Full opinion text
DYER, Circuit Judge: Once again Jacksonville Terminal Co. has accepted a challenger’s gauntlet and renewed battle in this interminable litigation involving management and employees. Surprising, however, and contrary to previous experience in this Court, the Terminal now occupies a single argumentative featherbed with several Union antagonists. This uneasy union-management mesalliance has been necessitated by the fact that a new adversary has appeared in the field: the United States has charged the Terminal and certain Unions with violating Title VII of the Civil Rights Act of 1964. After a lengthy trial, the District Court rejected the Government’s contentions, drawing the battle-lines for this appeal. We affirm in part, reverse in part, and remand. The Attorney General filed a § 707 complaint against the Terminal and the above-noted labor organizations on June 24, 1968. The Government alleged that the Terminal continued to engage in specified racially discriminatory practices; that the Unions have negotiated collective bargaining agreements which tend to perpetuate the effects of these practices; and that the BRAC, the BNWE, and the BRCA maintain segregated locals. The complainant sought injunctive relief barring future discrimination and correcting the effects of past discrimination. At the conclusion of the trial, the District Judge delivered an oral pronouncement — subsequently buttressed and expanded by written findings of fact and conclusions of law —that the Government had failed to prove its case by a preponderance of the evidence. To clearly establish its right to injunctive relief, the District Judge later wrote, the Government was required : (a) to prove that defendants had committed specific acts and practices of racial discrimination in employment since the effective date of the Act (July 2, 1965); (b) to prove the commission of such acts and practices independently with respect to each and every allegation contained in the complaint; (c) to prove that such specific acts and practices were intentional and such as to constitute a pattern or practice of racial discrimination as opposed to mere isolated acts; and (d) to establish all essential elements of its case by a preponderance of the evidence. * * * 316 F.Supp. at 615-616. Having imposed this burden, the District Court then concluded that the Government had not adequately borne it. The court held that the Government had neither shown specific discriminatory acts nor manifested a discriminatory pattern or practice pursued by any defendant. Conversely, the court concluded, the Terminal and the Unions had established the complete lack of discriminatory activity at the Terminal. Accordingly, the District Judge dismissed the suit with prejudice and taxed costs against the Government. Here the Government contends, in essence, that the existence of a pattern need not be manifested by the identification of each specific thread used to weave it: i. e., the Government was not required to present a multitude of post-Act discriminatory incidents to establish its case. Moreover, the Government argues that the District Court misconstrued the evidentiary time-frame pertinent to Title VII litigation; it avers that the court’s repeated references to plaintiff’s failure to prove discrimination “at any material time” suggest that the District Judge has mistakenly treated pre-Act discriminatory acts or practices as without continuing consequences and therefore irremediable under Title VII, rather than as not having occurred at all. Based on these general premises, the Government challenges the District Court’s findings of fact and conclusions of law. In this regard, the Government’s quarrel is not so much with the empirical facts actually found by the trial judge as with his selectivity regarding pertinent facts which merited consideration. Because of his conservative misconceptions as to his proper factfinding role and as to the extent of the Government’s burden of proof, the Government argues, the judge’s perspective was too myopic. Further, he allegedly erred in his findings of “ultimate” fact (such as conclusory statements that particular acts, or series of acts, did not establish the existence of discrimination or discriminatory intent as defined in Title VII), as well as his legal conclusions derived from the factual milieu. Insofar as the Government’s attack is predicated on these grounds, the “clearly erroneous” rule is not a bulwark hindering appellate review. E. g., Galena Oaks Corp. v. Scofield, 5 Cir. 1954, 218 F.2d 217, 219-220; see United States v. Singer Manufacturing Co., 1963, 374 U. S. 174, 194 n. 9, 83 S.Ct. 1773, 10 L.Ed.2d 823. With these thoughts in mind, we proceed to consideration of the physical environment framing this case. Initially we shall review the general employment situation at the Terminal, then examine the specific areas where the Government allegedly has uncovered discrimination. Finally we shall evaluate the parties' arguments, as well as the District Court’s decision, in light of applicable statutory and decisional authority. I. Owned by three major railroads, Jacksonville Terminal handles passengers, freight, and United States mail; maintains Seaboard Coast Line rolling stock; and performs other tasks necessary for the safe, economical, and efficient operation of railway services. Like other facilities in the railroad industry, the Terminal has drastically reduced services and expenditures since World War II. Its annual passenger train volume has decreased from 35,000 in 1944 to 10,000 in 1969; annual operating expenses dropped from $4.9 million in 1960 to $2.3 million in 1969. Concomitant with the contracting volume of operations, as well as expanding mechanization, the Terminal has substantially reduced its work force. In 1953 the Terminal employed approximately 1200 people; in 1967 only 650 personnel remained. As of August 6, 1969, the Terminal employed approximately 532 individuals, of whom 275 were white and 257 were black. (This total does not include those on leave of absence or furloughed who did not remain active.) Some fifty of the 532 employees did not work full time; they filled vacancies or performed limited assignments. Active employees occupied 102 separate job categories. Seventy-nine of these categories — termed “contract jobs” —are within the crafts and classes represented by the Unions. Twenty-six employees, all white, who were either Terminal officials or unrepresented by any labor organization, occupied the remaining twenty-three categories. Whites predominated in fifty-nine contract job categories. In August 1969, 247 of the Terminal’s 275 whites occupied these positions; eight of the Terminal’s 257 blacks held such jobs. Four of the eight received promotions to these positions after June 24, 1968, when the Government filed this suit. Of the other four, three were promoted to supervisory positions in the predominantly black Baggage and Mail Department beginning in 1964; and the fourth was a Switchman, a job which had been shared by blacks prior to reservation for whites. Blacks generally held eighteen of the contract jobs — all having been assigned to these categories when hired. Although job opportunities at the Terminal have not been abundant in recent years, management hired seventy-one individuals for contract jobs between October 1, 1965, and December 31, 1968; sixty where white, and eleven were black. Ostensibly the white-black assignment pattern has continued: all eleven blacks were hired as Baggage and Mail Porters. Only two whites held positions in predominantly black categories: one became a Welder Helper, and the other was a Baggage and Mail Porter. The parties stipulated regarding the number of employees, by race, who worked in each of the contract jobs, the department in which each job exists, and the Union representing employees who held each of the jobs at the Terminal. Moreover, they stipulated with respect to rates of pay: manifestly a significant pay disparity between predominantly black jobs and generally white positions does exist. The District Court found, however, that blacks had been employed in the best jobs available for which they qualified. The District Judge noted that railroads throughout the nation hire laborers and service workers (the categories of jobs comprising the crafts and classes which the Government la-belled “Negro jobs”) from the available manpower pool, and that this manpower pool in Jacksonville is predominantly black. Therefore, the court concluded, “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.” 316 F.Supp. at 580-581. Management practice has been to employ the “best qualified” person available at the time of a job vacancy. Terminal officials are familiar with, and as-sertedly have attempted to comply with, Title VII, as well as pertinent Executive Orders and United States contract requirements. As early as August 2, 1962, the Terminal posted notices informing its employees that it is an Equal Opportunity Employer. It has sought qualified applicants from predominantly black schools in the Jacksonville area and has informed these institutions, as well as the Jacksonville Urban League, that it is an Equal Opportunity Employer. On July 1, 1965, the Deputy Contracts Compliance Officer of the Post Office Department notified the Terminal that its employment opportunity efforts had resulted in dismissal of the only complaints ever filed against that facility. Since the Act’s effective date, Post Office Compliance Officers have allegedly continued to monitor Terminal performance, and no complaints have been received. Furthermore, in an October 1968 letter, the Deputy Contract Compliance Officer acknowledged receipt of the Terminal’s affirmative action program and promised to consult the Terminal concerning any inadequacies. Terminal officials testified that none have been disclosed. Having weighed conflicting evidence, the District Court concluded that the Terminal had not discriminated in making initial job assignments. It found that “all applicants for jobs were informed of all vacanices for which they might have possessed the requisite qualifications and were considered therefor upon the basis of qualifications alone.” Id. at 580. (emphasis added). The court took cognizance of the fact that five of twenty-five black witnesses had affirmatively responded to the question whether each was “assigned” to the first job he held at the Terminal. Nevertheless, the District Judge also considered the fact that the personnel file for each of these five blacks indicated that he had received the position for which he had applied. Also, he noted that no black had complained about initial assignments, which could have been accepted or rejected. He did not deem black qualifications enhanced merely by graduation from high school — an educational level which some whites in higher-paying jobs had not attained. Nor did he mention that some jobs traditionally held by whites require no prior experience. (As examples, the Government cites: Apprentice in the Mechanical Department, Carpenter Helper in the Maintenance of Way Department, and Telegrapher and Switchman in the Transportation Department.) Indeed, one white Switchman testified that he took the position in 1946 although he had only a fifth grade education and work experience limited to driving a laundry truck and working in a brewery. In promotion and transfer as in hiring, the Terminal’s policy has been to recognize “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.” Id. at 581. In transfer situations, collective bargaining agreements forbid retention of accumulated, Terminal, craft or class, or industry seniority. Moreover, employee transfer rights are limited. Ordinarily seniority acquired on one of the Terminal’s thirty-five seniority rosters cannot be used for bidding on a job vacancy on another roster. The engine service crafts, however, present a paradox. In these crafts there are three separate seniority rosters: Firemen and Hostler Helpers, Hostlers, and Engineers. Individuals on the seniority rosters for these crafts fill positions in engine service. The basic collective bargaining agreement provides craft seniority in the crafts of locomotive Engineer and Locomotive Fireman. Employees accumulate seniority in each craft separately. However, firemen promoted into the Engineer craft retain their Fireman’s seniority rights, and “hired” Engineers (those who have had engine service experience on other railroads) also are placed on the Fireman’s seniority roster. This arrangement provides a stable engine service work force for the Terminal and regular employment for the employees by enabling them to flow back and forth among jobs in the engine service crafts until they have acquired enough seniority to work full time as Engineers. Consonant with the flow-back arrangement, there is no rigid line of progression in the engine service crafts. Although an employee may progress from Fireman and Hostler-Helper to Hostler to Engineer, a qualified individual may be hired directly into any job. The collective bargaining agreements do not allow retention or carry-over of seniority accumulated in a non-engine-service craft upon entry into the engine service crafts. An employee possessing seniority in a particular craft or class is entitled, as a matter of contract right, to be provided with notice (through bulletin for an appropriate period in a designated location) of all vacancies or newly created positions within his craft and class; to bid on the vacancy or new position; to be awarded the position if the bidder has enough fitness and ability and is the senior eligible bidder; to be subject to involuntary layoff only after all those junior to him in his craft or class; and to select under some circumstances preferred working hours, off days, vacations, and other privileges based upon length of service. According to collective agreements between the Terminal and the Unions, seniority usually begins when the employee starts work in the craft and class to which he is- regularly assigned. One who holds a temporary job (such as Christmas rush hires) or an emergency position (such as World War II trainmen and firemen or “set up” shopcraft helpers) remains vulnerable to replacement by a qualified applicant or an employee with contract rights to bid on the particular job. He accumulates no seniority and acquires no subsequent contract right to bid on any position in the craft or class where he performed temporary or emergency service. Union-management agreements proscribe inter-craft seniority transfers, both because few railroad crafts are functionally related and because each craft is controlled by a single contract negotiated by a specified labor representative. As noted earlier, however, the general proscription does not apply to some employees, who circumvent it by retaining seniority on separate craft rosters. Moreover, the collective agreements normally prohibit inter-class seniority transfers within a single craft, preventing employees from “rolling back” into lower positions. Undisputa-bly such restrictions discourage job hopping and promote employment stability. In a technical sense, they also lock all employees, both white and black, into certain categories; the declining employment propensity of the railroad industry magnifies this effect. Within the limitations imposed by collective bargaining agreements, the Terminal is responsible for employee promotions. We have no reason to doubt the Unions’ contention in this regard, and the District Court ostensibly accepted it as a postulate. Of course, if contract rights are applicable, the Terminal offers the vacant position to the senior qualified bidder. However, if no applicant possesses a contract right to bid for the position available, the Terminal chooses the “best qualified” individual who can fill the vacancy at that time. The Terminal has always posted notices concerning job openings in accordance with pertinent provisions of applicable collective bargaining agreements. Those provisions have usually dictated where the notice must be posted, what the notice is to state, and how long the notice should be posted. The agreements require only that such bulletins be published to the craft or class of employees possessing contract rights to bid on the new position or vacancy. On March 18, 1969, the Terminal unilaterally adopted a policy of posting notices of any job openings on all bulletin boards and in all bulletin books. The District Court found that the Terminal’s officers and department heads periodically review qualifications of all employees to determine which employees can be ad-vantageoously utilized in better positions. Commenting that there have been relatively few job vacancies during the time material to the issues here, the court concluded: 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 Negroes 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. Id. at 581-582 (footnote omitted). The court also held that certain employment tests utilized by the Terminal to assess qualifications for particular positions were nondiscriminatory. The Terminal asserts, and the District Court agreed, that racial discrimination has not been a motivational factor in promotion decisions at any material time either before or after Title VII’s effective date. Having reconstructed this backdrop, we turn to the specific departments, policies, and practices which the Government presents as the cynosures in this litigation. A. Baggage and Mail Department On August 6, 1969, approximately 108 employees (seventeen white and ninety-one black) performed nine different contract jobs in the Baggage and Mail Department. All were represented by the BRAC. Under the agreement between the BRAC and the Terminal, there are two classes, or “groups”, in the department. The jobs of General Foreman, Chief Clerk, Stenoclerk, Foreman, and Assistance Foreman have been categorized as “group 1” ; the jobs of Porter, Loader, Tractor Driver, and Separator have been classified as “group 3”. The class distinction received governmental approval in General Order No. 27 discussed infra: group 1 jobs ostensibly require clerical skills, while group 3 jobs (generally laboring positions) require no particular training. At least since 1962, there have been white employees in group 3 and black employees in group 1 positions. The District Court noted that at the time of trial in early 1970, three of the twenty-six group 1 employees were black, and thirteen of the 176 group 3 employees were white. Id. at 584 n. 14. However, Terminal records do not disclose that any black was hired into a group 1 job in this or any other department within the BRAC’s work jurisdiction; indeed, all blacks in the Baggage and Mail Department began their employment tenure in the group 3 job of Porter. Of the nine black employees in this department called as witnesses by the Government during presentation of its case, five (four of whom were hired before July 2, 1965) testified that they had not applied for any particular jobs at the Terminal. All five had, at least, graduated from high school. A sixth, who had had experience as a Mail Room Supervisor in the Air Force, applied for an equivalent position at the Terminal in 1957. Evidently Terminal officials determined that this would be the group 3 job of Mail Room Separator, rather than the group 1 position of Foreman or Assistant Foreman. Moreover, according to the witness, the Terminal’s Assistant Baggage and Mail Agent stated that the Terminal did not hire Negroes for the latter jobs. (The Terminal began promoting blacks into group 1 jobs in December 1962. Since that date, three have received promotions to Assistant Foreman, or Foreman on a regular basis.) All six blacks became Porters. According to Terminal records, twenty-three of the twenty-eight whites working in the department as of December 1, 1969, began their employment in group 1 jobs. Of the remaining five, whose beginning jobs in the department were as group 3 Porters, four were hired after July 2, 1965. The fifth became a Porter in 1938 and advanced to Apprentice Assistant Foreman, a group 1 position, in 1939. Other than clerical aptitude, the Terminal ostensibly demands no formal educational prerequisite for group 1 jobs. To rebut any inference as to racially discriminatory job assignments in this department, the Terminal presented evidence and testimony purportedly explaining the substantial concentration of blacks in group 3 mail handling positions. A Terminal witness testified that general economic conditions in the Jacksonville area are an important factor in determining the source of mail handling manpower for his department. Blacks have come to, and remained at, the Terminal because it offers better pay and job security than are otherwise available in the vicinity. Their employment applications uniformly show no educational background or prior work experience warranting employment in skilled jobs, i. e., group 1 positions. Whites who possess similar qualifications and who are hired to work as group 3 mail handlers remain only temporarily because better opportunities exist in other industries and perhaps because they do not enjoy the manual labor required in mail handling. Contributing to this “unavoidable” concentration of blacks in group 3 is the fact that, although both whites and blacks are hired “on an approximately equal basis” for the annual Christmas mail rush, only blacks apply for post-rush permanent employment as extra-board Porters, the job classification of all Christmas extra help. “No one applies for a Group 3 job; they come in and say they want a job,” the department head stated. However, blacks have been hired as Porters — because, as the Terminal emphatically argues, in many cases the applicant had previously worked for the Terminal in the same job “for which his then current application was made.” Signed employment applications in Terminal files indicate that blacks have “applied” for the lower paying group 3 jobs, arguably supporting the Terminal’s contention that no one has taken a particular position involuntarily. Further, the Terminal avers, the Government failed to show that vacancies in group 1 have existed at any material time. The Terminal also points out that it has given certain black employees mail handling work as a favor to relatives who are employees. An example is Roderick Gray, who applied at the behest of his step-father Henry Young. Young asked the Terminal management to hire Gray to “help straighten him out” and stated in a minor’s work release that his step-son was an applicant for the job of Porter. Young’s action, the Terminal concludes, manifests that Gray sought work with his step-father and of the same type as that in which he had prior experience, i. e., as a freight handler. The District Court agreed, concluding “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.” Id. at 580. As to Young, the Terminal notes that although he testified he had been assigned to the job of Porter, he also stated that he had applied for the position. With respect to promotions in the department, the Government has argued that there are racially separate lines of progression. Of the seventeen whites hired before July 2, 1965, who were working in the department as of December 1, 1969, sixteen began in group 1 jobs. Depending on their entry positions, the whites have advanced from Apprentice Assistant Foreman to Assistant Foreman to Foreman and finally to General Foreman, all of which are group 1 jobs. The seventeenth white was hired as a Porter in 1938 and became an Apprentice Assistant Foreman in 1939. Conversely, all blacks have begun in the group 3 Porter job. From there they have advanced to Loader, Tractor Driver, and Separator. Since 1962 three blacks have been promoted to Assistant Foreman or Foreman. Prior to their promotions, they worked from fourteen to sixteen years in group 3 jobs. Rule 4 of the agreement between the BRAC and the Terminal provides that covered employees shall be in line for promotion. Until the rule was amended on November 21, 1962, group 3 employees (all blacks) were specifically excluded from its scope of applicability. Blacks were aware that the pre-amendment rule precluded advancement in group 1 positions. As we mentioned earlier, after amendment of the rule, three blacks have been given group 1 positions. The first was promoted in 1964, the second in 1966, and the third in 1967. The District Judge concluded that 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 nonclerical work) which are required in jobs falling within the two groups. * * * 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. * * * The Government failed to prove any qualified Negro was denied advancement because of Rule 4 prior to its amendment, and it was unable 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. Id. at 585 (footnotes omitted). On April 4, 1967, the Terminal began administering a personnel test to those seeking group 1 jobs in the department; personnel already holding group 1 positions were exempted from the examination. The Terminal’s Chief Baggage and Mail Agent and his Chief Clerk developed the test along with a suggested grading scale. Currently, however, there is no minimum passing score. Moreover, there is no manual explaining administration or scoring. The District Court found that the test “relates to actual job requirements and was designed by professional railroad personnel. * * * 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.” Id. at 583. In making this finding, the court necessarily chose between contradictory testimony delivered by two industrial psychologists, neither of whom evidently participated in the test’s development or administration. The Government challenges this finding because the test allegedly has been correlated to anticipated rather than actual job performance in group 1 positions. According to the Government, this measure of validity is inadequate; and the District Court should have so found. Furthermore, the Government questions the manner in which the test has been administered, as well as the Terminal’s utilization of scores in assessing promotability of blacks. After the test had been developed, the Terminal, by posted notice, invited all group 3 employees interested in group 1 jobs to take it. Apparently this notice was the first ever inviting group 3 employees to apply for group 1 jobs. Group 1 positions generally involve clerical work; the initial prerequisite listed on the notice was “qualified typist.” Since group 3 workers were aware that the group 1 jobs of Utility Clerk, Assistant Foreman, Foreman, and General Foreman involve no, or very limited, typing, the Government concludes that group 3 employees became apprehensive concerning the notice’s sincerity. During April fifteen blacks holding group 3 positions took the examination. None was promoted to a group 1 job after taking the test. Between May 1967 and August 1968, at least nine group 1 jobs were filled, all by newly hired whites who had scored higher than the blacks tested. One black testified that the department head had told him he failed the test, and others stated that they had never been informed of the results. The General Baggage and Mail Agent advised group 3 Separator Henry Young to review his arithmetic. Young scored five points higher on the arithmetic part than did J. A. Boswell, a white who became a Utility Clerk one month after Young took the test. Boswell, however, scored ten points more than Young on the whole test. Moreover, he entered the department with substantial clerical experience that Young did not possess. Several Terminal officials responded to the Government’s contentions by pointing out that the test was not the sole criterion for group 1 work; it has been given only to ascertain an individual’s ability to read, write, and do basic arithmetic. For instance, Roger Stamper, a black group 3 employee, scored forty-nine on the test during his group 1 probationary period. Nevertheless, the department head concluded for other reasons that Stamper would be a satisfactory Assistant Foreman, and Stamper subsequently acquired regular group 1 status. To validate the test by comparison with actual job performance would allegedly have been impractical: the Terminal would have become an experimental station for employees that might not have the ability to do the work. Finally, the Terminal asserts that group 3 employees are not required to take the test and pass, or otherwise achieve an acceptable score, to hold a group 1 job. Thus the test cannot be a term or condition of employment imposed on blacks but not on their white contemporaries. B. Accounting and Purchasing and Ticket Departments In August 1969, approximately twenty-five employees (eighteen white and seven black) performed fifteen different contract jobs in these two departments. Thirteen jobs are group 1 and two are group 3. As of December 1, 1969, all blacks hired into the departments have become group 3 Store Helpers or Store Laborers; all whites, except one, have begun in group 1 positions, such as Stockman or Apprentice Clerk. The sole white exception has been S. C. Woodward, who was hired as a Store Helper in 1938 then became a group 1 Ticket Seller in 1939. Both departments are within the work jurisdiction of the BRAC. Consequently blacks have been subject to the group 3-group 1 transfer or promotion restrictions contained in the agreement, discussed supra in regard to the Baggage and Mail Department. Términal records disclose that no black received a promotion from group 3 to group 1 until June 1969, when Nathaniel Sears became a Stockman. The District Court stated: * * * Nathaniel Sears * * * testified that he had sought promotion to a Group 1 (Stockman’s) job in 1967. The record shows that there are two Stockman’s jobs, one of which required typing, and that the job not requiring typing became vacant in 1967. That job was then filled by a Group 1 employee (J. W. Griffin) who previously held the other Stockman’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. The Stockman’s job which does not require typing became vacant again in 1969, Sears was asked if he wanted to apply, he applied for it and was awarded it. * * * The Court finds no racial discrimination in this sequence of events nor in the job experience of Mr. Sears. The initial opening in 1967 was in the same Stockman’s job which Mr. Sears now has. However, Mr. Sears did not have seniority rights entitling him to bid on that job and the employee awarded the job did (and, moreover, he had qualifications superior to those of Mr. Sears). The failure to accord Mr. Sears, and others similarly situated, such seniority rights cannot be said to be racially discriminatory. Id. at 586. C. Transportation Department As of August 1969, approximately 116 employees (ninety-four white and twenty-two black) worked in the department. Among the contract jobs in this department are those in engine service (Engineer, Hostler, Hostler Helper, and Fireman) and in Train service (Conductor and Switchman). Blacks completely filled two departmental positions, Red Cap-Station Cleaner and Red Cap Captain. Only one black, Jessie Nesmith, worked in any of the other fifteen jobs. At the time this suit was filed, Nesmith was a Switchman; later he became a Conductor. Formerly blacks shared the jobs of Fireman and Hostler Helper as well as that of Switchman. Partly because of agreements with certain Unions, the Terminal ceased hiring blacks for these positions. Later BLF & E agreements, to which the Terminal was a party, provided that no more than 50 percent of Fireman and Hostler Helper jobs could be filled by blacks. Steele v. Louisville & Nashville R. R., 1944, 323 U.S. 192, 195, 65 S.Ct. 226, 89 L.Ed. 173; see Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 1944, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187. While Steele and Tunstall questioned the spirit of a 1941 BLF & E agreement, the letter did not succumb by judicial fiat until the Supreme Court decided Graham v. Brotherhood of Locomotive Firemen & Enginemen, 1949, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22. From 1932 until 1967, the Terminal hired no blacks as permanent Firemen or Hostler Helpers. One black became a Hostler Helper in 1967. The District Court found that “[t]he employee with the lowest position on the fireman hostler-helper seniority roster who is presently working has a seniority date of 1951. * * * [A] 11 of these employees hired since 1964 have subsequently left engine service because of a lack of work. Three employees have worked in emergency as firemen hostler-helpers since 1965. These white employees did not acquire seniority for this temporary emergency service.” 316 F. Supp. at 605-606. The court further said: “The Government also referred to terms of ancient collective bargaining agreements of the former BLF & E covering the craft of firemen, dating from 1930 and 1935 which were completely canceled in 1949. The Court specifically finds that there has been no effect or application of these agreements since they were canceled in 1949 and they are not relevant to any issue in this action.” Id. at 607. (footnote omitted). D. Mechanical Department Approximately 149 employees (eighty-seven white and sixty-two black) held thirteen different jobs in the Mechanical Department as of August 6, 1969. Blacks filled five of the jobs, while whites predominated in the other eight. Three blacks have received transfers (or promotions) to formerly all-white positions; all were Machinist Helpers but became Machinists under a 1969 upgrading agreement. These employees have been placed on a special seniority list for upgraded Machinist Helpers but are not on the Machinist seniority roster. Blacks employed in the department have begun in the jobs of Car Cleaner, Ice and Waterman, and Laborer. As of December 1, 1969, every black had entered the department in one of these positions. Whites, except those hired as journeymen, have begun work in the department as Carman Apprentice, Machinist Apprentice, Electrician Apprentice, or Electrician Helper. Since the collective agreement between the Terminal and the shopcraft unions comprising System Federation No. 50 became effective in 1939, only one black has been hired into any of these jobs: he became a Carman Apprentice but progressed no further. As in the other departments, blacks and whites have traveled different promotion paths. The former have been promoted from Car Cleaner or Ice and Waterman to Carman Helper and from Laborer to Fuel Oil Pumper or Machinist Helper. The latter, other than those hired as journeymen, have risen from Carman Apprentice to Carman, from Machinist Apprentice to Machinist, and from Electrician Apprentice or Electrician Helper to Electrician. White journeymen have also been promoted to Foreman. The record indicates that the qualifications prerequisite to employment as Carman Helper and Machinist Helper, jobs held by blacks, are substantially the same as those necessary for employment as Electrician Helper, a position filled by whites. Pursuant to a 1942 upgrading agreement between the Terminal and the Federation Shop Crafts represented by System Federation No. 50, Electrician Helpers have been permitted to learn the skills of and be promoted to Electricians. Within certain limits the agreement permits Electrician Helpers to retain and accumulate Helper seniority while employed as Electricians. All affected employees have been white. Under a 1969 upgrading agreement, Carman Helpers and Machinist Helpers, have been permitted to train as and be promoted to Carman and Machinist. Previously promotion had been precluded by Rule 24 of the collective agreement between the Terminal and System Federation No. 50, which restricted use of welding equipment to Mechanics (shop-craft journeymen) and their Apprentices. Consequently blacks, who were neither Mechanics nor Apprentices, could not acquire the training or experience necessary to qualify for more skilled positions. The 1969 agreement ostensibly remedied this problem. Its terms concerning seniority, however, are more restrictive than those in the 1942 agreement pertaining to the electrical craft. The District Judge commented: “The record does show that an Electrician Helper performs more of the actual work of his craft (by necessity) than do Helpers in the Carman and Machinist crafts. This factor and the 27 year time gap explain any differences which exist between the two agreements, and the Court finds that the 1942 Agreement was not intended to, and did not, create, aid or perpetuate racial discrimination in employment opportunities.” Id. at 590. He further found that the restrictive rules governing use of equipment had been predicated on legitimate business concerns: “the safety of the employee, his fellow employees, and the traveling public and the protection of the work and skills of the Mechanic and the welders’ wage differential.” Id. at 591 (footnotes omitted). He found no evidence that any black had ever tried to become an Electrician Apprentice, Electrician Helper, or Electrician. Moreover, no Helper has been promoted under the 1942 agreement since July 15, 1965. Of the eight blacks called as government witnesses, “[n]one testified that he should have been hired initially in any job other than the one he obtained, and the record contains no evidence that any was qualified for any other job.” Id. at 592-593 (footnote omitted). Although each witness expressed his desire for promotion, none would make the effort at the risk of losing seniority. The court determined that those who had applied for higher paying jobs were either unqualified, not as qualified as the white who received the positions, or not entitled by seniority to bid for the jobs. While some blacks testified that they had been “assigned” to their initial jobs, others indicated that race was not a factor in promotion. E. Maintenance of Way Department On August 6, 1969, approximately twenty-six employees (thirteen white and thirteen black) worked in twelve different contract jobs. Blacks filled two of these jobs, and whites filled nine others. The remaining position, Welder Helper, was held by one white and one black; until 1966 it had been filled exclusively by whites. No black has been hired for any job other than Laborer in this department. Only one has been promoted to a higher position: he became a Welder Helper on a temporary basis in 1966 and achieved permanent status in 1969. Whites generally have begun employment as Welder Helpers or B & B Helpers (Carpenter Helpers), and have received promotions to Welder or Carpenter. Five whites listed on the Terminal’s 1968 seniority rosters for the Bridge and Building and Roadway Subdepartments began their careers as Laborers; all remained in the job less than a year. The BMWE has represented all employees in this department. Rule 2 of the collective agreement provides for bulletining notices of vacancies and new positions. Until March 1969, the Terminal did not post such notices on bulletin boards assigned to Laborers, who have been totally black for years. The District Judge concluded: * * * The record shows that General Order No. 27, promulgated by the Director General of Railroads in 1918, provided that the seniority rights of Laborers, as such, will be restricted to their gangs. Similar provisions exist today in contracts on other railroads throughout the country. The fact that Section Laborers have no contract right to bid for other jobs in the Roadway sub-department reflects no racial discrimination; it is consistent with nationwide railroad practice. Moreover, the absence of such “contract rights” has not been and is not a bar to advancement as Laborers (including Negroes) have advanced to higher positions within the Department. Id. at 587 (footnote omitted). Once again, the court found that no government witness questioned his initial job assignment; instead each expressed a desire for promotion. In every case, the District Judge stated that the best qualified man available at the time had gained the open position. F. Signal Department Eight employees (all white) held three different jobs in this department on August 6, 1969. Terminal records disclose that no black has ever been hired for or transferred into this department. No black employee has ever been a member of the BRS, which has work jurisdiction over jobs in the' department. The District Court concluded that no evidence of racial discrimination in the department had been produced and thus no finding could be made. G. Racially Segregated Locals (1) BMWE Terminal employees who are members of the BMWE belonged to one of two local lodges at the time of trial. Local 539 has been comprised of whites; Local 2029 has been comprised of blacks. When Local 2029 was chartered in 1937, the BMWE constitution and by-laws provided for “allied” Negro locals, which were to be represented by delegates selected from white locals. The Union repealed these provisions in 1946, but evidently the news has been slow in reaching Jacksonville. The BMWE has not consolidated Locals 539 and 2029; it has recognized both as functioning components of its organization, even though all members of these locals are subject to the same collective bargaining agreement. The Seaboard Federation of the BMWE has retained jurisdiction over Union members employed by the Terminal. At the Federation convention, every delegate casts one vote for each member of the lodge or lodges which he represents. According to a provision in the Federation’s bylaws since 1955, the delegate representing both Locals 539 and 2029 votes for all members of these lodges during the convention. A member of Local 539 represented all BMWE Terminal employees at the two most recent conventions of the Federation. This delegate was elected solely by members of Local 539, the all-white group, C. L. Winstead, late General Chairman of the BMWE, testified that, to his knowledge, this has always been the situation at Federation conventions. The District Court found no evidence that black BMWE members had attempted to terminate the existence of their lodge or to merge with the white local. In fact, Local 2029 members recently voted against merger with Local 539. Moreover, the court discerned no situation in which specific lodge membership affects employment opportunities: there are no local hiring halls or referral systems, and the General Chairman of the Federation customarily handles grievances. Besides, in the “Seaboard Federation Negro employees have superior voting power both from the point of view of number of locals on (sic) the Federation and number of members, and votes are cast on the basis of the total membership in each local lodge.” Id. at 614. (2) BRAC At the time of trial, Terminal employees represented by the BRAC belonged to one of two lodges, Local 1014 or Local 1575. All members of Local 1014 held group 1 jobs, and all members of Local 1575 held group 3 positions. Of the sixty-six members of Local 1014, sixty-three were white and three were black. Of the 204 members of Local 1575, 202 were black and two were white. No black joined Local 1014 until July 1968, and no white became a member of Local 1575 until June 1967. Although a racial qualification for local membership was eradicated in 1947, the BRAC has not consolidated Locals 1014 and 1575; both remain functional. Prior to March 1969, only the Local Chairman of Local 1014 received Terminal notification of group 1 openings, presumably because only incumbent group 1 employees have had contract rights to bid for such positions. In January 1970, the first black to be elected District Chairman of the two locals began handling grievances. His tenure commenced long after the Government had initiated the litigation sub judice. Finding that neither the BMWE nor the BRAC had violated Title VII, the District Judge said: [A]t all times material to this action none of the above-described defendant labor organizations has limited, segregated or classified its membership in any way which would deprive or tend to deprive any individual of employment opportunities or would limit such employment opportunities or otherwise adversely affect his status as an employee or applicant for employment because of such individual’s race. The separate BRAC and BMWE local lodges have existed on a voluntary basis since 1947 and 1946 respectively. Those defendant Brotherhoods have not maintained separate locals since those days in any sense other than failure to actually revoke local charters or force a merger of the locals, a power not given to the unions national officers except for good cause shown. ■x- -x- * The Court further specifically finds that the local lodges do not have jurisdiction or control over jobs at the Company, and the separate BRAC and BMWE local lodges have not been used or are being used as devices of discrimination with respect to hiring, promotion, job assignment or any other aspect of employment of the Company. Id. at 615. H. UTU Local 624-T and Black Yardmen Formerly known as the BRT, the UTU represents all Terminal Yardmen (a category comprised of Switchmen and Conductors). All regularly employed Yardmen — except Jessie Nesmith, a black Conductor — belonged to UTU Local 624-T at the time of trial. Although the Union has alleged in its brief that there are now black UTU members working at the Terminal, no current or former black Terminal employee had ever gained UTU membership when litigation began. Since 1957 the BRT-UTU and the Terminal have had a union shop agreement. Nevertheless, Local 624-T has required only white Yardmen to join its ranks. Prior to 1960 the reason for the local’s selectivity was obvious: the BRT, by constitutional provision, prohibited Local 624-T from admitting blacks. Three blacks, who had been Yardmen at the Terminal, testified that their membership applications were rejected at unspecified times. After 1960 Local 624-T’s General Chairman did not ask blacks to join, allegedly because of the monetary requirements imposed by its funeral benefit fund. Stated in 1956, the fund required everyone over fifty who joined the Union to pay two dollars a month for every month that he was past fifty. In May 1969, fund membership for such employees were made optional. However, the General Chairman testified that he had not invited Nesmith to join. The trial court found the Union’s failure “to force Negro Switchmen to become members does not operate to discriminate against them because of their race or to adversely affect their employment opportunities. The Court further finds that membership in the UTU local is available to such Negro employees and they have not sought to become members.” Id. I. Toilet, Locker, and Shower Facilities At the time of trial, the Terminal maintained thirty-two different toilet, locker, and shower facilities for its employees. Some of these facilities have been internally partitioned; their utilization on a craft basis ostensibly has resulted in the segregation of blacks from whites. For example, one facility located at the repair track has been divided by a wall: Carman Helpers, all black, have utilized one side; while Carmen, all white, have used the other. Separate facilities in the same areas have been segregated, assertedly by craft. Thus, of two facilities 100 to 200 feet apart, one has been used only by black Car Cleaners and Ice and Water-men ; the other has been utilized only by white Carmen and Electricians. All these employees have worked in the same general area at the Terminal. The Government contends that the arrangement is indicative of racial discrimination. The Terminal denies any racial intent or motivation. After a personal visit, the District Judge found that many facilities are used by both blacks and whites, and that their use has not affected anyone’s employment opportunities. II. Our extraordinary regurgitation of evidentiary data has been necessary for two reasons. First, there is no pertinent precedent in this industry: the Government has never before applied Title VII to a railroad facility, where a multitude of interested parties further complicate already complex problems of proof. Second, and more important, this is a “pattern or practice” suit, the resolution of which primarily depends on facts and the vantage point from whence they are perceived. Factual and legal events deemed relevant for one purpose or another span five decades of railroad history. The perspective chosen is all important in ascertaining which, if any, of these events elucidate the current employment situation at Jacksonville Terminal. Augmenting the decisional difficulties here is the fact that the industry is subject to the Railway Labor Act, 45 U.S.C.A. §§ 151-163, a statutory scheme which defendants contend precludes, or at least severely circumscribes examination of pivotal seniority issues under Title VII. Undeniably blacks, as a class, at the Terminal occupy the lowest pay plateaus at that facility. Undeniably, too, the Terminal, like other railroads and connected facilities, remains in a period of reduced employment; consequently even the most beneficent employer would find elevation of qualified blacks into higher paying, more substantial positions an onerous task. Certainly in this regard, the Terminal must continue to protect the jobs of incumbent whites. Assuming arguendo for the moment that past or present racially discriminatory conduct has occurred, white employees need not suffer displacement, layoff, or furlough merely to satisfy some court-imposed quota or black/white ratio. In light of this record, no one could argue that the Terminal has failed to zealously perform this aspect of its duty to employees. Assuredly rigid craft and class seniority systems, which give persons already in a particular craft or class contract rights to bid on new and vacant positions in that craft or class, have impeded minority transfers and promotions. Blacks, who generally remain outside the higher paying crafts and classes at the Terminal, must stand in line to apply for jobs for which they have rarely been judged qualified. Given these employment realities, however, the ultimate legal question remains: have either the Unions or the Terminal, or both, engaged in racially discriminatory activities after the Act’s effective date, or within a reasonable period of time before that date, the consequences of which continue? Unless the answer to this question is affirmative, Title VII will not support judicial intervention or relief. Naturally, the Government has contended that employer-union discrimination has been and continues to be rampant at the Terminal. To substantiate this charge, the Government has utilized both pre- and post-effective date conduct, all of which is allegedly discriminatory, and Terminal employment statistics. It asserts that the relevance of pre-Act conduct is assured partly because railroad employment is declining: decisions and agreements made many years ago arguably affect job competition after Title VII’s effective date. The Terminal and the Unions counter with the explanation that necessary business decisions in an historically determined setting have culminated in the current employment situation. A corollary argument is that employees have voluntarily chosen to enter or to remain in their positions; and thus the Government is acting as an officious intermed-dler, trying to enforce changes for which there has been no demand. The Terminal suggests in passing that dissatisfied black employees may pursue other, presumably more palatable courses of action: appearance before the Terminal’s review board, utilization of the grievance-arbitration process, initiation of a fair representation suit under the Railway Labor Act, or presentation of charges to the EEOC or OFCC while preserving the opportunity to file an individual or class action under Title VII. III. In Title VII, as in other civil rights legislation, Congress did not intend that the words “pattern or practice” be esoteric or enigmatic in meaning. See United States v. West Peach-tree Tenth Corp., 5 Cir. 1971, 437 F.2d 221, 227; United States v. Mayton, 5 Cir. 1964, 335 F.2d 153, 158-159. Under section 707(a) of the 1964 Civil Rights Act, 42 U.S.C.A. § 2000e-6(a), the Attorney General may file suit if he “has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of” discrimination. Certainly the Attorney General must bear the burden of proving his allegations. However, where as here the Attorney General has alleged that prima facie neutral policies and practices have been the instruments of perpetuating racial discrimination, the District Court may not limit its consideration to “specific acts of racial discrimination in employment since the effective date of the Act.” In this respect we share the Fourth Circuit’s view: Practices, policies or patterns, even though neutral on their face, may operate to segregate and classify on the basis of race at least as effectively as overt racial discrimination. Particularly is this so if a history of past discrimination is developed. United States v. Dillon Supply Co., 4 Cir. 1970, 429 F.2d 800, 804; see Jones v. Lee Way Motor Freight, Inc., 10 Cir. 1970, 431 F.2d 245, 247-248, cert. denied, 1971, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237; Local 189, United Paper-makers & Paperworkers v. United States, 5 Cir. 1969, 416 F.2d 980, 988, cert. denied, 1970, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 108; United States v. Hayes International Corp., 5 Cir. 1969, 415 F.2d 1038, 1040-1044. The Supreme Court recently signified its approval of such evidence. In Griggs v. Duke Power Co., 1971, 401 U.S. 424, 430, 91 S.Ct. 849, 853, 28 L.Ed.2d 158, the Court stated: The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to “freeze” the status quo of prior discriminatory employment practices. (Emphasis added.) Ordinarily the relevance of pre-Act racial discrimination, unlike the taste of good wine, decreases with age. Thus in one case, a district judge, drawing an admittedly arbitrary line, limited an EEOC discovery demand to a period of five years prior to the alleged violation. In so doing, he noted that “such period is deemed to be reasonable for the normal case absent some special showing of the need and relevancy of a longer period. None is present here.” Georgia Power Co. v. EEOC, N. D.Ga. 1968, 295 F.Supp. 950, 954, aff’d, 5 Cir. 1969, 412 F.2d 462. Similarly another district judge concluded that examinations encompassing a six year period prior to the Act’s effective date would shed reasonable light on post-Act conduct. Dobbins v. Local 212, International Brotherhood of Electrical Workers, S.D.Ohio 1968, 292 F.Supp. 413, 444. Neither Georgia Power Co. nor Dobbins controls the case sub judice with respect to determining whether pre-Act conduct or practices occurred within a “material time” of the Act’s effective date. To remove post-Act events from an historical vacuum, both district judges chose time-frames encompassing representative samples of employment activity. They sought the proper perspective from which they might ascertain whether allegedly innocuous activity was in fact so. The conclusion to be drawn from these and the other decisions cited is manifest: each case must depend on its own facts. Nevertheless, “reasonable” or “material” time cannot be so restricted as to distort the factfin-der’s perspective. In some cases, the trial judge must travel to the pre-Act source of post-Act conduct, so that he can accurately assess its implications. Application of this principle in the present factual context yields the conclusion that the District Judge unnecessarily constricted the relevant- time-frame. A careful reading of the court’s opinion discloses that the judge’s definition of “material time” connoted, at most, a few years prior to Title VII’s effective date and all years after that date but before delivery of his findings of fact and conclusions of law. In the normal case, such a limitation regarding relevancy of pre-Act conduct would be permissible. Presumably a significant number of personnel changes and policy applications would occur during this period. Here, however, the general rule cannot apply. Events occurring at the Terminal in 1963, 1964, or 1965 do little to elucidate any underlying policy, pattern, or practice of discrimination — or nondiscrimination. Employment in the industry generally, and at this facility specifically, has declined for many years. Workers who have been furloughed from jobs in particular crafts or classes often use contract rights gained by seniority to bid for subsequently opened positions in those crafts or classes. Workers in other crafts or classes have fewer opportunities to gain these jobs than do those in expanding industries or facilities. It is a truism that, as the Terminal has commented, there are no “new” jobs in the industry. Analysis of events occurring within a few years of Title VII’s effective date results in the obvious findings that the industry is reducing employment, that workers in higher paying crafts and classes do exercise seniority contract rights to gain other jobs in those same crafts and classes, and that the conjunction of these factors necessarily limits opp