Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW SCOTT, District Judge. I. STATEMENT OF THE CASE A. Nature of the Case. This is an action filed by the Attorney General of the United States (“the Government”) under Title VII of the Civil Rights Act of 1964 (“the Act”), 42 U.S.C.A. § 2000e et seq., alleging that the defendants Jacksonville Terminal Company (“the Company”) and sixteen (16) named international labor organizations (the “unions” or the particular union) are engaged in a pattern or practice of resistance to the full enjoyment of the rights of Negroes to equal employment opportunities and that this alleged pattern or practice is of such a nature and is intended to deny Negroes the full exercise of rights secured by Section 703(a), (c), (d) of the Act, 42 U.S.C.A. § 2000e-2(a), (c), (d). B. General Contentions of the Parties. From a review of the complaint, the answer and amendments thereto including affirmative defenses raised by the Company, the pre-trial stipulation filed pursuant to Rule 10(D) of the Rules of this Court (and later admitted into evidence as Joint Exhibit No. 1), the pretrial briefs submitted pursuant to Rule 10(E) (2) of the Rules of this Court, the transcript of the pre-trial conference of January 6-7, 1970, and the arguments and statements of counsel (including the various memoranda in support thereof) during the course of the seven-week trial, the general contentions of the respective parties are clear. The Government contends as follows: (1) The defendant Company is engaged in acts and practices which limit, segregate, classify or otherwise discriminate against its Negro employees in ways which deprive or tend to deprive them of employment opportunities or adversely affect their status as employees because of their race. (2) All of the defendant unions have entered into collective bargaining agreements with the Company, and each such agreement contains provisions which perpetuate, or tend to perpetuate, the effects of certain of the discriminatory acts and practices of the defendant Company. (3) The defendants BRAC and BMWE maintain racially segregated locals which deprive Negro members of employment opportunities and adversely affect their status because of their race. (4) That such acts and practices of the Company and the defendant unions constitute a pattern or practice of resistance to the full enjoyment of the rights of Negroes to equal employment opportunities, and that this pattern or practice is of such nature and is intended to deny the full exercise of the rights secured by Section 703(a), (c) and (d) of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-2(a), (c) and (d). The Company has answered as follows: (1) The Company denies that it is engaged in acts and practices which limit, segregate, classify or otherwise discriminate against its Negro employees in ways which deprive or tend to deprive them of employment opportunities or adversely affect their status as employees because of their race. (2) The Company denies that the collective bargaining agreements it has entered into with the defendant unions contain any provisions which perpetuate or tend to perpetuate the effects of any discriminatory acts and practices. (3) The Company denies that its acts and practices constitute a pattern or practice of resistance to the right of Negroes to the full enjoyment of equal employment opportunities, and that this pattern or practice is of such a nature and is intended to deny the full exercise of the rights secured by Section 703(a), (c) and (d) of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-2(a), (c) and (d). (4) The Company denies each and every allegation contained in paragraphs 7, 9 and 10 of the Govern-' ment’s Complaint. (5) The Company interposed the following affirmative defenses in an amendment to its Answer, filed September 4, 1969: (a) Any preferences, distinctions and differences among company employees with respect to compensation or terms, conditions or privileges of employment result from (a) standards fixed pursuant to bona fide seniority systems; (b) the work content and classifications of positions or operating requirements of the Company; and (c) determinations with respect to (a) and (b), supra, made by Federal boards or agencies pursuant to the Railway Labor Act, 45 U.S.C. § 151 et seq.; furthermore, such preferences, distinctions and differences are not the result of any intention, past or present, to discriminate because of race, color, religion, sex or national origin. (b) Any written or oral tests used by the Company were developed by professional railroad supervisors to measure ability to perform satisfactorily in certain specific job classifications; and such tests, their administration, and action taken upon their results are not designed, intended or used to discriminate because of race, color, religion, sex or national origin (see Section 703(h) of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-2(h)). (c) By virtue of Section 703(j) of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-2(j), the Company is not required to grant, and is prohibited from granting, preferential treatment to any individual or to any group because of the race, color, religion, sex or national origin of such individual or group in order to eliminate any “imbalance.” (6) The Company further submitted the following: (a) As to work done by Negroes, compensation or terms, conditions or privileges of employment are equal to that received for similar work (as done by whites or any others) on other railroads anywhere in the country; (b) The Company gives its Negro employees employment benefits superior to those Negroes receive elsewhere in the Jacksonville, Florida area; and (c) The Company affords its Negro employees employment opportunities and benefits equal or superior to the employment opportunities otherwise available to them outside the Company. (7) The Company also contends that— (a) Evidence of employment acts and practices which occurred prior to July 2, 1965, the effective date of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq., is irrelevant, immaterial and incompetent, and therefore, inadmissible in this action; and (b) The Government has the burden of proving by the preponderance of evidence that defendant intentionally committed specific acts and practices violative of Section 703 of the Act, 42 U.S.C.A. § 2000e-2, subsequent to July 2, 1965, the effective date of Title VII, of such a nature and number as to constitute a “pattern or practice” of racial discrimination such as contemplated by Section 707(a), 42 U.S.C.A. § 2000e-6(a). The defendant unions deny that: (1) the collective bargaining agreements each has entered into with the defendant company contain any provision which constitutes an act or practice proscribed by the Civil Rights Act, or is so intended; (2) such agreements contain any provisions which perpetuate, or tend to perpetuate, the effects of any alleged discriminatory acts or practices of the Company; (3) each is engaged in acts or practices which constitute a pattern or practice of resistance to the full enjoyment of the rights of Negroes to equal employment opportunities secured by the Act or which are intended to deny the Negroes the full exercise of such rights; (4) any provision of any of said collective bargaining agreements in and of itself constitutes an act or practice proscribed by the Act; and (5) any act or practice engaged in by the Company pursuant to, because of, and in compliance with any provision of any of said agreements constitutes an act or practice proscribed by the Act. The defendants BRAG and BMWE also deny that they maintain racially segregated locals in a pattern or practice of resistance to the rights of Negroes to the full enjoyment of any of the rights secured by Section 703(a), (c) and (d) of the Act, and that the pattern or practice is of such a nature to and is intended to deny to Negroes the full enjoyment of rights secured by the Act. C. Pre-trial Proceedings. This action was filed on June 24, 1968, by the Government. During the ensuing 19 months prior to trial, the Government undertook through extensive discovery and investigative procedures the accumulation of facts to support its allegations. The Government filed and served upon the various defendants 15 sets of interrogatories and 10 sets of requests for admissions. Depositions of 11 Company officials and employees and six officers of the unions were taken. Pursuant to a motion to produce, the Government counsel were given access to files of the Company and files of the various union defendants. Copies of thousands of documents found in the files of the various defendants were obtained by the Government. Defendants propounded 6 sets of interrogatories and 2 sets of requests for admissions. In view of the protracted nature of this litigation and the lengthy discovery activity, two pre-trial conferences and three other hearings were conducted by the Court prior to trial. D. Final Pre-trial Conference. On January 6-7, 1970, the second and final pre-trial conference was held in Jacksonville. In accordance with the provisions of local Rule 10(G) (1), the Court incorporated the pre-trial stipulation into the conference transcript and treated the transcript as a pre-trial order. The Court ruled on a number of motions and objections raised and argued by counsel, including: (1) whether the Government has the burden of proving by the preponderance of evidence that the defendants intentionally committed specific acts and practices violative of Section 703 subsequent to July 2, 1965, such as to constitute a “pattern or practice” of racial discrimination within the compass of the proscriptions of Section 707(a), and (2) whether evidence of employment acts and practices which occurred prior to July 2, 1965, the effective date of Title VII of the Act, would be inadmissible as irrelevant, immaterial and incompetent to constitute or to prove post-Act racial discrimination. The Government repeatedly assured the Court that it would prove specific post-Act acts of racial discrimination (transcript of pre-trial conference, pp. 40-41, 63, 77, 81, 163-164, 256; hereinafter “T”) as required by Title VII. The Court, adopting Government counsels’ own conclusion (T. 164), held that the question as to evidence of matters occurring prior to July 2, 1965 “is moot, at least for the time being, because the Government advises that they intend to prove specific acts and practices violative of Section 703 of the Act.” (T. 173) The Court later held: “You [Government counsel] volunteered to prove specific acts, so the Court takes you up on that and you’ll have to prove specific acts * * * ” There was no dispute that the proper standard of proof was a preponderance of the evidence as to acts and practices of the defendants alleged to be violative of the Act. The Court, with respect to the admissibility of pre-Act acts and practices and evidence thereof, explained (T. 269-70): “[Pre-Act] evidence of employment acts and practices will be admissible provided it is connected up with testimony that shows the employment acts and practices, which apparently the Government thinks that they will be able to prove are discriminatory, continued after July 2, 1965; and if evidence isn’t forthcoming to show that those employment acts and practices that the Government is able to prove prior to July 2, 1965, continued after the effective date of the Act and established a pattern or practice continuing after the effective date of the Act, then the Court would strike the testimony at the conclusion of the Government’s case. “But initially, it will be admissible on the Government’s assertion that it will be connected up with testimony to show the practices were in effect after July 2, 1965; is that correct, Mr. McBroom [Government counsel] ? “Mr. McBroom: That’s correct, Your Honor.” The Court held, in short, that the Government would be required to prove specific post-Act acts and practices of racial discrimination; and, in order to do so, the Government would be permitted, subject to objection, to introduce evidence of pre-Act matters to explain alleged post-Act discriminatory employment acts or practices. (T. 273-276). The Court has carefully considered and evaluated all of the evidence relating to alleged racial discrimination prior to and subsequent to the effective date of the Act. The Court finds that the Government failed to prove racially diseriminatory acts and practices prior to or after the effective date of the Act. The Court also considered during the pre-trial hearing Government contentions with respect to possible Company liability for backpay to certain Negro employees who allegedly were not paid at overtime rates for certain work performed. The Court did not exclude such issue even though there was no allegation in the Government’s Complaint with respect thereto, and even though it had doubtful significance as to the issues in the case. E. Trial. The trial began January 19, 1970, and consumed 27 working days over a seven-week period. The Court heard testimony of 42 witnesses, in person or by deposition, during the Government’s case-in-chief, from 19 witnesses called by defendants during presentation of their defense, six witnesses called by the Government on rebuttal, and one Company witness called in surrebuttal. II. GENERAL FINDINGS 1. The Company is incorporated under the laws of the State of Florida and is engaged in the operation of an interstate railroad pursuant to the Interstate Commerce Act, 49 U.S.C. § 1 et seq. The Company is jointly owned by three railroads: Seaboard Coast Line Railroad Company (formerly the Seaboard Air Line Railway Company and the Atlantic Coast Line Railroad Company) which owns 50 percent of the corporate stock and the Southern Railway Company and Florida East Coast Railway Company each holding 25 percent of the stock. These owning railroads elect a Board of Directors which establishes general policy, but leaves the day-to-day operation to a President and General Manager, who is the Chief Executive Officer of the Company. The Company owns and operates the railroad terminal in Jacksonville, handling passenger service, freight interchange, United States Mail distribution, preventive and corrective maintenance on Seaboard Coast Line rolling stock (and rolling stock of such other railroads as may from time-to-time be required), and such other matters as are necessary for the safe, economical and efficient operation of the terminal facility in all of its functions. The Company has established, and operates through, various departments common in railroad operations. Positions in each such department are similar to those found in comparable departments of any other railroad engaged in interstate commerce as authorized under the Interstate Commerce Act. Such positions range from engineer and hostler helper in engine service; to conductor and switchman in train service; electrician, machinist, carmen and their helpers and apprentices, in the so-called shopcrafts work; carpenter, painter, welder, and their helpers in maintenance of way; accountants, clerks, redcaps, baggage and mail supervisors and their helpers in various departments; and general laborers throughout all departments, to name but a few job classifications common to the Company and to the railroad industry. 2. The 16 union defendants herein are standard railway labor organizations (national or international), each of which is certified by the National Mediation Board as the collective bargaining representative of a craft or class of employees separately represented on the property of the Company and subject to the obligations and duties imposed by the provisions of the Railway Labor Act, 45 U.S.C. § 151 et seq. All employees (other than officers and appointed officials) of the Company are represented by one of the union defendants in the negotiation and administration of rules relating to their employment. 3. The Company and each of the defendant unions, pursuant to the provisions of the Railway Labor Act, have entered into collective bargaining agreements, copies of which are contained in Government Exhibit 8. In addition, the Company and the respective unions are parties to certain other nationally negotiated agreements covering, inter alia, wages, fringe benefits, and job protection. 4. As of August 6, 1969, the Company had approximately 532 employees, a decline from a 1953 work force of approximately 1,200 employees. Of these 532 employees some 275 were white and some 257 were Negro. Approximately 50 of the 532 employees did not work full time; rather, they filled vacancies or temporary assignments as needed. The foregoing figures do not reflect employees on leave of absence or furloughed employees who did not work actively. The Company’s annual passenger train volume has decreased from 35,000 in 1944 to 10,000 in 1969; annual operating expenses have dropped from $4.9 million in 1960 to $2.3 million in 1969. Losses were $5.5 million in 1960 and $2.9 million in 1961. The Company, as a result of declining volume of operations, and to a certain extent as a result of mechanization, has substantially contracted its work force. As a corollary of the declining work force, job vacancies and promotional opportunities have in general been minimal while reductions in force have occurred regularly. This contraction in the Company’s business and corresponding reduction in manpower is not unlike that experienced by the railroads nationwide. 5. Having carefully observed the appearance and demeanor of each of the witnesses, appraised the credibility, nature and substance of their testimony and evaluated the materiality and relevancy of such testimony, having accorded proper weight to the contents of each of the evidentiary exhibits (in its consideration of all issues) and having been informed upon and considered persuasive prior judicial articulation, the Court finds that the Company’s practices and policies regarding initial job assignment and promotions, as well as other employment practices and the effectuation and implementation of the provisions of the Company-union collective bargaining agreements, have at all material times been applied equally and without regard to race as to each and every employee. There has been no showing that any practice or policy has been established or maintained for the purposes of effecting or perpetuating any racial discrimination in employment. 6. The Court received into evidence, subject to objections of defendants, 38 Government exhibits and 19 defendants’ exhibits, one Joint Exhibit (the pre-trial stipulation), and one exhibit of the Court. In addition, the Court heard extensive oral argument on defendant’s motions to dismiss, pursuant to Rule 41(b), made at the close of the Government’s case and further argument at the close of all the evidence. The Court, on March 4, 1970, announced the following conclusions: “[T]he Court finds from an evaluation and consideration of all the evidence in this case, that the Government has completely failed to prove its case against these defendants or any of them as to each and every one of the issues in this case by a preponderance of the evidence. “The Court also finds from a consideration of all the evidence, that the defendants and each of them have completely proved by a preponderance of all the evidence that the Government is not entitled to prevail on any of the issues raised by the Complaint and answers of the several defendants, including the affirmative defenses stated therein. “The evidence has also shown that the Government is not entitled under the evidence and the applicable law, to the injunctions, either temporary or permanent, as prayed for in the Complaint.” These conclusions relate to all of the allegations, claims, contentions and issues whether raised by the pleadings, the pre-trial stipulation or during trial, and they are hereby reiterated. III. FINDINGS AS TO THE DEFENDANT COMPANY A. General. 1. The Court heard testimony with respect to each person hired or promoted since the effective date of the Act. The Court is impressed with the honest, good faith efforts of the Company and all of its officers and department heads in achieving compliance with the mandates of the Act and provisions of Executive Orders dealing with equal employment opportunity. The Court finds that, based on all the evidence before it, the Company sought, with respect to each and every person hired or promoted since the effective date of the Act, to obtain the best qualified person then available for the job (including some who also possessed seniority rights entitling them to the job). The Court finds that the Government failed to prove that any Negro not hired or promoted possessed qualifications equal to or greater than those possessed by persons hired or promoted. The Court finds no qualified Negro was denied promotion because of his race. 2(a). This Court heard the testimony of four officers of the railroads which own the Company and elect a majority of its Board of Directors, including the President of the Seaboard Coast Line Railroad Company. Their position was clear: the Company was instructed to comply with the letter and spirit of Title YII and to insure that its personnel policies were racially non-discriminatory. In addition, the Company’s President and General Manager, who as Chief Executive Officer is principally responsible for establishing and maintaining Company policy and implementing the directives of the owner lines, testified credibly that he had worked in various supervisory and executive capacities for 30 years with the Alton & Southern Railway Company, and that he had never practiced racial discrimination and had no intention of engaging in racial discrimination when he came to the Company in February, 1967. The Company’s Department heads and all employees knew and adhered to his position as the result of conferences and memoranda (some of which are evidentiary exhibits). Likewise, the Court heard the testimony of the Company’s Manager of Personnel and Claims who appeared on the stand four separate times during the presentation of the Government’s case and who was subjected to thorough and sifting examination on all aspects of the Company’s personnel practices and policies. That officer established the Company’s intent to comply fully with the Act. He testified as to every personnel action taken since the effective date of the Act and showed that the Company took all such actions solely on the basis of Company needs and individual qualifications. Similarly, department heads and key supervisory personnel testified forthrightly concerning all actions taken in their respective areas of responsibility. Moreover, various labor representatives testified that they and their respective organizations provided fair and equal representation for all members of their crafts, regardless of race. The testimony of the foregoing witnesses fully establishes that the Company has at all material times intended to comply with the Act and in fact has so complied. 2(b). The above testimony is supported by the actions of the Company. All persons, Negroes included, have been informed that the Company is an equal opportunity employer, and its employment policies have been communicated to the local colleges which have large Negro student bodies and to the Jacksonville Urban League. Beginning in 1961 or 1962, notices that the Company is an equal opportunity employer were posted on bulletin boards in all departments at the Company, and those or similar notices have been posted on such bulletin boards continuously since. On June 24, 1965, all of the Company’s department heads were informed by memorandum from the President and General Manager that the Company intended to comply with the Act (which was then about to become effective as to the Company) and that the Company would continue its then existing practice of affording equal employment opportunity to all. Moreover, Negro employees have been promoted into the better paying jobs, although the Company’s state of contraction has reduced the available opportunity for promotion for all employees. 2(c) The Deputy Contracts Compliance Officer of the Post Office Department advised the Company on July 1, 1965 (one day before the effective date of the Act) that the Company’s actions to “afford equal employment opportunity to its employees without regard to race, creed, color or national origin” had resolved outstanding complaints. The Company was also advised “that the Post Office Department will continue to evaluate the progress of the Company in achieving full compliance with the Executive orders on equal employment opportunity.” The Company has cooperated with the Federal agencies responsible for effecting equal employment opportunity and no such agency (nor any person) has lodged any complaint with the Company since July 1, 1965. 2(d) The Company is a Federal contractor subject to the requirements of Executive Order 11246 and regulations of the Secretary of Labor adopted pursuant thereto. In May, 1968, the Secretary adopted a requirement (Fed.Register, Vol. 33, pp. 7804-12, May 28, 1968) that all contractors formulate, file and adhere to “affirmative action compliance programs” and undertake thereunder affirmative action with respect to its hiring practices, recruitment, testing, upgrading, transferring and promotion, concentrating upon utilization of minority group personnel, and make reports to its Contract Compliance Officer with respect thereto. The requirements of an affirmative action program, which is directed toward increased utilization of minority group personnel in employment, are broader and more sweeping than simple compliance with the Civil Rights Act. In October, 1968, the Company formulated and filed with the Post Office Department, Deputy Contract Compliance Officer, the required affirmative action compliance program. The Company pointed out that it had notified and would continue periodically to notify sources of employee recruitment that it is an equal opportunity employer and solicits referral of all qualified applicants without regard to race; that it had posted notices required or requested by all Federal agencies of its status as an equal opportunity employer; that it has issued to its supervisory and management personnel information as to the requirements of the civil rights laws and of the Company’s affirmative policy of compliance with respect thereto; that it had periodically reviewed with its staff and employees its equal opportunity and affirmative compliance programs; that it had notified all labor organizations of its policy; that it had completely eliminated segregation and discrimination in the use of toilets, wash rooms, locker rooms, drinking fountains, eating establishments, time clocks, and other Company provided facilities; that it had cooperated with the Contracts Compliance Officer of the Post Office Department fully and would continue to do so; that it had otherwise taken affirmative steps to assure equal opportunity in employment at the Company; and that it was then establishing upon the property of the Company an equal opportunity board, consisting of management and employee personnel, white and Negro, to monitor and review the Company’s affirmative compliance program, to make recommendations and suggestions and to assure that the Company is better able to implement its policy of promoting from within its ranks wherever possible. This program was made fully known to the employees of the Company. The Company’s action as summarized in the preceding paragraph and its affirmative action in seeking increased and enhanced utilization of minority group employees make it plain that the Company does not have an intention to violate the Civil Rights Act nor to establish or maintain any patterns, practices or acts of racial discrimination. 2(e). On the basis of all the evidence, including that discussed above and including the Court’s observation of the appearance and demeanor of the witnesses and their high standing in the community (as well as the high standing of the Company), the Court finds that the Company has not intentionally engaged in any act or practice constituting racial discrimination in violation of Title VII. The Company has exhibited by its words and actions intent to comply with the Act and applicable fair employment practice regulations. The Court finds that the Government has failed to show any intent by the Company to engage in racial discrimination in employment or any factual basis from which to infer such intent. 3. With respect to employment practices in the Accounting sub-department, the Ticket Department and the Signal Department, no evidence of racially discriminatory practices was offered and no finding of such practices in those Departments can be made. 4(a). Wage rates for Company employees are set by carrier-union agreements negotiated on a nationwide basis. Company employees in the lower paying jobs earn substantially more than the national minimum wage and the wage levels prevailing elsewhere in the Jacksonville area. Wage rates reflect the level of skills required of incumbents in each job (both nationally and, ex ma-china, at the Company). The greater the skills and qualifications of an employee in his job, the more money he is assured and paid under the nationally-negotiated agreements. Negroes and whites performing work in the same job classifications receive the same pay. As pointed out below, there are no artificial or superficial job classifications at the Company. The Court accordingly finds that whites and Negroes similarly situated are treated in the same manner with respect to pay. 4(b). The only attempts to show otherwise were directed at the payment of straight time rates for overtime worked and the payment of the Carman’s rate to Carmen who blank or cut steam hose while Carman Helpers receive the Helper’s rate therefor. The record shows that both whites and Negroes were paid (in connection with some vacation relief work) straight time rates for overtime worked. The practice was completely lacking in any racial motivation or overtones, and it was terminated in mid-1969 after union complaints (according to the admission of the only complaining witness on this subject). With respect to blanking and cutting steam hose, the defendants’ expert, Mr. Wolfe, testified that the 1956 Company-union agreement simply permits both Carmen and Carman Helpers to perform an unskilled service on passenger cars, which does not appear in the Carmen’s classification of work rule, depending on who is available to do the work at the time it needs to be performed. Moreover, he noted that there is provision in the classification of work rules for Carmen Helpers for them to repair steam and air house. This provision, according to Mr. Wolfe, is the closest to an express mention of the subject of uncoupling hose; and it would indicate that if a Helper can repair steam hose, the disconnection of such hose is within his work classification. More to the point, however, there was no racial motivation or overtone underlying the Company-union agreement to classify this as work capable of being performed by Carmen or Helpers depending upon who may be available at a particular time and in not establishing special pay scales for the work. 5. There are 32 locker, shower and/or toilet facilities on the Company property. There is no evidence that the Company has at any material time required, assigned or provided for the use of such facilities on the basis of race. Rather it is clear that each such facility is utilized by employees working in the area proximate to it and generally on a craft, class or job classification basis. Many such facilities are used by both Negroes and whites. The Court finds that employment opportunities have not been and are not affected by the use of such facilities. 6. Each department, sub-department, craft, class and job classification at the Company serves a functional purpose separate and apart from every other department, sub-department, craft, class and job classification. Moreover, each such classification is important to the Company, its employees and the traveling public in view of the factors of safety, economy and efficiency which are inherent therein. The record is devoid of any proof that race was a factor in the organization of any department or sub-department, the selection of employees therein, the creation and maintenance of the craft and class system of seniority or the classification of jobs. To the contrary, the record shows that the departments, sub-departments, crafts, classes and job classifications have been created for functional, supervisory and business purposes directly related to the safety, efficiency and economy of operation of the Company. There are no artificial or superficial job classifications at the Company and there are no “Negro jobs” or “white jobs” at the Company. There is no evidence that any job classification was created or maintained with the intent to discriminate against Negroes or operates to the detriment of Negroes because of their race. The departments, sub-departments, crafts, classes and job classifications at the Company are not unique to this Company. They are substantially the same as those existing throughout the railroad industry. 7(a). The only formal training programs offered by the Company have been apprenticeship programs in the mechanical crafts. These programs are not currently in use. The state of contraction of the operations of the Company and its continuing losses have affected the need for, and ability to implement, such programs. There has been no showing that Negroes have been denied employment as apprentices because of their race. There is evidence, moreover, that Negro applicants for other jobs have been informed of openings in apprentice positions and declined employment therein. 7(b). There has been no showing that age limitations imposed until the passage of the Age Discrimination Act of 1968, 29 U.S.C. § 621 et seq., were implemented, designed or continued with the intent to deprive Negro employees of the opportunity to become apprentices because of their race. 8(a). The record reflects that on-the-job training is available in some of the jobs at the Company. There is no proof, however, that whites and Negroes have been treated disparately with respect to opportunities to train on the job. Rather, the record shows that certain basic qualifications are prerequisites to obtaining all jobs and that persons who do not possess these qualifications (whether white or Negro) are not employed in those jobs. There has been no showing that on-the-job training has been applied to the benefit of any employee or not applied to the detriment of any employee because of race. Rather, the record is clear that on-the-job training at the Company is simply a means by which employees qualified in certain respects become oriented to their new environment. 8(b). The record shows that only a few jobs at the Company provide training for other jobs. It is in these limited number of situations that service in one job accrues seniority rights to bid on a better job, a right given to the employee because of the certainty that he will be trained for the better job by service in the lower-rated job. In this respect, the Court notes that the record shows these practices of the Company are not racially motivated, are predicated upon economy, efficiency and safety of operation and are like the practices of railroads nationwide which are administered without regard to the racial components of the various labor forces. 9. No issue with respect to the failure or refusal to hire Negroes is involved herein. The record shows that 257 of the Company’s 532 employees (as of August 6,1969) were Negro. The record does not show that any person has been denied employment by the Company because of his or her race. 10. The central argument of the Government has involved the initial job assignments and advancement opportunities of Negro employees, and, more specifically, whether the Company’s policies and practices with respect thereto were, at any material time, intentionally created, designed or continued for racially discriminatory purposes or effect. B. Initial Job Assignment. 1. Initial job assignments of new employees have been governed by the proper needs of the Company (including the existence of job vacancies and the skills required of an incumbent in each such job) and the qualifications of the prospective employee. The Company has employed the best qualified person available at the time of a job vacancy. Race has not been shown to be a factor in initial job assignment. There has been no showing of disparate treatment of whites and Negroes possessing equal or like qualifications. 2. The record contains uncontradicted testimony that all applicants for jobs were informed of all vacancies for which they might have possessed the requisite qualifications and were considered therefor upon the basis of qualifications alone. The Court finds that such is and has been the practice and policy of the Company and that no employee or applicant has been shown to have been assigned to any job because of his race. 3. In making this finding, the Court has taken cognizance of the affirmative responses of five of the 25 Negro witnesses to the question whether they were “assigned” to the first job each obtained at the Company (see paragraph 4, text, and footnotes 20 and 37, infra). The Court has also considered the fact that personnel files for these five Negroes indicate they received the job they applied for. Moreover, not one of these witnesses voiced any complaint about being “assigned” to any particular job, which of course they could have accepted or rejected. 4. Ten Negro employees in the Company’s Baggage and Mail Department were called by the Government but only one suggested some arbitrary initial job assignment (as a Group 3 porter). That was Roderick Gray who went to the Company for a job at the instance of his father, Henry Young, who worked there as a Separator and who signed Gray’s minor’s release for work as a porter. Mr. Jones, General Baggage and Mail Agent, testified that Roderick Gray was given a job as Porter at the behest of his father who wanted some way to “keep him off the streets.” The Court concludes from the demeanor and testimony of the witnesses and the content of pertinent exhibits that Mr. Gray actively sought the job he received and had no qualifications for any other job. There is no credible evidence that he or any other Negroes hired into Group 3 jobs were assigned to jobs because of their race. 5. Most of the Company’s Negro employees hold jobs which are among the lower paying jobs at the Company. That fact alone cannot serve as a basis for a finding that the Company has racially discriminated in its employment practices. To the contrary, the record establishes that Negro employees have been employed in the best jobs available at the time of employment and for which they were qualified. Moreover, the record shows that railroads throughout the nation draw their laborers and service workers (the categories of jobs within which fit the railroad crafts and classes which the Government labels as “Negro jobs”) from the manpower pool available. Several witnesses testified in this case that the manpower pool for these classes of workers in Jacksonville is predominantly Negro. The Court concludes that any “imbalance” in racial composition of respective jobs at the Company stems from the labor pool available, and from which the Company drew, and was not the result of any racial discrimination by the Company. C. Advancement, Promotion and Transfer. 1. The advancement, transfer and promotion of employees have been based upon the needs of the Company (including the existence of job vacancies and the skills required of an incumbent in each such job) and the qualifications of employees seeking the job, with consideration first being given to employees who may possess seniority entitling them to bid on vacant jobs. Race has not been shown to be a factor. There has been no showing of disparate treatment of whites and Negroes similarly situated. 2. The record does not show that any employee has been denied, because of his race, the opportunity to seek a better job through advancement, promotion or transfer, or that any person has, because of his race, been denied a better job. 3. The Company, through its officers and department heads, periodically reviews and considers the qualifications of its employees (Negro and white) to determine which employees can be advantageously utilized in better jobs; the Company is not a large organization, and the officers and department heads generally know the qualifications and abilities and changes therein of their employees. There have been relatively few job vacancies during the time material to the issues here and each such vacancy was filled, after consideration of the qualifications of employees (Negro and white) within the Company, by the best qualified person available with consideration being given to the rights of any employees possessing seniority entitling them, by contract to bid upon the vacant job. 4. The Court notes the admission of the Government that it made no attempt to determine the qualifications of any white employee hired or promoted by the Company since July 2, 1965. The Government asserts that no such effort was necessary in view of its contention that Negroes allegedly were not even considered by the Company for the jobs to which the white employees were hired or promoted. The Government failed to produce evidence to support its allegation, and it was content to advance the argument that the absence of Negroes in some of the skilled jobs in and of itself proved the contention that Negroes were not considered for promotion and transfer. Reliance upon a simple head count of Negroes verus white employees cannot satisfy the requirement of probative evidence to support a contention basic to the Government’s case. Fundamentally, the Government rests its case upon an assumption that Negro employees were equally well-equipped as to skills and other qualifications as white employees but were treated differently and discriminated against solely because of their race. The Government’s failure or refusal to undertake a comparative evaluation of the entitlement to job vacancies of competing Negroes and whites, upon the basis of individual qualifications, leaves the record without probative evidence to support a critical facet of the Government’s case. Government counsel stated that it would prove post-Act discriminatory acts and practices. Yet proof that whites were hired into jobs despite qualifications less or equal to those of competing Negroes was not produced. In converse fashion, and supporting the Court’s finding that the Government has failed to support its basic contentions, is the evidence adduced by the competent Company witnesses who passed upon and approved employment, promotion and transfer of the employees hired, promoted or transferred since July 2, 1965, in which the qualifications of each such employee were described. The record established that each employee hired, promoted or transferred possessed the requisite qualifications and supports the Company’s position that the best qualified person was hired, promoted or transferred to job vacancies.* The relative qualifications of white and Negro employees who may have been competing applicants for specific jobs at specific times would be necessary to establish that Negro employees possessed equal or greater qualifications but were not considered on account of their race while the white competitors were hired, promoted or transferred because of the racial factor. This Court cannot engage in conjecture and speculation. The record does not show that any qualified Negro has been denied promotion or transfer because of his race or that any qualified Negro has not been appropriately considered therefor. If qualified Negro employees were overlooked in favor of less qualified white employees, that fact could have been shown and established by probative evidence. The only probative evidence with respect to relative qualification of white and Negro employees was supplied by the Company, not the Government. That evidence fully refuted the Government’s contention that Negroes had “not even been considered” and established that all personnel actions material hereto were controlled by the appropriate business needs of the Company and the qualifications of the individual or competing applicants. The record details the qualifications of the persons hired or promoted since the effective date of the Act and shows they are of such a nature as to establish the existence of a pattern of hiring and promoting the best qualified person available at the time for the job opening in question. Race has not been a factor in any Company personnel action material to this case. The Court notes that its finding that the Government failed to establish one of its basic contentions (in not presenting evidence on qualifications) and the finding that the Company’s showing that the best qualified persons were hired or promoted requires judgment in favor of the defendants. However, even if it were otherwise and the aforesaid findings were not made, the Court’s other findings would require judgment for the defendants. 5. The Negro employees of the Company have had the opportunity, equally with white employees, to transfer from one job to any other job at the Company subject only to the existence of vacancies in such jobs and their qualifications therefor. 6. The Company has no rigid or mandatory “entry level” jobs or “lines of progression.” Any job can be and has been an “entry level” job in the sense that a job applicant or an employee desiring transfer within the Company can, subject to job availability, be hired into or transferred to any job for which he possesses the requisite qualifications. Similarly, there are no jobs for which there is required, as a condition precedent, service in a lower job classification at the Company. 7(a). The Company has always posted bulletins concerning job openings in accordance with the particular provisions of the applicable collective bargaining agreement. Those provisions generally dictate where the notice is to be posted (either in a bulletin book or on a bulletin board), what the notice must state (generally a description of the particular job, the pay rate and the work schedule, as well as other information called for by the applicable contract) and how long the notice should remain posted (usually from five to ten days). The contracts require only that such bulletins be posted to the craft or class of employees entitled to exercise seniority rights with respect thereto and they are the particular employees possessing contract rights to bid on the new position or vacancy. Defendant’s expert, Mr. Wolfe, testified that the Company’s practices with respect to bulletining job openings were in accordance with the Company’s contracts and that those provisions were consistent with those found in the contracts of other railroads throughout the Nation. Additionally, he testified that the contract bulletin requirements, including the fact that notices are posted only to those employees entitled to exercise seniority rights, originated with the standardized provisions of General Order No. 27 and the decisions of the United States Railroad Labor Board. That evidence is undisputed. 7(b). In addition to complying with bulletining requirements of the respective contracts, the Company unilaterally adopted on March 18, 1969, a policy of posting notices of any job opening on all bulletin boards and in all bulletin books. (Defendants’ expert, commenting on company-wide bulletining, testified that, while such a practice might be feasible on a small property like the Company, it would cause chaos on a trunk line railroad.) 7(e). On the basis of the foregoing, the Court finds that there is no evidence that the practices of the Company with respect to bulletining were in any way intended, adopted or maintained (either before or after March 18, 1969) to deny or deprive any Negro of any job opportunity because of his race, or that such practices in any way adversely affected or affect the job opportunities of any Negro because of his race. 8. Tests have been used by the Company in connection with the filling of Group 1 jobs in its Baggage and Mail Department, Mechanical Department (shopcraft) apprenticeships and engine service jobs. The record shows that the Personnel Test in the Baggage and Mail Department is the only one given by the Company at any material time. 9. The record contains no complaint with respect to the apprenticeship and engine service tests; no allegation is made that anyone has suffered because of their use; and the record shows they are in the form in use throughout the railroad industry. 10. The test given by the Baggage and Mail Department was made an issue, but the qualifications measured by the test are those required for incumbents in the jobs for which tested. The test relates to actual job requirements and was designed by professional railroad personnel. The Government has failed to prove that the test was designed, created, implemented or administered with the intent to discriminate based on race. The record shows that it was developed to screen employees to determine who might possess the clerical qualifications necessary for Group 1 job classifications. Test scores were but one of a number of factors considered in determining which employees might be qualified for work in Group 1 jobs. 11. The Government presented a Dr. Barrett who was critical of how the Baggage and Mail test might be administered or graded, but the record contains no complaint from anyone on those points, and Dr. Barrett pointed to no instance of faulty administration or grading even though all test papers and grades were available to him. He also said the test was not “professionally developed” but he later admitted he was not qualified to give such an opinion. Finally, he criticized the work of Dr. William Buel, the industrial psychologist, who had, on behalf of the Company, validated the test as being properly and appropriately job related. Dr. Buel testified later and effectively defended the results of his validation study. Upon the basis of all the evidence, and upon observation of the witnesses and their demeanor and forthrightness, the Court concludes that the Baggage and Mail test (i) is appropriate for the purposes used, (ii) was not racially designed or inspired, (iii) is not intended to result in any racial discrimination and does not so result, and (iv) no one has suffered any diminution of job opportunity because thereof. 12(a). The record shows that 95 percent of the mail entering or leaving the State of Florida is routed through the Baggage and Mail Department. Extensive paperwork and record keeping are required in connection with the handling of the mail, and the Company’s revenue is dependent upon complete and accurate record keeping. The General Baggage and Mail Agent testified that 80 to 90 percent of the productive time of the Assistant Foremen and Foremen is spent in gathering data, making computations and completing various forms and reports. The Government called in rebuttal two witnesses who had worked as Foremen and who testified that from 25 minutes to three hours a day are required in clerical or “pencil” work by a loading or unloading Foreman. Each testified, however, that his entire working day was spent in the performance of duties listed in Rule 2(a) of the BRAC Agreement (duties performed by employees holding Group 1 jobs). In describing the nature of their work, moreover, each concentrated on the compilation of data and completion of forms. Government Exhibit 31 contains job descriptions which show that the burden of the work of Foremen and Assistant Foremen is clerical. Based upon its review of the evidence and its view of the operations of the Baggage and Mail Department, the Court concludes that the general nature of the work of the Foremen and Assistant Foremen is clerical, that a majority of the time of persons holding these jobs is spent in gathering data and completing various reports, that 80 to 90 percent of the productive time of these persons is spent performing these duties and that their value to the Company lies in the performance of these clerical duties. 12(b). The Baggage and Mail Department jobs which require clerical skills are classified by virtue of the requirements of the jobs as Group 1 jobs. Those jobs not requiring any particular skill (generally laboring jobs) are classified as Group 3 jobs. All Baggage and Mail Department employees fall within one of these two groups or classes. The classification of jobs in this manner is based on the different skills required in the jobs and is not motivated by racial considerations and does not effect any racial discrimination. Most of the Group 3 employees are Negro and most of the Group 1 employees are white. There are, however, and have been since at least 1962, white employeés in Group 3 and Negro employees in Group l. Plaintiff failed to prove that any job vacancy in Group 1 (which pays better than a Group 3 job) was filled by an employee possessing less qualifications than any Negro employee in Group 3. The record shows that every person hired, advanced or transferred into a Group 1 job was the best qualified person then available for the job. Finally, the record does not show that any Group 3 employee has been denied a Group 1 job because of his race. 13. The Agreement between the Company and the BRAC provided in Rule 4, prior to amendment on November 21, 1962: “Employees covered by these rules shall be in line for promotion. Promotion shall be based on seniority, fitness and ability; fitness and ability being sufficient, seniority shall prevail except, however, that this provision shall not apply to excepted positions or to paragraph (k) of Rule 2.” (emphasis supplied). The reference to paragraph (4) of Rule 2 is to Group 3 employees. The underlined portion of that Rule was stricken by amendment of November 21, 1962, and the Government argued that, prior thereto, the Rule operated as a bar to the promotion of Group 3 employees. It is clear from a reading of the BRAC Agreement as a whole, however, that Rule 4 was not intended to bar promotion of Group 3 employees. (In fact, Rule 3 of the Agreement specifically provides that Group 3 employees who are advanced to Group 1 retain their seniority in Group 3 for force reduction purposes; such a provision is inconsistent with any theory that Rule 4 barred advancement from Group 3 to Group 1). The pre-1962 Rule simply provided that seniority in Group 3 did not establish a contract right to bid and be considered for Group 1 jobs. Moreover, the record shows that the absence of such seniority rights is grounded in the functional differences between the skills (clerical as opposed to non-clerical work) which are required in jobs falling within the two groups. The name of the labor organization itself reflects the wide range of skills and classes of labor of the employees represented. More significantly, however, the record shows that it is the established practice throughout the railroad industry not to allow bidding rights to employees seeking to transfer between crafts, classes or jobs requiring unrelated skills. It is also significant that such rules apply similarly in areas where white employees hold jobs in the lower classifications. In the final analysis, however, the issue was mooted by the 1962 clarifying amendment. The Government failed to prove any qualified Negro was denied advancement because of Rule 4 prior to its amendment, and it was un-, able to establish any racial discrimination resulting from Rule 4 prior to its amendment, and a fortiori there has been and could be no continuing racially discriminatory effect. The Court concludes that the BRAC Agreement was not intended to, and has not, resulted in racially discriminatory effects as to any employee at any material time. 14. The Baggage and Mail Department operates three shifts daily, seven days a week. In order to assure that the manpower needs of the Department are met at all times, an extra board is maintained from which Group 3 mail handlers are called to work in any of the mail handling jobs for which there is, at that time, a need for help. No extra board is maintained for Group 1 jobs. The more limited Group 1 requirements are met by hiring employees for irregular work and not assigning them to regular jobs. Bulletins announcing these job openings are not posted because the Company would then be compelled to specify a job, hours and off days and to work (or at least pay) the bidding employee whether needed or not. As a practical matter, at least three Negro Group 3 employees obtained their initial Group 1 experience by filling in on Group 1 jobs on an irregular basis without regular assignment, and there is no showing that the procedure was designed, created or maintained with the intent to discriminate based on race or that it operated to deny Negro Group 3 employees promotion opportunities. 15. By a bulletin dated April 4, 1967, all employees of the Baggage and Mail Department were informed of the Company’s need for clerical applicants. The notice indicated that the general qualifications included typing, simple mathematics, clerical training sufficient to compile and maintain reports, good character, dependable and efficient performance, sound judgment and mental and physical fitness sufficient eventually to qualify as a supervisor of mail handling-operations. The notice stated that Baggage and Mail Department employees possessing equal or higher qualifications would be given preference over non-Baggage and Mail employees and that those interested should contact specified persons for interview and written examinations. Most of the' Group 3 Negro employees in the Baggage and Mail Department do not possess typing ability and do not have education or work experience backgrounds which include mathematics or clerical training. The notice fairly indicated the general requirements for Group 1 jobs, and after being encouraged by management personnel to do so, a number of Group 3 employees were interviewed and tested. The Court finds that the April 4, 1967, notice was not designed, promulgated or posted with the intent to mislead or discourage Negro employees from seeking Group 1 jobs, but was in fact designed to determine who among the Group 3 employees might possess qualifications which had escaped the observations of Company officials. Similarly, the notice was intended to encourage those possessing such qualifications to make their qualifications known, and also to permit management to find employees who should be considered for future advancement. 16(a). With respect to the Purchasing Department, Nathaniel Sears, a Negro Group 3 employee, testified that he had sought promotion to a Group 1 (Stockman’s) job in 1967. The record shows there are two Stockman’s jobs, one of which required typing, and that the job not requiring typing became vavant in 1967. That job was then filled by a Group 1 employee (J. W. Griffin) who previously held the other Stock-man’s job and who held seniority rights entitling him to bid on the vacant job. Thus, the Stockman’s job remaining vacant was the one which required typing. Mr. Sears did not apply for it after being told that typing was a requirement, since he could not type.