Williams v. Norfolk & Western Railway Co.

FIELD, Circuit Judge

(dissenting):

In my opinion the majority has seen fit to countenance a maverick piece of litigation, and in doing so has placed some bad law on the books for this circuit.

First of all, the reason for my characterization of this lawsuit as maverick. Following the merger of the Virginian Railway Company and the Norfolk & Western in 1959, the two plaintiffs, former employees of the Virginian, elected to accept employment with the Norfolk & Western and commenced work on November 1, 1960. Incident to such employment they became members of the all-black Norfolk & Western barney yard Union, Local 974, which later became Local 1889 of the United Transportation Union. At the time of the merger and for several years thereafter the employees in the Norfolk & Western CT yard were practically all white and were represented by Local 550 which later became Local 678 of the United Transportation Union. In June of 1969 the employees of the barney yard and Local 974 instituted a Title VII action against both the railroad and Local 550 challenging the discriminatory employment practices and disparity of employment opportunities allegedly existing between the barney yard and CT yard. In that case the district court found that the Norfolk & Western had violated the Act by its hiring and job assignment practices and ordered the railroad to discontinue such practices. Among other remedies the court ordered that the seniority rosters of the two yards be merged and that the two union locals be merged into one. Both sides appealed that order, the appeal being heard and decided in this court sub nom. Rock v. Norfolk & Western Railway Co., 473 F.2d 1344 (1972). By opinion filed on February 13, 1973, this court remanded the case to the district court for its further consideration of appropriate remedies, including the issue of the allowance of back-pay.

*544The two plaintiffs were members of the class in Rock and at least one of them actively participated in the trial proceedings of that case. Despite the pendency of the Rock litigation and while that case was sub judice in this court, the plaintiffs filed this action on January 30, 1973, charging the Norfolk & Western and Local 1889 (successor of Local 974) with racial discrimination in violation of Title VII of the 1964 Civil Rights Act, as well as Section 1981. As will hereafter be shown, the complaint in the present case was based upon events which allegedly occurred at the time of the Norfolk & Western-Virginian merger in 1959 and 1960, and basically the plaintiffs sought to have their seniority on the Norfolk & Western roster adjusted to give them the benefit of their date of hire with the Virginian. Although the complaint in this case and the trial in the district court were addressed to acts incident to the merger, on this appeal counsel for plaintiffs saw fit to focus upon the very matters which were in controversy in Rock, that is, the charge of discrimination and disparity in employment practices existing between the all-black barney yard and the all-white CT yard. The majority, accepting this ploy of the appellants lock, stock and barrel, states that the plaintiffs’ cause of action “is not based on their loss of seniority with respect to the black barney yard in 1960,” but rather “that their exclusion from the CT yard because of their race deprived them of the benefits of their Virginian seniority * * *.”1 The majority goes on to state that “[t]he record discloses the same situation described in [Rock].” In all deference, I find little support in the record for this statement of the majority and it is significant that the district judge in this case (who is the same judge who has contended with Rock for some six years) clearly recognized the distinction between the two cases when he observed in his opinion:

“Finally, and it is not clear, if plaintiffs claim racial discrimination in the overall concept of barney yard employment as opposed to General Classification Yard employment — black versus white — this problem is before this Court in a pending class action suit, already once in the United States Court of Appeals for the Fourth Circuit, and now on remand, Rock, et al. v. Norfolk & Western Railway Company, et al., Civil Action No. 255-69-N. Discrimination at that level will be appropriately handled in that case.

Assuming, arguendo, that the majority’s concept of the nature of the plaintiffs’ complaint is correct, I submit that this case should long since have been dismissed for the reason that in such a posture it represents nothing but an attempt to litigate in this action the very issues confronting the district court in Rock, and the net result of the majority decision is to permit the plaintiffs to obtain a seniority position on the Norfolk & Western roster which properly should have been established by them in the Rock litigation. The hybrid nature of this case is tacitly recognized by the majority when it declines to prescribe the relief to which the plaintiffs are entitled “other than to say that they should be treated as other members of the [Rock] class after their seniority has been adjusted as we have directed.” Such a directive, I submit, is an unwarranted intrusion upon the orderly disposition' of the concededly complex and difficult issues in Rock.2 One of the problems confronting the court in that case is the hypersensitive question of seniority, and the majority opinion, in effect, permits the plaintiffs to utilize the present case to peg their positions on the roster and *545obtain what is tantamount to an ex parte preference over the other Rock seniority aspirants who are not parties to this litigation and have had no opportunity to be heard. As parties to the Rock litigation the plaintiffs should be collaterally estopped from pursuing their claims in this fragmented fashion.

To realistically understand the nature of this lawsuit as it was filed, tried and decided in the district court, it is necessary to have some factual recital in addition to the cryptic references in the majority opinion. The merger of the Norfolk & Western and Virginian took place on December 1, 1959, almost five years before the effective date of the 1964 Civil Rights Act. Prior to the merger the plaintiffs were employed in the barney yard of the Virginian and were represented by Local 67 of the Association of Railway Trainmen and Locomotive Firemen (ART & LF). The barney yard employees of the Norfolk & Western were represented by Local 974, which, as heretofore noted, was the predecessor of Local 1889 of the United Transportation Union. Incident to the merger the personnel of the Virginian in every other railway craft, black and white, were quietly absorbed into the Norfolk & Western operation taking with them their Virginian hire date as the basis of seniority on the merged roster. This was not true, however, as to the merger of the barney yard personnel of the Norfolk & Western and the Virginian, the two barney yards for all practical purposes being one hundred per cent black. The district judge made a specific finding of fact which is solidly supported by the record that the Norfolk & Western and the Virginian, as well as ART & LF, made every effort to dovetail the two barney yard rosters on a date of hire basis, but the negotiations were fruitless due to the refusal of the members of the Norfolk & Western barney yard and Local 974 to accede to such a plan.

Negotiations between the two black unions reached an impasse and finally, in January of 1960, an implementing agreement, as required by the Interstate Commerce Act, 49 U.S.C. § 5(2)(f), was signed with Norfolk & Western by ART & LF acting on behalf of the Virginian barney yard employees. This agreement provided for substantial lump sum severance payments to all former employees of the Virginian barney yard who desired to accept such compensation and resign from railway service. Eighty out of the total of eighty-two Virginian employees accepted this severance benefit and received substantial payments averaging about $5,000.00 per man. The only two Virginian employees who did not see fit to avail themselves of these benefits were the two plaintiffs in the present case. Thereupon the Norfolk & Western and the ART & LF, the latter acting on behalf of the plaintiffs, entered into a final implementing agreement on October 28, 1960, which provided that the Norfolk & Western would employ the two plaintiffs in its barney yard and would guarantee them an annual stated wage for a period of five years; additionally, the plaintiff Williams would receive a lump sum payment of $1,249.83 and Russell a payment of $1,280.52. The agreement provided that these considerations were accepted “in full satisfaction of all claims and demands * * * on behalf of the foregoing employees [Williams and Russell].” The district judge made a finding of fact that the plaintiffs accepted the lump sum payments and went to work for the Norfolk & Western on November 1, 1960, “fully aware of the effect of this agreement upon their seniority status, and otherwise received the guarantees provided in the October 28, 1960, contract.”

Upon facts which were largely undisputed the district judge found that the alleged discriminatory action of the defendants upon which the plaintiffs premised their right of recovery in this case occurred on December 1, 1959, the date of the merger, or at the latest on November 1, 1960, the date plaintiffs entered upon employment with the Norfolk & Western. The judge concluded that any applicable statute of limitations barred the plaintiffs’ alleged cause of action under Section 1981, since more than *546twelve years had passed between the time of the alleged discriminatory acts and the date suit was filed in 1973. He further concluded that insofar as the Title VII action was concerned, the alleged acts took place five years prior to its effective date, July 2, 1965, and that even if some type of retroactivity of Title VII were fashioned, the Act required that the plaintiffs file their charge of discrimination with the EEOC within ninety days as a prerequisite to their law suit. It is undisputed that no charge was filed with the commission until June of 1969, nine years after the alleged acts took place, four years after Title VII became effective and, ironically, eighteen months after the plaintiff Russell had retired from his service with the Norfolk & Western. Upon these facts the court concluded that the plaintiffs’ suit was untimely and, in doing so, relied upon what he had every reason to assume was well settled law in this circuit. Revere v. Tidewater Telephone Company, No. 73-1390 (E.D.Va.1973) aff’d 485 F.2d 684 (4 Cir. 1973); Phillips v. Columbia Gas of W. Va., Inc., 347 F.Supp. 533 (S.D.W.Va. 1972), aff’d 474 F.2d 1342 (4 Cir. 1973); Mickel v. South Carolina State Employment Service, 377 F.2d 239 (4 Cir. 1967).

Although satisfied that the suit was barred by reason of untimeliness, the district judge addressed himself to the merits of the case and found that no discrimination based on race had been factually proved by the plaintiffs. In making this finding he pointed out that the members of every other railway craft affected by the merger, blacks and whites, were placed on the Norfolk & Western seniority rosters on their Virginian date of hire basis, and that the failure to transfer the plaintiffs on a similar basis was due solely to the adamant refusal of blacks in the Norfolk & Western barney yard to accept the Virginian hire date as a basis for seniority. In a Title VII action such as this it is incumbent upon the plaintiffs to show that the alleged discrimination was of a racial nature, and it is manifestly clear that the plaintiffs here were not the victims of any discrimination, racial or otherwise, on the part of the Norfolk & Western. On the contrary, the plaintiffs’ loss of seniority resulted solely from the intransigence of their black counterparts in the Norfolk & Western barney yard. It was this attitude on the part of these black employees of the Norfolk & Western, and this alone, that made it impossible for the Norfolk & Western to grant to the plaintiffs the requested seniority status. Indeed, any unilateral action by the Norfolk & Western on this issue would have been a clear violation of the provisions of the Railway Labor Act, 45 U.S.C. § 152 IfU Seventh and Tenth. Evidence of a complete absence of racial motivation on the part of the Norfolk & Western is found in the fact that in every area over which it exercised any control, the plaintiffs were treated with eminent fairness. Each of them received vacation benefits based upon their date of hire with the Virginian and Russell’s pension benefits were likewise computed with reference to that date. Further evidence of complete racial fairness appears from the willingness of the Norfolk & Western to enter into the special .implementing agreement in October of 1960 to accommodate these two employees who by virtue thereof became the only two employees of the Norfolk & Western barney yard with guaranteed wages and employment for five years. Upon these undisputed facts, I find it impossible to see how the majority can discern any “continuous discrimination” on the part of the Norfolk & Western in this case, and I submit that the finding of liability against the railway is utterly unjustified.

Finally, I agree with the district court that the accord, satisfaction and release contained in the agreement of October 28, 1960, should be an effective bar to this lawsuit. The plaintiffs have seen fit to accept all of the benefits under that agreement and, as found by the district court, entered upon their employment with the Norfolk & Western fully aware of the effect of the agreement upon their seniority status. Under these circumstances they should not be permitted to institute this action thirteen years la*547ter against the railroad which has scrupulously lived up to its contractual obligations. The majority negotiates this hurdle by quoting from Robinson v. Lorillard Corporation3 that “[t]he rights assured by Title VII are not rights which can be bargained away — either by a union, by an employer or by both acting in concert.” This statement by the court in that case, however, was made in response to Lorillard’s defense that its concededly discriminatory seniority system in operation subsequent to the effective date of Title VII had been adopted under union pressure in the course of its collective bargaining, and I suggest is inapposite to the case at hand. The agreement here in question was not the result of any collective bargaining between the railroad and the union in which Williams and Russell were mere pawns. On the contrary, it was specifically drafted as a solution for their individual problems which had been created by the obstinacy of the employees in the Norfolk & Western barney yard.4

The ultimate irony of the majority opinion is the exculpation of the union from all liability because “as a plaintiff in Rock under its former designation as Local 974, it fought the same discriminatory system of segregated yards which injured Williams and Russell.”5 This observation and holding of the majority utterly disregards the record as well as the charges in the plaintiffs’ complaint. The plain fact is, and the record clearly discloses, that it was solely Local 974 and its black membership which discriminated against Williams and Russell and denied them their seniority. In its preoccupation with the record in Rock, however, the majority has turned this case upside down and reached a result that cannot be justified either on the record or the law. I would affirm the district court.

. It is difficult to reconcile these statements of the majority with the fact that Local 974 (1889), the ally and co-plaintiff of Williams and Russell in Rock, is named and charged as a defendant in the present litigation.

. The Rock case is once again pending before this court on a second appeal involving, among other things, the problems posed by the merger of the seniority rosters of the barney yard and the CT yard into a single seniority roster. United Transportation Union, Local 974, etc. et al. v. Norfolk & Western Railway Co., etc. et al., 532 F.2d 336.

. 444 F.2d at 799.

. The position of the majority on this point appears to be at variance with that of the Fifth Circuit in United States v. Allegheny-Ludium Industries, 517 F.2d 826 (decided August 18, 1975), where the court stated:

“In no respect does footnote 14, or anything else in Gardner-Denver [Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147], support the assertion that an aggrieved employee who freely settles his or her unliquidated demand with the employer or the union may reciprocate by suing the same defendant at a later date on the same cause of action, merely because the employee grows dissatisfied with the payment for which he or she settled. Very frankly, we cannot conceive of how any employment discrimination dispute could ever be resolved outside, or indeed inside, the courtroom, if defendants were forbidden to obtain binding, negotiated settlements.

See also Mungin v. Florida East Coast Railway Company, 318 F.Supp. 720, 735 (D.C.M.D.Fla. 1970), aff’d 441 F.2d 728 (5 Cir. 1971).

. Upon reflection it occurs to me that this exculpation of the union may be more apparent than real. The adjustment of the plaintiffs’ seniority cannot, of course, be implemented in this case, but can be accomplished only in the Rock litigation and, of necessity, will effect a displacement of a substantial number of the parties plaintiff in that case, many of whom were members of Local 974. This provokes some additional thoughts on the practical ramifications of the majority’s disposition of this appeal. Suppose some of the members of the plaintiff class in Rock should be disquieted by reason of the adjustment of the seniority roster and desire to appeal. Assuredly, they could not file an appeal in this case since they are not parties to it. By the same token, if they should pursue an appeal in Rock, would it be appropriate to treat the present case as res judicata on this point? If on the other hand, the two plaintiffs should be dissatisfied with the action of the district judge, should they prosecute another appeal in the present case, or bring Rock to us once again?