dissenting.
We would affirm on the basis of Judge Harper’s well-considered opinion which is reported at 52 F.R.D. 276 (E.D.Mo. 1971.) We are satisfied that the trial court’s findings of fact are supported by substantial evidence and that the law has been correctly applied.
Neither the anti-preference section (§ 2000e-2(j)) nor the provision safeguarding seniority systems (§ 2000e-2 (h)) operate to prevent courts from eliminating present discriminatory effects of past discrimination which is preserved through the use of neutral employment policies. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); United States v. Bethlehem Steel Corp., 446 F.2d 652 (CA2 1971); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (CA8 1970); United States v. Sheet Metal Workers Int’l Ass’n, Local 36, 416 F.2d 123 (CA8 1969) and Local 189, United Papermakers and Paperworkers, AFL-CIO, CLC v. United States, 416 F.2d 980 (CA5 1969) See Note, Title VII, Seniority Discrimination And The Incumbent Negro, 80 Harv.L.Rev. 1260 (1967). It is equally clear, however, that courts, *314with their broad authority to fashion remedies under the Act should not emasculate valid seniority systems so long as they are conceived out of business necessity and not out of racial discrimination. Local 189, supra, at 989, 993-994; Whitfield v. United Steelworkers of America, Local 2708, 263 F.2d 546 (CA5 1959) and United States by Clark v. H. K. Porter Co., 296 F.Supp. 40, 66-68 (N.D.Ala.1968). See Note, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109 (1971); Kovarsky, Current Remedies for the Discriminatory Effects of Seniority Agreements, 24 Vand.L.Rev. 683 (1971) and Yeager, The “Unqualified” Minority Worker, 59 Geo.L.J. 1265 (1971). Cf. Griggs, supra.
A careful review of the record convinces us the findings of the district court preclude reclassification of the train porters as freight brakemen with carry-over seniority. Not only is there a functional difference between the crafts of train porters and brakemen, but Frisco’s seniority system is based on a recognition that a brakeman’s job is complex and hazardous, requiring related experience in safety and repair work at the various levels of job progression. Reclassification with carry-over seniority, under these circumstances, could occur only at the expense of safety and efficiency.1
Litigation involving the train porters and their economic status has been before this Court almost continuously since 1946.2 A review of this litigation discloses that although these blacks and their predecessors were originally locked into the train porter craft by joint Frisco-Union discriminatory practices, their plight in the last two decades has been predominantly economic in origin. The advent of the diesel engine, the dramatic decline of the railroad industry and the elimination of passenger service in 1967 all have combined to wreak havoc upon train porters, rendering them virtually an extinct occupational species.
The majority opinion in effect directs a merger of the crafts, albeit the results of a complete merger are tempered by “minimum qualifications” and “50% seniority.” This remedy destroys a valid seniority system based on functional distinctions, a result which appears to us is not contemplated by the Act. In addition it obviously creates a climate for endless litigation.
. See United States v. Jacksonville Terminal Co., 451 F.2d 418, 443-448 (CA5 1971).
. See United States by Clark v. St. Louis-San Francisco Railway Co., 52 F.R.D. 276 (E.D.Mo.1971) (cases cited at 277-278).