(dissenting).
I dissent from the majority opinion upon all issues except the determination at division IV which holds that no back pay will be awarded. I base my dissent on the dissenting opinion prepared by Judge Stephenson and upon the following additional observations.
Judge Harper points out at pp. 284-285 of 52 F.R.D. that Frisco’s employees, by reason of the diesel engine and other technology advancements and the discontinuance of passenger and other services, have been reduced from 28,000 to 8,000, and that many employees have suffered from the decline of employment. He properly determined that Negro train porters have not been discriminated against since the enactment of the Civil Rights Act and that the elimination of their jobs was caused by the authorized termination of passenger service. See Howard v. St. Louis-San Francisco Ry. Co., 8 Cir., 361 F.2d 905, 907-908.
Judge Harper appropriately observes:
“If this court were to grant the proposed relief, it would place the Negro train porters in a favored position only because of the color of their skin. The craft system has always been present within the railroad industry. When freight brakemen positions were eliminated by the diesel engine, the brakemen could not bid on the train porter *315positions regardless of the seniority they possessed. Now, the court is confronted by the reverse situation. In effect, the train porters seek super-seniority. Such is not the intent of the Civil Rights Act.” 52 F.R.D. 276, 285.
The Supreme Court in Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283, decided in 1952, enjoined discrimination against employment of Negroes by reason of race. It cannot be fairly assumed that the railroad would continue to discriminate in violation of the injunction. I find no substantial evidence of any discrimination since 1952. In a subsequent action, Howard v. St. Louis-San Francisco Ry. Co., supra, at p. 911 of 361 F.2d, we accept the District Court’s finding of absence of discrimination stating: “The record fails to establish a pattern of discrimination, or collusive action between Frisco and Brotherhood.”
I find no substantial evidence in the record which reflects that any of the train porters applied for or were denied brakemen’s positions.
There is substantial evidence that the train porter’s position was a less hazardous and less burdensome job than that of brakemen and carried regular and more desirable hours. Judge Harper points out:
“The record indicates that some Negro train porters preferred assignments to the train porter craft, for in the train porter craft the train porter was not subject to the physical labor that the brakemen performed at the freight level. The testimony of train porters Howard (Deposition pp. 34-5) and Bagley (Deposition pp. 130-1) shows the above to be true.” 52 F.R. D. 276, 284.
Train porters who as a matter of free choice sought train porter positions and who made no effort to apply for a brakeman job are not entitled to an artificial seniority which will disrupt the long existing brakemen’s seniority system.
Judge Harper on the basis of the evidence before him determined that Frisco went out of its way to find employment for the train porters and that Frisco on its own accord provided the only relief that could possibly be ordered. He further properly found that granting the requested relief would inflict inequities upon the brakemen and disrupt the long-established seniority system.1
I would affirm the judgment of the trial court in all respects.
Judge MEHAFFY and Judge STEPHENSON join in this dissent.
. In my view, a substantial question exists on whether Title VII of the Civil Rights Act effects a change in the longstanding uniform holdings of the courts that under the Railroad Labor Act the mediation board has exclusive jurisdiction to make class or craft comj)osition determinations. Since this issue is not adequately briefed, or discussed in the majority opinion, I deem it inappropriate to discuss the issue.