Scarlett v Seaboard Coast Line Railroad Company Brief of Plaintiff Appellees Cross Appellants
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June 13, 1980

62 pages
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Brief Collection, LDF Court Filings. Scarlett v Seaboard Coast Line Railroad Company Brief of Plaintiff Appellees Cross Appellants, 1980. 036994bc-c39a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/d173d2ae-5802-47c6-83fe-5bca18dc775e/scarlett-v-seaboard-coast-line-railroad-company-brief-of-plaintiff-appellees-cross-appellants. Accessed June 17, 2025.
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UNITED STATES COURT OF APPEALS 4 FOR THE FIFTH CIRCUIT No. 79-3922 OLIVER W. SCARLETT, et al., Plaintiffs-Appellees-Cross Appellants, - vs - SEABOARD COAST LINE RAILROAD COMPANY, Defendant-Cross Appellee, and UNITED TRANSPORTATION UNION, Defendant-Appellant-Cross Appellee. Appeal From The United States District Court For The Southern District of Georgia Waycross Division BRIEF OF PLAINTIFFS-APPELLEES-CROSS APPELLANTS FLETCHER FARRINGTON P.O. Box 9378 Savannah, Georgia 31412 (912) 233-0111r JACK GREENBERG « 0. PETER SHERWOOD Suite 2030 10 Columbus Circle New York, New York 10019 (212) 586-8397 Attorneys for Plaintiffs / IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 79-3922 OLIVER W. SCARLETT, et al., PIaintiffs-Appellees-Cross Appellants, - vs - SEABOARD COAST LINE RAILROAD COMPANY, Defendant-Cross Appellee, and UNITED TRANSPORTATION UNION, Defendant-Appellant-Cross Appellee. Appeal From The United States District court For The Southern District of Georgia Waycross Division CERTIFICATE OF INTERESTED PERSONS The undersigned, counsel of record for Defendant Cross- Appellee Seaboard Coast Line Railroad Company, certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Judges of this Court may evaluate possible disqualification or recusal pursuant to Local Rule 13(a): 1. Oliver W. Scarlett, Appellee; 2. H. B. Starkes, Appellee; 3. David Jones, Appellee; 4. J. Wimyond Jones, Appellee; 5. Horace V. Thomas, Appellee; 6. William D. Rood, Appellee; 7. F. D. R. Bell, Cross-Appellant; 8. W. J. Odol, Cross Appellant; 9. W. K. Linsdey, Cross-Appellant; 10. Appellant and Cross-Appellee United Transportation Union and its affiliated, intermediate and local local organizations representing employees of Seaboard Coast Line Railroad Company; 11. Employees of Seaboard Coast Line Railroad Company employed in crafts of Conductor and Trainman (Brakeman and Switchman); 12. Defendant and Cross-Appellee Seaboard Coast Line Railroad Company, its parent Seaboard Coast Line Industries, Inc., and possibly the 36 concolidated subsidiaries of Seaboard Coast Line Industries, Inc. listed in certificate filed by defendant Seaboard Coast Line Railroad Co. li Statement Regarding Oral Argument Plaintiffs believe that this appeal should be orally argued. The legal issues are important and they involves questions that the courts have begun to address only recently. These questions include; 1) the proper interpretation of § 703(h) of Title VII with respect to the legality of a seniority system which was perverted for a racially discriminatory purpose and which continues to adversely affect plaintiffs; and 2) the proper application of this Court's analysis in James v. Stockham Valves & Fitting, Inc.. 559 F .2d 310 (1977), regarding the implementation of § 703(h). Oral argument will facilitate the resolution of these legal arguments as well as assist in the presentation of the complex, factual record in this appeal which covers over 80 years of labor relations at the railroad. i n TABLE OF CONTENTS Certificate of Interested Persons .................. i Statement Regarding Oral Argument .................. iii Table of Contents ................................... iv Table of Authorities ................................ vi Re-statement of the Issues on Union Appeal ........ 1 Statement of the Issues on Cross Appel ............ Statement of the Case .............................. 2 I. Course of the Proceedings and Disposi tion in the Court Below .................. 2 A. The Record .................. ......... 2 B. Jurisdiction of the Trial Court ..... 3 II. Jurisdiction of This Court ............... 3 III. The Cross-appeal .......................... 3 Statement of Facts .................................. 6 I. Preface ................................... 6 II. The Clock Begins to Tick ................. 9 III. The Time that Counts ..................... 11 IV. The Influence of Seniority ............... 12 V. How Seniority is Lost .................... 15 VI. An Intention to Discriminate ............. 18 - i v - Page Page Argument I. Summary of Argument ....................... 24 II. Issues Presented on Union Appeal ........ 25 Preface ................................... 25 A. The Trial Court's Finding that Plaintiff Oliver W. Scarlett Received a Notice of Right to Sue, Is Not Clearly Erroneous ............. 26 B. The Trial Court's Finding That the Union Is Named in Mr.' Scarlett's EEOC Charge, Is Not Clearly Erroneous .... 26 C. The District Court Properly Determined That the Seniority System Is Not Bona Fide Within the Meaning of § 703(h) ............................ 29 D. Plaintiffs Are Entitled, Pursuant to 42 U.S.C. § 1981, and Ga. Code § 3-704, to Injunctive Relief From The Conse quences of Defendants' Intentional and Racially Discriminatory Assign ment, Transfer and Promotion Practices Even If the Seniority System Is Found Bona Fide .......................... 38 III. Issues Presented On Cross-Appeal .......... 41 Introduction .............................. 41 A. The District Court Erred In Failing to Declare Plaintiffs Bell, Odol and Lindsey Entitled, Or At Least Presumptively Entitled, to Relief From The Effects of Defendants Non-Bona Fide Seniority System ...... 41 B. Where The Record Demonstrates That Plaintiffs Bell, Odol and Lindsey Sought Transfer to the Trainman/ Conductor Craft, the District Court Erred In Failing to Award Them Injunctive Relief Under •42 U.S.C. § 1981 ..................... 44 Conclusion .......................................... 46 Appendix ............................................ v Table of Authorities Acha v. Beame, 570 F.2d 57 (2d Cir. 1978) .......... 30 Alexander v. Aero Lodge No. 735 (AM) 565 F.2d 1364 (6th Cir. 1977), cert denied 436 U.S. 946 (1978). 31 Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437 (5th Cir. 1974)............................... 25,42 Brown v. Board of Education, 347 U.S. 483 (1954).. _r. 34 California Brewers Assn. v. Bryant, ___ U.S. ___, 63 L . Ed. 2d 55 (1980) ............................. 6,7,8,33 Camack v. Hardee's Food Systems, Inc., 410 F. Supp. 1217 (D. Ariz. 1975) ............................ 28 Chrapliwy v. Uniroyal Inc., 15 EPD 1(7933 (N.D. Ind. 1977) ............................................. 31 Columbus Board of Education v. Penick, 443 U.S. 449 (1979) ....................................... 37,38 Cook v. Mountain States Telephone & Telegraph Co., 397 F. Supp. 1217 (D. Ariz. 1975) ......... 28 Dayton Board of Education v. Brinkman, 443 U.S. 526 (1979) ........................................ 34 EEOC v. Chesapeake & Ohio Ry. Co., 577 F.2d 229 (4th Cir. 1978) .................................. 35 Fisher v. Proctor & Gamble Mfg. Co., 613 F.2d 527 (5th Cir. 1980) .................................. 35 Franks v. Bowman Transportation Co., 424 U.S. 747 (1976) 25,39,42,43,44 Hairston v. McLean Trucking Co., 520 F.2d 226 (4th Cir. 1975) .................................. 42 Humphrey v. Moore, 375 U.S. 335 (1964) ............ 12 International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977) ..................... 24 James v. Stockham Valves & Fittings Co., 559 F . 2d 310 (1977) ................................. iii, 24,29,30 Cases Page(s) vi Cases Page(s) H. Kessler & Co. v. Equal Employment Opportunity Commission, 53 F.R.D. 330 (N.D. Ga. 1971) affirmed, 468 F.2d 25 (5th Cir. 1972) ............ 28 Keyes v. School District No. 1, 413 U.S. 189 (1973).. 34,37 Local 189, United Paperworkers v. United States, 417 F.2d 980 (5th Cir. 1969), cert, denied 387 U.S. 919 (1970) .................................... 31 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 41,43 Miller v. International Paper Co., 408 F.2d 283 (5th Cir. 1969) ..................................... 27 Myers v. Gilman Paper Co., 556 F.2d 758 (5th Cir. 1977) ................................................ 24,29,30 Patterson v. American Tobacco Co., 586 F.2d 300 (4th Cir. 1978) ..................................... 30 Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir. 1978), cert, denied 439 U.S. 1115 (1979). 38 Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (1968) ............................................... 31 Ridgeway v. Intern. Broth, of Elec. Wkrs., Etc., 466 F. Supp. 595 (E.D. 111. 1979) .................. 28 Rule v. Ironworkers (IBSOIW), Local 396, 568 F.2d 558 (8th Cir. 1977) ................................. 40,42 Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970) ........................................... 28 Shehedeh v. Chesapeake & Potomac Tel. Co. of Md., 595 F . 2d 711 (D.C. Cir. 1978) ...................... 35 Steele v. Louisville and Nashville Railroad Co., 323 U.S. 192 ......................................... 14 Swint v. Pullman-Standard, F. Supp. , 17 EPD 1[ 8604 (N.D. Ala.1978) ........................ 17 Thornton v. East Texas Motor Freight, 487 F.2d 416 (6th Cir. 1974) .................................... 28 United States v. American Railway Express Co., 265 U.S. 425 (1924) ................................ 4, 35 vi i Cases Pages(s) United States v. Georgia Power Co., 474 F .2d 906 (5th Cir. 1973) ............................... United States v. United States Steel Corp., 520 F .2d 1043 (5th Cir. 1975) .................... Washington v. Davis, 426 U.S. 229 (1976) ....... Wheeler v. American Home Products, 563 F.2d 1233 (5th Cir. 1979) ............................... Williams v. DeKald County, 581 F .2d 2 (5th Cir. 1978) .......................................... Other Authorities Ga. Code Ann. § 3-704 ......................... Rule 52(a) F.R. Civ. ........................... 42 U.S.C. § 2000e-5(f) ...................... 42 U.S.C. § 2000e-2(h) ...................... 42 U.S.C. § 1981 ............................... Administration of the Railway Labor Act by the National Mediation Board, .1934-1970 (U.S. Government Printing Office: (1970) ........... 24,39,40 42 38 28 18,24 25,38,39,40 27 3 1, 6, 25,38 1 ,2,25,38,44 ; 3 viii RESTATEMENT OF ISSUES PRESENTED BY THE APPEAL OF UNITED TRANSPORTATION UNION V 1. Is the trial court's finding that plaintiff Oliver W.Scarlett received a notice of right to sue, clearly erroneous? 2. Is the trial court's finding that the union is named in Mr. Scarlett's EEOC charge, clearly erroneous? 3. Is the trial court's finding that defendants perverted the seniority system for a discriminatory purpose, clearly erroneous? If not, is the trial court's holding that a seniority system that was consistently used to discriminate and which currently perpetuates the effects of prior discrimination is not bona fide within the meaning of section 703(h) of Title VII of the Civil Rights Act of 1964, error?. 4. Did the trial court correctly apply the Georgia statute of limitations to plaintiffs' claims under 42 U.S.C. § 1981 for a remedy for defendants' intentional assignment, transfer and promotion discrimination? STATEMENT OF ISSUES PRESENTED BY THE CROSS APPEAL 1. Where, prior to the commencement of trial the district court declared that "if plaintiffs are sucessful in proving that the seniority system is not bona fide and that it perpetuates the effects of pre-Act discrimination, they will have proved their case under Title VII," is its subsequent holding that plaintiffs Bell, Odol, and Lindsey are not entitled to prevail because of */ Appellant's statement is prolix, ill-drawn, uninstructive. 1 their failure to establish at trial that they applied error? 2. Regardless of whether or not the district court erred in finding the seniority system non-bona fide, are plaintiffs Bell, Odol, and Lindsey entitled to a remedy based on their 42 U.S.C. § 1981 claim? STATEMENT OF THE CASE-^ I. COURSE OF THE PROCEEDINGS AND DISPOSITION IN THE COURT BELOW. A. The Record 2/ For a case with such a record, the trial was short. Many disputed issues were resolved before trial. The parties filed six motions for summary judgment (R. 30; R. 68 & R. 71 3/ [SCL]; R. 80 [UTU]; R. 116 & R. 146 [plaintiffs]), and defendants filed 20 other motions, in five separate pleadings addressed to jurisdiction and the merits (R. 5; R. 11; R. 21; R. 26; R. 75). Most of these were supported by documents and exhibits outside the pleadings (see, e.g., R. 75:6). In conse quence, the record was well developed, and had been considered by the trial court (R. 192:5), before oral testimony was taken. V Appellant's Statement is incomplete. 2/ There are 222 entries on the district court's docket sheet. This does not include trial exhibits. 3/ The trial court's local rules, adopted after defendants filed their motions for summary judgment, but before plaintiffs', require that the moving party file a statement of the facts it contends are not in dispute. The opposing party must then file a separate statement setting forth those facts (if any) he controverts. If the opposing party does not file the required controverting statement, the moving party's statement is admitted 2 B. Jurisdiction of the Trial Court The United Transportation Union, joined by Seaboard Coast Line Railroad Company, moved to dismiss the original complaint, alleging that plaintiff Oliver Scarlett had not commenced his action within ninety days of receiving his right-to-sue letter from the Equal Employment Opportunity Commission (R. 5:1; R. 6:4; R. 12-2). The union seemed then to agree that Mr. Scarlett 4/ received the letter; its address was rather to the alleged tardiness of the subsquent federal court complaint. In response to these motions and to SCL's discovery requests, plaintiffs filed Mr. Scarlett's right to sue letter, which shows that copies were mailed to both the union and the railroad (R. 16:10; R. 5/ 17:16). The trial court found that Mr. Scarlett received the letter, and that he commenced his action within ninety days thereafter, as required by 42 U.S.C. § 2000e-5(f) (R. 33:6). The court affirmed this finding in a second order (R. 60:2), denying one of SCL's motions for summary judgment. 3/ cont'd. (Trial transcript (hereinafter, "T.") 316-17). C_f. Rule 36, F.R.Civ. P. Neither defendant filed a separate statement contro verting plaintiffs' facts (see F. 147:1-6). Consequently, either of plaintiffs' statements of fact (R. 116:5-17; R. 147) is adequate to support the judgment below, independently of the evidence adduced at trial. See, e.g. , R. 192:5 (record supports a finding that the railroad consistently discriminated against blacks with respect to the establishment, accumulation or exer cise of seniority). 4/ "Mr. Scarlett failed to file suit within ninety days from the dismissal of his charge....[T]he remaining plaintiffs have re ceived no notice of failure of conciliation or of right to sue" (R. 12:2, at § 119). 5/ A copy of the letter is attached as an appendix to this brief, App.-1, infra. 3 II. JURISDICTION OF THIS COURT The filing of a timely notice of appeal is necessary to give this Court jurisdiction. Seaboard Coast Line Railroad Company did not appeal. Those portions of its brief asking this Court to reverse the trial court should therefore be stricken. A party who does not appeal from the decree of the trial court cannot be heard in opposition to the decree. United States v. American Railway Express Co., 265 U.S. 425, 435 (1924). III. THE CROSS-APPEAL The pre-trial conference was held on November 18, 1977 (R. Docket, p. 14). Because this hearing was specifically set with only two day's notice (see R. 107), a fully subscribed Rule 16 pre-trial order was not presented. Rather, defendants prepared and pre sented to the court a proposed consolidated order, short only by 1 /plaintiffs' contentions. According to this "Consolidated Pre-trial Order" (R. 87) (entered in the record as such but, as noted, not signed (R. 87:16)), the question to be tried repecting the claims of cross appellants Bell, Odol, and Lindsey was this: [Were t]he trainman seniority dates of [cross-appellants] established ... pursuant to a [nondiscriminatory] policy ...[?] (R. 87:3; 11 4). Defendants also requested that "this Court order a bifurcated trial (R. 87:16), with "damages and seniority relief ... reserved until [Stage II]" (R. 211:7). The trial court granted this request 6/ The court received this proposal and ordered it filed, but withheld signing it pending receipt of plaintiff's contentions. See also T. 22, where counsel refers to "the last pre-trial order." 4 (Id..)* At trial, Seaboard Coast Line announced that: "The only issue in this case as we see it is whether the ... seniority system on the Seaboard Coast Line is bona fide" (T. 5). "It was to examine this sole issue that Your Honor opened up the judgment ..." (T. 6). The union described the issue for trial as "whether or not the universally applied rule [is] that entry into the craft ... is the determining factor for measuring a man's senior ity in that craft" (T. 6). Before trial, Seaboard Coast Line advised the court that cross-appellant Bell "... in July of '55 ... applied as a switch man, [a]nd [the SCL representative] said that, you know, we weren't hiring any black switchmen" (R. 48:5); and that cross appellant Lindsey "was denied the right to be a switchman at the time I applied for it" (.id). Cross-appellant Odol testified, in a deposition later conceded by SCL to have been "included in the record" (see R. 109:4), that "I had tried to apply for switchman job ... in ... October ... '62, and as they said — they was stating that they wasn't hiring — excuse the expression [— ] VNiggers" (R. 42:2; refiled at R. 211:9). Overlooking this, the trial court concluded that each cross-appellant failed "to prove at least that at the time of his initial hire he applied for trainman's job" (R. 201:10, emphasis the court's). Plaintiffs moved the court to reconsider this (R. 210), citing the above testimony (R. 211:8-10), and adverting to their position that, having proved the unlawful policy put in issue by the pre-trial order, and by the opening statements of 7/ Only the cover sheet of the deposition appears in the record. The full depositions are included with the exhibits. 5 counsel, they were not required to establish their individual right to relief until Stage II (see R. 211:3-6; cf. R. 1 07:23, 11 5). This the court denied (R. 215) and these plaintiffs appealed (R. 220. STATEMENT OF FACTS • • • this sorry tale of discrimination... Trial Court (R. 201:5). Pre face "Whether a seniority system is bona fide is a mixed question of law and fact" (UTU at 43). To understand what facts are relevant, then, it is necessary to understand the law. The unions' "Statement of Facts", to the extent it is not misleading, is for the most part irrelevant because it ignores the disposi tive law. Under § 703(h) of the Civil Rights Act of 1 964, 42 U.S.C. § 2000e-2(h), it is not unlawful for an employer to make distinc tions in the treatment of his employees pursuant to a bona fide seniority system, provided "that such differences are not the result of an intention to discriminate because of race." It seems fundamental that any factual inquiry under § 703(h) must begin with a description of the "seniority system" that is claimed to be bona fide. In California Brewers Association v. Bryant, ___ U.S. ___, 63 L.Ed.2d 55 (February 20, 1 980) (an nounced nearly two months before the union's brief was filed), 8/ Compare UTU at 13: "There was absolutely no proof relative to any right to sue letter," with R. 12:2 (UTU admits Scarlett received "notice of dismissal" (i.e., right to sue leter); R. 16:10 & 17:16 (copies of the right to sue letter); and R. 33:6 St 60:2 (court finds right to sue letter received by Mr. Scarlett). 6 the United States Supreme Court affirmed this elementary princi ple. Neither defendant cites the case in its brief and appellant UTU makes assertions that are flatly contradictory to the Supreme Court's holding. A "seniority system" includes "more than simply those components of any particular seniority scheme that, viewed in isolation, embody or effectuate the principle that length of service will be rewarded." Id_. , at 64. In order for a seniority system to operate at all, it must contain rules, Id., that: 1. deliniate how and when the seniority clock begins ticking 9/ 2. specify how and when a particular person's seniority may be forfeited; 3. define which passages of time will count and which will not; and 4. particularize the types of employment conditions that will be governed or influenced by seniority and those that will not. Rules that serve these purposes do not fall outside the "seniority system" "simply because they do not, in and of themselves, operate on some factor involving the passage of time." California Brewers, Id. at 65. The union misstates the facts necessary to resolve this appeal. It views the challenged seniority provision "in isola tion"; its entire factual premise is that because these discrimi- natorily applied rules respecting the "establishment, accumula tion or exercise of seniority" (R. 192:5) "do not, in and of 9/ Defendant UTU offers a contrary view: The provision [of UTU agreement] excluding blacks from positions of baggagemaster, flagmen or yard conductors ... was not a seniority provision UTU at 24. 7 themselves, operate on some factor involving the passage of time," they are not a part of the seniority system. For example, 1 0/ trainmen were entitled, by right of seniority, to promotion to baggagemaster, flagman or yard conductor. UTU says that the provisions of the UTU agreements preventing black trainmen from using their seniority to assume these positions "was not a seniority provision" (UTU at 23); and "the seniority system ... are [sic] distinct from the conditions of employment ... to which they are [sic] applied (UTU at 18). Aside from the sophistry of these postulates, their disconnection from the unambiguous holding of California Brewers makes circumambulating shadows of the union's "facts." ]0/ Switchmen and brakemen are "trainmen". 8 A. The Clock Begins to Tick Seniority rights of individual employees are matters peculiarly of interest to the UTU and its members and SCL is not responsible for such matters. Seaboard Coast Line Railroad Co., December 18, 1977 (R. 87:4, «| 11) . The United Transportation Union is the successor of four operating craft unions: Brotherhood of Railway Trainmen (BRT); Order of Railway Conductors (ORC); Brotherhood of Loco motive Firemen and Enginemen (having jurisdiction of the engine service crafts — not involved in this case); and the Switchmen's Union of North America (which represented no employees on the 11/Seaboard Coast Line) (R.115:4-5; 117:22). These were among the first labor organizations in the country, originating as fraternal clubs for white men (R.116:16; T.14) in the railroad boom years following the Civil War (T.13-14). For as long as they existed (until 1969-T.399), the unions retained their fraternal, racially exclusive character The union complains, UTU at 14, that "there is no evidence in the record relative to...other [than the BRT] unions." This is false. As respects the ORC, there are contracts in the Record, including a contract between ORC and the Atlantic Coast Line (now SCL)(R.163:1-44; see also R.162: 13-15). These were filed by UTU in opposition to plain tiffs' second motion for partial summary judgment. There is also substantial evidence in the record regarding dis crimination by the BLF&E on the ACL (see, e.g., R.116:20, If If 15, 16; 117:16, 18) as well as in the country at large (see, e.g., R.116:16). Moreover, UTU asserted in the court below that discrimination practiced by the firemen's union is of no consequence to this case (R.164:6). Cf. R.121:17 (SCL asserts that BRT is the only union involved in the case). See also R.115:4,5; 157:27. 9 (T.14). By the 1880's, however, their dominant purpose had be come the negotiating of employment benefits from the railroads for white men working in the operating crafts (T.13). Aside from wage bargaining, the chief concern of the unions was to make contracts for the establishment, accumulation and exercise (R-192:5) of ever-increasing employment benefits based on length of service (R.161:10-11). By 1890, the conductor's union had won contracts effectively giving the union the right to decide who would establish seniority and who would not: "So far as it can be done consistently, [members of the Order of Railway Conductors] should have preference in the filling of vacancies..." (R.162: 13 - Agreement between ORC and Chicago, Rock Island and Pacific Railway). On other lines, the conductor's union negotiated agreements giving their members the right to determine who would be used as trainmen under them: "Conductors shall have the right to object to Brakemen for cause, and when objections are sustain ed by facts they will be furnished with other men" (R.162:64 - contract between conductor's union and Galveston, Harrisburg & San Antonio and Texas and New Orleans Railroad Co. (1889). See also T .70, 92-93 - contract between conductor's union and Chicago and Northwestern Railway Company (1891): "Brakemen will, in all cases, be placed as the conductor's best judgment indicates". Cf. R.116:11, Rules for the Plant System of Railways [now SCL]: "In case of emergency... conductors ...[may] select flagmen). 10 All of these contracts provided that an employee's seniority began on the first day he worked in his craft (R.116: 10; 162:21, 53; 163:61). B . The Time That Counts ...I'm not going to let those son of a bitches tell me who to hire and who not to hire. Before it's over, I'm going to fill this yard up with.♦.niggers. ACL Terminal Trainmaster E. S. Blackburn, Waycross Yard, 1938 (see T.190). The men who built railroads did so, in the main, for one object: return on investment (R.161:12). The owners saw the unions' wage demands as contrary to this singular interest (R.116:16; T.84- 85). To circumvent the diseconomy of high wages, many southern railroads — rejecting social and political custom in favor of pro fit — began to use black workers, who could be hired for half the wages of union men (white men), as switchmen, brakemen and firemen (T .13; R.116:16). The Atlantic Coast Line was the apparent leader in this: in the first decade of this century it hired only Negroes as switchmen (R.116:16; 117:44, 46-47; T.13). The unions reacted bitterly to this "discrimination against white trainmen" (R.116:19). On the floor of the 1899 con vention of the BRT, the union adopted a resolution calling on the other Brotherhoods "to give support to clearing our lines of this [Negro] class of workmen" (T.15). For the next 70 years, the union consistently (R.201:4), usually openly but surreptitiously if necessary (T.26), and with varying success, followed its perverted (R.201:6; T.94-95) resolve (T.14-16, 26). In 1910, the BRT proposed, and the Atlantic Coast Line agreed, to limit the number of Negroes to be hired in each sen iority district (emphasis added) to that percentage of Negroes 11 employed in each such district on January 1, 1910 (T. 12/15-16). This agreement was designed to preserve the seniority of white employees and to prevent black employees from estab lishing seniority in the craft (R.164:5-6). Since the percentage of Negro trainmen on the Atlantic Coast Line was already high, because of the railroad's earlier hiring policy, the agreement did not prevent ACL from continuing to emplov Negro trainmen. 13/ Despite the union's efforts to prevent it, black workers were able to establish seniority as trainmen: brakemen and switchmen; on the ACL, until May, 1945 (T.105-06, 190, 230). C . The Influence of Seniority It is of the utmost importance that the proper rules for the government of the employes of a railroad company should be literally and absolutely enforced. ...If they cannot, or ought not to be enforced, they ought not to exist. General notice from the Plant System of Railways [now SCL], January 1, 1896 (R.116:10). "...[0]ne of [seniority's] major functions is to de- 14/termine who gets or who keeps an available job." This function, in the train service, operates in two ways: by determining order 12/ Appellant complains that plaintiffs did not connect this agreement to the Atlantic Coast Line. UTU at 24. This is false. See R.117:13, at n. 11 and accompanying text. 13/ Plaintiff Horace Thomas applied for and "cubbed" (learned on his own time) a switchman's job in 1938. Because of object ions from the trainman's organization, he was delayed more than a year in taking his job. T.190. Humphrey v. Moore, 375 U.S. 335, 346-47 (1964). 14/ -12 of promotion (from switchman to yard foreman, and from brakeman to flagman and conductor) and choice of job assignments. The trainman's universal seniority rule is that trainmen are called for promotion to conductor in the order that their names appear on the trainman's seniority roster (R.116:11, 198; 122:1; 162:4, 6, 8, 9, 11, 12, 19, 25, 35, 28, 29, 42, 45, 49, 53, 61, 70; 163:62). Before World War I, it was easy enough to keep blacks from being promoted — only members of the union were benefici aries of the unions' seniority agreements, and black men were not then (or ever) members of the BRT (R.120:5). The War made a difference, with the government nationalizing railroad operations, and ordering, in "an act of simple justice," that equal wages be paid to black trainmen (R.116:18; T.102-04). After the War, the Railroad Administration continued to enforce this and other work rules. Realizing that if Negroes were to be treated equally for wages, there was nothing to prevent them from being treated equally with respect to choice of jobs and order of promotion, the BRT proposed to the Railroad Administration (T.22-23) — no, coerced by threat of 15/ strike — (T.26) a set of work rules that perverted (R.201:6; 15/ The union claims there was no "proof" that these rules applied to SCL. No "proof" was necessary. As a matter of law, all railroads operating in Interstate commerce (in cluding SCL) were governed by the Railroad Administration. See generally, Administration of the Railway Labor Act by the National Mediation Board, 1934-1970 (U.S. Government Printing Office: 1970 0-388-548), at pp. 176-78. 13 T.95-96) the Negro trainman's seniority: When new runs [(jobs) are] created, or vacancies occur] ], the employee with the highest seniority [will] have 'preference in choice of run [job] or vacancy either as flagmen, baggagemen, brakeman or switchman, except that Negroes are not to be used as conductors, flagmen, baggagemen or yard conductors' (R. 116 :18-19 , <[ 12; T.22-23). The purpose of these rules, according to the union, was to "end discrimination against white trainmen" (R.117:15). Following the return of SCL to private control in 1920, defendants continued to enforce the rules preventing blacks from using their seniority - as whites used theirs - to gain promotion from trainman to conductor (T.109; see also R. 98:1: SCL rule book provides that blacks are not to be used as conductors and baggagemasters). In 1944, these rules were in- ferentially made illegitimate by the decision of the Supreme 16/Court in Steele v. Louisville and Nashville Railroad Co. Accordingly, from that time forward, the written seniority agreements between SCL and UTU were, on their face, neutral: Promotion will be from trainmen to... conductor in their relative standing on the trainmen's seniority roster. Trainmen having at least two years ex perience as such shall be in line for promotion, and when called for promotion shall be notified by certified mail. . . (R. 116 :-198 ; see also R.122:1-2). Despite its apparent neutrality, this rule was selectively en forced, being uniformly applied to whites and uniformly denied to blacks; until 1967, at the Moncrief Yard in Jacksonville 323 U.S. 192. 16/ 14 (R.7:9, 11, 12; 117:21) and until 1970 at the Waycross Yard (R.117:22-23). And for Negro brakemen hired (before Steele) on the Savannah Side of the Waycross Division (plaintiff J. W. Jones) the rule was never enforced (R.201:5; T.115-16). D . How Seniority is Lost That meant...you was a nigger brakeman..., 1 one of the niggers before the wartime.1 And,_as often as they could keep you in the streets they would.... [I] f I had the seniority enough to hold the brake- mari's job, and there was a conductor, he would give up his conductor's rights and come up there and pull me and let the...younger men stay on the cab, and that would keep me in the streets starving to death.. Plaintiff J. W. Jones, remembering 1944 (T. 107, 111). With the economic incentive to hire Negro trainmen lost to the 1917 wage equalization order, Atlantic Coast Line might have been expected to follow the Brotherhood's entreatment to "clear our line of this class of workmen" (see T.15). It did not. Despite union opposition, the railroad continued to use black workers in the trainman's craft, at least until after Steele. Plaintiff J. W. Jones was hired as a brakeman in 1938 (R.117:44; T.105-06). The 1919 BRT-induced work rules not only kept Mr. Jones from being promoted to conductor, it also affected, in a way not applicable to whites (R. 116:19, if 14) his choice of jobs. Older white employees, who held seniority both as brake- men and conductors, could use their seniority to roll him from 15 his brakeman's job at the head end of the train, allowing junior whites to fill jobs that Jones, because of the racially applied seniority rules, could not hold: flagman, baggagemaster and conductor (T.22, 108-11). This racially based use of seniority for job selection was called, appropriately enough, "sharp shooting" (T.128). Sharpshooting was not practiced in the switching yards, however. There, yard conductors were required to work as such if conductor jobs were available. If they gave up a conductor job to roll a switchman, they lost their conductor seniority (T. 151). Consequently, plaintiffs Scarlett, Starkes, Thomas and Rood -- all of whom had transferred (some at the request of the railroad) from all-black jobs to switchman jobs in the early 1940's — (R.117:16, 17) were able to use their trainman seniority for job selection (although not for promotion, and not for assignment on the job, T.191-92) realtively free of union interference (T. 151). Until 1965. Some time after the Civil Rights Act became law, BRT sought and obtained an agreement from the railroad -- its eu phemism: "switching by preference" — which brought sharpshooting to the yards (T.151-55). Under this agreement, a conductor(still an all-white craft) was no longer required to work at his craft if he preferred lesser pursuits. He could "switch by preference" — sharpshoot (T.174) — and retain his conductor's seniority 16 (T.171-73). The testimony at trial was in conflict as to whether this "preferred seniority" agreement (T.432) was the result of an intention to discriminate. Plaintiffs testified that it was aimed at those very senior black trainmen who had by now ac cumulated enough trainmen's seniority to hold the choice high overtime switching jobs (T.154-55). A union witness said that it was passed to encourage men to take promotion to conductor (T. 434), but the railroad did not support this testimony. In any event, the scheme precipitated this lawsuit. In 1972, Oliver Scarlett, who was promoted to con ductor after the sharpshooting agreement was made, who had twenty- eight years of trainman's seniority and more than thirty years in his craft, rolled a younger white switchman from a high-overtime trainman's job. The conductor on this job -- an old-timer; member of the fraternity — immediately vacated his job, let the junior white switchman (senior, of course, to Scarlett in conductor's seniority) take the now-vacant conductor's job, waited a week, came back, and like old times on the road, rolled Scarlett from his job. Scarlett— sharpshot, seniority frustrated (.cf. T. 154-55) — complained to the company. (He could not complain to the union -- he was not a member, and it refused to process seniority grievances for non-members, even in 1972, T. 168-70). The company, following its age-old policy of deferring 17/to the union in seniority matters (R.87:4, K 11), shrugged 17/ Cf., Swint v. Pullman Standard, 17 FEP Cases 730, 738 (N.D. 17 (T.175-76). Within thirty days thereafter, Scarlett filed his charge of discrimination with the Equal Employment Opportunity Commission (T.176). 18/E . An Intention to Discriminate I was roped in as a trainman.... It was ridiculous that I be out there [teaching the work] and not ac cumulating any [seniority].... [Then] train porter Booker T. Snowden, re membering 1946 (R.116:126, 122). Porters, attendants, cooks, waiters, air bleeders (R. 116:175-76) — Negroes all (R.116:120-22; T.255-56) — returned from the War in 1946 hoping at last to leave their dying crafts for trainmen's jobs. In a cruel paradox, Steele, supra, by out lawing overtly racial agreements aimed at limiting the seniority rights of Negroes, closed the door permanently to black acqui sition of trainman seniority. Within six months of the decision (see T .230) "the union, BRT, had [made a verbal] agreement with the railroad not to hire any more blacks, and the railroad in turns (original) agreed[. S]o long as [the B.R.T.] could keep 17/ (cont.) Ala. 1978): "...[A] seniority system may properly be viewed as the manifestation of a union objective, one which oper ates in opposition to and as a limitation upon...managerial powers.... [T]he seniority system under attack is essentially the product of [union] aims and policies. From Section 703(h), Civil Rights Act of 1964. Cf. Williams v. DeKalb County, 581 F.2d 2 (5th Cir. 1978). 18/ 18 19/ the work going, [the railroad] would not interfere" (R.116:122). See also R.117:20; T.249-50. Cf. R.121:14, T.31: decisions to maintain Negro employment at a minimum strongly influenced by union policy; R.87:3, 1[ 11: seniority rights are peculiarly of interest to UTU; SCL not responsible for such matters; T.230: SCL vice president for labor relations cannot explain why company changed its long-standing policy; R.175, T.234: present management unable to set forth 1945-1965 history). Although the railroad continued to draft black men from their segregate crafts (as it had freely used plaintiffs during the War as conductors — "lead switchmen," they were called (T.192-93)) to operate trains according to the company's needs 2 0/ (R.116:120-22, 133-35; T.389) it withheld from these men consistent wit its verbal agreement with the union -- the senior ity benefits plainly called for by their written agreements: "Seniority rights of each trainman...to commence on the date and hour employed..." (R.116:110; 163:61). For more than twenty years after Steele (with an isolated exception in the Waycross Yard in late 1950)(R.117:46-47), no black persons were admitted 19/ Given these events commencing with the BRT's 1899 convention pledge to "clearing our lines of this class of workmen, T. 15 and continuing with consummation of the 1945 agreement to keep blacks out of the trainmans craft, the defendants assertion that "union membership did not affect employment decisions on ACL" is sheer sophistry. SCL at 30. * 20/ In 1946, SCL called Booker T. Snowden, train porter (R.116: 115) to work as an extra brakeman (_id. , 120) on a freight train going south to Waycross (_id. , 122). He continued in this employ ment until at least 1 953 (ici. , 1 27-28). Throughout the 1950's the company used Uley Hamilton as a switchman at its Southover Yard in Savannah (_icJ. , 175-80, 1 85). Snowden and Hamilton were, in pursuance of the unwritten understanding with the union (i^., 122), denied entry onto the UTU seniority roster. Some members of the union sought to correct this for Mr. Snowden; the motion to admit him, however, was defeated (id.). 19 to any train service seniority roster in the seniority districts where plaintiffs were employed (R.116:58-74, 164-66; 117:46-47). Apart from these exceptions, the company honored its agreement with the union not to use blacks in the craft. In 1955, plaintiff Franklin D.R. Bell applied for a switch man's job at the Moncrief Yard in Jacksonville. He was in formed that the company did not now hire blacks in the train service (R. 20:16-17; R.48-7; R.93:l; R.211:8), and was in stead made a waiter (R.39:3), an all-black job classification > in a separate bargaining unit (T.256). Bell's experience was repeated by plaintiffs Walter Odol and William K. Lindsey in 1963; each applied for trainman's work; each was told — Odol in vulgar terms (R.211-9) — that the railroad did not hire blacks for train service (id.; R.20:19-20, 22; R.48:7; R. 131:1, 6; R.211:10); In 1963, plaintiff David Jones, who had originally applied for any job he could get (T.255), sought transfer to the trainman's craft (T.257-59). His application met the same fate as the applications of Bell, Odol and Lindsey: no blacks as trainmen (T.259-60). Jones, however, was per sistent. He repeated his application in 1964, and again, in 1965 (id. ). On this last try, he learned the real reason for his failures: transfer was impossible "due to 20 letter 2_l/seniority rules governing the crafts" (SCL Ex. 24A, of February 10, 1965, admitted at T.381, emphasis added. See also T.365). One week later, Mr. William Seymour, then director of labor relations for the railroad (T.215-17), apparently con firmed that the seniority rules were being used to prohibit 22/ blacks from transferring. The rules were not applied to whites seeking transfer: they came freely (T.260). Indeed, it was the railroad's policy to fill trainmen's jobs by transfer from other crafts (T.259-60). Several months after Title VII became law, and eight months after Mr. Jones' last application, the railroad, after having been visited by a government official, granted Mr. Jones' transfer request. He thus became the first black in more than 20 years to overcome the union-induced policy which prevented blacks from establishing trainman seniority (T.263-64). 21/ This exhibit is included in this brief at App. 2. 22/ A notation on the bottom of the office memorandum says that "Mr. Seymour called in re to union" (SCL Ex. 24A, included here at App. 2). In view of the Company's position that seniority rights are strictly union matters (R.87:4, 1[ 11), there could have been no other reason for his call. Although Mr. Seymour testified in the proceedings below (T.215ff.), neither he nor anyone else for the railroad sought to deny this obvious confirmation that the 1945 verbal agreement with BRT was a seniority rule designed to prevent blacks from transferring. 21 2. Unfortunately/ there is not always a remedy for one's convictions of being wronged.... Your only remedy is an administrative one through your labor organization [in which a lawyer does not and cannot get involved].... 23/UTU lawyer T. W. McAliley to plaintiff J. W. Jones, October 7, 1974 (PI. Ex. 12). Some time after Oliver Scarlett filed his 1972 EEOC charge, he sought the union's help in exercising his seniority to return to the Moncrief Yard (T.170). He was not then a member of the organization (id.), although he had once tried to join (T.168-69). "If you join the union," the local chairman told him, "I'll sign the letter" (T.170). Scarlett joined. The union signed (T.170-71; see also R.98:5). David Jones applied to the BRT shortly after he trans ferred to the trainman's craft in 1965. His application was rejected (T.264-67). "You must have a member of the Brotherhood to recommend you" (R.117:22; 118:2-3). J. W. Jones was turned down for membership on three separate occasions (R.129:3). Horace Thomas had applied earlier (T.200). "[We] would lose half the members if we let [you] join" (T.199). After 1971, when he was finally permitted to join the union, Thomas sought assist ance from his local chairman. The official said, "I don't see why [the railroad] won't straighten this out with you, because T.125. Although Mr. McAliley is not on the staff of the union, he represents it from time to time (T.428). 2$/ 22 most of the Blacks have gone now anyway. There wouldn't be but two or three to be inserted into the roster where they're sup posed to be" (T.200, emphasis added). Thomas waited. He went back to the railroad. "[I]t [is] up to the Union," SCL told him. "I've asked the Union," Thomas replied. "[I]f you want to straighten it out, you'll have to get you somebody to represent you [if the union won't](T. 201). "That's when I come to [see the lawyer] (flay, 24/ 1976)(T.201; see also R.117:23). See App. 3, ff., demonstrating the relation of union member ship to the acquisition of trainman/conductor seniority. 23 I. SUMMARY OF ARGUMENT The record demonstrates that the district court's determina tions that plaintiff Oliver W. Scarlett received a "Notice of Right to Sue" from EEOC and that the union is adequately named in plaintiff Scarlett's EEOC charge are not clearly erroneous. Rule 52(a) , F.R. Civ. P. Under the standard established by International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977) and interpreted by this Court in James v. Stockham Valves & Fittings Co., 559 F.2d 310 (9177) and Myers v. Gilman Paper Corp., 556 F .2d 758 (1977), a seniority system that has its genesis in racial discrimi nation, was not neutually applied or was maintained with a discriminatory purpose is not bona fide if it currently serves to perpetuate the effects of prior discrimination. In this case the district court properly found that the seniority system was maintained with an illegal purpose. The statute of limitations applicable to actions brought in the State of Georgia pursuant to 42 U.S.C. § 1981 is borrowed from Ga. Code § 3-704. See United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973). Acts or practices of intentional racial discrimination such as defendants concededly racially based assignment, transfer and promotion practices violate § 1981. See Williams v. DeKalb County, 582 F .2d 2 (5th Cir. 1978). The district court properly held that actions for injunc tive relief from intentional racial discrimination are governed by the 20 year period of limitations set forth in Ga. Code § 3-704, such actions being "suits for the enforcement of rights 24 accruing to individials under statutes," Ga. Code Ann. § 3-704. Where, prior to trial, the district court indicated its intention to try first the general issue of whether or not the seniority system was bona fide within the meaning of § 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), the district court erred in denying relief to plaintiffs Bell, Odol and Lindsey on the ground that they failed to "prove" that they applied for jobs as trainmen. Where the bona fides of a seniority system was the issue to be resolved at trial, the district court failed to apply the proper legal standards for evaluating the claims of plaintiffs Bell, Odol and Lindsey. See Franks v. Bowman Transportation Co., 424 U.S.. 747 (1976). In such cases, the contours of relief for those who did not testify at trial are properly reserved for a later stage of the proceedings. Id_. , Baxter v. Savannah Sugar Refining Corp., 495 F .2d 437 (5th Cir. 1974). Plaintiffs Bell, Odol and Lindsey are entitled to retroac tive seniority based on their 42 U.S.C. § 1981 claims. II. ISSUES PRESENTED ON UNION APPEAL Preface While the union claims to have discovered eleven separate25/ issues on their appeal, we believe all of the questions to be resolved on the unions appeal may be subsumed under four headings as appears below. 25/ Although the employer-railroad has not appealed, it claims to have discovered additional errors in the trial court's determina tion. 25 A. THE TRIAL COURT'S FINDING THAT OLIVER SCARLETT RECEIVED A RIGHT TO SUE LETTER IS NOT CLEARLY ERRONEOUS In its findings, the trial court referred, on three occasions, to plaintiff Oliver W. Scarlett's notice of right to sue from the Equal Employment Opportunity Commission (R.33:6; 60:2, 201:2). In this Court, the union asserts that these find ings are "completely unsupported by the evidence" (UTU at 33, emphasis the union's) and that "the record is absolutely devoid" of proof of a right to sue letter (UTU at 38, emphasis the union's). This argument is frivolous. The notice of right to sue is in 2 6/the record at two places (R.16:10; 17:16), and was considered by the trial court in its rulings on defendants' motions to dis- 2 7/miss and for summary judgment (R.33:6; 60:2). B. THE TRIAL COURT'S FINDING THAT THE UNION WAS NAMED IN OLIVER SCARLETT'S EEOC CHARGE IS NOT CLEARLY ERRONEOUS The trial court found that the EEOC charge filed by Oliver Scarlett "clearly alleges employment discrimination 2 6/ The notice is also included in this brief at App. 1. The union, without explanation, omitted these orders from the Record Excerpts required by this Court's Local Rule 13.1. 27/ 26 against both the Company and the union" (R.201:2, n. 2, citing Miller v. International Paper Co., 408 F.2d 283, 291 (5th Cir. 1969). As correctly noted by Seaboard Coast Line, "this is a straight question of fact and thus subject to the 'clearly er roneous' rule" [Rule 52(a), F.R.Civ.P]. SCL at 35. The union's attack on the court's finding has two evidentiary underpinnings: Its frivolous assertion that no right to sue letter was proved (see Part I, supra); and an equally frivolous assertion that "the only charge proved by plaintiffs was the [1972] charge of Oliver Scarlett." UTU at 36-37. See R.4:2, 7; 16:8; 31:3; 88:7; 129:10; 181:7; 193:2, and 194 for reference to the EEOC charges filed by other plaintiffs. The trial court correctly applied the controlling law in making his finding, and there is abundant evidence to support it. Upon receipt of the original charge, the EEOC, pursuant to its statutory duty to serve charges upon respondents, prepared an "Acknowledgment of Receipt" form, addressed to "United Trans portation Union, 15401 Detroit Avenue, Cleveland, Ohio 44107." Moreover, the right to sue letter (R.16:10; 17:16; App. 1) is shown as being mailed to "United Transportation Union, 14600 Detroit Avenue, Cleveland, Ohio." These internal EEOC records are suf ficient by themselves to support the trial court's finding that the "union seniority system" named in the EEOC charge is the 27 system operated by the United Transportation Union on the Sea board Coast Line. See Thornton v. East Texas Motor Freight, 497 F.2d 416, 423-24 (6th Cir. 1974). And there is more. In 1976, Mr. Scarlett filed a second EEOC charge, sub stantially identical in its factual allegations with the first charge, in which he named "United Transportation Union" as one of the parties who discriminated against him. To the extent that there may have been ambiguity in the first charge (neither the EEOC nor the trial court found any), it was cured by this second charge. Sanchez v. Standard Brands, Inc., 431 F.2d 455, 461 (5th Cir. 1970). See also H. Kessler & Co. v. Equal Employ ment Opportunity Commission, 53 F.R.D. 330, 334 (N.D.Ga. 1971), affirmed, 468 F.2d 25 (5th Cir. 1972); Camack v. Hardee's Food Systems, Inc., 410 F.Supp. 469 , 475-77 (M.D.N.C. 1976). Cf. Ridgeway v. Intern. Broth, of Elec. Wkrs., Etc., 466 F.Supp 595, 598-99 (E.D.I11. 1979); Cook v. Mountain States Telephone & Telegraph Co., 397 F.Supp. 1217, 1222, 1224-25 (D.Ariz. 1975). The trial judge correctly applied the law, and there is ample evidence to support his finding of jurisdiction. This Court 28/ should affirm. 28/ UTU does not question the district court's holding that it is not necessary for every plaintiff in a case that was determined not to be a class action because the numerosity requirement of Rule 23 (a) had not been satisfied. This issue has been raised by SCL in its brief. See SCL at 40. As this Court noted in Crawford v. Western Electric Co., Inc., 614 F.2d 1300, 1308 (5th Cir. 1980), every decision in this circuit that bears on the issue supports the holding of the district court. The trial court's holding should be reaffirmed. See Wheeler v. American Home Products, 563 F.2d 1233 (5th Cir. 1979). 28 C. THE DISTRICT COURT PROPERLY DETERMINED THAT THE SENIORITY SYSTEM WAS NOT BONA FIDE WITHIN THE MEANING OF 703(h) There are relatively few fundamental differences between the parties regarding the facts and the law as to the bona fides vel non of the seniority system in this case although the parties appear to disagree on how the law should be applied 23/to the facts. The parties agree that the district court used the proper standards for evaluating the bona fides of a 30/ challenged seniority system. (See SCL at 23-4; UTU at 3, 10) That standard was described by this Court as follows: 1. whether the seniority system operates to discourage all employees equally from transferring between seniority units; 2. whether the seniority units are in the same or separate bargaining units (if the latter, whether that structure is rational and in conformance with industry practice); 29/ The union appears to disagree with the district court's finding that the seniority system was maintained with an intention to discriminate. Plaintiffs address this contention at p.31, infra. 30/ SCL's offers an alternative suggestion that a seniority system be regarded as "bona fide" within the meaning of § 703(h) if it is "currently a genuine and authentic system for allocat ing available work on the basis of seniority", SCL at 28. This approach misses entirely the Congressional mandate that the application of "different terms, conditions or privileges of employment pursuant to a bona fide seniority ... system" that is " ... the result of an intention to discriminate on the basis of race ..." is not entitled to the immunity accorded by § 703(h) of Title VII. Further SCL's suggestion adds nothing to this Court's operational definition of what constitutes a bona fide seniority system within the meaning of §703(h). See James v. Stockham Valves & Fittings Co., 559 F .2d 310 (5th Cir” 1977); and Myers v. Gilman Paper Corp., 556 F .2d 758, 760 (5th Cir. 1977). 29 3. whether the seniority system had its genesis in racial discrimination; and 4. whether the system was negotiated and has been maintained free from any illegal purpose. James v. Stockham Valves & Fittings Co., 559 F .2d 310, 352 (1977) cert, denied 434 U.S. 1034 (1978). Properly applied, a court should analyze each factor in order to determine if the system had either its genesis in discrimination, or was not neutrally applied, or was maintained with a discriminatory pur pose. If the answer is affirmative to any one of these factors, then a court may conclude that the system was not bona fide and 30/ was unlawful. An intentionally discriminatory creation, application or maintenance of a system removes that system from the protection of Section 703(h) because the racial differences would be the result of an intention to discriminate. See Myers v. Gilman Paper Corp., 556 F .2d 758, 760 (5th Cir. 1977) (per curiam), cert. dismissed, 434 U.S. 801 (1977); James v. Stockham Valves & Fittings, Co., supra, 559 F .2d at 351; Acha v. Beame, 570 F .2d 57, 64 (2d Cir. 1978) ("A system designed or operated to discriminate on an illegal basis is not a 'bona fide' system"); Patterson v. American Tobacco Co., 586 F .2d 300, 303 (4th Cir. 31/ It would seem that a finding as to the "irrationality" of the system would properly lead to an inference regarding whether there was a discriminatory purpose in the development or the maintenance of the system. Unlike a finding with respect to the other factors, a determination of "irrationality" would not independently lead to a conclusion of non-bona fides. This follows from the fact that Title VII proscribes discrimination but it does not necessarily prescribe rationality. But there is a logical inference that an irrational system which has a discriminatory effect was created with the intent to achieve that effect. Cf. Village of Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 2^2, 26(5 ( 1 977). 30 1978) (The system "would not be bona fide if it either currently served a racially discriminatory purpose or was originally instituted to serve a racially discriminatory purpose."); Alexander v. Aero Lodge No. 735 (IAM) 565 F .2d 1364, 1378 (6th Cir. 1977), cert, denied, 436 U.S. 946 (1978); Chrapliwy v. 3 2/ Uniroyal, Inc., 15 FEP Cases 822, 826 (N.D. Ind. 1977). As the district court noted and defendants emphasize, "at trial, the plaintiffs conceded that the system meets the first three [James] criteria." R. 201:4. Nevertheless defendants treat extensively the origins of the seniority system, e.g. , see UTU at 25-7, and SCL at 15-17. The district court determined that the seniority system was not bona fide within the meaning of § 703(h) of Title VII because the record 33/ disclosed discriminatory maintenance. It is the issue of discriminatory maintenance that is the subject of this appeal. The UTU attacks as erroneous the determination of the district court that the seniority system was consistently maintained with an intention to discriminate on the basis of race. The union does not seriously question the district court's finding that the seniority system was perverted in order to deprive plaintiffs of their seniority based right 32/ Moreover, the Supreme Court indicated that the lower court decisions such as Quarles v. Philip Moris, Inc., 279 F. Supp. 505 (E.D Va. 1968) and Local 189, United Paperworkers v. United States, 416 F .2d 980 (5th Cir. 1969), cert, denied, 397 U.S 919 (1970), were consistent with Teamsters to the extent that these "decisions can be viewed as resting upon the proposition that a seniority sytem that perpetuates the effects of pre-Act dis crimination cannot be bona fide if an intent to discriminate entered into its very adoption." 431 U.S. at 346 n.28. 33/ Defendants expert Dr. Mater described it variously as "abuse" and "perverted" use of the seniority system, T. 95. 31 to be called for promotion. Indeed the UTU agrees with the determination of the district court that "promotion from trainman to conductor is at least partially a function of seniority" (R. 201:5). See UTU at 41. Instead it seeks to lay all of the cause of the total absence of blacks from the position of conductor on "managerial prerrogative" (sic) in hiring and promotion and a promotional examination which it claims, without citation to the 34/ record, conductors were required to pass. See UTU at 41, 42— 3, 21. These claims are unsupported by the record. (See pp. 12-15, supra.) The record evidence demonstrates that the unions were deeply implicated in the exclusion of blacks from the trainman/conductor craft. See pp. 11-15 and 18-21, supra. It shows that the initial assignment and transfer opportunities of blacks were affected by union seniority agreements. See pp. 18-21, supra. It shows that the union never sought to prevent perversion of the seniority rights of black brakemen to be "called" for promotion, T. 426. Regarding the requirement that candidates for promotion to conductor pass an examination, the contract required that the senior brakeman be "called for examina tion," R. 116:111. Prior to 1967 none of the plaintiffs were ever "called" as required by the above quoted seniority rule, R. 201:7. Thus questions regarding plaintiffs' ability to pass these tests were not reached. In any event being "called" for examination was tantamount to being promoted. No trainman except 34/ The union also makes reference to the fact that conductors are required to be able to read and write. It wisely does not claim that the plaintiffs lacked these skills. Plaintiffs now occupy conductor positions and thus have demonstrated their qualifications for the job. 32 plaintiff David Jones had ever failed the examination and the district court found that Jones' "'failure' of the 1969 con ductors examination was due to his race," R. 201:11. Although defendant SCL did not appeal from any ruling of the district court adverse to it, it nevertheless has advanced its own theory for reversal of the district court's determina tion that the seniority system is not immunized by § 703(h) of Title VII. The Company appears to concede that the seniority system may not have been bona fide during periods of its opera tion prior to April 7, 1972, 180 days prior to the date on which plaintiff Scarlett filed his charge with the EEOC. See SCL at 21. Instead it emphasizes the post-April, 1972 operation of the system and argues that the system "currently" is bona fide. See SCL at 21, 25, 32. This claim brings into sharp focus the issue which must be resolved on this appeal: May a seniority system which at certain times in the past was consistently perverted in order to achieve a racially discriminatory purpose be deemed bona fide within the meaning of § 703(h) of Title VII where the effects of those racially discriminatory acts are being perpet uated by the current operation of the seniority system? The district court correctly answered this question in the negative. There can be no doubt that the collectively bargained rule that a brakeman be "called" for promotion in order of his seniority is a part of the seniority system for it determines when one begins to accumulate seniority as a conductor. California Brewers Assn, v. Bryant, supra. And the district court correctly so found, R. 201:5. For a period of at 33 least 80 years, ending in the late 1960's or early 1970's the defendants consistently perverted this seniority rule by withholding from blacks the benefits that normally flow from the accumulation of seniority. And the district court properly so held, R. 201:5. Plaintiffs agree that most of the intentionally discrimina tory conduct that perverted the seniority system occurred more than 180 days prior to the date on which plaintiff Scarlett filed a charge with the EEOC. However the fact that the intentionally discriminatory acts rendering the seniority system non-bona fide are remote in time does not alter the fact that the requisite intent has been established. See Keyes v. School District No. 1., 413 U.S. 189, 210 (1973), and Dayton Bd. of Educ. v. Brinkman 35/ 443 U.S. 526, 537 (1979). In Teamsters itself, the Supreme Court recognized that intentionally discriminatory acts which pre-date the effective date of Title VII can operate to remove the limited immunity accorded bona fide seniority systems for "a seniority system that perpetuates the effects of pre-Act discrimi nation cannot be bona fide if an intention to discriminate entered into its very adoption." Teamsters, supra, 431 U.S. at 346, n.28. For most of plaintiffs careers the seniority system was not maintained free of any racially discriminatory purpose. Instead it was maintained to provide only white men with the 35/ In Keyes, the acts of intentional discrimination that gave rise to the constitutional violation occurred prior to 1954 when Brown v. Board of Education, 347 U.S. 483 (1954) was decided. See Keyes, supra, 413 U.S. at 210. 34 opportunity to advance to the postion of conductor. See pp. 11- 21/ supra. Merely permitting plaintiffs to advance to con ductor after 1967 simply could not cleanse suppurating festers defendants implanted into the system. Legal surgery was required to remove the infection, close the wound and restore • • 36/plaintiffs to the same state of health as their white peers. The remedy provided plaintiffs Scarlett, Starkes, Thomas, Rood, 37/J. W. Jones and D. Jones was an appropriate cure. Although it did not appeal, SCL argues that the district court "erred in allowing W.D. Rood to prevail where he did not testify ..." SCL at 49. The union which has appealed does not assert this claim. Accordingly this assignment of error is not properly before this Court. See United States v. American Railway Express Co., supra. In any event, the district court was plainly correct in according a remedy to plaintiff Rood. Rood was a switchman who prior to 1970 was not "called" for 36/ Thus contrary to SCL's claim of no continuing violation, see SCL at 37-40, this case presents a classic example of a continuing violation which may properly be the subject of an EEOC charge at anytime during the period in which its effects are being felt. See Fisher v. Proctor & Gamble Mfq. Co., 613 F.2d 527, 540 (5th Cir. 1980); Shehadeh v. Chesapeake & Potomac Tel. Co. of Md., 595 F.2d 711, 724 (D.C. Cir. 1978). 37/ SCL's repeated assertion that the "current operation" of the seniority system is bona fide is simply wrong. The district court expressly found that "the non-bona fide seniority system clearly perpetuates the effects of [defendants' prior refusal to promote plaintiffs]. Because of the prior racial discrimination the conductors with the longest tenure are without exception white and the advantages of the seniority system flow disproportionately to them and away from these plaintiffs" R. 201:7. Thus, contrary to SCL's contention this is not a case, like EEOC v. Chesapeake & Ohio Ry. Co., 577 F .2d 229, 233 (4th Cir. T978) where tne plaintiffs did not assert that the current seniority system was discriminatory. 35 promotion to conductor solely because of his race. He was in precisely the same position as plaintiff Scarlett and the district court so indicated in its order of July 7, 1977, R. 192:5. Rood complained that the seniority system was consistently maintained to discriminate against blacks. SCL also claims that plaintiff David Jones' claim to 39/ promotion was "unrelated" to the claims of the other plaintiffs. See SCL at 50. It argues that his claim of promotional dis crimination was limited to his failure of the promotional 40/ examination. Id_. D. Jones' claim, like that of all of the plaintiffs also addresses the discriminatory maintenance of the seniority system. See R. 192:1. Plaintiff D. Jones, like plaintiffs Bell, Odol and Lindsay, was hired after the union (the BRT) succeeded in getting the railroad to agree not to hire anymore blacks into the switchman 4J,/ classification. See pp. 18-21, supra. That agreement had the necessary and foreseeable consequence of preventing blacks from competing with whites for jobs and the accumulation of seniority in the trainman/conductor craft. As a result, employment in the 38/ 38/ Rood became a switchman on 11/3/42 and requested promotion to conductor with adjusted seniority on 8/22/70. R. 4:6. 39/ This assignment of error too is not properly before this Court. 40/ SCL argues that the district court's finding that D. Jones' failure of the promotional examination was due to his race, R. 201:11, "is error" but does not assert that it was clearly erroneous. See SCL at 50. The evidence at trial demonstrates that his failure of the examination was due to the retaliatory racial animus of a supervisor, T. 280. 41/ The union appears to agree, however grudgingly, that such was case. See UTU at 22. 36 all-black porter, attendant, cook, waiter and air bleeder class ifications provided the only opportunity for blacks to accumulate seniority for any purpose. The record evidence shows that the railroad plainly understood that the placement of these plaintiffs outside the trainman/conductor craft was a part of the seniority agreement with the union for when, in 1964 and 1965, plaintiff D. Jones sought transfer into this craft he was advised that the requested transfer "was not practical due to the seniority rules governing the crafts". (See SCL Ex. 24A, letter of February 10, 1965). SCL's refusal to promote plaintiffs Scarlett, Starkes, J.W. Jones, Thomas and Rood to conductor despite the existence of a contractual provision that they be "called" for promotion is additional evidence that the entire system was maintained with an illegal purpose. Proof of a systematic program of intentional discrimination with respect to a substantial part of the seniority system is itself prima facie proof but that the entire system is unlawful absent sufficient proof to the con trary by the defendants. See Keyes, supra, at 203 and Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 458 (1979). Here, not only have defendants failed to offer contrary proof, but plaintiffs proof shows that the intentionally discriminatory acts that resulted in the exclusion of plaintiffs Bell, Odol, D. Jones and Lindsey from the switchman classification were merely a later skirmish in the relentless campaign of the union to deprive blacks of all seniority rights in the trainman/conductor craft. See pp. 11-18, supra. Clearly, because of the agreement between 37 the BRT and the railroad, the isolation of these plaintiffs in black jobs results in the advantages of the seniority system flowing disproportionately to white conductors hired at the same time as these plaintiffs and away from these plaintiffs. They are entitled to a remedy. Washington v. Davis, 426 U.S. 229, 241-42 (1976); Columbus Bd. of Educ. v. Penick, supra. D. PLAINTIFFS ARE ENTITLED, PURSUANT TO 42 U.S.C. § 1981, TO INJUNCTIVE RELIEF FROM THE CONSEQUENCES OF DEFENDANTS' INTENTIONAL RACIALLY DISCRIMINATORY ASSIGNMENT, TRANSFER AND PROMOTION PRACTICES EVEN IF THE SENIORITY SYSTEM IS FOUND TO BE BONA FIDE. Defendant UTU next argues that a "seniority system validated under § 703(h) of Title VII is not susceptible to attack under 42 U.S.C. § 1981", UTU at 46, and the district court erred in applying the 20 year Georgia statute of limitations, Ga. Code 42/Ann. § 3-704, to plaintiffs claims for injunctive relief, UTU at 46-8. As to the union's first claim there is no dispute and the findings of liability as to § 1981 are not to the contrary. In this Circuit seniority systems that pass muster under Title VII are bona fide under § 1981. See Pettway v. American Cast Iron Pipe Co., 576 F .2d 1157, 1189 (5th Cir. 1978), cert, denied, 439 U.S. 1115 (1979). However, plaintiffs' claims for injunctive relief under § 1981 are not limited to challenge to the seniority system. Plaintiffs are entitled to relief that involves seniority __/ There are several orders of the district court that are relevent to this issue. Those orders appear at R. 76:4-6, 82: 3-5 and 201:11-12. 38 adjustments based on their § 1981 claims of unlawful refusal to promote (in the case of the conductor plaintiffs) and to assign, transfer and promote (in the case of the trainman plaintiffs). These claims of disparate treatment which occurred within 20 years of the filing of this action are directly actionable under § 1981 and do not involve any issues going to the bona fides vel 43/ non of the seniority system. An indispensable remedy to this unlawful racial discrimination in assignment, transfer and promotion involves an award of retroactive seniority. See Franks v. Bowman Transportation Co., 424 U.S. 747, 771 (1976). The union has offered no authority for the assertion that the district court was wrong when it followed the plain language of Ga. Code § 7-304 and allowed the bringing of this suit "for the enforcement of rights accuring to individuals under statutes." Here the suit for restoration of seniority rights was brought well within 20 years following cessation of the defendants' policy 44/ of exclusion of blacks from the conductor classification. See 43/ As this Court has ruled on several occasions, the applicable state statute of limitations is Ga. Code § 3-704. See United States v. Georgia Power Co., 474 F .2d 906, 924 (5th Cir. 1973) and Franks v. Bowman Transportation Co., 495 F .2d 398, 405 (5th Cir. 19747*1 Ga. Code § 3-7o4 provides: All suits for the enforcement of rights accruing to individuals under statutes, acts or incorporation, or by operation of law, shall be brought within 20 years after the right of action shall have accrued: Provided, however, that all suits . . . for the re covery of wages and overtime, subsequent to March 20, 1943, shall be brought within two years after the right of action shall have accrued. 44/ The union's assertion that the claims of the conductors are time-barred by the 20 year statute of limitations is simply wrong. UTU at 47. So long as the union and company pursued the 39 Ga. Code § 3-704. This claim is separate from the claim for "recovery of wages, overtime or damages", which is governed by a 45/ two-year statute of limitations. See R. 72:4-5. 44/ cont'd. policy of not calling blacks for promotion a claim of intentional discrimination in promotions existed. See United States v. Georgia Power Co., 474 F.2d 907, 924 (5th Cir. 1973). Since that policy was in effect until at least 1967 plaintiffs claims would not become time barred until 1987 at the earliest but the amount of retroactive seniority to be awarded might be restricted by the statute of limitations. 45/ The Union has offered no decision emanating from any court which supports its claim that plaintiffs' claim for seniority restoration is governed by a two year statute of limitations. The district court interpretation of this state statute should be accorded considerable weight. See Rule v. Ironworkers (IBSOIW), Local 396, 568 F .2d 558, 564 (8th Cir. 1977). 40 III. ISSUES PRESENTED ON CROSS APPEAL Introduction The district court declined to award plaintiffs Bell, Odol and Lindsey relief on the ground that they failed to prove that they applied for a trainman position or that subsequent to hire they sought transfer and were rejected, R. 201:10. For the several reasons outlined below, we believe this ruling of the district court is due to be vacated. A. THE DISTRICT COURT ERRED IN FAILING TO DECLARE PLAINTIFFS BELL, ODOL AND LINDSEY PRESUMPTIVELY ENTITLED TO RELIEF FROM THE EFFECTS OF DEFENDANTS' NON-BONA FIDE SENIORITY SYSTEM In evaluating the claims of plaintiffs Bell, Odol and Lindsey, the district court applied the four part McDonnell Douglas Corp v. Green, 411 U.S. 792, 802 (1973) test suggested for use in evaluating individual, disparate treatment, claims of unlawful discrimination. (R. 215:1). The court found that these plaintiffs had failed to demonstrate that they applied for jobs as trainmen and for this reason only did not prove that the defendants discriminated against them (R. 215:1, 201:9-10). In so holding the district court applied an inappropriate legal standard. Although this is a non-class action, plaintiffs have raised what amounts to a pattern and practice claim addressed to the bona fides of the collectively bargained seniority system between the railroad and unions and the district court so held, R. 192. Thus the issue of invididual relief should be governed by the procedures and standards that apply to the Title VII pattern and 41 cases. See Rule v. Ironworkers (IBSOIW), Local 396, 568 F .2d 558, 566 (8th Cir. 1977). Accordingly it was appropriate to divide the case into two stages. See United States v. United States Steel Corp., 520 F .2d 1043, 1053-54 (5th Cir. 1975); Baxter v. Savannah Sugar Refining Corp., 495 F .2d 437, 442-43 (5th Cir. 1974). Under this procedure Stage I is directed to the patterns or practices of unlawful discrimination alleged and issues of individual relief are reserved until after the general liability" issues are resolved. Id. See also Teamsters, supra, 431 U.S. at 360. Thus, while plaintiffs may be required to demonstrate that they sought transfer into the trainman/ conductor craft or were deterred from applying because of the alleged unlawful practices of the defendants, such proof is not required until "Stage II" of the trial is reached. See Teamsters, supra, 431 U.S. at 360; Franks v. Bowman Transportation Co., supra, 424 U.S. at 772-3; Hairston v. McLean Trucking Co., 520 F .2d 226, 232 (4th Cir. 1975). The parties viewed this case as proceeding pursuant to the two-step pattern and practice procedure. In its June 13, 1978 order granting plaintiffs' Rule 59(e), F.R.Civ. P. , motion the district court announced the factors that would be considered at trial: At trial, the Court will hear evidence on all factors relevant to the issue of the system's bona fides (R. 127:2-3). Later, on January 24, 1979, defendant, SCL sought to confirm that the two stage procedure would be followed in this case. Counsel wrote to the district court as follows: 42 We assume this (the trial then set for April 30, 1979) will be "Stage I" and that "Stage II", on the questions of damages and seniority relief will be reserved until later if plaintiff (singular in the original) prevails in Stage I. (R. 211:7). The district court responded: "Your understanding is correct." (R. 211:7). And in an order issued on July 7, 1979, just prior to the commencement of trial, the court ruled: If plaintiffs are successful in proving that the seniority system is not bona fide and that it per petuates the effects of pre-Act discrimination, they will have proved their case under Title VII ... R. 192:2. In their opening remarks at trial the parties again noted their understanding that it was only the pattern and practice issue that was being tried. Counsel for the company remarked: the only issue in this case as we see it is whether the ... seniority system ... is bona fide. (Tr. 5). Similarly counsel for the union said: ... We believe that the issue in this case is whether or not the ... rule that entry into ihe craft ... is the determining factor for measuring a man's seniority in that craft (Tr. 6). The district court appears to have recognized the applica bility of the pattern and practice approach to this case, see R. 201:10, although it is clear that it relied ultimately on the McDonnell Douglas Corp. v. Green, supra formulation. (See R. 201: 10 and 215:1). However it failed to properly apply the former standard. In Franks, supra, the Supreme Court rejected the district court's refusal to provide for an award of retroactive seniority to the class of rejected applicants because of a failure of proof on two of the four McDonnell Douglas Corp v. Green, supra criteria-vacancy and qualification -- on the ground - 43 - an inquiry on these issues are premature. See Franks, supra, 424 U.S. at 772. Indeed a reading of Teamsters, supra which the district court cited, reveals that the question of "application" becomes relevant only after the general liability issues have been resolved. See Teamsters, supra, 431 U.S at 359. Although plaintiffs Bell, Odol and Lindsey did apply (R. 211:8-19) presentation of proof a_t trial establishing these facts simply would have been cumulative of the abundantly clear fact that by the end of World War II, the company and union had deter mined to exclude blacks from entering the trainman's craft. (See Co. Ex. 24; Letter dated 2-10-65; Pi. Ex. 6; Tr. 107-9; R. 116: 120-2, 175-6). Since the "only" issue at trial was the bona fide of the seniority system (Tr. 5), there simply was no need to show that these three applied for entry into the trainman's craft by applying for the switchman's position and that their application were treated like that of other blacks who applied during that era. B. PLAINTIFFS BELL, ODOL, AND LINDSEY ARE ENTITLED TO AN AWARD OF RETROACTIVE SENIORITY AS A REMEDY FOR VIOLATIONS OF 42 U.S.C. § 1981 EVEN IF THE SENIORITY SYSTEM IS FOUND BONA FIDE Due perhaps to the basis of the decision to deny a remedy to plaintiffs Bell, Odol and Lindsey, the district court did not address whether or not these plaintiffs were entitled to prevail under 42 U.S.C § 1981. Plaintiffs have demonstrated that regardless of the outcome of this case on the question of the bona fides of the seniority system, plaintiffs are due injunctive relief in the form of retroactive conductor seniority because of 44 defendants' intentionally discriminatory assignment, transfer and promotion policies. See pp. 38-40, surpa. Plaintiffs have also demonstrated that plaintiffs Bell, Odol and Lindsey unsuccessfully sought transfer to the trainman/conductor craft. See p. 44, s u p r a . Accordingly each of these plaintiffs are entitled to conductor seniority retroactive to June 15, 1956 (20 years prior to the date the complaint was filed) or the date of his first request for transfer, whichever is later. 45 CONCLUSION For the above and foregoing reasons, the finding of the trial court that the seniority system is not bona fide within the meaning of § 703(h) of the Civil Rights Act of 1964, and its findings of liability under Title VII and 42 U.S.C. § 1981 should be affirmed. The trial court's ruling that plaintiffs Bell, Odol and Lindsey may not assert individual claims for relief in Stage II proceedings should be reversed. Respectfully submitted, 4 1 0 1 0 -____________ FLETCHER FARRINGTON Post Office Box 9378 Savannah, Georgia 31412 (912)233-0111 0. PETER SHERWOOD Suite 2030 10 Columbus Circle New York, New York 10019 (212)586-8397 46 n n ^ 'lU A L EMPLOYMENT OPPORTUNITY ''OMMISSION NOTICE OF RIGHT TO SUt ro: FHOM: Mr. Oliver W. Scarlett 3236 Francis Road Jacksonville, Florida 32209 Equal Employment Opportunity Commission Miami District Office 340 Biscayne Blvd., 10th FI. Miami, Florida 33132 THIS C H A R G t H A S B E E N DISM ISSED FO R T H E FO L LO W IN G R EASO N i N O R E A S O N A B L E C A U S E □ U N T IM E L Y C H A R G E E EO C R E P R E S E N TA TIV E Theodore R. Gibson,II District Counsel T E L E P H O N E NUM BER C A S E /C H A R Q E N U M B ER N O JU R IS D IC T IO N E3 F A IL U R E T O P R O CEED 350-4491 TMM3-0356 I f y o u w ant to pursue you r charge further, y o u have the right to sue the resp on d en t(s) nam ed in this case in the U nited S tates D istrict Court for the area w here yo u live. If ' y o u d ecid e to su e , y o u m ust d o so w ith in n inety (9 0 ) days from the receip t o f th is N o tice ; oth erw ise your right is lost. I f y o u d o n ot have a law yer or are unable to obtain the services o f a law yer, take th is N o tice to the U n ited S tates D istrict Court w hich m ay , in its d iscretion , ap poin t a law yer to represent yo u . A n inform ation co p y o f this. N otice has been sent to the respondent(s) nam ed in th is case. I f y o u have any q u estion s about you r legal rights o r need help in filing y o u r case in co u rt, call th e EEOC representative nam ed above. cc: Seaboard Coast Line Railroad Co. 500 Water Street Jacksonville, Fla. 32202 - United Transportation Union 14600 Detroit Avenue Cleveland, Ohio & x . c 3/2/76 J O Append aprTT eioc 151 C H A R G IN G P A R T Y 'S C O P Y O F F I C E M E M O From SCL Exhibit 24A Jacksonville, Florida, February 10, 1965-cp C-1891051̂ C-187669 Today, David Jones, Id. 130779, who is presently employed in the Dining Car Department, reported to the office to discuss filing application for position of Switchman, Moncrief Yards. Before lunch he called and stated that he had called Mr. Rice’s office to complain about getting the "brush off", when he attempted to file application for posi tion of Switchman at Moncrief Yards. He stated that he was re ferred to this Department by Mr. Rice’s office. He, David Jones, accompanied by William Jackson, whom I understand is also employed in our Dining Car Department, reached this office about 1:40 p.m. David Jones was in the office about ten days or two weeks ago and discussed the possibility of securing regular employment as Switchman at our Moncrief Yard. I informed him that he would have to discuss this matter with the Superintendent of Terminals, Moncrief Yards, Jax., Fla. He further made inquiry regarding a position in the General Offices. I then informed him of our requirements for consideration and he stated that he could not meet the typing requirements. Today, our conversation was along the same line, and he did not mention to me about receiving the "brush off". He did state that they (Moncrief Yards) told him they had no vacancies and they were not accepting applications. He asked me if it would be possible to transfer. I told him that was not ’ practical due to seniority rules governing the crafts' He then informed me that he had called Mr. Rice's office and was referred here and he hoped that it would not react against him. I told him that I did not think it would, although it was ill-advised^ action on his part. He then became interested in filing appli cation for position in the General Offices. I informed him of the customary requirements and iid him I would be happy to accept his application when he met the requirements, and he left the office, apparently satisfied with the conversation. I further suggested to him after he stated that he needed regular work to support his family, that he contact the local office of the Florida Employment Agency at 215 Market Street, as they probably could help him secure suitable employment. His friend, William Jackson, remained seated in the main office during the conversation. I did not talk to Mr. Jackson. They departed our office at 1:58 p.m. Appendix-2 THE RELATION OF RACE, UNION MEMBERSHIP, AND THE ACQUISITION OF TRAINMAN AND CONDUCTOR SEN IORITY, FROM 1945 to 1965, AS DEMON STRATED BY A COMPARISON WITH THE TEAMSTERS SENIORITY SYSTEM (Overleaf) Appendix 3 72T/?A?sr£/?S 7T / M f . - O . C . LEGEND yes no - white seniority unit - black seniority unit - black & white seniority unit; blacks included in union black & white seniority unit; blacks excluded ' from union ‘'neutral" - uniformly applied loss-of-seniority provision "contract" - written col lective bargaining agreement based on the craft system "agreement" - oral under standing at variance with terms of written contract "policy" - unilateral company rule t y r e s - s e e r e s / s o r / r y s / s ^ s n &/rs/yv<$ c/7/z ̂ >rr>'r 77?/?/vsro&ryr/av r>rr>'r References 1. 431 U.S. at 343-44. 2. 517 F.2d at 305. 3 . See T. 255-56. 4. T. 429. 5. T. 264. CERTIFICATE OF SERVICE This is to certify that on this 13th day of June, 1980, copies of Brief of Plaintiffs-Appellees-Cross Appellants, were served by United States mail, postage prepaid, on the following counsel for Defendants: Malcolm MacLean F. Saunders Aldridge, III P. 0. Box 9848 Savannah, Georgia 31412 Clarence Small Thomas Carraway 800 First National Southern Natural Building Birmingham, Alabama 35203 Philip B. Sklover Equal Employment Opportunity 2401 E. Street, N.W. Washington, D. C. 20506 Attorney for Plaintiffs-Appellees- Cross Appellants .