal here or there?
!
A Occasionally, but it isn't necessary,.
Q The signals that Mr. Peters was flashing at you
on that morning, which employees would generally have
to know what the signals meant? j
\ I
A Men that operate on the tracks, conductors,
trainmen, engineers, etc.
Q How do they learn to read the signals?
A By going to school during their initial
[57]
rkas
i
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rkas A - 1 2 6Harris - direct
inception into the company. They go through a training
period and they go through periodic training periods
for this, a real school.
Q Were you given any kind of training like this
to get prepared for your job?
A Not at all.
Q These conductors and engineers, they work on
a day-to-day basis with these signals?
A Yes. . • -
Q These are the signals out on a track when
driving a train you would see them?
A Right.
THE COURT:' Is this a good time to stop for
lunch?
MR. HOLWELL: It is fine with us.
THE COURT: Be back at 2:00.
(Luncheon recess)
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[71]
with regard to those trains?
A There did come a time.'
Q What is PWA 648?
A That is an equipment train that- leaves the
station at 6:48 in the morning.
y What" crack does it usually depart on?
A Track 15.
Q What is the train 708?
A
Q
Train 708 leaves normally from track 16.
What time does that depart?
A 6:51.
0 Three minutes later?
A Yes.
Q What is the relationship between the tracks 15
and 16?
A They sandwich the same platform. You have the
same platform between 15 and 16.
Q Can you explain to me what the track change
involved?
A What it involves?
Q That is correct.
A. It involves —
Q The track change that was made. What was done?
A One track change was made.
*
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decision was actually made to effectuate this proposed
change, to switch the PWA 648 and the train 708?
A Yes.
Q When was that?
A At about 6:30, shortly before 6:30 or around
6:30 we received a report from the Harold tower. Long
Island City, which stated that the train was running about
three minutes late. That is when Mr. Lansperg made the
decision to change the equipment.
Q Did he communicate that decision to you?
A He did.
Q After the decision was made by Mr. Lansperg,
what if anything did you do?
A We proceeded to make an announcement as to the
location of the PWA 648 as well as we asked for
brake tests of the —
Q You say "we." Who do you mean?
A Mr. Lansperg and myself. Sometimes we both
do the same thing. I asked the usher to make an
announcement for the car inspector’s benefit as well as
Mr. Lansperg. Then I called the car inspector's foreman
and informed him of same. I called the yardmaster and
explained to him what we were doing. I called the
ticket clerk and told him that train number 708 or rather
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rkas Harris direct
the 6:50 or 6:51 would leave from track 15 and at the
same time I walked to the door and looked at the
information booth because it is generally closed at
night from 12:01 and opens up generally in practice
about a quarter of seven. I looked in the information
booth, this was about 6:30 and no one was in there, so
it was then that I called the ticket clerk and informed
him of the track change.
I
Q When you spoke to the usher, Mr. Sherrer,
did you contact him by phone?
A When I spoke to Mr. Sherrer, he was right there
with us and I asked him to make the announcement of the
track change and he went in the booth and started making j
̂ »
announcements.
Q What was Mr. Lansperg doing at this time?
MR. STOKES: May 1 hear the witness' last
answer?
(The answer was read.) '
Q What if anything did Mr. Lansperg do during
this period of time? Was he in the office also?
A
Q
A
Q
* 1 2 9
During this period of time? ^
y
That is correct.
He also told the usher to make announcements.
Did you hear the usher make any announcements
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in regard to this change?
A Yes, I did hear him make announcements.
Q Do you know whether he made the entire
announcement correctly or not?
A No, I can't say that I heard everything he said
and that he made or said everything that was supposed
to be said. I can't say I heard this because immediately
we were concerned with the PWA 648 and I got on the radio
at one time and asked them did they in fact receive
their brake test. They said no. We asked the usher to
repeat the announcement. Brake test is wanted on track 16
Shortly thereafter, the train crew informed us that they
had their brake test and was'consequently ready to go.
Q Is it your practice to sit and listen every
time an usher makes an announcement to make sure he is
making it correctly?
A I don't listen to everything he says. This man
has been on the railroad for twenty-six years. He had .
at one time been an assistant stationmaster, an extra one
himself. I don't think it is necessary for me to listen
to every word he says over the loudspeaker. 'j.
Q Do you know whether or not it is Lansperg's
practice when he is on the job that he can sit and listen
to make sure that every announcement that an usher makes,
[78]
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rkas Harris - direct A 131
what we were working on at that particular time.
Q When Mr. Rizzacozza came in, will you tell me
as best you can recollect what he said to you and what
you said to him.
A Mr. Rizzacozza walked in and started screaming,
"Harris, why haven't you announced those track changes,
ipeople are down there running around not knowing where i
to go. Why haven't you made those track changes?"
Realizing that we hadn't made any track changes, I asked
Iwhat track changes. "You know exactly what track
i
changes I am referring to. Get that usher started on
making the track changes."
/> Realizing that he was at such a pitch and
no response I could give him would calm him down and that
was the only way we could affect any reasonability,
I just suggested to him, "Lou, Mr. Lansperg is in
i
charge here."
"Don’t tell me who is in charge. I know who
is in charge here. It is your responsibility to see
that that man made the correct track changes," and he
proceeded to rant and rave and he ended with, "You are
out of service."
With that, I gathered my pencils and pens and
belongings. He sat down in my seat and jumped right back
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rgjb 2 Harris-direct A- 1 3 2
A Not at any time.
Q During the entire exchange, Mr. Harris, did
you raise your voice at all to Mr. Rizzacozza? I
!
A Not at any time during that morning.
Q Mr. Rizzacozza ever raise his voice to you?
A He came in yelling. He yelled until it was all
over.
t
Q After you left the office, Mr. Harris, what
did you do?
A I tried to find out just what it was all about
myself because I didn't know what it was all about. He
spoke of track changes and so forth and people were running ■
around not knowing where to go, so I walked out the front
door, through the waiting room on the concourse to track
*
16 and as I walked over there I did see that in fact the
6:51 train was advertised on track 16 and the 7:01 train
was advertised on 15.
As I walked up Joe was standing there and I
I
looked at him and I said, Joe, you know, sort of what the
devil is going on. So he looked at me and said, "I am
sorry, Ed," and that's all that was said between Joe and
myself. He proceeded to change the signs and correct them
himself and he went back into the office. As I walked
*
down the stairway I heard him announce a train again.
5
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Harris-direct A-133
i
1
1 1851 A . n ? irgjb 3 H a r r i s - d i r e c t ^ JJ
2 A f t e r I g o t on the train w h i c h w a s located on
3 track 15, the same p l a t f o r m that the train w ould ordinarily
4 leave from, o n l y on the other s i d e — this is a train that
5 I c a u g h t o n c e a w e e k w h i c h Mr. W a l t Kemp s k y comes in on.
6 He c o m e s in o r d i n a r i l y o n that same 6:11, w h i c h is scheduled
7 to arrive in the station a t 6:38, so you can see that I t
8 have time to c a t c h it.
9 So w h e n he gets in on that part i c u l a r train I
.10 would p u t m y b e l o n g i n g s together and take that same 6:51
'■11. 1out of the station. The same pe o p l e and the same places,
12 the same seats. Som e of the people had already gone to
13 sleep. N o t h i n g w a s ou t of order. I looked u p and down
14 the p l a t f o r m for this turmoil that Mr. R i zzacozza referred
15
16
to and n o t h i n g w a s o u t of order. ; ~ - 1!
I n c i d e n t a l l y , track changes are m a d e during the
17 middle of the c o m m i s s i o n h o u r s frequently. Sometimes the
18 train m i g h t be c h a n g e d twice. Passe n g e r s w o u l d leave one
-19 p l a t f o r m and d a s h to a n o t h e r p l a t f o r m and after they get I
-20 over there w e find the e q u i p m e n t we have over there is
21 inoperative, so w e hav e to m o v e them to another p l a t f o r m j
f
a 22 and this w o u l d h a p p e n in the m i d d l e of the rush hour or
23 the c o m m i s s i o n hour. N o t h i n g is don e a bout it, yo u just
24 try to c o r r e c t it and d o the b e s t you can.
25 Q Do yo u h ave any idea ho w Mr. Shearer made the
* *
t
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A- 134
Q Did there come a time, Mr. Shearer, when there
was a track change with regard to the PW6 4 8 and train
7:08, which is the 6:51 to Hempstead?
A Yes, there was.
Q What track does that PW648 usually leave from?
A That I don't know. That train normally runs I
think at one time off 20 or 21 track, but usually I don't
have anything to do with it. It is with Mr. Harris, Mr.
Lansperg and the yardmaster. They take care of the equip
ment moves.
Once in a while they have me make an announce
ment if there is a track change on the equipment, then I
will make the announcement. '
Q But you just know there was a change involving
those tracks?
A On that particular day, yes.
Q When was the first time during the course of
the evening that you heard that there might be a change
involving these trains?
A Well, that was quite early in the evening. ; They
f
were discussing it, the stationmaster and the trainmaster.
They were discussing— there was a note left, I believe,
on they may have to use one of the trains to make this
PW6 4 8 if another train was late and this was quite early
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in the evening they were discussing this.
[102] • A- 135
rgjb Shearer-direct
Q Did there come a time when you were told that
there was to be a change and there was supposed to be an
announcement made with regard to a track change?
A Yes, I was.
Q When did that occur?
A That was between 6:25 and approximately 6:30,
during that time.
Q Who contacted you?
A At the time, Mr. Harris. ••
Q Where were you? Did he call you by phone?
A Ho, I was in my booth.
Q In the office?
A Well, yes. Into a partition next to his office
is my place where they have a microphone.
Q Do you recall what he said to you?
A Yes. He told me to make an announcement that
the PW6 A 3 I believe it is and also that there was going
to be a track change on the other train, the 6:51.
Q Do you remember what that track change was?
A The 6:51 was supposed to leave off of 15 and
the PW648, I believe it was, was supposedly off of 16.
Q After you got this direction, Mr. Shearer, what
you do, if anything?
SOUTHERN DISTRICT COURT REPORTERS. U S. COURTHOUSE
A- 136
A I called out PW648. I made announcements on
that, I notified the crews that the train was going to
leave off 16 track. I in turn went outside and took down
the 7:01 train, which was on 18, and put that on 15 track
which was a mistake that I had made.
I had misunderstood Mr. Harris when he had turned
around and told me that the 6:50 was--he was giving me a
train number and when he gave me the train number, I
thought it was 7:08. Not thinking, I thought it was the
7:01, the Long Beach train on track 18.
As I said, I normally don't make these type
mistakes, but I did that morning and I had put the 7:01
on 15, leaving the 6:50 sign still on 16 track and then
I called out the. track change and then I loaded the 6:43
Port Washington train which was on track 19.
Q After you loaded that 6:43 train on track 19,
what did you do?
A 6:43?
Q After you finished loading that.
A I loaded that train and I walked into the office
and this is when the trainmaster came. j
i
(Continued on page 104.)
[103]
rqib Shearer-direct
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[105]
rkas2 Shearer direct A- 137
heard said at that time, what each person said?
A The trainmaster walked in and said, "Mr. Harris,
do you know you have a track change downstairs?"
Mr. Harris said yes. He said, "When are you going to have
the usher make the announcement," and I walked in to
my booth figuring I was waiting for the order to make
the announcement and I come back outside again and then
the trainmaster said to him, to Mr. Harris, "Don't you
know that is part of your job as well as running this
railroad, that usher inside there is part of your job?
Are you going to have that announcement made?" At that
time it was getting a little hot and heavy, so I started
to walk back into my office to make this ’announcement
and I heard Mr. Rizzacozza turn around and say to
Mr. Harris, "You are out of service." This is where
I got involved. He turned around and said to me, "Make
the announcement of the track change." I turned around
and said, "Attention please. 7:01 is on track number 14."
He said to me, "Wait a minute, don't you know what you
are doing?" I said, "Yes, I know what I am doing" —
MR. STOKES: When you say "he"?
THE WITNESS: Mr. Rizzacozza.
A i said, "Yes, I know what I am doing." He said,
The 7:01 ain't on 15," and at this time I realized the
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rkas3 Shearer direct
A- 138
mistake i had made. I had turned around to take the train
off 18 and put it on 15 which I should have never done.
After realizing this mistake, I rushed out of the
office, I went over to the track to pull the signs down,
to correct myself right away so nobody would get
involved or people missing trains. As I was there I met
Mr. Harris. At this time he was taken out of the service
and walking downstairs and he said to me, "What are you
doing with the 7:01 train on 15 track, it doesn't
belong there." I said, "No, I made a mistake and I will
go back and speak with the trainmaster about this
because you got in trouble over a mistake I made."
I in turn — I made my corrections. I went back inside,
made my announcements right away, I corrected this so
nobody would get misled and when I got everything
straightened out, got the sign back on 18 again where it
belongs, I went to Mr. Rizzacozza and said to him,
"It was my fault. I put the wrong signs up causing this
man to get blamed for it." I said, "Don't blame him,
it was me that done it." He said to me, "All right."
I walked out, I continued to work until my
time was up. My time was up at 7:00. 7:00 I went back
still feeling guilty over this because it meant the
man's job. I turned around and said to him — at that
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[107]
rkas4 Shearer direct
A- 139
time Mr. Lansperg was sitting, as at both times. I said
to him, "Don't blame Mr. Harris because it was a mistake (
I made and I don't know why I have made it, I have never
made these' mistakes before. I made this mistake and I am
sorry for it.
I went home that evening figuring they were
going to reinstate Mr. Harris.
0 During the time you were in the office when i
ithe exchange between Mr. Harris and Mr. Rizzacozza was
Itaking place, did you near everything that was said back
and forth?
A No, I did not.
Q Why was that?
A Because I was in my office.some of the time
and most of the time as I said before, when there is a
dispute with two officials in the company, I try not to
get involved in any way.
THE COURT: You learned that early, didn't you?
THE WITNESS: Yes.
Q At any time you were in the office, did you hear
Mr. Harris raise his voice at Mr. Rizzacozza?
A I did not.
Q Did you at any time hear Mr. Harris refuse to
undertake any order that had been given him?
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A - 140
Q Do you have any recollection of having made
other announcements during this period?
A No.
Q So when Mr. Rizzacozza arrived prior to 6:46
in the stationmaster's office, he was correct when he
said that — or when he asked, why have no station
announcements been made for the track change because
in fact no announcements had been made, is that correct?
i
A The change itself?
Q Right.
A That is correct, I did not make a change
I
announcement but there was a reason for that, if you
want me to explain. !
Q I didn't ask for the reason.
Mr. Rizzacozza when he came in asking why no
announcements of the track change had been made, that was
i
correct, that no announcements had been made.
f *
A Yes.
i
Q Did I understand correctly that night when
I
line 3 was out of service, you said it was back into
service at approximately 12:30?
A No, it went out.
Q How long was it out of service?
A They take it out so many times on us, at that datej
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[140]
arjb 5 Harris-cross
A- 141
the letter of reprimand from Mr. Gaynor to Mr. Harris
in connection with this incident. That is in plaintiff's
possession. I ask that it be produced.
MR. HOLWELL: We are giving Mr. Stokes a copy of
a document that he produced to us pursuant to'a notice of
deposition of Mr. Gaynor.
THE COURT: Is there any objection to having it
marked?
MR. HOLWELL: For identification, no.
MR. STOKES: I wish to mark it at this time.
MR. HOLWELL: We object as not being pertinent
to the issues before the Court, that is the dismissal of
Mr. Harris for the act of insubordination.
THE COURT: I think you have a very narrow view
of this situation. If you are just going to offer the
one incident, that is not the issue here.
MR. HOLWELL: That is what they advised Mr.
Harris was the issue.
THE COURT: I assume, I expect Mr. Stokes is
offering it for the accumulation of factors culminating in
the one final incident and I think it is probative on
that.
MR. STOKES: Correct. But Mr. Gaynor in his
examination before trial which will be introduced, and Mr.
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A- 142
case this way and I don't permit cases to be tried that
fa
way.
Do you have the documents?
MR. HOLWELL: Yes.
THE COURT: Turn them over to Mr. Stokes.
MR. STOKES: For the record, I just note that
a file containing two pieces of paper, one dated January
28, 1975 from Mr. Gaynor to Mr. Harris and the other
dated October 2, 1974 from Mr. Gaynor to Mr. Harris and
I would ask that these be marked in evidence, your Honor.
The first document is October 2, 1974.
(Defendant s Exhibit C received in evidence.)
MR. STOKES: The second document is dated Janu
ary 28, 1975.
(Defendant's Exhibit D received in evidence.)
BY MR. STOKES:
Q Now, Mr. Harris, in your examination before
trial, and I believe just before here on direct, you indi
cated that every day you were receiving these letters,
letters of accusation, letters of degradation.
Could you show me in either Exhibit C or D what
you consider degrading?
These are not all the letters, of course, that
Mr. Gaynor sent to me. ‘
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In these two particular letters you just showed
me, I don't see any particular thing that is degrading
about them.
Q Nothing degrading about those two letters?
A Not those particular letters.
Q I asked you on your examination before trial
whether you had saved any of the so-called degrading
letters and you answered affirmatively and that they
would be produced here in the courtroom.
Do you have any other letters that you have not
produced from Mr. Gaynor?
MR. 1IOLWELL: We would like to indicate that we
have identical copies of letters produced by Mr. Gaynor
at the deposition and those are marked.
THE COURT: Let us get them. Let us not waste
time on it. If you have other letters—
MR. HOLWELL: Mr. Stokes has them.
THE COURT: Let us produce them. Between you,
you must have some letters and let's have them out and not
waste a lot of time as to who got them.
MR. STOKES: We put these in but at the examina
tion—
THE COURT: All I want to know is whether you
have others in addition to these. Let us get on with it.
[1451 A- 143arjb Harris-cross
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[146]
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MR. STOKES: I show counsel a letter dated
October 7, 1974 from Mr. Gaynor to Mr. Harris. I ask
that that be marked.
(Defendant's Exhibit E received in evidence.)
MR. STOKES: A letter dated October 11, 1974
from Mr. Partridge to Mr. Gaynor.
MR. HOLWELL: In addition to our other objection
as to relevancy we object to this one because neither
Mr. Partridge nor Mr. Gaynor is here to identify it as
a business record. It is not addressed to Mr. Harris.
MR. STOKES: I would agree that the, last one
be marked for identification at this time.
THE COURT: All right.
(Defendant's Exhibit F marked for identifica
tion. )
MR. STOKES: A letter dated November 7, 1974.
(Defendant's Exhibit G received in evidence.)
MR. STOKES: A letter dated November 8, 1974.
(Defendant's Exhibit H received in evidence.)
MR. STOKES: A letter dated November 22, 1974.
I am skipping the November 15th letter because that has
already been marked.
(Defendant's Exhibit I received in evidence.)
MR. STOKES: A letter dated November 20, 1975.
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{Defendant's Exhibit J received in evidence.)
MR. STOKES: A letter dated March 26, 1975.
(Defendant's Exhibit K received in evidence.)
MR. HOLWELL: These documents were originally
produced by the Railroad pursuant to agreement by which
they would produce all documents containing any mis
behavior of Mr. Harris from 1970 until September 12,
1975.
(Defendant's Exhibit L received in evidence.)
Q Mr. Harris, in addition to the exhibits already
furnished you, I hand you Exhibits E through L in evi
dence and ask you to go through.them and point out.what
if any degrading materials are in those exhibits.
A In Exhibit L, for instance, Mr. Gaynor refers
to train 4871 which was brought to my attention at 11:35
and tliat I did not make an entry in the book.
If you were to check the logbook, you would
find that that entry was made in the logbook and it is
my understanding that that book is supposed to be here in
the courtroom.
Q The book is here in the courtroom, Mr. Harris,
but am I to understand that assuming that you had properly
recorded it and for one reason or another Mr. Gaynor
missed it and therefore made a mistake in censoring you,
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Harris-cross
[147]
ar jb
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[148]
ar jb Harris-cross A- 146
you consider that degrading?
A Mr. Gaynor did not only write letters. From the
time I returned to my job last year—
Q I'm not asking about that. I would like my
question answered. If you need it repeated I will have
the Court Reporter repeat it, but I would like my question
answered and not a diversion from it, Mr. Harris.
MR. HOLWELL: I don't think that kind of re
mark is necessary.
A They all imply and are designed for the purpose
of saying that I was not doing my job and to me that is
degrading. - •
Q In other words, a letter from your superior to
you critical of the performance of your duties, to you
is degradation, it is degrading to you?
A To that superior, as a result of my taking them
to Court, anything I did was blown out of proportion and
up for criticism and this has gone on continuously.
Q Now, are there any other letters of a degrading
nature that you received from Mr. Gaynor other than the
ones that have been marked in evidence?
A Well, for instance--
Q Other than these letters, are there any other
letters in your possession from Mr. Gaynor of a degrading
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[156]
ar jb Harris-cross
A- 147
Q I show you, Mr. Harris, Defendant's Exhibit M
in evidence and ask you whether you received the original
of that letter.
\
A I believe I did. I can't say that I have had
it in my possession.
Q You do have a recollection of having received
this letter?
I
A I believe I did.
Q The oral advice from Mr. Steele and receipt of
this letter, was that before or after you made your appli- j
cation to the Court last year for intermediate relief?
, - :
In other words, for the Court to direct that
you be-restored? Mr. Steele orally advised you that you *
would have a right to take a second exam before you ever
made application to the Court, didn't he?
A Right.
Q Yesterday, Mr. Harris, you were testifying start- 1
ing on page 20 of the transcript as to how you first
learned about or first applied for consideration as an
assistant stationmaster.
As I understand, this would have been in the area
of 1968 that you started seeking to become assistant
stationmaster, is that correct?
A In 1967.
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trying
A
[157]
ar jb
A 148
Harris-cross
In 1967, and you continued this on into 1968,
to become an assistant stationmaster?
■ Into 1968, that is right.
Q Did there come a time in connection therewith,
in your efforts to become an assistant stationmaster,
that you filed an application with the New York State !
Division of Human Rights? j
A That is correct.
Q What was the gist of that complaint? !
A Basically or in essence the fact that I had been ^
told to prepare for the examination which was established
ion my own, posted at the station or various locations, >
without pay while another person was considered other
wise, a program set up. for him and he was made assistant
stationmaster.
THE COURT: Mr. Partridge?
THE WITNESS: Yes.
Q . Upon the receipt of your complaint the Division
of Human Rights held an investigation and a conference,
did they not?
A That is correct.
Q Do you know whether or not they issued a written
determination? •
MR. HOLWELL: We would be willing to stipulate
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MR. STOKES: The determination of the hearing.
T1IE COURT: Ho objection?
MR. HOLWELL: Ho objection.
THE COURT: All right, received.
(Defendant* s Exhibit R received in evidence.)
q As a result of that hearing did the Division of
Human Rights issue an order dismissing the complaint?
A That is correct.
MR, STOKES: That is dated April 28, 1972, your
Honor.
Q Do you recall whether or not you and your attor
ney took an appeal to the New York State Human Rights
Appeal Board from that decision?
MR. HOLWELL: We will stipulate to all of the
proceedings at Human Rights.
THE COURT: All right.
MR. STOKES: I will accept it. I don't have a
copy of that decision.
THE COURT: He did take an appeal and the appeal
affirmed the decision.
MR. STOKES: Yes.
THE COURT: So stipulated?
MR. HOLWELL: Yes, your Honor.
THE COURT: All right, very well.
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[163]
ar jb Harris-cross
Q Mr. Harris, I would like to refer you to Defen
dant's Exhibit E in evidence, the failure to cancel PPW1258 ̂
on October 6, 1974, in which you received a letter or
reprimand from Mr. Gaynor.
Did you in fact fail to cancel that train?
A Well, this requires a little explanation.
Q I am not asking about the explanation at this
time. I am asking whether in fact you did fail to cancel
i
that train.
i
A At Penn Station-—
MR. STOKES: Your Honor, can the witness be J
directed to give a yes or no answer? I
THE COURT: Yes. ®i
A The train, an equipment train— ■
MR. STOKES: Your Honor, I haven't asked for a
speech. J
THE COURT: Mr. Harris, if there is anything |
to be developed, Mr. Holwell will bring it out on redirect j
examination. I think we will get along— I
A Yes, I was told that I failed to cancel the
train. j
A 150
Q Over and beyond being told did you in fact fail
to cancel that train?
A This depends on if whether you call a cancellation
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[164]
ar jb Harris-cross
A* 151
that I sent a train out, an equipment train to a destina
tion and were told to do otherwise.
This train simply went to Harold Tower, turned
around and came back to New York.
Q There were prior instructions issued to you that
this train was to be cancelled and was not to leave Penn
Station, is that correct?
A Prior instructions clipped on a bulletin board
on the side of the wall and hung there, which is not the
customary procedure.
This was an instruction dealing with work that
was to go on once a week, on Saturday, for a number of
weeks.
The general procedure is when I come in that
particular order is on my desk in front of me and re
minded also by 204 and the yardmaster also has an order
in regard to the equipment because lie is the man in
charge of equipment.
On this particular night, none of this was
done.
Q Now, this clipboard on the wall in the office,
what does that contain?
A Contains special orders.
Q Are you supposed to check that every day?
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[165]
ar jb Harris-cross
A- 152
A From time to time— every day, yes, as soon as we j
can get to it. But I don't walk in every night and no one
else walks in and runs to the clipboard. This was the
1
beginning of the night.
Q Where abouts in the office is this clipboard
located?
A On the right-hand side of the office.
Q Right by the door?
A No, right by the window.
Q Approximately how big is this office, how long
and how wide?
A It is a small office, about 14 by 14, something
like that; approximately.
Q About what time did you normally arrive for your
tour of duty?
A At 11:00. * .
Q Precisely at eleven you reach Penn Station or
do you arrive earlier?
A I arrive generally on train 187 which arrives at
1 0 :4 9 .
Q So you got roughly ten minutes before you are
actually required to relieve your—
A No, I relieve him immediately.
Q When you arrive there?
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[166]
arjb Harris-cross K - 153 t
A Right.
q You don't first try and look at the bulletin
board and see what is going on?
A If I have time. Sometimes when I walk in a lot
of things are happening so I will try to get those things
out of the way, these things immediately of importance
out of the way and, finally, I will get to the board.
This happens at various times of the night.
Q I refer you to Defendant's Exhibit D in evidence
which is a letter from Mr. Gaynor to you dated January
28th and refers to an incident in the stationmaster's
office wherein Mr. Kepnedy was arrested.
A Right.
Q Mr. Gaynor states in that letter that you
failed to make a notation in the logbook.
Is that true, that you did not make such nota
tion in the logbook?
A That is correct.
Q Were you on duty that night?
A I was on duty that night.
Q Were you present in tire stationmaster1 s office
when this arrest was effected?
A Yes, I was.
Q Did you consider that an unusual type of
l
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[3-67]
a r j b
incident?
Harris-cross A - 154
A Yes, but now—
q But not the type to be recorded in the Station
log?
A It was reported to the Long Island Railroad
trainmaster, Mr. Bob Hess immediately.
Q Because you reported it to Mr. Hess, you did
not report it in the log, is that right?
A No, I didn't report it in the log.
You see, I don't consider the Long Island Rail
road, Penn Station or Mr. Gaynor's railroad or my railroad, j
It is the Long Island Railroad. I had a trainmaster at .
Jamaica. I called him directly and reported this inci
dent to him immediately after it occurred.
Q In other words—
A I felt that was sufficient.
Q Mr. Gaynor when he comes in in the morning at
nine or 10:00, whatever the hour may be, would have no
interest as to whether or not a passenger had been
arrested during the night at Penn Station of which he
is the terminal superintendent?
A I doubt it. Mr. Gaynor knows how many passengers j
are arrested in Penn Station.
Many passengers are arrested that I am not even
. . . . j
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A-155
aware of. There are times when the high eschalon of the
Police Department decides they are j-ust going to clean up
the station and just load up all the derelicts in the
station into a room and hustle them off to the police pre
cinct. Ho one informs me of all of the arrests.
Q When an arrest takes place in your presence in
the stationmaster's office this is unusual, something that
the terminal superintendent doesn't necessarily need to
know anything about when he first comes in in the morning?
A I'm not saying that.
Q How is he going to learn about it if it is not
in the station log?
A It is in the log right outside of his door, the
Police Department log is set up for this reason. It stays
there, he looks through the Police Department log. It is
right outside of his door.
Q Does he say he studied the Police Department log
or a PD7 report from the Police Department?
A A PD7 report from the Police Department. It
stays right in front of his office door.
Q How long does it lay there?
A All night long. It remains there.
Q The Police Department doesn't send those reports
in to their headquarters at Jamaica?
[168]
arjb Harris-cross
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A After a reasonable time.
Q Are you sure those reports are still there when
the stationmaster comes in at 10:00 in the morning?
A Mr, Gaynor is saying in reviewing the PD7 re
port from the Police Department of January 25, 1975.
Q That is the date of the report, right?
A That is right.
Q What is the date of Mr. Gaynor's letter?
A January 28th.
Q Do you know whether he saw that report on Janu
ary 27th or January 28th, three days later?
A I don't know when he saw it but I know that
report is available for him.
Q Does the Police Department send the arrest re
port that they make out for arrests made at Penn Station
during the night to their headquarters at Morris Park
prior to Mr. Gaynor's arrival and it is only three^days
later that he receives a copy of the PD7 report, he has.
no way other than the stationmaster's log of finding out
what happened, has he?
A But it is not done that way. Any incident that
is unusual to the extent that it involves crewmen, the
arrest of crewmen or an attack of a crewman through a
passenger or et cetera, that is immediately conveyed to
[169]
arjb Harris-cross A'156
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204 and the trainmaster at Jamaica.
[170]
arjb Harris-cross A-157
So this has been duplicated numerous times. I
told Mr. Hess and 204.
(Continued on page 171.)
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[171]
mpas A - 158
Q So if Mr. Gaynor doesn't find anything
unusual listed in the station master's log, then, of
course, in the proper performance of his duty he should
call 204 to find out if you reported some unusual
incidents to them during the night.
MR. HOLWELL: Your Honor, Mr. Gaynor would be
the best individual to testify to what his duties are.
MR. STOKES: I am asking this witness for his
conception of the proper duties of Mr. Gaynor.
THE COURT: Yes.
A Well, during the run of the night, I have to
make a judgment. I have to see that train are departed
to the best of my ability according to schedule,
clock trains in and out, register them at various hours,
coming in, supervise car inspectors, maintain order in
the station and a great number of things that are of
immediate importance.
I would like to be able to duplicate everyone's
reports, but there just isn't enough time to duplicate
everyone's reports.
When I told Mr. Hess about it and the Movement
Bureau about it, I felt that was sufficient.
Q Now, I show you Defendants' Exhibit F for
identification, which is a memorandum from Mr. Partridge
Harris - cross
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[172]
mpas Harris cross
A '159
to Mr. Gaynor and refers to a failure to write up the
Amityville work program on October 11, 1974.
Were you on duty as assistant stationmaster
on October 11, 1974?
A Yes; I was.
g Did you or did you not write up the Amityville
work program;
A I did not. Mr. Partridge did.
Q Now, would you explain for the record just what
a work program is?
A In this case it was simply a message to the
crews to explain that work was being done in the
Amityville area, and they were to exercise caution in
their approach to that particular area.
Q In other words, the railroad has track workmen
out on the track?
A Right.
Q In the Amityville area?
A Right.
Q So that the crews in coming along , will take
proper precautions so that they will not kill or injure
any of them; is that correct?
A That’s correct.
Q It’s a safety measure for your fellow employees;
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[173]
mpas Harris cross A- I CO
is that'correct?
A That's correct.
Q I show you --
A Might I elaborate on this just a bit, please?
Q Your counsel can handle it at the appropriate
time.
I show you Exhibit G, Defendants' Exhibit G,
i
a memorandum from Mr. Gaynor to you dated November 7th,
<
which apparently covers three items. The first item
was a failure to log Line 4 out of service from 2:00 a.m. j
>until 4:55 a.m. |
i
f
Did you in fact fail to log Line 4 out of j
*• <
service? j
A No; I did not. J
f
Q That is —
A That is, I did fail to log Line 4 — did fail j
to make the entry in the log.
Q So that is not a false accusation by Mr. Gaynor.
A No. I simply forgot it that particular
morning. I thought of it as I left the station, and I
felt, as I was told before by Mr. Milroy, that the same j
sheet will be there that night when I come in, just ^
!
enter it into the log as I come in, that night.
Q What is a TSP-119 form?
!- • 1
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[174]
mpas Harris - cross A-161
A That is simply a form that is used to record
the work that is done by Penn Central employees for the
Long Island Railroad. As they call it in to me and record
it in the morning, I will record it on the TSP-119.
|
Q What do you do with the form then?
A I place it in the drawer in the stationmaster’s ̂
office so they can take it upstairs into the stationmaster's ,
office and report it.
I
Q Do you know what function or use this form
performs for the Long Island Railroad? Is it part of
their cost accounting procedure?
A That's correct.
i
Q In other words, this is their way of determining
Iwhat their share of costs are at the joint facility i
S
known as Penn Station.
A That's correct.
!
Q As of-November 7, 1974, had you been failing
to fill out these reports and leave them with your j
superiors? :
i
A Simply because no one made any reports to me.
They ceased reporting anything to me. • •
|
Q This is the Penn Central foreman —
A That's right.
Q He wasn't making any reports? j
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[175]mpas A 162
A That's right.
Q Did you report this fact back to your
superiors, that you were not receiving any reports from
the Penn Central foremen in regard to work being done?
A No; I did not because I was not told to do it.
1 was told to make out reports when the reports are
made to me, to-'make out a report, to record this report
on the TSP-119.
Harris - cross
Now, the third item in there refers to Allied
worksheets. . j
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A Right. j
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0 Is that the Maintenance which does the
cleaning for both the Pennsylvania Station and the Long
Island? _ _
: A That's correct.
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/Q What are those worksheets that they refer to? t
A It's a sheet which gives in detail what the
various workers are doing, the type of work they are
doing on the various — in various locations: offices,
itracks, platforms and so forth, the work that they did !
and the name of the person.
,0 And then are these worksheets a basis for the
railroad to determine what payment goes to either
Allied or the Penn Central?
SOUTHERN DIM RICE COURT REFORllRS. U S. COURTHOUSE
FOLEY SQUARE. NEW YORK. N Y. - 791-UUO
[176]mpas Harris cross
A That's correct.
Q Now, the letter of Mr. Gaynor indicates that
you were not signing the reports to attest that you
were spot checking the cleaning. Were you or were you
not signing these reports?
A No. I could not sign it simply because I could
not check all of the things that the workers were doing.
I could check some of it from time to time, and there
is an office up on Seventh Avenue -- our main office,
which I didn't even have a key, for the terminal
superintendent, which is located up on Seventh Avenue,
and since the intensity of the atmosphere here had become
so strong after I went back to work, I felt that I should
be careful about what I signed my name to, to be sure
that whatever it is, it is something that I can verify.
Q In other words, you felt you could not sign
the form unless you personally went all over every
speck of work being performed by Allied throughout the
Long Island areas and be assured that every bit of
work was done; is that what you are saying?
A That's true.
Q Is that a mere spot check by you to see if
pertain of the work that was performed was insufficient?
A That's correct.
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SOUTHERN DIM Kiel COURT REPORTERS, U S. COURTHOUSE
FOLEY SQUARE, NEW YORK, N Y. - 79J-EOAO
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Q Now, I refer you to Defendants' Exhibit B,
a letter from Mr. Gaynor to you dated November 15, 1974,
and this refers to two incidents, one, Train 90 being
delayed nine minutes on account of no communicating
whistle.
Was that train in fact delayed for that reason?
A That train was delayed for that particular
reason, to my knowledge.
Q What actions did you take in regard thereto?
A As usual, I tried to get it out as soon as I
possibly could at —
Q How?
A At departing time in regards to this Train 90,
it. stated that it did not have any communicating
whistle. This was after departure time, really, because
I had the usher give it the "all aboard," and the train
sat down on the platform. We continued to give it
."all aboard" and nothing happened.
Finally, the conductor, having no communication,
he went to the phone on the platform and told me that
he didn't have any communicating whistle. I asked him,
did he have a car inspector there. He said, "Yes, one
is here on the platform but he's not here at the moment.
At the same time, I had Train 708 on Track 16,
SOUTHERN DISTRICT COURT REPORTERS. US COURTHOUSE
FOLEY SQUARE. NE W YORK N Y. - ?9I-I0.'0
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who stated that he had a similar problem, and by this
time my assistant — my relief man, Mr. Walter Kensky
and Mr. Charlie O'Brien, who was scheduled into the
station on Train No. 6011, arrived at 638. They walked
into the office and stood at the door, watching what
was happening. Mr. Walter Kensky, because the phones
were ringing greatly, and at this time we had moved into
Train No. 408's time, which was on Track 19, and they
were screaming for the signal — it was their departure
time -- Mr. Walter Kensky attempted to give some relief,
*
but Mr. Charlie O'Brien held his hand out quietly in
front of him. I then took the radio and started down
on track platform 17. At that particular time Train No. j
90 pulled out. I — the only information I had on the
train, because I tried to reach him with the radio as
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it was pulling out, is simply what he stated to me before:
No door lights.
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I then dashed out to Track 16 and tried to
get to the bottom of what was holding up 708, at which
time we found that the coupling, that had occurred
earlier was not simply making connection, and consequently j
caused the train not to communicate or have any
door lights. We continued uncoupling the train or trying
to find first the spot where this weak link was, and we
I
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found it and finally got this Train 708 out.
Basically, that was the situation.
Mr. Gaynor's assistant, Mr. Charlie O'Brien,
who was there at the time, and with little help on his
part — and I'm sure he's the one that informed
Mr. Gaynor of what had occurred — did not tell him that
he was right there and did nothing really to help.
Q At what point did you say you had first learned
I
of the failure of the communicating whistle?
IA Shortly after departure time, and departure
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of Train 90 is 6:38. I gave them a couple of announce
ments, "all aboard,” and the train sat down on the
platform, and finally the conductor went to the phone
and called me. I would estimate that to be about 6:40.
Q Did you inquire of the conductor as to when
he first learned there was a failure of the communicating
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whistle?
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A He stated that he learned just theh. He was
getting ready to pull out, and he suddenly realized
that he has no door light.
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Q Approximately ten minutes before departure
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time, does that train receive a brake test? |
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A It does receive a brake test. This is
Q And how is the brake test given?
[179]
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A With the communicating whistle device.
Q And did you inquire as to whether that
communicating whistle was operating during the brake
test or a.s to how the brake test was given?
A This happens quite often. Sometimes a brake
test is given to a train, and they —
Q I'm not asking what happens sometimes. I am
asking whether you made an inquiry into this subject.
Did you inquire of the conductor whether the communicating
whistle had worked when the brake test was given or
whether or how the brake test was given?
A No; I d i d n ’t. Right then, the immediate thing
to do was to get that conductor and train out of there
as soon as possible. The conductor was on the phone,
and he doesn't — he wants to get out as soon as possible,
himself. If he is a good conductor, he states the
problem, hang it up and try to go back and alleviate
the problem, along with the car inspector.
Q Now, that train was brought in approximately
an hour prior to departure time, was it not?
A That's correct.
Q And presumably the drill conductor and the
drill engineer that would make that equipment move would
also have to use the communicating whistle?
SOUTHERN DISIR1CT COURT REPORTERS. US COURTHOUSE
FOLEY SQUARE. NEW YORK. N Y. - 791-EO’O
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mpas Harris cross
A' 168
A That’s correct.
Q And if there had been any failure in the
communicating whistle, probably it should have been
reported promptly to your office, should it not?
A It's supposed to be reported promptly.
Q So that if this delay occurred because of a
communicating whistle failure that was known at the time
of either the brake test or when the drill crew came in,
those people were failing in their duty, right?
A Not necessarily. They could have not detected
it at that particular time. This happened over and over
again.
Q If the communicating —
A When the train comes into the station —
MR.. HOLWELL: Your Honor, may the witness
answer?
THE COURT: Yes.
A There are times when the train comes into the
station in perfect order, and you get ready to move it,
and nothing happens.
Q What I am asking, though, is if the
communicating buzzer or whistle had failed while the
brake test was being given and it wasn’t properly
reported to you, somebody was being negligent and failing
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mpas Harris cross
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in their duty; right?
A The fact is, I don’t know that it failed at
that time.
THE COURT: No. He is asking you, if it
failed at that time, they should have notified you?
THE WITNESS: Yes.
THE COURT: That is all you are being asked.
Q And you made no attempt to ascertain or find
out whether somebody was failing in their duty? You just
went ahead and got the train out and did not try to
find out whether this communicating whistle had failed
subsequent to these things or prior.
A Now, le.t me explain the time element here.
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Train No. 708 is due out at 6:51. It was
delayed. Train No. 90, due out at 6:38. Both trains
were delayed. That's coming into 7:00.
My departure time, my tour of duty ends, my
relief man is here in the office at 7:00. He came in
on the 6:38. I stated in the log book that the trains
were delayed because of the communicating whistle.
Now, getting into a whole line of reports
or a whole ramification of why this or that happened
five, ten minutes or an hour ago and so forth, with the
car inspectors — there was no time for that then.
SOUTHERN DISTRICT COURT REPORTERS. US. COURTHOUSE
FOLEY SQUARE. NEW YORK. NY. 1 791-10>0
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Q Now, as assistant stationmaster, a management
person, you are supposed to make efficiency checks on
crews and other personnel in the station, are you not?
A That’s correct.
Q What is the purpose of an efficiency check?
A It's simply a check that — a checking on the
crew of their book of rules.
Q Whether they are performing their duties
properly; is that correct?
A Yes, generally speaking.
Q And in an instance like this, you felt no j
obligation to look into the matter in any way to determine
whether the delay of that train was due to a failure of
the crew to promptly notify you of the failure or whether j
it was actually an innocent equipment failure that occurred
to late to have anything done about it.
A I know that the crew, as soon as they are —
Q Answer my question yes or no.
A Well, now, will you repeat the question, please.
MR. STOKES: Will the Reporter read the
question.
(Question read.)
. A I knew that the train was out of the station
without any 'response being —
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[183] . _mpas Harris - cross 27Q
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[184]
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MR. STOKES: Your Honor, the question can be
answered yes or no. I don't need —
THE COURT: Yes. Will you answer yes or no.
A The question --
THE COURT: The question is, did you feel any
obligation to find out whether it was due to inefficiency
on the part of the crew or not.
THE WITNESS: The fact is, sir, that the only
way I could find that out would be later on in the day,
when the crew returns to the station. The crew was out
of the station.
-■ Q The answer is, you didn't feel any obligation
to loch into the matter; is that correct?
A The fact is that I did not have the time to
do i t . - --
Q You didn't feel any obligation to look into
the matter; is that correct?
MR. HOLWELL: I think the question is repetitive, j
The witness has answered it. - j
MR. STOKES: It is only repetitive because I
don't get an answer.
THE COURT: Well, the failure to get an
answer is sufficient.
A I always feel there is an obligation to look
SOUTHERN DISTRICT COURT REPORTERS. U S COURTHOUM
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[185]
mpas Harris cross A-172
into these matters.
Q In this instance, you did not. though?
A In this instance, the crew had left the
station, and I couldn't look any further into what had
happened.
Q Had the drill crew that brought that train in
an hour beforehand left the station?
A The drill crew that brought that -—
Q The equipment into that platform.
A Tha drill crew, I don’t know whether they had
left the station or not.
Q Now, as a management personnel, are you
strictly an eight-hour-a-day, five-day-a-week man,
or are you on call seven days a week?
A Technically speaking, seven days a week.
In a practical sense, five days a week, eight hours a day
Q Now, I show you Exhibit H in evidence, a letter
from Mr. Gaynor addressed to you, dated November 8th,
noting that you have failed to make any reports of
routine efficiency checks. Do you recall receiving that
letter?
A I do.
Q Had you in fact been making efficiency checks
prior to that letter?
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A I was told by Gaynor's predecessor to discontinue
the practice.
Q And when was that?
A This was in about the beginning of 1973.
Q And from the beginning of 1973 to November of
197-5 , nobody told you that you were still supposed to
make efficiency checks?
A No.
Q I show you Defendants' Exhibit I, a' memorandum
dated November 22, from Mr. Gaynor, addressed to you,
in regard to extensive delay to Train No. 400.
I apologize. This is not the clearest copy. Maybe we
might be able to get a better copy before it is finished.
MR. HOLWELL: Let me see if I have a better
copy. .
THE WITNESS: I think we ran over this before.
Q Is this the instance involving Mr. Wership?
A Yes. This is the incident involving Mr. Wership.
0 And that train was in fact seventeen minutes
late in leaving?
[186] , . •» -j ̂mpas Harris - cross *■ ’ *
A That's correct.
Q And while I understand you subsequently had
charges brought or saw that charges were brought against
Mr. Wership, at the time you did not attempt to take him
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[187]
mpas Harris cross A~ 174
out of service for failure to obey a direct order; is
that correct?
A That’s correct. I consulted with 204.
204 gave him the order, told him to take the train out
of the station. In spite of this, Mr. Wership refused to.
Q And did you issue a direct order?
A Yes; I did.
Q But you didn't take him out of service for
failure to obey a direct order, insubordination?
A No; I did not. I informed him that 204 had
also told him to take the train out of the station.
He, in spite of it, remained in the station. The conductor
had already agreed, and in spite of everything that was
done, Mr. Wership delayed the train.
MR. STOKES: I seem to be missing J.
Q I show you Exhibit K, Mr. Harris, a memorandum
dated February 20, 1975 from Mr. Gaynor to you in
regard to delays to Train 802. Now, was Train 802 in
fact delayed about nineteen minutes on account of no
door light?
A Not in fact. Not in fact. The equipment was
delayed that long. In fact, the passengers were taken
from that train and placed on Train No. 1602, which
departs from Penn Station at 1:11, and the equipment was
SOUTHERN DISlklCT COURT REPORTERS. US. COURTHOUSE
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sent out after we changed it, empty, to Jamaica, and
it departed -- it was delayed that long, but it was
simply 802's equipment.
Q And now, I show you — Incidentally, the
passengers were placed on which train?
A On the 1602, 1:11 out of Penn Station.
Q And what was the scheduled time of departure
of 802?
A 1:01.
Q So that the passengers in any event were still
ten minutes late?
A Ten minutes late, right.
0 I refer you to Exhibit L, a memorandum dated
March 26, 1975, addressed to you in regard to failure to
log'in the arrest of a passenger, Frank Perlongo, on
March 22nd, or the night of March 22nd, morning of
March 2 3rd.' •
A All right —
Q Did that arrest take place in the stationmaster's
office?
A Yes, sir. And on page number 121 in your log
book, you will see it there.
Q And did you actually log this in?
A That's correct.
SOUTHERN DISTRICT COURT RTPORTIRS. US COURT HOUM'
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[189]mpas Harris cross A- 1 7 6
2 Q Did you respond to Mr. Gaynor and advise him
3 that it was properly logged in?
4 A I told Mr. Partridge to tell him.
5 Q You didn’t see fit to either send "Mr. Gaynor
6 a . note or speak to him, either in person or on the
7 telephone?
8 A No. I didn’t feel that that was necessary.
9 I told Mr. Partridge, and if I — if I was a man who
10 just went in and sat down at an office and did little all
11 night long, I probably would have written him a letter
12 concerning it, but it was clear that Mr. Gaynor was
13 seeking to do precisely what you are doing today: pile
14 up letters on me simply to come into court and to
15 discredit my operation.
16 Q And you felt all along during the past year
17 that Mr. Gaynor was trying to discredit your operation
18 because you are a plaintiff in this lawsuit.
19 A With some exceptions, basically this has been
20 the plan.
21 Q And you say, even though you haven't kept them.
22 every day you would have one or more letters like this
23 from Mr. Gaynor on your desk when you arrived at work?
24 A Numerous notes. Numerous notes.
25 Q Feeling that this was an attempt to set you up,
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did you try to protect yourself by answering Mr. Gaynor
regularly when he raised these questions? Did you write
Mr. Gaynor back in response to these letters?
A I did write Mr. Gaynor in response to some of
them.
Q Now, you normally park your car at Jamaica;
right?
A Yes. 1 normally park the car there.
Q And the run on the car between Penn Station
and Jamaica is eighteen or twenty minutes; is that,
correct?
A Seventeen or eighteen minutes.
Q And you are catching a train from Jamaica to
Penn Station in the evening at roughly 10:30 at night;
is that correct?
A That's correct.
Q Now, during that seventeen- or eighteen-minute
run, having received the note the day before from
Mr. Gaynor, did you attempt to write some note to him
explaining that you could leave there when you went off
duty, explaining to Mr. Gaynor that the accusation was
not true or that your accusation was justified?
A No, I didn't.
Q Did you ever attempt to speak to Mr. Gaynor
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and say to him, "Why are you trying to set me up," or
anything of that nature?
A No; I didn’t, because it was clear — it was
in my mind — what he was trying to do.
Q Now, you were represented by counsel a year
ago in connection with your application to this court.
Did you communicate with counsel at all during this
period and complain to them that you were being set up
in retaliation for bringing your application?
A Well, I knew that my counsels are busy, and I am
sure that they are interested in everything that's
occurring and so forth, but I don’t feel that I should
run to them with every little matter that comes'up.
I have on a couple of occasions mentioned some of them
to Mr. Holwell.
Q But you do feel that on every unusual occurrence,
though, that you should consult with 204 or some
superior and have them make the decision?
A And make the decision about what? -
Q As to how to solve the unusual problem.
A If there's an unusual problem at Penn Station
or wherever it happens to be on that railroad, 204
.wants to know about it.
Q They want to know about it, but do they
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necessarily want to make the decision, or do they want
you to make the decision on the spot?
A When it’s involving that whole railroad, they
want to know about it, and they will make the decision
that they feel is necessary, and I feel that they should
know about it, We are not running trains simply from
Penn Station. We are running them from all over the
Long Island Railroad, and everything relates to everything
else.
Q I don’t quarrel with you about advising 204
about incidents, but do you feel that 204 is the one to
make the decision as to how incidents are to be handled
while they are occurring?
A There are weeks that pass when I never consult
204 about anything, but if the occasion arrives when I
think that they should be in on something, I shan't
hesitate to call them.
Q Any unusual type of incident, if you don't
have an assistant trainmaster or trainmaster available
at Penn Station, you feel that you should call 204 and
get their direction and decision; is that correct?
A I feel that I should consult them. Incidentally,
the trainmaster, when he is on duty, he does the same
thing.
SOUTHERN DISTINCT COURT REPORTERS, US. COURT HOUSE.
FOLEY sy-JARF. NEW YORK. N Y. - UMH.’ il
Harris - cross A‘ 180
MR. STOKES: May I have just a moment, your
THE COURT: Yes.
(Pause.}
MR. STOKES: Just one further questions.
Mr. Harris, do you know a Mr. John Walker,
project engineer for the Long Island Railroad?
A Walker?
Q Yes. -
A He 1s an engineer?
Q Project engineer in Mr. Woodward's office or
under his jurisdiction. -
A. Project engineer? No. I don’t —
Q You don’t know who he is? —
A I don't.
MR. STOKES: I have nothing further.
THE COURT: Let's take a ten-minute recess.
MR. HOLWELL: Can we break for lunch, your
Honor? We haven't seen a lot of documents which were
just produced this morning, and the log book, for instance,
is relevant to whatever entries are made and not made.
THE COURT: Do you have to look at those
documents for redirect?
MR. HOLWELL: We have to examine the log book.
SOUTHERN D is in t e r COURT REPORTERS. US. COURTHOUSE
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,There are allegations in many of them that Mr. Harris
failed to make proper entries in the log book.
THE COURT:. .There's only one entry in there.
MR. HOLWELL: No. Several of the letters said
that the entries were not enough, and we would like to
see what entries the other SM's made and put on the
record.
THE COURT: All right. Be back at 1:30 then.
(A luncheon recess was taken.)
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AFTERNOON s es si o n :
1:30 p.m.
E D W A R D H a r r i s , resumed.
MR. STOKES: If I could—
THE COURT: Yes, you have one more question?
MR. STOKES: Yes.
CROSS EXAMINATION (Continued)
BY MR. STOKES:
Q Mr. Harris, in regard to Exhibit L I believe you
stated that in the arrest incident you had recorded it in
the logbook; is that correct?
A That is correct.
Q Did you record it that night?
A I did that night— that morning.
Q What do you mean that morning, the morning of
March 23rd?
A That is right. I don't know whether we have
the correct time in here or not but I did report it the
morning of the incident.
Q Right after it occurred?
A Right.
MR. STOKES: I wish to have— it is a complete
solid book and I am only interested in pages 120 and 121,
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your Honor.
THE COURT: All right.
MR. STOKES: I ask that that be marked in evi
dence .
THE COURT: Perhaps you can Xerox copies and
substitute that in place of the book.
MR. STOKES: I would be very happy to do that
overnight, your Honor.
THE COURT: All right.
MR. STOKES: I will withhold physically marking
the book.
THE COURT: Is that satisfactory, Mr. Holwell?
• MR. HOLWELL.: We would like the whole book marked,
sir.
THE COURT: What parts of it do I have to see?
If you point out what other parts you want in I won't have
to look at it.
MR. HOLWELL: I would like to mark it all as an
exhibit and select pages from it.
THE COURT: That is perfectly all right.
■v
MR. STOKES: We can work out whatever it is going
,* -
to be but in the meantime rather than physically marking
it, I will state for the record that I have the book and
will show it to the witness, and it is page 120 and 121.
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[197]
arjb 3 Harris-cross
A- 184
Q I show you at the top of page 121 under the date
of 3/22/75, Mr. Harris, is this the account of the arrest
that you made or the log entry that you made in reference
to the arrest? .
A That is the log entry 1 made.
Q Wow, Mr. Harris, I refer you to page 120, at the
bottom of that page there is an entry by Ilr. C.E. Scott.
What is the date of that entry?
A That is the date 3/23/75.
Q And above that there is an entry— what initials
are those, do you recognize them?
A .Walter F, Kempsky.
Q What is the date of that entry?
A 3/22/75.
Q Wow, referring back to page 121, what is the
date of your entry of this arrest?
A 3/22/75.
Q In other words, the entry that you made right
after the arrest is out of order in the book, is that
correct?
A It may be out of order in the book but that
entry was made on that night.
Q And the entry immediately following it, what
date is that?
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[198]
ar jb 4 Harris-cross
A- 185
A The entry immediately following is 3/24/75,
Q But anybody looking at the book would assume
that the entry that you made of the arrest, about the
arrest, was not made on the morning of the arrest, is
that correct?
A I wouldn't assume that. I would assume it was
made at the time that it is recorded.
Q In other words, the way you keep the logbook,
you don't follow immediately after the next entry but you
will cross over to the next page and put it in so it
might end up out of order?
A No, not particularly. Sometimes I find that I
am going to write something and I don't know how much
space it is going to take and I want it all to be on the
same page. So I might move from one page to the other
page and start it on that , page so I will have all the
space I need to put that particular entry.
That is what evidently happened in this case.
Q You were never given any instructions of what
ever entries you have to make were to follow immediately
after the preceding entry?
A No, I didn't have to be given that instruction
but you can see that the entries— nothing was changed in
regard to that date in any way there.
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[199]
arjb 5
A - 186
Harris-cross
Q I have no idea whether it was or not. All I
can see, Mr. Harris--! don't want to argue about it with
you— but it does follow after March 23rd and appears to
be out of order; isn't that correct?
A It does follow after someone made an entry on
the bottom at 3/23/75.
Q On March 22nd, Mr. Kempsky relieved you or did
you relieve him?
A ' March 22nd?
Q 1975. Normally Mr. Kempsky is your relief, is
he not?
A Some days. : _
Q You had worked March 22nd and Mr. Kempsky also
worked March 22nd and he would have, in the normal course
of events, relieved you? r~.
A That is right.
Q So that Mr. Kempsky's entry on March 22nd would
have been after you had been relieved and left, is that
correct?
A That is correct.
Q So actually the only prior entry above that is
at approximately the middle of the page for March 21,
1975 and I assume that those are your initials on that?
A That is correct.
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[200]
arjb 6 liarris-cross/redirect A- 187
MR. STOKES: I don't know whether your Honor
wants to examine it at this point or wait until we repro
duce it (handing to Court).
I have nothing further, your Honor.
Overnight I will endeavor to have the pages
reproduced.
REDIRECT EXAMINATION
BY MR. HOLWELL:
G Mr. Harris, would you direct your attention to
the log that Mr. Stokes was just questioning you about?
I direct your attention to the entry you made
at the top of the page, 3/22/75. Can.you tell me whether
or not there are any entries after that 3/22/75, prior to
26, 1975?
A After 3/22—
G But before March 26, 1975.
A Yes.
Q How many entries are there?
a ‘ One.
Q What is the date of that?
A 3/24/75. •
Q Does that entry take up the
page 121 of the log?
A It takes up— no, it does not.
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[201]
arjb 7 Harris-redirect A -188
Q Is there an entry after that?
A There is an entry after that.
Q Is that dated?
#
A Not dated at all.
Q Is it in different handwriting than the entry
for 3/24/75?
A It is.
Q But it is undated?
A It is undated.
Q What is the next entry after this undated entry?
A After the undated entry it is 3/27/75.
Q And where does that come on the page?
A At the top of the page.
Q Subsequent to the entry date of 3/27/75, is
there another entry below that?
A There is.
Q What is the date of the entry below this '3/27/75
entry?
A It is undated.
Q Let me direct your attention to this entry here
a quarter of the way down the page and ask you what that
date is.
A 3/26/75.
Q Is it true there is an entry dated 3/26/75 made
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[202]
arjb 8 Harris-redirect A - W
in this log after 3/27/75 entry?
A That is correct.
Q Can you tell whether or not this is different
handwriting at 3/27 than the one at 3/26?
A This is a different handwriting.
Q I direct your attention to the entry immediately
following that. That would be an entry, two entries after
3/27 entry. What is the date on that?
A 3/26/75.
Q Now, Mr. Harris, I would like to show you what
is Defendant’s Exhibit L in evidence, which is a letter
from Mr. Gaynor to you and ask you what the date of that
Sbcument is. : •"
A: ■ It is March 26, 1975.
Q bo you recall receiving that on that date, Mr.
Harris?
A Approximately, yes.
Q Had Mr. Gaynor or anyone else fired you March
26, 1975 or-•'reprimanded or brought to your attention that
you failed to make a log en.try with regard to the arrest
of a passenger?
A No-, not at all.
Q Did you in fact make the entry here that you
dated 3/22/75 on 3/22/75?
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ar3b 9 Harris-redirect 190
A That is correct.
Q Did you make it prior to receiving this letter
from Mr. Gaynor?
A I did.
Q I want to direct your attention to the period
of time after you took this book of rules examination in
September of 1974 and were reinstated in service.
Do you recall approximately when that reinstate
ment occurred?
A The first week in October.
Q Of 1974?
A Of 1974.
Q I want to direct your attention generally to
all the exhibits that the defendant marked in evidence and
questioned you about on cross examination, being a series
of letters from Mr. Gaynor to yourself between October
1974 and September 1975.
I want to ask you with regard to any of those
letters whether Mr. Gaynor at any time ever spoke to you
in person regarding the activities he was complaining
of therein?
A Not at any time.
Q Did lie ever ask you for any explanations as to
what occurred?
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arjb 10 A- 171
Harris-redirect
No.
Q Did anyone else other than Mr. Gaynor, Mr.
Partridge ever talk to you about any of the incidents
referred to therein?
I would like to direct your attention to Defen
dant's Exhibit I in evidence which is a letter dated
November 22, 1974--rather a memorandum— written by Mr.
Gaynor to yourself which appears to involve an incident
with an engineer, Mr. Wership, who failed to follow your
directions and the directions of 204 in proceeding out
of the station with an oral understanding as to how the
doors on the train were to be operated.
Can you explain how you eventually got Mr.
Wership to proceed out of the station? What did you do
when he refused to take the train out on oral command?
A I finally ran up to the stationmaster's office
and wrote out a little note, gave it to the conductor who
willingly ran up behind me, picked up the note, took it
kack to him rather than delaying the train further and
the conductor felt it is necessary to follow me dashed
bach down.
Q Your function as assistant stationmaster is to
SSe that the trains get out on time?
A Basically.
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[2Q5] ar jb Harris-redirect A 132
Q Did there come a time after this incident when
you wrote a report to your superior regarding the activities
of Mr. Wership?
Did there come a time after Mr. Wership balked
at taking the train out of the station that you in fact
made a report to your superior with regard to Mr. Wership's
activities?
A Yes, I did.
Q What happened after you wrote the report?
A I wrote the report to Mr. Jack Shelter I believe
the name was, road foreman of engine and they gave Mr.
Wership a trial I was told— management didn't bother to
inform me on it— but I was told by the conductor because
he attended the hearing himself.
The result of the hearing—
Q What was the result of the hearing?
A It was that the engineer was given a day out of
service without pay.
Q Suspended for a day because he failed to follow
your direct orders and failed to follow the direct order
of 204?
A That is correct.
Q What is Mr. Wership's race?
A lie is white.
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[206]
ar jb Harris-redirect A - 1 93
Q I direct your attention now, Hr. Harris, to
Defendant's Exhibit F in evidence which is a memorandum
from Hr. Partridge to Mr. Gaynor dated October 11, 1974.
Have you ever seen that prior to this morning?
A Ho, 1 haven't— I did see it, I am sorry, at one
time in Mr. Stokes' office.
Q Prior to that had you ever seen it?
A Ho, I have not.
Q It refers to an Amityville work program which
Mr. Partridge says you did not have written up.
Will you explain to me the circumstances surround
ing this memorandum from Mr. Partridge to Mr. Gaynor in
your own words?
A Yes. I had finished my tour of duty and my
relief man did not show up at about 7:30 in the morning.
He was supposed to have been there at seven.
At about 7:30 Mr. Milroy contacted Jamaica to
find out where was the relief man and was told at that
time that he had called off sick and had gone to the
hospital.
Consequently, I had to put in 16 hours, I had
to double up. At this particular time, it is during
commission hours so in a case like that, trains are coming
in every minute, coming and leaving every minute, sometimes
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ar jb Harris-redirect /\ 134
two of them a minute.
The assistant station manager's function then is
simply to keep that train record sheet up to date, that
he record every train that reaches Long Island City,
Harold Tower and when it arrives into the station or
when it is placed from the yard on a particular track as
well as when the eastbound passenger trains depart.
In addition, a great number of PJ's and PW's,
whatever, equipment trains going to various places during
the morning. It is a hectic period and all his hands are
full just doing that.
At about 10:00 we come out of this commission
hour period, things begin to slow down a bit.
This time Mr. Partridge, the station manager,
the full fledged station manager arrived, took over and
said, "Ed, you go to lunch, be back at about 11:00."
It was also at this time and during this period
that the Amityville program is supposed to be going into
effect. Mr. Robert Partridge took care of everything dur
ing this period.
I got back at about 11:00, two minutes after I
walked in the door?Mr. Gaynor walked in and says, "Where
is the Amityville program? You have it there?"
I simply said to him, "I imagine it is there,"
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or not.
[208]
ar jb
looking to
Harris-redirect
see whether it was really there
A 195
Mr. Gaynor turned around, walked out of the door.
By the time he got on the other side of the glass enclosure
I discovered the sheet, in fact Mr. Partridge had made it
out arid I yelled to him but he left.
Evidently he made whatever point he wanted to
make. That was the end of that.
The next thing I heard is when I saw this
letter in Mr. Stokes' office.
Q 1 would like to direct your attention, Mr.
Harris, to Defendant's Exhibit II for identification and
in evidence, which is a memorandum dated November 8, 1974
from Mr. Gaynor to yourself.
It says: "During a routine check of the
efficiency reports I noted you failed to make any reports
this year."
You stated that you had been directed by Mr.
Milrov that you do not have to bother making these
efficiency reports, is that correct?
A After or shortly before Mr. Mel Stewart left
the office of general superintendent I received a letter
s^ating that we were to discontinue making out the
efficiency reports, the assistant station manager.
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[216]
mpas P\-196' Harris - redirect, recross
The regular is $341.
MR. STOKES: I also, your Honor, have a witness
who will be made available, who will put in the figures.
THE COURT: All right. I thought Mr. Harris
would know.
MR. STOKES: If I could have just about a
two- or three-minute recess, your Honor —
THE COURT: All right.
(Recess.)
RECROSS-EXAMINATION
BY MR. STOKES:
Q Just very briefly, Mr. Harris. You say you did
receive a written letter from Mr. Stewart in regard to
discontinuing efficiency checks?
A Yes.
Q Do you have a copy of that letter?
A No. Unfortunately, I don't have a copy of that
■ letter. I haven't been able to find it.
Q Now, in regard to the Amityville work program,
I just wanted to see if I understood your responses to
Mr. Holwell correctly.
Were you saying that because Mr. Partridge,
the stationmaster and your superior, was on duty at
approximately the same time, you had no responsibility
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[217]
mpas ‘ Harris recross
A-197
, for writing up the Amityville program?
A I was at lunch at that time.
Q Do you know what time the workmen were
scheduled to go to work at Amityville?
A No; I don’t offhand.
Q Do you know what the running time is on an
average train from Penn Station to Amityville?
A Approximately. Approximately.
Q What is the approximate running time?
A About 55 minutes.
0 So that if the workmen were scheduled to go to
work at 10:00 in the Amityville area, that means that
any trains leaving Penn Station at around 9:00, in the
vicinity of 9:00, should have received an Amityville
work program write-up; is that correct?
A I'm not sure if those facts are correct.
Now, I don't know that those facts are correct.
Q But I mean, if the men start at ten, then
properly speaking, any train leaving around 9:00, maybe
even a little earlier, just to be on the safe side,
should have received a write-up at the work program;
is that correct?
A That's correct.
Q At what time did Mr. Wership relieve you to go
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[218]
mpas • Harris recross, redirect
A - 1 9 8
. to lunch?
A Mr. Partridge.
Q What time did Mr. Partridge relieve you to go
to lunch?
A At 10:00.
* t
MR. STOKES: At 10:00. I have nothing further
from this witness.
THE COURT: All right. You may step down,
Mr. Harris —
MR. HOLWELL: I would like to ask one or two
questions.
THE COURT: All right.'
REDIRECT EXAMINATION
BY MR. HOLWELL:
Q Mr. Harris, with regard to these work programs,
do you know whether or not the only way a train out on
the tracks knows that they are going to come across
workers is by receiving a work program from the
stationmaster's office? Are there any signals out on
the tracks?
A No. That's not the only way. They are
obligated to have flags set up for that particular
.purpose. I'm —
When you were not allowed to return to your job
so m i i iK N d is ir k r co u rt k u ’o r u r s . n.v c o u r u io u m
Q
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[237]
arjb 9 Stewart-direct A- 199
stationmastor, in that correct?
A Specifically mostly on the second tour of duty.
When he worked the afternoon tour of duty I was right
there and he was under my eyeballs you might say. I
was watching everything going on when 1 was there and
he was working there.
Q Did you ever have any occasion to remove him
from his position or chair as assistant stationmaster
and substitute somebody else?
A Yes.
Q Approximately when was that?
A I can give you the exact date here, I have got
it, a record of it.
July 21, 1971 I had to remove him from the
chair as assistant station-master and sat down and func
tioned myself until I got the place straightened out.
Q What was the problem?
A lie lost track of the train movements and when
I suggested to him that he get up to date, find out how
trains were coming by contacting the tower, he refused.
So I gave him an arbitrary order,' I said, "You
have to get your records up to date so we know what is
coming."
lie said, "I will do it after a while."
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arjb 10 Stewart-direct A- 200
I said, "No, you will do it right now."
He said, "No, I won't.*'
Then I said, "Then get out of the chair and I
will do it."
So he got up and I sat down and brought his
records up to date and about 25 minutes later we had the
place straightened out. I said, "If you want to sit down
and behave yourself and do as I tell you you can. If
you don't, you can go home."
So he sat down and went back to work again.
Q Had you ever had any other incident with any
other assistant trainmaster similar to this?
A Assistant trainmaster?
Q Assistant stationmaster.
A Not of that nature, no, sir.
Q You had problems but no other way you had to
actually move the assistant station manager and take over
and perform his function?
A That is I had other instances where I said to
assistant stationmasters, you better get your records up
to date so we will know where we stand with the trains,
and they would do it.
Q You never had one tell you he will do it later?
A No.
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[239]
arjb 11
Q
hjoi
Stewart-direct
You never had to order someone twice to do it?
A No, sir.
Q During your tenure as terminal superintendent
did you have other occasions to censure or reprimand Hr.
Harris?
A Yes.
Q Were any of those in writing?
A Yes.
Q Have you maintained your own copy of your
letters to Mr. Harris of censure or reprimand?
A Yes, sir.
0 Are these the documents you have before you?
A One letter dated April 1, 1971 covering an
incident on March 31, 1971.
Then the one on July 23, 1971 concerning the
incident that I had just described from July 21, 1971.
And there is another one dated October 6, 1971
concerning his performance on October 1, 1971.
And another one dated February 28, 1972, con
cerning an incident dated February 24, 1972.
And another one dated March 3, 1972 in the form
°f a question, what took place on the same date, March 3,
1972.
Those five pieces of correspondence I have on Mr.
«
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[251]
mpas Stewart - direct A 2 0 2
this testimony about what happened to him in 1968 and
1969, and I am sure it was for some purpose of trying
to prove something on his part, that it's not just
wasting the Court's time.
Consequently, I am trying to bring in one of
his supervisors to show the other side of the coin.
THE COURT: All right. I think he can cover
the area that Mr. Harris testified to.
Q Mr. Stewart, did you ever have any conversations
!
directly with Mr. Harris concerning his job attitude
or his job performance?
A Yes; I did.
Q Approximately when did these take place?
A Well, the principal one that I recall occurred
right after this incident, where I had to take him out
of the chair and do the work myself, and the next day j
I took him into a room where he and I were by ourselves,
and tried to impress him that if he wanted to get ahead
i
on the Long Island Railroad, to be an assistant-
stationmaster and be considered for anything else, he
was going to have to shape up and adopt a different
attitude, that he was going to have to cooperate, work
hard, try to learn to do his job faster, keep up with
the work and not give his superiors any argument about
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[252] A 203
mpas Stewart - direct
what he had to do.
His answer to me, if I recall his exact words,
were, "I'm only interested in one thing: the Long Island
Railroad doesn't have any general managers or vice
presidents who are black, and I'm going to do everything
that I can to see that they do."
So I just terminated the conversation right
there. I said, "There's no use of me talking to you if
that's your attitude."
Q Now, during your period as terminal
i
superintendent, did Mr. Harris assume responsibility and
make decisions?
A Only when he was forced to.
Q He never showed initiative and would try to
do this on his own?
A That's right. If there is anybody else there
that he could pass the buck to, that's what he did.
MR. STOKES: The witness is available, your |
Honor.
MR. MC GANNEY: May we have a few minutes,
your Honor?
I
THE COURT: All right. We will take a recess.
(In the robing room.)
MR. STOKES: First, your Honor, I want to .
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[282]
arjb ly Dixon-cross A "204
take is the seven day figure and divide that for five
days and that is where it comes out. That is usually
their lowest grade.
IiY MR. HeGARMEY:
Q Do the permanent ASII's receive the same pay as
extras?
A Mo, sir.
Q They are paid more?
A That is based as I explained, there are various
pay grades that the regular men, and they normally, if
they show efficiency and dedication to the job and it is
recommended, they are recommended for a pay increase and
we have a step-up, steps in grade.
Q Would there ever be a case where the extra is
paid as much as a permanent?
A Mo, Sir, only on the lowest grade when it is
divided into five days out of the seven.
Q Let us take a five day work week. Is there a
situation where an extra would make the same amount?
A Yes, sir.
Q As a permanent?
A Yes, sir.
Q The highest extra?
A The lowest grade.
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[297]mpas A- 205Lansperg - direct
. that transpired after that.
A Well, Mr. Rizzacasa came into the office and
confronted Mr. Harris with the fact that there were no
announcements made and track change signs posted with
regard to Train 708.
At that time, Mr. Harris said, "Well, you have
an assistant trainmaster on duty” — meaning myself.
I was writing the report, and this is really when I
started to listen to the conversation.
Mr. Rizzacasa informed Mr. Harris that it was
his responsibility to, as the assistant stationmaster,
to insure that the announcements were made by the usher
and that the track change was made for the public.
I think at that point Mr. Harris was upset
with the way Mr. Rizzacasa was talking and he said,
"Don't holler at me. You can do that home, but not here."
Mr. Rizzacasa told him to have the announcement
made, and Mr. Harris was arguing with Mr. Rizzacasa,
and he said, "All right. You're out of service."
Q Did Mr. Harris refuse to have the announcement
made?
A I don't know if there was an actual refusal.
The fact is, he continued to protest with Mr. Rizzacasa.
Q And what happened? What did Mr. Harris say
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after Mr. Rizzacasa told him he was out of service, or to
go home?
A Well, he, you know, picked up his personal
belongings and put on his coat and said, "I'll see you in
court."
[298]•
mpas • Lansperg - direct
A- 206
Q Did you say anything to Mr. Rizzacasa after
that?
A No; I didn't.
Q Did Mr. Rizzacasa direct the usher to then
make a track announcement?
A Yes; he did.
Q As an assistant trainmaster, must you know the
various signals within the station?
A Y es.
Q Must you know the signal locations within the
station?
A Yes.
Q Must you know the location of telephone booths
within the station?
A Yes. . •
Q And in the tunnels?
A Yes .
Q As an assistant trainmaster are you required
to have knowledge of the book of rules?
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[305]mpas ■ Lansperg - cross A 207
same in Penn Station as in Jamaica.
Q He didn’t give you special instructions at all?
A With regard to what? I don't understand
Q Did he tell you to keep a close watch on the
operations?
A No. He didn’t have to. That's my job.
Q And during this time, from October 1974 to
September 12th, you were on the same shift with Mr. Harris?
A Yes.
Q He was the man you worked with?
A Most of the time.
Q Most of the time?
A Yes.
Q And you never had any reason to file any
reports about Mr. Harris, complaining about the
performance of his duties?
A No; I did not..
Q You were working with him six hours a night?
A Well, I was with him total eight hours, but I
mean in close proximity five to six hours, yes.
Q And you noticed that Mr. Harris usually
followed through on the performance of his duties, did
you not?
A Yes. I didn't have any problem with him.
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[306]mpas • Lansperg - cross A 208
Q And you had never had any reason to
reprimand Mr. Harris for failing to perform his duties
during that time?
A 'Not to the best of ray recollection.
Q And you never noticed anybody else reprimand
Mr. Harris, did you?
A Well, when I was on duty, I used to be with
Mr. Harris, with the exception of when Mr. Rizzacasa came
in in the morning.
Q ' But until the week of September 8th, you never
noticed anybody reprimand Mr. Harris; is that right?
A Not that I can remember.
0 Now, coming down to the week of September 12th,
that was the Friday that Mr. Harris was dismissed.
You would have been off on the previous Friday and
Saturday nights; is that correct?
A That’s right.
Q And then you were sick on Sunday, Monday and
Tuesday?’
A Well, it would be —
Q Sunday night?
A Well, actually if you want to say, Monday,
Tuesday and Wednesday.
Q Nights?
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[312]
mpas • Lansperg - cross A '209
A That is correct.
Q Do you recall what time you made that decision?
A The exact minute I don’t. I know that train,
the 1611 is due to arrive at Penn Station at 6:38. My
instruction was that if the train was running late,
to substitute equipment for the PWA-648, which would be
the equipment of the train 708, which was already on
Track 16.
Q And at some time prior to 6:38, you heard that
the train was running late?
A Yes. At 6:04, from Howard tower.
Q And you called the crew of the train and told
them of the change?
A I had told them that there might be a change.
This was prior to any change that was made.
Q And then, when you decided to make the change,
what did you do?
A I notified them via the radio. They were on
the equipment that they would be using.
Q Where was Mr. Harris at this time?
A He was right there with me.
Q Did you tell him that you had made this
decision?
A Yes. He knew about it.
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[317]
arjb 2 Lansperg-cross 21$
A It depends on what you mean bv yelling. He
was upset that—
Q All hopped up?
A I wouldn’t say hopped up. I would say he was
annoyed, raised his voice.
Q Right off the bat, the first words out of his
mouth?
He wanted to know why there was no announcement
made and the sign had not been changed.
Q Would you say that he directed i-lr. Harris to
make an announcement?
A I don't remember the exact words that each one
said back and forth to each other. I know he said either
to make the announcement or have the announcement made by
the usher. The exact words I am not sure. But he was
instructed to make the announcement or have them made.
Q Wornally who would make an announcement?
A The usher would.
Q There is a union rule, isn't there, that the
usher normally makes the announcement?
A I'm not conversant with the union rules as far
as what tne ushers are concerned with but the usher nor
mally does. That is the scope of his duty.
0 Hr. Harris didn't refuse to do what Ilr.
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[318]
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Rizzacozza told him, did he?
A lie continued to protest the fact with Mr. Rizza-
cozza.
Q He kept saying that you are in charge?
A lie did refer to me and say I was in charge, that
is correct.
0 After Mr. Harris left did Mr. Shearer come into
the office? v
A Yes, he did. -
Q lie cams in and said something to Hr. Rizzacozza?
A He was saying something that he made a mistake
and thought wo were talking about another train.
Q Did you say anything to him?
A To who?
Q Mr. Shearer.
A Ho, I did not.
Q Mr. Rizzacozza say anythinq to him?
A He may have. I can't remember what he said to
him but I know Mr. Shearer did come in and say he had
mads a mistake.
He cams in twice, didn't he, sir?
A lie goes in and out so I can't say.
Q 11s came in twice to say that very same thing?
A I don't recall if it was twice. I know ha said
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[320]ar ib 5 Lansperg-cross
£-212
noant?
A No, ho wasn't talking to no, he was talking to
Hr. Rizzacozza.
Q but you wore sitting right at the very same
table?
A Yes, I was.
o It isn't in your report, no doubt’about that?
A That is correct.
o You didn't think it was important enough?
A That is correct.
n You never heard of anyone being taken out of
service or having failed to make an announcement, have
yon?
A
0
A
complying
have sc-en
I can't say that I have.
Pretty drastic action, wasn't it?
Removal from service on the Railroad for not
with any rule you can say that is drastic. I
people taken out and -I have taken men out my
self.
Q
A
0.
Railroad,
A
This all happened in about two minutes?
Two, maybe three minutes.
You knew Ilr. Harris had a lawsuit against the
did vou not?
1 was not aware there was one.
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[322]
arjb 7
A 213
Lansperg-cross
A About seven and a half years approximately.
Q You have been an assistant trainmaster since
August 1974?
A That is correct.
Q Later in March you had to take a second written
test and a physical characteristics test?
A Yes, I believe it was March.
0 For that you had some special tutoring?
A I wouldn't call it special tutoring. 11 of us
got together and discussed the physical characteristics
of the Railroad.
Q It was a $5 course, you all chipped in?
A We didn't chip in. There was no $5 course.
Q It wasn't a. $5 course?
A No.
Q The first time you took that you didn't pass it.
is that right?
A That is correct.
Q You weren't taken off service, were you?
A No, I was not.
0 You took a second test?
A Yes, I did.
MR. McGANNEY: I have no further questions.
THE COURT: Any redirect examination?
%
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[341]
jqas 3 ' Rizzacasa direct A 2 U
• assistant stationmaster know the yard layouts?
A Yes, he must.
Q Since you joined Long Island Railroad have
there been times when Mr. Harris has come under your
supervision?
A . Yes, he has.
Q When was that?
A In 1969 he first came under my supervision as
an extra assistant stationmaster and later on when I came
back to New York in 1973.
Q Have you had occasion to directly observe his
work?
A In 1969 I did. He worked afternoons then with
me on several occasions and since he was brand new at
that time I didn't write him up or anything else.
He got verbally reprimanded. He had to be replaced —
MR. MC GANNEY: I move to strike. It is
not responsive to the question.
THE COURT: What were your observations of him
when you had him?
THE WITNESS: Poor attitude, he was unable to
do the job.
Q In what way was he unable to do the job?
A He was uanble to keep identity of the trains
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going in or out, where the trains were placed. In the
rush hour we had some difficulty.
Q Did you have occasion to reprimand or
criticize him?
A I criticized him not severely because, as I
say, he was just learning, just an extra ASM.
Q Were there times when you took him out of his
chair and did his job for him?
A Several occasions.
Q Why didn't'you give him a written reprimand?
MR. MC GANNEY: Objection.
THE COURT: Sustained..
Q Since that time has his performance substantially
improved?
MR. MC GANNEY: Objection.
THE COURT: How long have you personally
observed him since 1969?
THE WITNESS: Since 1973 when I came back to
New York, sir.
THE COURT: You didn’t' have any occasion to
observe him between 1969 and 1973, is that correct?
THE WITNESS: Yes.'
THE COURT: When in 1973 did you observe him?
THE WITNESS: In 1973 I didn't come In contact
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[342]
j<3as4 ' Rizzacasa - direct /^-215
[343]
jqas5 • Rizzacasa direct /) ' 21 6
with him until I would say late — the early part of
September we were having trouble with a specific train.
Q Did you write written reprimands for Mr. Harris
at any time you observed an infraction?
A No, I did not.
Q Has anyone told you to write reprimands against
Harris?
A No, no one told me.
Q Has -anyone told you to get Mr. Harris?
A No.
Q Has anyone told you to write him up for everything
and anything?
A No.
Q Mr. Dixon?
A No.
Q Mr. Steele?
A No.
MR. MC GANNEY: Objection.
THE COURT: I will permit it.
Q Mr. Gaynor.
A No.
Q In fact, the day before you took Mr. Harris
out of service he had exhibited a very poor attitude
about his job --
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[344]
jqas • Rizzacasa - direct S v 2 1 7
MR. MC GANNEY: Objection.
THE COURT: Sustained. Ask him what happened
the day before.
Q Did you observe Mr. Harris' actions two days
prior to the date in which you took him out of service?
A. Yes, I did. I think it was Wednesday,
September 10, I had come in and through directions to
Mr. Gaynor, our terminal superintendent, he wanted to
hold Mr. Harris over to assist me in giving information
to the public because I was short a man.
I told Mr. Harris this that morning when I
got in and he said he was unable to stay because he had
his car parked in the wrong place and he would get a
ticket for it. Since I had Mr. Lansperg then, who was
unexpected that morning, I thought he was out sick,
I told him, I said, "It's all right to go ahead and to
go home this time but you should be able to stay an extra
hour if I need you."
With that he just left without no answer.
On the following day, the next day, I got in. Our
assistant stationmaster failed to report, Mr. Pete
Gaynor, and I held Mr. Harris over. At 7:35 he said,
"Gentlemen, I am leaving. I am catching the 7:41."
I said, "If you catch the 7:41 without ray permission you
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1345]Dqas Rizzacasa - direct A-218
will not bo in tonight." with this there was no other
conversation and Mr. Harris stayed.
Q Did he mention anything to you about tickets?
A Yes. He said, "I am going to get a ticket.”
He said, "You are going to pay." I said, "We are not
responsible where you should leave your car. You should
know you might be held any part of the morning. You
are part of management, a seven day man and you work
eight, nine, ten, twelve hours if you have to."
Q Did he request that he be allowed to go to
Jamaica and move his car and come back?
A I wouldn't let him anyway. It would take too
long and I wouldn't need him then.
Q Did you make a written reprimand for this
incident?
A No. I did not. It wasn't necessary.
Q In the time in"which you have been Mr. Harris'
supervisor, how would you describe his work performance?
MR. MC GANNEY: I think we have had descriptions
of the times Mr. Rizzacasa has observed this. I don't
think any more is called for.
THE COURT: Yes. It's repetitious.
Q Is there anything else you would like to say
about his work performance?
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[346]
jqas • Rizzacasa - direct f \ - 2 1 9
MR. MC GANNEY: Objection.
THE COURT: Is there anything else you observed
about Mr. Harris?
Q Is there anything else you observed about
Mr. Harris?
A Nothing except his attitude hasn't changed since
1969 when I first knew him. He hasn't learned anything
else since 1969. He hasn't been aggressive. He is not
a take-charge man of any sort. His personality is
strictly nil and his- fellow employees feel that way also.
MR. MC GANNEY: I move to strike.
THE COURT: Yes, the last part will be stricken.
Q Do you find that Mr. Harris makes decisions
and takes responsibility?
MR. MC GANNEY: Objection.
THE COURT: He already answered that, Mr. Rubin.
Q As a member of the operating department, must
all operating personnel pass a book of rules examination?
A Yes, they must.
Q How often are you tested on the book of rules?
A Management right now is examined every year.
Q In fact, recently you have been required to
learn not only the book of rules but to learn the
physical characteristics of the entire railroad, is that
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[347]
jqas • Rizzacasa direct K - 2 2 0
correct?
MR. MC GANNEY: Objection.
THE COURT: Sustained.
0 Is there anything new you had to learn at your
I p v p I r\f m a n a g e m e n t ?
A Upgrading the safety of the railroad and have
management qualified on all characteristics of the
railroad.
Q What does the physical characteristics of the
railroad entail?
A Every interlocking, every signal, every siding,
and every station on the railroad.
Q This is not only the Penn'Station area but
from Penn Station out to Montauk?
A Out to Montauk, Long Beach, Hempstead, through
every dead end terminal we have.
Q Have you had to prepare for this examination
on your own time?
A Yes, I did.
Q Were you paid for it?
A No, I wasn't.
Q Since you joined the railroad has it been your
observation that the testing practices have become
stricter?
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[348]
jqas Rizzacasa - direct A- 2 2 1
A Yes, they have.
Q Back in August 1974 did you receive a note
from Mr. Harris requesting that his periodic examination
be rescheduled?
A I did not receive any note from Mr. Harris.
The morning before he was to report he asked me for the
night off. I informed him that we are short of assistant
stationmasters at that time and that I was unable to do
anything for him and it's not unusual that a manager or
part of management g6 to these book of rules classes
after their tour of duty, before their tour of duty,
or between their tour of duties.
Q Did there come a time the next morning when
you learned Mr. Harris had not shown up for his exam?
A Yes, I was informed by Mr. Greer who is the
examiner that Mr-. Harris was an absentee from the class
of book of rules.
Q Did you have people try to contact Mr. Harris?
A Yes, I did. Mr. Bob Partridge called constantly
all day to find out what happened to Mr. Harris.
Q Did he receive an answer?
A No, he did not.
Q When there had been no word from Mr. Harris,
did anyone direct you to have his job covered for the
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[349]
jqas Rizzacasa - direct h 2 2 2
night? - '
A I- brought this to the attention of Mr. Steele
and Mr. Steele says, "If he doesn't call by such and '
such a time, I will have his job covered and if he does
show up tonight to send him home."
Q Did you leave a message with anyone in case
Mr. Harris did show up?
A I left a message with Mr. Partridge stating
that if Mr. Harris were to come in that night he was to
be sent home
Q Was he told that he was to be taken out of
service or to be sent home?
-* *
A He was not taken out of service, he was just
relieved for that evening.
Q Did you leave instructions that Mr. Harris was
to contact Mr. Steele or that Mr. Steele would contact
him?
A He was to contact Mr. Steele the next morning.
Q By the way, in notifying an extra assistant
stationmaster to cover a job when you don't know when
the regular will be back, what is the general practice
and procedure?
A Well, on the instance that Mr. Harris was there,
he had the next three days —
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[350]
jqas Rizzacasa - direct k ~ 2 2 3
MR. MC GANNEY: I object to this. He asked
for the general practice and procedure.
THE COURT: Yes.
A We would cover the job until the assignment
was filled.
Q Is it unusual to notify the extra to be
available for more than one night?
A Yes.
Q Is it unusual?
A No, it's not unusuai, no. We v:ould make him
cover the full assignment because we can always cancel
but we find it ratner hard to have the assignment covered.
Q At that point no one knew the whereabouts of
Mr. Harris?
A No one knew whether he was in the hospital,
had an accident or what.
Q Subsequently Mr. Harris did return?
A Yes, he did return that evening.
Q Was he sent home?
A Yes, he was sent home by Mr. Partridge.
Q Mr. Harris was subsequently rescheduled for
his periodical examination, was he not?
A Yes.
Did you schedule that exam?
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A No, that is a directive from Joe Gaynor who
received that from John Greer.
Q Did there come a time this September when the
railroad was having difficulty with getting a certain
train, PWA-.648 out on time?
A Yes, there was.
Q What was the situation involved there?
A That was the early part of September. I
received a report that Mr. Dixon wasn't receiving enough
information from New*York as to why this train was going
in late and he wanted me to alleviate the problem.
Q Did you attempt to determine the reasons
for the delay?
A Yes, I did.
Q What did you do?
A I rode 1611.
Q 1611 is the train whose equipment would become
PWA-648?
A Yes.
Q Did you resent having to do this?
A No, I didn’t. It's part of my duty.
MR. MC GANNEY: I object.
Q Did you determine the reason why PWA-648 was
leaving late in the morning?
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jqas Rizzacasa - direct A-225
A Yes , the job wasn't being done properly over
there. I made the equipment changes that alleviated
the problem and should have been done before X recommended
it, but I had to do it.
Q What instructions did you leave?
A I left instructions that Train 805 which would
only turn for 708 was to make PWA-648 and 1611 upon
arriving in New York would make 708.
Q Did you ride Train 1611 in on Friday morning?
A Yes, I didl
Q Was it running late?
A Approximately three minutes.
Q Was the equipment change made? •
A Yes, it was.
Q What time did you arrive at Penn Station?
A Approximately 6:41.
Q What did you observe?
A I came in on Track 15 and Mr. Lansperg was
up at the stationmaster's office and he called Train 1611
by the radio to which I answered and told him who I was
and he said, "Well, 1611 will be crew and equipment
for 708." I informed the crew of this. After we stopped
I disembarked the train and walked east on Platform 8.
While walking east on the north side of the
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jqas Rizzacasa - direct A; 2 2 6
platform which is Track 16 I noticed people standing
there looking at a blank track. No announcements were
being made. I walked upstairs, the fifteenth gate,
and looked at 16. .16 had the 6:50 posted which is Train
708. No one was at the gate directing people and there
were people standing at the gate. I then walked into
the stationmaster's office. I stood behind Mr. Harris,
Mr. Lansperg and Mr. Joe Shearer who was the announcer
and usher at that time and I said, "When are you going
to decide to make an'announcement of a track change on
Train 708?" He then stated --
Q Who is "he"?
A Mr. Harris then stated, "Don't tell me, tell
him." I said, "I am telling you when are you going to
make it?" And he said he is the assistant trainmaster
and tell him to make it, not me.
With that I informed Mr. Shearer did he know of
a change on Track 708 and he said, "No, I did not,"
and I said, "Make the announcement."
The first announcement he made was wrong.
He was confused. The second announcement I instructed
him to make, he made properly. I then turned to
Mr. Harris and told him that it was his responsibility
to see that the usher and the announcer knew of the track
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[354]
jqas Rizzacasa - direct A- 227
change and that the proper announcements were made and
that is why he is the supervisor here. With that he
said, "Don't yell at me here. You do that at home and
not here." With that I took Mr. Harris out of service
for insubordination and for being derelict in his duty
as assistant trainmaster.
Q You did order the usher to make the
announcement?
A Yes, I did.
Q Mr. Rizzacasa, I show you Plaintiffs' Exhibit 15
in evidence which is a transcript of the track announcements
made in Penn Station on the morning of September 12.
When'was the first track announcement made for Train 708
leaving at 6:50? ■
A At 6:47 and 30 seconds.
Q Was any other announcement made prior to that
time notifying the public of the track change?
A Yes, there was at 6:46 and 24 seconds which
was an improper announcement. The first announcement
Mr. Shearer made.
Q Was there any other announcement prior to
that notifying the public of 708?
MR. MC GANNEY: He is asking for
Mr. Rizzacasa's knowledge or what?
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[365]
arjb 8 Rizzacasa-cross A-228
went to the stationmaster *s office?
A No, I did not.
Q When you went into the office three gentlemen
were there, Mr. Lansperg, Mr. Harris and Mr. Shearer?
A That is correct*
Q inis is about— would you. say betwesn two or
three —
A 6:45, around there.
Q 6:44, 6:45?
A Somewhere around there.
Q You started talking loud right away?
A Definitely, I was upset.
Q You asked Harris when the announcement was going
to be made?
A That is right.
Q Did you then take Mr. Harris out of service be-
fore the usher made the announcement or after?
A After.
Q After the usher made the announcement?
A After I asked the usher had he received any
track change from Mr. Harris and he said no I did not.
' Q Then you directed him to make the announcement?
A I directed him to make the announcement.
Q That was the announcement he made at 6:46?
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[368]
arjb 11 Rizzacasa-cross K-229
Q Did Mr. Shearer cone back in again a second tine?
A Yes, he came in several tines before ha was re
lieved that morning.•
Q Did he again discuss this situation with you a
second tine?
A No, I would not discuss it again with him.
Q Sir, who ordinarily would make a public address
announcement?
A The usher in the announcement booth.
Q Who would*ordinarily post the track change?
A The usher.
Q When you called Mr. King at 6:56 you told him,
didn't you, that you took Mr. Harris out of service for
failing to do his duties?
A Right. I was still a little upset.
Q Because he didn't call out the track change and
never informed anybody?
A That's right.
Q Then you called Mr. Dixon— Mr. Dixon called you
back, didn't he, about 7:12?
A Right.
Q At that time you told a slightly different rea
son that you had taken Hr. Harris out of service, didn't
you?
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Rizzacasa-cross A- 230
A I don’t recall the exact conversation. I didn't
read it all.
Q But you stated-—
A I was still upset, my words were still mixed
up
Q You told him at 7:12, about 20 minutes after
the situation, that you told Mr. Harris if you didn't want
to be yelled at you go home, he is out of service. That
is the reason you gave Mr. Dixon and he said, "That is
okay," is that correct?
A Actually it is insubordination.
Q Is that the conversation you had with Mr. Dixon?
A That is the conversation I had.
Q Mr. Dixon said, "So let's prove a point with
Mr. Harris."?
A That is right.
Q You said, "That is what I am going to do, I took
him out."
A Right.
Q Did you prepare a report for Mr. Gaynor on this
incident?
A I did, approximately after the commuters—
approximately 9:30 a.m. that morning, quarter to ten.
Q Did you in this report put in the fact that Mr.
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[370]
arjb 13 Rizzacasa-cross A - 231
Shearer had come in and told you that Mr. Harris had in
fact informed him to make the track change announcement?
A No, it wasn't necessary.
Q You didn't think it was important?
J
A It wasn't pertinent to the fact that the man
did not do his duty.
Q Who, Mr. Shearer, or Mr. Harris?
A Mr. Harris didn't see to it that Mr. Shearer
!
did his duty.
I
Q You didn't; think that it was an important thing
i
to put in your report to Mr. Gaynor?
A Of course not.
*
Q Did you ever tell Mr. Gaynor that Mr. Shearer
said that?
A Yes, I told Mr. Gaynor verbally. I said he tried
to cover up for Mr. Harris in my opinion, that is what it
was.
Q Sir, on your examination before trial which was
last week--do you recall that?
A Yes, I remember.
Q I asked you with whom you had discussed this
incident, do you remember that?
A Discussed the incident with?
Q Yes.
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A Yes. i1
Q You told me that you discussed it with Mr. King !
and Mr. Dixon and Mr. Gaynor. !
A Right.
*
Q You didn't tell us you discussed it with Mr.
Shearer, did you?
A I didn't discuss anything with Mr. Shearer.
Mr. Shearer told me, he came in and said he made a mis
take and I said, "All right, go do your job." And that
was it.
I
Q You did not mention that you discussed it with *
iI.Mr. Shearer to me when I asked that. j
A
Q
[371]
a r j h 14 Riz z a c a s a - c r o s s A ' 2 3 2
|
Was that a discussion? You call that a discussion?
You didn't mention it, did you, sir?
MR. STOKES: He is arguing with the witness.
MR. McGANNEY: I will have to put in the depo
sition then.
THE COURT: I think I can see the answer to that
question.
Q You have been the terminal superintendent since
December 1973? j
-*—"V
A Approximately, right.
Q In that time up until August 1, 1974, you didn't
file any written reports about Mr. Harris, did you?
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[373]
arjb 16 Ri zzacasa-cross A - 2 3 3
A That I couldn't answer.
0
*
Sir, from December 1973 to August 1974, you
didn't have very much personal contact with Mr. Harris,
did you?
A Will you repeat that?
Q From the time of December 1973 to August 1974,
you didn't have very much personal contact?
A Wot personally, no. But indirectly, yes.
Q But you were working different shifts, he worked
the night shift and you come in at 7:00 in the morning and
he was going off?
A Right.
Q You heard on the morning, of August 1st that
Mr. Harris had not attended the book of rules class?
A Right, the examiner called me up.
Q You filled his job that night?
A I didn't fill his job, the assistant super-
intendent of passenger filled his job.
Q Didn't you give instructions to Mr. Partridge
to send Mr. Harris home that night?
A Which I got from Mr. Steele, the assistant
superintendent of passenger.
Q But you did give instructions to Mr. Partridge?
A Right, relayed instructions.
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arjb 17 Ri zzacasa-cross 4-234
Q You got them from Mr. Steele?»
A Mr. Steele.
Q Normally you would seek an explanation from a
man if he missed an assignment, is that correct?
A Definitely.
Q If a man oversleeps you give him another chance?
A If a man oversleeps, what kind of an incident?
Q You gave Mr. Traynor another chance.
A Definitely, because I knew where he was, I was
able to contact him.
Q You didn't get Mr. Harris before you filled in
his place, did you? •
A Mr. Harris failed to inform us of his where
abouts, we were unable to get ahold of him, we didn't know
if Mr. Harris was dead, in the hospital or in some type
of accident or had family difficulties.
Q Mr. Traynor didn't contact you, you contacted
him?
A We tried to contact Mr. Harris also by phone.
Q You did?
A Yes, we did.
Q Did you think this an important factor in this
situation, sir?
A We got ahold of Mr. Traynor by phone.
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arjb 18 Rizzacasa-cross A- 235
Q Did you think it was important that you try to
reach Mr. Harris?
A Definitely it was important. We wanted to know
what the circumstances were that he missed the book of
rules.
0 If you write a report bn a situation you put
anything in in that report that is important,don *t you,
sir?
A Well more or less, yes.
Q I show you a memo of August 5, 1974, Exhibit
13, and ask you if that is your report on this particular
incident?
A Yes, this is my report.
Q There is nothing in that report that you tried
to reach Mr. Harris, is there, sir? ;
A No, that I tried to reach Mr. Harris, no.
Q ' After this incident you rescheduled Mr. Harris*
class, did you not?
A I did not reschedule it. Mr. Greer rescheduled
the classes when he was able to.
Q Did you personally send a note to Mr. Harris
rescheduling the class? .
A Generally it is Mr. Gaynor or Mr. Charles
O'Brien who was in the place of Mr. Gaynor upstairs in
i
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[376]
arjb 19 Ri zzacasa-cross A-236
the office at that time.
Q Did you write a note?
A No, I did not.
Q Did you sign it, sir? .
A No, I did not. I don't think so.
Q I show you Exhibit 8. Is that your signature
on Exhibit 8, sir?
A Yes, this is. I am v/rong, I did write it.
Mr. Gaynor was on vacation, I guess.
Q You arranged for Mr. Harris* rescheduling of
the examination, is that correct?
A I did not arrange it. Mr. Greer informed me
of the day he was to report and then I told him formally
through a letter what day he was to report.
Q Then subsequently you heard Mr. Harris failed
that examination, was taken out of service, is that
correct?
A He was not taken out of service, he was held
out of service until he passed it. That is what happens
to any supervisor.
Q Then you heard that Mr. Harris was back in
""x
service at a later time?
A Yes, after he passed the book of rules.
Q Do you recall how that came about?
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[378]
arjb 21 Rizzacasa-cross A -237
Q When did you go to Babylon?
A I don't have the exact date.
Q The middle of 1971?
A I haven't the slightest idea. I can't tell you
the exact date. It was done verbally, it wasn't done in
writing, no date on there. I was to report to Babylon
such and such a time on such and such a date.
Q It wasn't the first day of 1971, was it?
A No, I couldn't say.
I
Q Wasn't there a lot of talk around the terminal
about the fact Mr. Harris had taken the Railroad to the
Human Rights Commission at that time?
A I don't know of_anything about Mr. Harris'
business with the Long Island Railroad. I am not one to
indulge in that kind of talk.
Q You didn't hear anyone else indulge in that kind
of talk?
A No.
Q This December you had to take a book of rules
examination?
A Yes.
Q That is a written examination?
A Written examination.
Q Was that the first time you ever had to take a
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[379]
arjb 22 Rizzacusa-cross /1-238
written book of rules examination?
A That was the first time I had taken it, yes.
Q You took a little extra tutoring for this,
didn't you, sir?
A The book of rules?
Q Yes.
A 1 attended some class, not extra tutoring on
this.
Q On Saturdays you went in and took a little—
A No, talking about tutoring for characteristics.
Q You took another written examination later on?
A Yes, I did.
Q The first time you had taken this examination?
A Yes, this was something new that the Railroad
was upgrading the safety of the Long Island Railroad and
wanted all the supervisors to be qualified in writing.
When was that, sir, in March?
In March, right.
You flunked that examination the first time?
The first time around, yes, I did.
You weren't taken out of service, were you?
Not for the characteristics but if it was a
rules I would have been left out of service.
Do you remember in your examination I asked you
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book of
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[384]
jqas
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• Gaynor - direct A-233
trainmaster and I believe it was January 1972 to full
trainmaster, and in June 5, 1974 I was promoted to
terminal superintendent, New York.
Q As terminal superintendent you have supervision
over the assistant stationmaster, the assistant trainmasters
and the ushers that are there, they are all under your
jurisdiction, are they not?
A Yes, they are, sir.
Q Would you define basically what you consider
to be the duties of an assistant stationmaster?
A The assistant stationmaster is responsible
for the proper announcements to be made over the PA, the
proper track assignments to be posted, and -he also has
to take care to make sure that the station is properly
policed. Also he is a part of the operations team where
he would be tesponsible for trains leaving on time.
Q What are the general other duties of an assistant
trainmaster? .
A An assistant trainmaster would encompass the
operations and the manipulation of equipment, the
checking of crews and making sure that the proper equipment
moves are made in the station.
THE COURT: Don’t you think you have enough
explanation from the different witnesses as to the duties-
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[385]
jqas Gaynor - direct P\2i 0
MR. STOKES: The only thing I am trying to
bring out, your Honor, is that all the levels of our
supervision have a thorough understanding of who does |
'
what and who has what responsibility.
THE COURT: All right.
Q Now, Mr. Gaynor, do you regularly check the
stationmaster's log when you come in?
A Yes, I do.
’ Q Where is that kept?
A That is kept in the top drawer of the
stationmaster' s office in a cabinet. It is just below
the counter of the stationmaster"s office.
Q Is there a police log kept in Penn Station?
A No, there is not, sir.
Q When you get into your office in the morning,
are there available to you police reports of any arrests
ii
or other things that are going on at the station at night
from the Police Department?
A No, there are not.
Q When do you get police reports and how?
A I usually receive a copy of the report
somewheres maybe two or three days later after the
incident has happened which has been funneled through
the channels of police headquarters at Jamaica, into
s o u t h e r n n r . . t ie r c o u r t reporters, u s c o u r t h o u s e
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jqas • Gaynor - direct A-241
Mr. Dixon's office who is the assistant superintendent
of operations, and is then sent back to the mails to me.
Q What do you rely upon to find out what has
happened during the night in the station?
A I rely upon the assistant stationmaster's log.
Q Have you ever given instructions to the
management personnel of Penn Station regarding efficiency
checks?
A Yes, I have, sir.
Q What type ©f instructions have you given?
A I have told the management personnel that I
expect efficiency checks from all management personnel
which would be assistant stationmaster, stationmaster,
assistant trainmaster, terminal trainmaster, in those
categories.
Q Have these instructions been in writing or
orally?
A These were putout. These were made in oral
form, sir4
Q Yesterday one of your predecessors, Mr. Stewart,
testified that when he was in charge of the station an
assistant stationmaster was supposed to check with 204,
the Movement Bureau, before taking an engineer or train
crewman out of service.
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[387]jqas - Gaynor - direct *-242
Has there, been any change of policy since you
have taken over and been responsible for the station?
Have you issued any other contrary instructions?'
A Yes, I have, sir.
Q What are they?
A I have told station-masters and assistant
stationmasters that they do have the authority to take
an individual out of service and if it's involved with
i
an engineer, an engineer can be relieved and held there
at the stationmasterls office in New York until an
assistant road foreman of engines would come and actually j
take the man out of service. This is due commonly through
a contractual agreement with the engineers' association,
the union rather, that they had this agreement that
nobody can take an engineer out of service other than an
assistant road foreman of engines.
Q Personally how many assistant stationmasters
MR. MC GANNEY: Can we find out whether this
is oral or written?
THE COURT: I think he said oral.
THE WITNESS: Yes, it was.
MR. MC GANNEY: And the date.
THE COURT: When did you issue these instructions?
THE WITNESS: This was back in November of last
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[388]
jqas Gaynor - direct h 2 4 3
year, sir,
THE COURT: November 1974.
THE WITNESS: Yes, sir.
Q Approximately how many assistant stationmasters
are there on the Long Island Railroad?
A I would say right now I believe there are
approximately nineteen, sir.
Q Do you know how many of these are minority or
members of minority groups?
A Yes, I believe there are six men, sir.
Q At the present time, who is the assistant
stationmaster that would most likely fill the position
previously occupied by Mr. Harris?
A Mr. Charles Scott.
Q What is his race?
A He is a black man, sir.
Q Is Mr. Scott the most senior man of the extra
men?
A Yes, he is, sir.
Q Is he the most qualified?
A Yes, he is, sir.
Q Have you ever had complaints from any of the
other assistant stationmaster*s about Mr. Harris being
late in relieving them?
s o u t h e r n D i n n e r c o u r t r e po r t e r s . u .s. c o u r t h o u s e
rnm' shake v'
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[389]
jqas ' Gaynor - direct A 244
A Yes, I have, sir.
Q Were these complaints in writing?
A Yes, they were, sir.
Q I show you a document dated 12/26/74 from
Mr. Diaz to Mr. Partridge and I ask whether you have ever
seen that document before.
A Yes, it is, sir. I have seen this report.
Q Is that a document that has been contained in
the files under your jurisdiction and supervision?
A Yes, it has, sir.
MR. STOKES: I ask that it be marked, your
Honor.
MR. MC GANNEY: I object to it. We don't have
Mr. Diaz here and it's addressed to Mr. Partridge and
besides that, it's totally irrelevant.
MR. STOKES: It comes from the witness' files,
your Honor. Mr. Partridge is his subordinate.
THE COURT: I will receive it.
(Defendants' Exhibit AA received in
evidence.)
Q I show you another document addressed to you
from Mr. Diaz dated September 11, 1975 and ask whether
you have ever seen that before.
A Yes, I have, sir.
SOUTHERN Dl'j I R1CT COURT REPORTERS. U.S. COURTHOUSE
FO'. EY SHARE, NEW YORK N V - ________
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[390]
jqas . Gaynor - direct A 245
Q Is this contained in the files under your
supervision and jurisdiction?
A Yes, it is, sir.
MR. STOKES: I ask that that be marked, your
Honor.
MR. MC GANNEY: Same objection.
THE COURT: I think we will let it in under
the new rules of evidence.
MR. STOKES: This is directly to the witness.
THE COURT:_ I think 803 lets everything in.
MR. MC GANNEY: I don't think it's in the
regular course of business and it is irrelevant to this
proceeding.
(Defendants' Exhibit AB received in
evidence.)
THE COURT: I haven't looked at it but I
suspect it substantiates what his direct testimony was,,
that he had received complaints about Mr. Harris being
late in relieving other people.
MR. STOKES: Exactly, your Honor.
Q Mr. Gaynor, during the past year has it been
a regular thing for one or more of the East River tunnels
to be taken out of service at night for work purposes?
A Yes, it has, sir.
SOUTHERN DM RICT COURT REPORTERS, U S. COURTHOUSE
FOl CY .OUARE. NEW YORK. N Y. - 791-HUO
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[391]jqas Gaynor - direct A - 2 4 6
Q About how. often or with what regularity are
they taken out of service?
A I would say on an average of four, five times a
week.
Q And this has been going on for what period of
time?
A I would say now since I have been tunnel
superintendent of New York, since last June.
Q For at least over a year?
A Yes, it hag.
Q So that the management personnel in the station
are quite accustomed to dealing with this and it's almost
really a normal practice and procedure with them?
A Yes, it is, sir.
Q Last September did any of the other assistant
stationmasters under your jurisdiction take and fail a
rules examination?
A Yes, they did, sir.
Q What happened to them?
A They were held out of service until they went
to take the examination, sir.
Q And until such time as they passed it?
A Right.
Q What happened on September 12 according to your
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A - 2 4 7* Gaynor - direct
incidents that had happened, a chain of events that did
take place up until this morning, September 12. And
different things that had transpired over that period
f
of time since'last October up until now, I took that
into consideration along with Mr. Harris' capabilities,
his attitude, and I came to the decision that I believed
Mr. Harris was incapable of continuing on as assistant
stationmaster.
Q After receiving Mr. Rizzacasa’s written report
and making your decision to hold Mr. Harris out of
office or out of his position and advising him to
exercise his seniority as an usher, did you consult
Mr. Rizzacasa at all again?
A Mo, I did not.
Q Did you consult anyone?
A No, I did not consult anybody, except’after
this was done at that particular time — in that area, no.
Q After you made your decision, did you'advise
anyone as to what the decision was?
A Yes, I did, Mr. Dixon.
Q As I understand your testimony, your decision J
was based upon Mr. Rizzacasa’s report upon the various
items that were contained in Mr. Harris' file over the
past year and your own general observations of
[393]
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[ 394]
jqas • Gaynor - direct A- 248
Mr. Harris' attitude and performance of his duties.
A That is correct, sir.
MR. MC GANNEY: I don't recall the last part
to be the witness' testimony. I object to the question.
MR. STOKES: I believe the witness testified
that his decision was based on his attitudes.
THE COURT: Yes.
Q After advising Mr. Dixon of your decision, did
you then have occasion to write Mr. Harris a letter?
A Yes, I did-, sir.
\
Q I show you Exhibit 14 in evidence, Mr. Gaynor.
Is that the letter you wrote to Mr. Harris?
A Yes, it is, sir.
Q Did you subsequently write a letter to
Mr. Harris several days later?
A Yes, I did, sir.
Q What did you advise him in that letter?
MR. MC GANNEY: Can I see the letter?
MR. STOKES: Is the letter present?
THE COURT: Do you have a copy of it?
MR. MC GANNEY: I have never seen or heard of
the letter.
THE COURT: Do you have your carbon copy?
MR. STOKES: No, I don't, your Honor. I thought
SOUTHERN D1S.RICT COURT REPORTERS US COURTHOUSE
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[396]
jqas • Gaynor - direct A- 243
Mr. Notolli who was their manager and he said he
interviewed the clerk who at that time was working in
Greak Neck, sir.
Q Did you also have occasion to call Mr. Lansperg
and ask him for a report?
A Yes , I did, sir.
Q When was that? •
A I believe that was that same afternoon, sir.
Q. This was the afternoon of the 12th?
A Yes, sir. '
Q When did you receive that report?
A I believe it was sometime like four or five
days later, sir.
Q During the interim from the time you called
Mr. Lansperg and asked him for his report until you
received the report, did you have any discussions with
Mr. Lansperg?
A No, I didn’t, sir.
Q During the past year, has it been your practice
to have or to write one or more memorandums of
criticisms to Mr. Harris every day?
A I would say over a period of time there were
maybe several, maybe ten different times that I did write
to Mr. Harris memos of inquiry trying to find out what
SOUTHERN DIWiUCT COURT REPORTERS. U S. COURTHOUSE
FOLEY OUARt. NEW YORK. N Y. - m.UUO
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[400]
jpas Gaynor - cross A- 2 5 0
Mr» Ri zzacasa, were they?
No, sir.
Mr. Gaynor, do you read the log book every day?
I will say practically every day.
It s an important part of your duty?
That is a basic part of my duty, yes.
It's important for you to review that information
to make decisions on the railroad?
A Yes, sir.
Q There woulcf never be a period of time when you
go a week or so without reading the log book, would there?
A Not a week at a time, no.
Q You would be pretty sure to see it —
A Probably every morning.
Q You take careful note of everything written
in that log book because it's special information, isn’t
that true?
A Pertaining to that particular day, yes.
Q What time do crews usually appear prior to a
train’s departure, iMr. Gaynor?
A The reporting time is fifteen minutes, sir.
Q So if there was something wrong with a piece
of equipment, a member of the crew wouldn't be likely
to detect that error until within fifteen minutes prior
A
Q
A
Q
A
Q
s o u t h e r n m . i U C T c o u r t r e p o r t e r s , u s , c o u r i h o u s i
F O L E Y . J U A R E . N E W Y O R K . N Y . - 7-Sl.StUO
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[401]
jqas • Gaynor - cross A' 251
to that train's departure, isn't that true? j
i
A The crew itself, yes, sir.
I
Q When does a door light usually go on, Mr. Gaynor? ;
A When all the doors in the entire train are
closed.
ft*
Q When do you usually close the doors on the train? s
i
A At the leaving time, sir.
Q That is just prior to departure?
A That is right, sir.
!
Q So the first time you would know whether or not
a door light was functioning was just prior to a train's i
departure. »4
A Unless it was reported beforehand.
Q Unless reported beforehand, but in the normal
circumstance — . - ,
A In the normal circumstance, yes, it would be
at leaving time.
Q So the fact a train might have been sitting
in a station for two and a half hours prior to departure
time wouldn't be very relevant to whether or not someone
had discovered the door light was not functioning
properly, would it, sir?
A There are times when car inspectors do check
the equipment, yes.
SOUTHERN! D! t RICE COURT REPORTERS. U.S. COURTHOUSE
FOLEY • JUARF. NEW YORK. N Y - *91-10:9 ____ ________ ■ ___________^
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[402]
jqas Gaynor - cross k- 252
Q My question is, if a car had been sitting in
the station two and a half hours and the door light is
not normally likely to go on until the doors are shut,
and the doors are not normally shut until a minute or
two prior to departure, the fact the train had been sitting
on the ramp all this time ——
A There are times here now when this equipment
is brought up into the station and the doors in its
entirety are closed ten minutes before departure time
and at this time here now the car inspector does make,
or is supposed to make, his checks and find out if the
certain brake functions and certain door lights and all
are properly in working order.
Q This would be ten minutes prior to departure
time?
A In other words, if the equipment can be there
for an hour and a half sitting in the station as you so
stated, but there are car inspectors and they are
required to check this equipment also for malfunctions
in the brakes, door lights, gauges, any other particular
area where there would be a problem involved.
Q If a car inspector didn't determine anything
and the problem occurred after the car inspector took
a look at the train and checked out the equipment, then
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FOLEY SQUARE. NEW YORK. N Y. - ?91-I0’ 0
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3Gas ' Gaynor - cross A 253
the time this door light not functioning being detected
would likely not be detected until a train just pulled
out?
A That is correct, sir.
[403] I::|iii
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SOUTHERN DhiRiCT COURT REPORTERS. US. COURTHOUSE
FOLEY jJUARF. NEW YORK. NY. ~ 79L10?0
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[404]
ar jb 1 Gaynor-cross
(\~ 2 54
Q Mr. Gaynor, are you upset when a train leaves
the station late?
A Pardon me?
Q Are you upset if a train leaves the station late?
A Yes, I am, sir.
Q A train one or two minutes late, that is an
unusual occurrence?
A No, one or two minutes can be accepted, sir.
Q How about six or seven minutes?
A That can even be accepted.
Q Nine minutes?
I
A Becomes a little too much. Anything up to, I
would say we usually give ourselves- about five or six
minutes and make allowances up to maybe six minutes and
a train, if there is a problem or we have to change
equipment or use other manipulations to get a train out,
we allow about six minutes. That is the amount of time
to have the crews understand as to what manipulation, what
particular procedure they are going to use in moving that
equipment and it is usually an ample amount of time to
walk somebody across the platform or the station, it de
pends on how many people you have in that time to take
over to another platform.
Q Anything over six minutes would be intolerable?
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F O i r -.OUARH. NV'V YORK, N Y - WI-HUO _ ____ _____-
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2 Gaynor-cross
A Yes, unless there is some other extraordinary
experience.
Q Do you know a man named Wership?
A Yes. .
Q An engineer?
A Yes.
Q He was the subject of some disciplinary action
around November 1974, isn't that a fact?
1
A That is correct.
Q He was taken out of service for a day and lost
a day's pay for an act of insubordination?
A I believe he was relieved for one day, right.
Q Do you remember if Mr. Harris was involved in
that incident?
A Yes, he was.
Q A subject of your report?
A Yes.
Q Mr. Harris wasn't taken out and deprived of a
day's pay as the result of that?
He wasn't taken out of service as a result of
that activity on that day?
A No, sir.
Q That activity concerned Mr. Worship's failure
to take a train out of the station, isn't that true?
[4 05]
SOUTHERN DO.RICT COURT REPORTERS. US COURTHOUSE
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[406]
arjb 3
A-256
i
Gaynor-cross j
' ' |
A That is correct. j
I
Q Mr. Gaynor, you were speaking of a series of
written reprimands that you issued to Mr. Harris during
the dourse of your time as terminal superintendent.
You usually wrote these up in letter form?
j
A Yes, in a letter form.
i
Q A copy would automatically go to Mr. Harris?
A That is correct.
Q Did you usually forward a copy on to your super- *
}
iors?
A Yes, I do. S
Q Mr. Dixon usually got a copy?
A That is correct.
Q Mr. Steele usually got a copy?
A Yes, sir. *
Q Anybody else normally get a copy of these sort
of matters?
A Mr. Platz and Mr. J.C. Valder, vice president
of transportation.
Q You also sent copies of these reports to Mr.
Harris' personnel file, didn't you?
A That is right.
Q Prior to sending these reports to all these
individuals, making these reports a permanent part of Mr.
SOUIH1RN l» . t'RICT COURT RirORT! RS. US. COUR1IIOOM
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[407]
arjb 4 Gaynor-cross K 257
Harris personnel file, you never discussed any of the
incidents which were the subject of the report with Hr.
Harris, did you?
A No, sir.
Q These became part of his permanent record before
you ever heard of Mr. Harris' explanation as to any.of
these activities?
A Yes. His actions spoke for me, that is why I
do this.
Q You never forwarded a copy of Mr. Harris' re
sponses to any of his superiors, did you?
A No, sir, just made a part of my file.
Q I believe you said you personally exercise your
authority to take Mr. Harris out of service, did you,
sir? »
A Yes.
i
i
Q I show you Plaintiff's Exhibit 14, this is a
letter we are talking about in which you first advise Mr.
Harris of the reasons for taking him out of service, isn't J
that correct?
A Yes, sir.
Q I wonder if you would read the first two para
graphs for me, Mr. Gaynor.
A "Dear Sir: In accordance with your insubordina-
so m n iR N nr uuct co u rt r ip o r t ir s . i t s c o u r u io h m -
F o i n yt'ARi:. n i w Yo r k , n v - ->t i«»:n______________ _________________ _________
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[408]
arjb 5 Gaynor-cross s \ - 2 5 8
tion to Mr. L.J. Rizzacasa, terminal trainmaster as per
his direct order to .you to make proper train changes and
announcements affecting train 703 on this date and your
reply to Mr. Rizzacasa,’Don’t tell me what to do, you got
trainmasters to take care of these duties,‘this being
your responsibility as assistant stationmaster should
have complied but you refused to do so.
"Effective 7:00, September 12, 1975 you are
directed to exercise your seniority rights as an usher."
Q There is nothing else relevant in any of the
text of that letter, is there, Mr. Gaynor?
MR. STOKES: The document is in evidence.
Q Mr. Gaynor, there is nothing in there that says
anything about a history of misconduct in the past as
being grounds for considering Mr. Harris being taken out
of service, is there, sir?
A No.
Q In fact, you never said anything to Mr. Harris
about a past history in connection with taking him out of
service?
A No, but I would like to add right now—
Q Just answer yes or no, and if your attorney
thinks there is something—
THE COURT: Let the letter speak for itself,
S O im i lK N IV.IRICT c o u rt RiroRim. us. court houm
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a r jk 6 ' Gaynor-cross A 259
Mr. Sollis.
Q Mr. Gaynor, prior to sending this letter you
had no response from Mr. Harris personally, had you?
A No, I hadn't .
Q You didn't have his version of what happened
before you, did you?
A No, like I spoke before, about his actions,
that was enough in my mind alone with what had taken place.
Q Let us focus on the incident of September 12,
1975. You had no discussion of that incident with Mr.
Harris?
A No, I did not.
Q You hadn't spoken to Mr. Lansperg who was in
the office when that occurred prior to taking Mr. Harris
out of service?
A No, I had not.
Q You hadn't spoken to Mr. Shearer, the usher,
in your office when the incident occurred?
A No, I had not.
Q You spoke to Mr. Rizzacasa?
A Yes, I did.
Q And Mr. Rizzacasa was the first to tell you
about the incident?
A That is correct.
SOtmtIRN n.WRICT COURT RIPORTIRS. US COURIHOHM
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[409]
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Q He also gave
of what happened?
A Yes, sir.
[410]
arjb 7
you a written report of his version
Gaynor-cross A;- 260
Q That incident makes no reference to the fact
that Hr. Shearer came in and told Hr. Rizzacasa that Mr.
Shearer thought the incident was his fault?
A No, sir, still just a lack of responsibility on
Mr. Harris' part.
Q But the answer to my question is Mr. Rizzacasa
never told you nor'did his report focus on the fact that !
Mr. Shearer had made a statement to him, isn't that a
fact?
. . !
A No, sir.
Q That is not a fact?
THE COURT: The answer is yes.
Q The answer was yes?
A Yes.
Q Mr. Gaynor, prior to September 12, 1974, you
were aware that Mr. Harris was involved in a lawsuit
I
against the Railroad?
i
A I was not aware of it, no, sir.
Q Do you recall sometime in August of 1974 when
!• ».
Mr. Harris was removed from.service by the Railroad for t
failing a bool: of rules examination?
sot m i i kn' n i- . iR icr c o tm i r i t o r t i rs. u.s, c o u r i m o i k i
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[421]
arjb 18 A- 261
constitutes irreparable injury. I believe there is one
decided by Judge Weinfeld in this District.
THE COURT: There is a Second Circuit intimation
with respect to that but that is what I think are the main
areas of the legal propositions involved.
Anything else?
MR. MeGANNEY: Well, your Honor, I simply do
want to make a motion to renew our motion for a temporary
restraining order or for a preliminary injunction pending
the final determination of this matter, to have Mr. Harris
reinstated in his job on the basis of the record and
briefs that I have filed.
THE COURT: I will reserve decision on that.
I'don't need a memorandum with respect to that, I can give
you an oral decision with respect to that and inform you
of that probably Monday.
MR. McGANNEY: I will t>e in the Supreme Court
but will you inform Mr. Holwell?
THE COURT; I will see that the information
gets to you.
MR. McGANNEY: Thank you, your Honor.
THE COURT: I want to be sure that the Railroad
will agree to extend the 29 or 30 day period should my
decision run beyond that and I would prefer, in the event
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422]
jb /V 262
that I find in favor of the Railroad on a preliminary
injunction, to extend for a period of time, perhaps 15
days--
HR. STOKES: I think I indicated on the record
yesterday, your Honor, the extension of time is within the
discretion of the Railroad and most assuredly would extend
it in any reasonable way to cooperate with the Court.
THE COURT: I have two ways I would like it
extended beyond the time, certainly beyond 15 days beyond
the time that I render my decision in the event it is
adverse to Mr. Harris. And X would like you to consider
in the event the decision is rendered adverse to Mr.
Harris extending it beyond the time in connection with
that appeal that might be submitted to the Court of
Appeals.
MR. STOKES: I would agree to that, your Honor.'
THE COURT: Either side has the right to appeal
from my grant or denial of the injunction here and the
Railroad has agreed to that.
MR. STOKES: Absolutely, your Honor. Just so
long as the record is clear we are not preventing Mr.
Harris from coming to work, this is his own choice.
THE COURT: I don't want, if this matter is
litigated-—
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rdsas
A-263
MR. McGANNEY: Plaintiff is ready.
MR. STOKES: Defendant is ready.
.
Your Honor, in accordance with our conference
yesterday and at the request of the Court, Mr. Peterson
has had his files checked and I have them available and
he is available to explain what they are.
THE COURT: You want to take the stand,
Mr. Peterson?
R O B E R T E. P E T E R S O N , called as a
witness on behalf of the defendant, after
being first duly sworn, testified as follows:
DIRECT EXAMINATION ^
BY MR. STOKES:
Q Mr. Peterson, following the conference here
in court yesterday, did you arrange to have the files of
your department checked, the medical files?
A Yes, I did —
MR. McGANNEY: Could we have Mr. Peterson's'
position with the railroad?
Q Mr. Peterson, will you state your position with
the railroad.
A I am the superintendent of personnel management,
and in that capacity I report directly to the president of
SOUTHERN DISTRICT COURT REPORTERS, U.S. COURTHOUSE