Scarlett v Seaboard Coast Line Railroad Company Brief of Plaintiff Appellees Cross Appellants

    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



.