Rock v Norfolk & Western Railway Company Reply for Appellants

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT 

No. 74-1788

ROBERT ROCK, EZELL B. JOHNSON,
RUSSELL C, WALKER, et al.,

Plain tiffs-Appellants,
-vs-

NORFOLK & WESTERN RAILWAY COMPANY, et al., 
Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF VIRGINIA

vmr.prvr nj v t  c t raa

REPLY BRIEF FOR APPELLANTS

WILLIAM To MASON, JR.
147 Granby Street 
Norfolk, Virginia 23510

ROBERT BELTON951 S. Independence Boulevard 
Charlotte, North Carolina. 2 82 02

JACK GREENBERG 
MORRIS J. BALLER10 Columbus CircleNew York, New York 10019
Attorneys for Appellants



INDEX
ZS^e

I. Back P a y ......................... ...................  1
A. The Incidence of Economic Loss.................  1
B. Back Pay and Seniority Discrimination........ . . 5
C. The "Special Circumstances" Test................ 6
D. Union Liability................................  13

II. Merger of Conductors' Rosters ........................  14

III. Adjustment of Monthly Wage Guarantees ................  16

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

Table of Cases
Baxter v. Savannah Sugar Refining Corp.,

495 F. 2d 437 (5th Cir. 1974)......................... 12,13
Carey v. Greyhound, Inc., __ F.2d __ (5th Cir.

No. 73-3133, Sept. 26, 1974) ................ .....9n,13,14
Griggs v. Duke Power Co., 401 U.S. 424 (1971).............  13
Guerra v. Manchester Terminal Corp., 498 F.2d 641

(5th Cir. 1974).......  14
Head v. Timken Roller Bearing Co., 486 F.2d 870

(6th Cir. 1973)........................................  7
Johnson v. Goodyear Tire & Rubber Co., 491 F.2d

1364 (5th Cir. 1974)   7,12,13
Kober v. Westinghouse Electric Corp., 480 F.2d

240 (3rd Cir. 1973)   7n
LeBlanc v. Southern Bell Tel. & Tel. Co.,

460 F.2d 1228 (5th Cir. 1972), cert, denied
409 U.S. 990 (1972)....................................  7n

Manning v. General Motors Corp., 466 F.2d 812
(6th Cir. 1972)   7n

Moody v. Albemarle Paper Co., 474 F.2d 134
(4th Cir. 1973)....................................  6,7,13

x



Page
Peters v. Missouri-Pacific Railroad Co., 483 F.2d 490

(5th Cir. 1973), cert, denied 414 U.S. 1002 (1973).....  9n
Pettway v. American Cast Iron Pipe Co.,

494 F. 2d 211 (5th Cir. 1974)......................  7,12,13
Robinson v. Lorillard Corp., 444 F.2d 791

(4th Cir. 1971), cert, dismissed 404 U.S.
1006 (1971)........... '. _____'......................  7,9,13

Schaeffer v. Yellow Cabs, Inc., 462 F.2d 1002
(9th Cir. 1972)........................................  7n

U. S. v. Chesapeake & Ohio Railway Co.,
471 F.2d 582 (4th Cir. 1973), cert, denied
411 U.S. 939 (1973)................ .................. 5,15

Waters v. Wisconsin Steel Works of International
Harvester Co., __ F.2d __, 8 EPD f 9658 ...............  8n

Statute:
Railway Labor Act, 45 U.S.C. § 151 et_ seq................. 8

li



IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT 

NO. 74-1788

ROBERT ROCK, EZELL B. JOHNSON, 
RUSSELL Co WALKER, et al.,

Plaintiffs-Appellants,
-vs-

NORFOLK & WESTERN RAILWAY COMPANY, et al., 
Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF VIRGINIA 

NORFOLK DIVISION

REPLY BRIEF FOR APPELLANTS

Plaintiffs-appellants Robert Rock, et al, hereby 
reply to the briefs filed in this cause by defendants- 
appellees Norfolk & Western Railway Company ("N & W") and 
United Transportation Union and its Lodge Number 550 ("Unions")

I. Back Pay
A. The Incidence of Economic Loss
Nothing in the appellees' briefs seriously challenges 

appellants' showing that Barney Yard employees as a group 
suffered a substantial income loss because of their relegation 
to the Barney Yard. Appellees nowhere dispute the accuracy 
of appellants' detailed earnings comparisons showing that most



Barney Yard workers, individually and on the average, earned 
far less than CT Yard employees of similar seniority. See
Appellants' main brief at 14-20, Pi. Ex. R-4-R-15, App. 365-406).

Indeed, in post-trial argument in October 1971, counsel for 
N & W conceded all the elements of appellants' showing of 
economic disparity (cf. main brief at 11-12):

Now, I would have to concede that as far 
as the Railway Company is concerned, that the 
plaintiffs do show a case if you work in the 
Barney Yard you do get furloughed more often, 
and I think we have explained that is a perfectly 
legitimate business incident. . . . (A. II 775a)

I would also say we also have to concede that 
a man who works in the Barney Yard is not going 
to be promoted on the first level of promotion 
as frequently or quickly as the man in the CT 
Yard. I think that has been proven. (Id_. 776a)

I think there has been an economic difference.
I think the CT Yard work has expanded and the 
Barney Yard work has tended to decline slightly 
in recent years. (Id_. 777a).

The income disparities documented at the remand trial flow 
directly from these undisputed factors.

Now N & W has attempted to distract the Court's attention 
from facts that should be, and previously were, beyond cavil.
N & W relies on two haphazard lists (N & W Ex. 2 and 3, App. 
442-455) to rebut appellants' showing. These charts are

i/

1/ n & W's assertion that appellants presented only conglomerate 
averages, with its suggestion of artificiality (N & W brief at 37) 
is incorrect. Pi. Ex. 3-A, 3-B, 4, and 5 (App. 343-382) extensively 
survey and analyze actual individual earnings data.

2



grossly inadequate to their task.
N & W Ex. 2 and 3 are spotty, selective, and unsystematic2/compilations of a tiny fragment of the relevant data. All the 

relevant earnings figures for all the employees in both yards 
are analyzed in Pi.Ex. R-4 - R-15. N & W's feeble rebuttal 
exhibits merely recite a few exceptions to the general rule of 
disparate incomes by Yard (which appellants never contended was 
unvaried). The limited scope and nature of the N & W exhibits 
only serves to highlight how inadequately they respond to 
appellants' comprehensive income analysis.

N & W's sketchy review of some of appellants' exhibits 
(N & W brief at 35-37) suffers from the same defect: a few 
unusual specific instances are discussed, while the whole thrust 
of the data is ignored. Even N &. W does not contend that its 
quibbles disprove appellants' proof of disparate income.

Rather, N & W opines that its analysis shows "that some-

2/ N & W Ex. 3 (N & W brief at 33-34, App. 446-455) compares 
earnings of a small minority of carefully selected Barney Yard 
employees, with earnings of a small minority of CT Yard employees. 
It does not purport to give a balanced or comprehensive analysis 
of all pertinent comparisons. Pi. Ex. R-4 (App. 365-373) permits 
precisely such an analysis, and shows that the few such examples 
as N & W points to are quite atypical of the overall comparison 
between the yards.

Similarly, N & W Ex. 2 (N & W brief at 34-35, App. 442-445) 
merely highlights a few atypical "instances" among a flood of 
contrary examples.

Moreover, N & W offered no explanation of how or by what 
method of selection the partial data of N & W Ex. 2 and 3 were 
derived, and by what logic the more complete available data was 
excluded (App. 305-307).

3



thing other than the particular yard in which a man has 
worked and something in addition to pure seniority determines 
the comparative amount of an individual's gross pay" (brief at 
37). This is at once a platitude and a misstatement. Of course 
the mere fact of yard location (together with seniority) is not the 
sole determinant of income; equally obviously, in this case 
yard location plays a major role in defining the range and 
availability of income opportunities. In nearly all circum­
stances a worker with any given level of seniority, good health, 
willingness to work, etc., can earn more in the CT Yard than 
in the Barney Yard.

N & W s  reliance on such "other factors" to explain the
income differential has no application here because nothing
in the record even remotely suggests that such "other factors"
had any manifestation in this case. Appellees didn't even
try to show that "other factors" reduced Barney Yard incomes
but only suggested that, in the abstract world of hypothesis,
they might possibly do so. N & W brief at 15, cf. appellants'
main brief at 29-30. But the record strongly suggests that

2/the hypothesis is incorrect in this case.
The inescapable inference of appellants' evidence at the 

remand trial stands untouched. Because of their restriction

3/ Appellants' proof of overall disparities of nearly $1200 
per man per year (main brief at 16) takes on added force in 
light of the fact, noted by the unions (brief at 22), that the 
average seniority of Barney Yard workers exceeds that of CT 
Yard men.

4



to the Barney Yard, black workers of Norfolk Terminal have
vbeen limited to inferior income opportunities.

B. Back Pay and Seniority Discrimination
Both appellees assert repeatedly that no decision in this 

case has found their pre-merger seniority system discriminatory, 
and rely on that assertion as a bar to class back pay here 
(N & W brief at 19-22, Unions' brief at 15-16, 23). This 
line of argument offers no defense to back pay.

Appellees' seniority arrangements were clearly discriminatory 
under settled law. We need not repeat our previous description 
of that system, its effects, or its illegality, which are 
fully set forth in appellants' main brief at 9-10 and in their 
previous brief filed in No. 72-1777 ("Br.") at 8, 35-39. See 
also, United States v. Chesapeake & Ohio Rwy. Co., 471 F.2d 
582 (4th Cir. 1973), cert, denied 411 U.S. 939 (1973) (hereafter 
"C & O"), in which this Court invalidated an identical seniority 
system. While this Court's prior opinion in the instant action 
does not explicitly address this question, the Court must 
necessarily have viewed the seniority system as discriminatory.
A court can order revisions in seniority structures only if, 
and to the extent that, they are inherently discriminatory or 
if they perpetuate the effects of past racial discrimination.
C & 0, supra, at 588. Such a finding is implicit in this

4/ See, e.g., main brief at 40-41, 29.

5



While this CourtCourt's opinion requiring "dovetailing."
did not enter an express finding of seniority discrimination,
as N & W notes (brief at 19-20), this evidently resulted
only from the Court's correct perception that the "real issue"
in the prior appeal revolved around a choice of remedies, not
any serious question as to their predicate in unlawful practices

5/
(474 F.2d at 13, App. 9).

Moreover, appellants are entitled to an award of bach pay 
by this Court's explicit holdings in the first appeal. It 
suffices that N & W initially placed black workers into the 
Barney Yard under an unlawful hiring pattern, 473 F.2d at 1348, 
App. 9, and that appellees never accorded them relief from the 
continuing effects of that initial discrimination including 
economic injury until the court-ordered merger of seniority 
rosters.

C. The "Special Circumstances" Test
Neither appellee argues with the proposition that the 

"special circumstances" test adopted in Moody v. Albermarle Paper 
Co., 474 F.2d 134 (4th Cir. 1973), controls the back pay issue 
in this case (N & W brief at 25, Unions' brief at 15-16). Rather, 
appellees invite this Court to apply that test in a manner which

5/ This Court did not list the question of seniority discrimi­
nation as a separate issue raised by the appeal, 473 F.2d at 
1347-1348, App. 8, thereby obviating the occasion for a separate 
holding.

6



would reduce it to a meaningless gesture. This Court en banc 
having refused to modify the Moody decision directly, it should 
not now collaterally empty that decision of content.

1. The Analogy to Female Protective Lav/ Cases
Both appellees seek refuge from the controlling precedents

of Moody and Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.
1971), cert, dismissed 404 U.S. 1006 (1971), in the line of cases
involving state female protective laws (N & W brief at 41, Unions'

6/brief at 16-17). Their reliance is misplaced. This Court will 
not be deceived by astonishing assertions like "the Railway Com­
pany was in a position similar to the employers . . . [who]
could not obey both Title VII and a state female protective 
statute" (N & W brief at 41). The Fifth Circuit has summarily 
disposed of the same defense:

In these [state protective law] cases the 
courts have properly declined to award back pay 
because 'state statutes, like federal ones, are 
entitled to the presumption of constitutionality 
until their invalidity is judicially declared.'
... However, a back pay decree is appropriate in 
those cases where a limitation is not imposed by 
a state statute but by the employer.

Pettway v. ACIPCO, 494 F.2d 211, 254 (5th Cir. 1974) (footnotes 
and citations omitted). Accord: Johnson v. Goodyear Tire &
Rubber Co., 491 F.2d 1364, 1377 (5th Cir. 1974) ("Such an argu­
ment [as appellees'] falls of its own weight"); Head v.

—' The cases appellees rely on include LeBlanc v. Southern Bell 
Tel. & Tel. Co., 460 F.2d 1228 (5th Cir. 1972), cert, denied 
409 U.S. 990 (1972); Schaeffer v. Yellow Cabs, Inc., 462 F.2d 
1002 (9th Cir. 1972); Manning v. General Motors Corp., 466 F.2d 
812 (6th Cir. 1972); and Kober v. Westinghouse Electric Corp., 
480 F.2d 240 (3rd Cir. 1973).

7



Timken Roller Bearing Co., 486 F.2d 870, 877 n. 10 (6th Cir.
1973).

Unlike state female protective legislation, nothing in the 
Railway Labor Act, 45 U.S.C. §§ 151 et seq. compels or even 
permits appellees to adhere to unlawful employment practices.
There are no "special circumstances" like those of the protective 
law cases here. Rather, this case closely resembles those back 
pay precedents which N & W tries unpersuasively to distinguish 
at pp. 28-32 of its brief.

2. The Purported Merger Offer
N & W also relies strenuously on its purported offer to

merge seniority rosters in 1968, either to defeat back pay or
to place all liability on the unions (N & W brief at 38-39).
As previously shown, this "offer" was long on talk and short on
action (see main brief at 36-39). In fact, nothing changed.
Such a defense merely rehashes the thoroughly discredited argument

1/that good intentions can nullify the right to back pay (id. at 36). 
Here, we note also that to adopt a defense made of words and 
hopes would expand the "special circumstances" test to a universal 
whitewash for employer liability. What sophisticated employer 
in the 1970's has not genuflected toward racial equality, and

7/ Since preparation of appellants' main brief, the Seventh 
Circuit has expressly discredited the good faith defense, Waters
v. Wisconsin Steel Works of International Harvester Co., ___ F.2d
8 EPD <5[ 9658, at p. 5788, thus joining the Fourth, Fifth, and 
Sixth Circuits (see cases cited in main brief at 36-37 and n. 42).

8



executed at least a few empty gestures toward that goal? If
"special circumstances11 has any meaning, it must mean that
deeds not words, results not vain initiatives, form the basis

§/for a legitimate defense.
3. Estoppel of Appellants
N & W also urges as a "special circumstance" that appellants 

failed to repeatedly request immediate seniority merger in 
1967-1968 (N & W brief at 10-12, 43-44). This estoppel argument 
flies in the face of Robinson v. Lorillard Corp., supra at 799.
An employer violates Title VII by maintaining a discriminatory 
situation —  not just by rejecting a specific request to resolve

9/ .that situation. In this case, the Barney Yard representatives
^  , j_i   j_ it ̂  x z  u V. -a A  t.t -i v> n n x r  QT/Q-nf-
U C V b i  J V J L i O V V  U X 1 U  U  «*- w-

8/ As to the notion that the unions’ rejection of the "offer" 
should insulate N & W from liability for its own unlawful acts, 
we cannot argue more concisely than the Fifth Circuit recently held:

[U]nion contracts grant no immunity on the 
subject of racial discrimination. Neither can 
the employer use the union or unions for a shield.

Carey v. Greyhound, Inc., ___ F.2d ___ (5th Cir. No. 73-3133,Sept. 26, 1974). Accord: Peters v. Missouri-Pacific Railroad
Co., 483 F.2d 490 (5th Cir. 1973), cert, denied 414 U.S. 1002 (1973)
9/ "The rights assured by Title VII are not rights which can 
be bargained away —  either by a union, an employer, or both 
acting in concert. Title VII requires that both union and employer 
represent and protect the best interests of minority employees." 
Robinson, supra at 799.

9



without legal authority to accept or reject any proposal for 
change of seniority provisions (see main brief at 37-38 and 
n. 43). Only the General Chairman of appellee UTU has authority 
to negotiate such changes, and that officer consistently blocked

wany alleviation of the discrimination.
N & W passes over the fact that, in the one forum where 

independent of their International Union appellants could demand 
change with the force of law, they did. On May 15, 1967 they 
filed an EEOC charge complaining that:

"The members of Tidewater Lodge No. 974 
[the black local], Brotherhood of Railroad 
Trainmen, are not being allowed to exercise 
or work over the entire Norfolk Terminal 
in yard service as the white yardmen. Yet,

cl.r*P TV\GvvV^'*2Ts  o f  O S2.IH0 02T5lf"t 2.D.C! d lc L S S  , 11

PX 36 at original trial (not reproduced in either appendix).
To estop black workers from full relief because of the 

actions or omissions of their white-dominated International 
Union, a defendant in the matter, would make a mockery of the 
"special circumstances" doctrine. It would consign the keys 
to the door of monetary relief to the tender mercies of the 
liable violators.

10/ indeed, that officer, together with white Lodge 550, repeatedly 
rebuffed the Barney Yard men's efforts to have the International 
press N & W for a merger (A. I 120a~126a, 238a-239a, A. II 764a- 
766a). To require more of appellants would be to raise an impos­
sibility to the status of a prerequisite to back pay. When 
appellants eventually directed their efforts into other channels, 
they merely recognized the futility of proceeding within the 
framework of the Railway Labor Act. Cf. N & W brief at 41, 44, and 
main brief at 38 n. 43.

10



N & W attempts to confuse the real issue in this case by
its discussion of "individual" discrimination (N & W brief at
45-49). Most of that discussion is simply irrelevant: This is
not, as N & W implies, a refusal-to-hire case; it involves
segregated hiring and segregated departments. If no black class
member was shown to have applied and been rejected, this in
no way diminishes the force of appellants' case. Moreover,
N & W ’s facile assertions that the CT Yard never excluded blacks
and was always "racially integrated" (N & W brief at 10, 27, 45)
cannot be taken seriously. Not a single black was hired in the

12/
CT Yard from the end of World War II until after July 2, 1965. 
in 1965 the CT Yard had 3 blacks among its 302 employees (A. I. 3la) 
in 1971, 15 blacks of 368 total workers (id. 30a).

If there had been no unlawful "nepotistic hiring" and instead 
"an equal racial mix in each of the two yards" (cf. N & W brief 
at 49), there would be no racially oriented economic disparities

4. Proof of "Individual" Discrimination

11/ There was no procedure for Barney Yard men to transfer with 
seniority to the CT Yard, or to "apply" for any other job except 
at pain of loss of all seniority. See main brief at 34.
12/ Of those blacks mentioned by N & W (brief at 10, 45), Foy 
was hired in 1926, Boothe in the 1930‘s, and Baker in 1965.
(A. 111.812a, 815a, A. I 354a).

11



in this case. But the facts are that segregation occurred and 
racial disparities resulted. No word-juggling can obscure this, 
the substance of appellants' case.

Appellants have not yet put on individual proof of how - 
and how much - each member of the class suffered from the dis­
crimination. Their proof was in accordance with the district 
court's determination for a two-stage proceeding, with individual 
proof and individual entitlements reserved for the second stage 
(A. I 83a, App. 319) . This procedure’ also accords with detailed 
guidelines for the presentation of back pay claims recently 
enunciated by the Fifth Circuit. Under them, plaintiffs would 
initially demonstrate that there is a class whose members suffered 
economic loss as a result of discrimination, and the identity 
and general circumstances of class members. (This the appellants 
have largely accomplished here.) Defendants would then be 
entitled to present proof that a particular class member did not 
qualify for back pay, for whatever reason. The guidelines further 
deal generally with how the actual computations would be handled. 
See, e.g., Johnson v, Goodyear Tire & Rubber Co., 491 F.2d 1364, 
1379-1380 (5th Cir. 1974); Pettway v. ACIPCO, supra at 259-263; 
Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437, 443-445 
(5th Cir. 1974).

Under such guidelines, which we suggest would be appropriate 
here, appellees and appellants would confront the opportunities 
and burdens of "individual" proof at the proper stage before 
back pay is actually awarded. But this Court cannot now deny all 
class members back pay on the ground that individual proof, which 
the court below deferred, has not yet shown "individual discrim-

12



5. Conclusion: Making Excuses or Facing Consequences?
The thrust of appellees' "special circumstances" defenses 

is not to dispute what happened to black employees, but to make 
excuses for the results of their policies. This approach con­
founds the true concerns of employment discrimination law. As 
strongly stressed in Griggs v, Duke Power Co., 401 U.S. 424 (1971), 
Title VII courts must look primarily to the consequences of 
unlawful practices. Accord: Robinson v. Lorillard Corp., supra
at 796; Moody v. Albemarle Paper Co., supra at 141; Pettway v. 
ACIPCO, supra at 253 (5t.h Cir. 1974) ; Baxter v. Savannah Sugar
Refining Corp., supra at 443 (5th Cir. 1974); Carey v. Greyhound 
Corp., supra at p. 8138.

The consequences of appellees' actions here are evident: 
black workers lost income because of discrimination. That 
cardinal fact outweighs all the specious "special circumstances" 
recited by appellees. This is a rather ordinary case of employ­
ment discrimination - unusual only in the magnitude of the 
economic injury. To find "special circumstances" defeating 
liability here would in effect repudiate Moody and breach Title 
VII1s promise of effective remedial measures to make discrimina­
tion's victims whole.

D. Union Liability
The union appellees seek to avoid any share in the liability 

should back pay be awarded (brief at 23-26). Similar arguments 
have been soundly rejected in a number of recent Fifth Circuit 
decisions. See, e.g,, Johnson v. Goodyear Tire & Rubber Co.,

ination" in addition to a pattern of class-wide discrimination.

13



supra at 1381-1382; Guerra v. Manchester Terminal Corp., 498 
F.2d 641, 655-656 (5th Cir. 1974) ; Carey v. Greyhound, Inc., 
supra at pp. 8136-8137. We urge this Court to adopt the 
rationale of these decisions and to declare that, when employer- 
union practices combine to deprive black employees of income 
opportunities, all parties to the discriminatory practices will 
be held liable.

1I• Merger of Conductors' Rosters.
Renewed concessions of feasibility by N & W highlight 

the fact that this question as presented here is analogous to 
the more general question of seniority roster merger presented 
by the first appeal in this matter. A like result should issue.

N & W, which has the greatest interest in the efficiency 
and workability of any method of merging conductors rosters, 
takes a neutral position. It concedes that either appellants' 
method or the unions' method will v/ork "as a practical matter"
(N & W brief at 51). This Court has relied on a similar N & W 
position in ordering "dovetailing" to replace "topping-and- 
bottoming" (473 F.2d at 1349, App. 11-12). For similar reasons, 
this Court should hold for appellants on the present appeal, 
since, "It cannot be gainsaid that the relief demanded by the 
plaintiffs would more effectively remove the effects of illegal 
discrimination than that granted by the limited change made in 
the seniority systems in the two yards by the District Court" 
and since no business necessity precludes the more effective 
remedy, id.

14



The unions' main argument on this issue notes (brief at 28) 
that appellants urge different methods of merger for conductors' 
rosters (e.g., Terminal seniority date) and for car retarder 
operators' rosters (e.g., existing roster seniority date). The 
explanation is simple. Barney yard employees were not discrimi­
nated against by the rates of progression to car retarder operator, 
which were similar in both yards (cf. A. Ill 805a, 809a, and 
A. Ill 811a, 823a). Therefore no adjustment of existing 
seniority dates - only their merger - is necessary to eliminate 
the present effects of past discrimination. In contrast, the 
later conductors' seniority dates of Barney Yard workers are 
themselves a by-product of discrimination (see main brief at 
22-23, PI. Ex. R—16, App. 407-410); therefore, they require 
adjustment as well as merger.

The unions' resort to the prohibition on "unnecessarily 
sweeping" remedies contained in C & O, supra at 590 (unions' 
brief at 29) is inapposite. The changes ordered by the district 
court in C & 0, and disapproved by this Court, involved job 
competitions between one CT Yard white and another, 471 F.2d 
at 590. Appellants' proposal, rejected below, specifically 
provided that adjusted seniority would only govern competitions 
involving men from both Yards; within either Yard, contract 
seniority would still prevail. See App. 82-83, Plaintiffs'
Proposed Dovetailing (not reproduced in appendix), paragraph 
2(c), p. 6. Likewise, the unions' fears about displacement or 
lay-off of incumbents (unions' brief at 29) ignore the reality 
that appellants' proposals are carefully drawn to avoid that

15



possibility. See main brief at 54.

III. Adjustment of Monthly Wage Guarantees.
Neither appellee doubts that, if the district court's 

refusal to entertain claims related to monthly merger payments 
is affirmed, appellants can simply initiate another lawsuit 
(N & W brief at 55, Unions' brief at .33-34). Surprisingly,
N & W even advocates this waste of time and resources. Apart 
from the indifference to judicial economy inherent in their 
positions, appellees distort the posture of appellants' demand 
in the procedural context of this case.

Appellants have not at this stage requested any specific 
adjustment for any particular individual. Cf. pp. 11 - 12, supra. 
They have not. therefore, introduced specific evidence which 
would support individual awards, and have not attempted to show 
how the Nickel Plate merger terms adversely affected each Barney 
Yard man. They have, however, shown how the monthly guarantees 
are determined, established that such method carries forward 
the effects of past discrimination, and proved that Barney Yard 
guarantees generally are lower than CT levels as a result. See 
main brief at 25-28.

All appellants now seek is a declaration of entitlement 
to monthly guarantee adjustments as an aspect of the relief 
from economic injury. This relief, like the back pay award, 
would be determined at the second-stage proceeding where all 
individual factors will be aired. The proof of continuing dis­
crimination and resultant entitlement attacked as incomplete 
by appellees therefore suffices for - indeed compels - a judgment

16



that members of the class, upon examination of individual 
circumstances at the second-stage hearing on remand, may be 
entitled to adjustments of their monthly guarantee payment levels.

Conclusion
This Court should remand the case with instructions to 

grant appellants the three elements of relief sought by this 
appeal.

Respectfully submitted,

\ . P' — ----
ROBERT BELTONj951 So independence Boulevard 

Charlotte, North Carolina 28202
WILLIAM T. MASON, JR.147 Granby Street Norfolk, Virginia 23510
JACK GREENBERG 
MORRIS J. BALLER10 Columbus Circle

New York, New York 10019
Attorneys for Plaintiffs- 

Appellants

CERTIFICATE OF SERVICE
I hereby certify that on this 11th day of October, 1974,

I served two copies of the Reply Brief for Appellants upon each 
of the following counsel for appellees by United States Mail, 
postage prepaid:

Willard J. Moody, Esq. James T. Turner, Esq.201 Central Building 1700 Virginia National Bank Bldg*
Portsmouth, Virginia 23705 Norfolk, Virginia 23510

and
- 17 -



Robert Hart, Esq.
United Transportation Union 
15401 Detroit Avenue
Cleveland, Ohio 44107

ti\A/WvA<A • (-VT'J? Q. Q----
Attorney fori Plaintiffs- 

AppellantV

18