UNITED STATES OF AMERICA AND EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFFS-APPELLANTS, CROSS-APPELLEES,

v.

EAST TEXAS MOTOR FREIGHT SYSTEM, INC., DEFENDANT-APPELLEE, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, DEFENDANT-APPELLEE, CROSS-APPELLANT

WYATT, Senior District Judge:

These are separate appeals by the United States and by the Equal Employment Opportunity Commission (EEOC) from orders filed on May 21,1975, and on June 26,1975, in the United States District Court for the Northern District of Texas (Honorable Sarah T. Hughes, District Judge). There is a cross appeal by defendant International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (“the Union”) from the order of May 21, 1975.

1.

The action was commenced on June 29, 1972 by the Attorney General in the name of the United States as plaintiff. It was said to be brought to enforce provisions of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e and following) and certain obligations imposed by Executive Order No. 11246 (30 F.R. 12319). As to Title VII, the action was authorized by 42 U.S.C. § 2000e-6(a).

The defendants named were: East Texas Motor Freight (“ET”), the Union and International Association of Machinists and Aerospace Workers (“Machinists”). Machinists defaulted by filing no answer and for purposes of this appeal may be disregarded.

ET is an extensive common carrier of motor freight. The Union through local union affiliates represents a majority of ET employees. The local union affiliates and ET are parties to collective bargaining agreements, approved by the Union.

The claim was that ET as a policy and practice discriminated against blacks and persons of Spanish origin and that the collective bargaining agreements with the Union by their seniority provisions prevented transfer to better jobs of minorities, who could not carry their seniority for bidding and for layoffs. Thus, it was said that the seniority provisions of the Union agreements perpetuated the past discrimination.

ET has over-the-road (OTR) truck drivers, who drive between terminals in different cities, and city drivers, who drive only in and about the city in which their assigned terminal is located. OTR drivers have the better and higher paid jobs and the minorities were said to have been excluded from this category by ET.

The United States and ET entered into a proposed consent decree which was approved by the District Court and signed on February 18, 1974, and filed on February 19, 1974. The Union did not consent to the decree; it opposed the entry of that decree.

The consent decree settled all issues between the United States and ET. It provided for elimination of discriminatory practices and for various forms of affirmative action by ET. It did not affect seniority provisions of union agreements but left these for resolution after trial of the issues between the United States and the Union. As part of the consent decree ET paid $175,000 in back pay to members of the affected class.

A proposed pretrial order, signed by counsel for plaintiff United States, for ET, and for the Union was filed on May 17, 1974. By order of the District Court, filed May 22, 1974, this proposal became “a formally adopted pretrial order”. From this order and from all else, it was evident that the issue to be tried between the plaintiff and the Union was whether the seniority provisions of the collective bargaining agreements between the Union and ET violated Title VII and the Executive Order because they perpetuated the effects of the discrimination practiced by ET. The plaintiff asked that this issue be resolved in its favor, that an award of back pay be made against the Union, and that (despite the agreements between ET and the Union) “full company seniority carryover” be awarded to members of the affected class transferring under provisions of the consent decree. The Union opposed all this, and defended the seniority provisions. By order filed January 24, 1975, EEOC was substituted as a party plaintiff for the United States as to all Title VII aspects of the action. This was in accordance with 42 U.S.C. § 2000e-6(d). The United States was left in the action as a party plaintiff as to those aspects of the action relating to Executive Order 11246.

The trial was before the District Court without a jury, beginning on April 21, 1975 and ending, after interruptions, on May 6, 1975. The adversaries were the United States and EEOC on the one hand, and the Union on the other. ET continued as a party to the action but claimed that the consent decree removed it as an active litigant.

The District Court on May 21, 1975, signed and filed an “order”, which is also a memorandum opinion and from which these appeals are taken.

The District Court found that the “seniority system” in the collective bargaining agreements was a barrier to the movement of minorities to the desirable OTR jobs. The District Court awarded “seniority relief” in specified respects, in disregard of the contract seniority provisions, and directed that the parties make “any necessary revisions in seniority under the applicable collective bargain agreements”. The District Court denied any back pay award against the Union on the ground that under the consent decree the affected class had already been “fully compensated”.

The two plaintiffs then moved to amend the May 21,1975, order so as to award back pay against the Union and to expand the seniority rights to be granted.

By order with memorandum opinion, filed June 26, 1975, the District Court denied the motion to amend, leaving the May 21,1975, order to stand as filed. The denial of back pay against the Union was rested, however, on a different ground: that the employer was principally responsible for the discrimination.

These appeals followed.

2.

When the appeals were reached for argument in April 1977, it appeared that certiorari had been granted by the Supreme Court in cases whose decision would have a significant bearing on the disposition of the appeals in the case at bar. The cases then pending in the Supreme Court were (1) International Brotherhood of Teamsters v. United States and T.I.M.E.-DC v. United States (consolidated; cert. granted May 24, 1976, 425 U.S. 990, 96 S.Ct. 2200, 48 L.Ed.2d 814; referred to in short as the “Teamsters” case) and (2) East Texas Motor Freight System, Inc. v. Rodriguez and two other cases (cert. granted May 24, 1976, 425 U.S. 990, 96 S.Ct. 2200, 48 L.Ed.2d 814; referred to in short as the “Rodriguez” case).

The decisions in Teamsters and Rodriguez were handed down on May 31, 1977. The opinion and result in Rodriguez are not relevant to the issues here on appeal. The Teamsters opinion, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 and result are highly relevant here and must be examined.

3.

In the Teamsters case, the employer company was a motor freight carrier, the Union was the same as here, the discrimination charged against the company was the same as that charged here, and the seniority system embodied in contracts with the Union was the same seniority system in the union agreements here in suit.

The seniority system set out in the union contracts has, as a principal feature, seniority by bargaining unit. An OTR driver is in an OTR driver bargaining unit; a city driver is in a city driver bargaining unit. Transfer from city driving to OTR driving means loss of all seniority, thus discouraging transfers and thereby perpetuating pri-or discrimination.

The Supreme Court in the Teamsters case held that Section 703(h) of Title VII (42 U.S.C. § 2000e-2(h)) made it lawful to apply a seniority system even where “it may perpetuate pre-Act discrimination” (97 S.Ct. at 1864). The seniority system must be “bona fide” (42 U.S.C. § 2000e-2(h)) but in the case at bar it was conceded that the union contracts were “neutral on their face” and that no contention was made by the government that they were “negotiated for a discriminatory purpose” (App. 88, 89).

As to post-Act discrimination, the Supreme Court ruled, in Teamsters and in United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571, that its perpetuation by a seniority system did not make the system unlawful but that by timely action retroactive seniority relief for individual employees could be secured.

The conclusion in Teamsters was that “the Union’s conduct in agreeing to and maintaining the [seniority] system did not violate Title VII” (97 S.C. at 1865).

In ordering the cases remanded to the District Court, the Supreme Court in Teamsters established principles for guidance as to retroactive seniority. No employee who suffered discrimination before the effective date of the Act (July 2, 1965) can be given any relief. No employee can be given retroactive seniority to a date earlier than the effective date of the Act.

But employees who suffered from discrimination after the effective date of the Act can, on the necessary showing, obtain seniority relief within the principles of Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). The kind and character of showing on a number of points, as well as the burden of proof in some instances are explained in the Teamsters opinion.

4.

In the light of the opinion in Teamsters, it is clear that under Title VII the District Court correctly decided two of the matters about which the plaintiffs originally urged reversal: (a) there can be no monetary award against the Union, and (b) use of the Union’s grievance procedure in the collective bargaining agreements for one of the steps in resolving seniority disputes was a proper exercise of discretion (in that it was held that those agreements did not violate Title VII). The plaintiffs concede that the back pay claim is eliminated by the Teamsters decision because it was based on Title VII; their appeal in this respect was “withdrawn” (Supplemental Brief, p. 2). As will later be seen, plaintiffs continue to urge that the Executive Order will support the award of retroactive seniority relief.

It appears that, as indicated before, even after the Teamsters decision some retroactive seniority relief can properly be granted to “individual employees” under Title VII (97 S.Ct. at 1865), if the necessary showing of post-Act discrimination is made and other evidence adduced. The difficulty on the present record is that the case was not tried as to individual employees and no distinction was made as to pre-Act and post-Act discrimination as to them. As counsel for plaintiffs explained at one point: “. we have not put up proof on trial specifically for them, but it is also true, as the Court of Appeals for the Fifth Circuit has held in United States versus Time DC just recently, it would be ridiculous because of the very nature of a Title⁷ lawsuit to put on proof on each and every specific individual” (Minutes, October 3, 1975 hearing, p. 18). All this, of course, has been changed by the Teamsters decision.

It is apparent that on the record before it, the District Court, not then having the benefit of the Teamsters opinion, made no attempt to separate pre-Act and post-Act discrimination. The order of May 21, 1975, shows this by its terms. Moreover, in their supplemental brief (p. 9) the plaintiffs concede that about 75% of the retroactive seniority dates mandated below were for dates before the effective date of the Act, a result clearly against part of the decision in Teamsters, 97 S.Ct. at 1865.

In this state of affairs, as to all claims under Title VII we are required to affirm the orders appealed from to the extent that they deny any money award against the Union and to the extent that they provide for use of the grievance procedure of the union contracts as a step in the resolution of retroactive seniority disputes for individual employees; in all other re spects, the orders appealed from must be vacated and the action remanded to the District Court for further proceedings consistent with the principles laid down in the Teamsters opinion and consistent with this opinion.

5.

It remains to consider whether the claims of plaintiffs based on Executive Order 11246 require a different result. The argument for plaintiffs, after the Teamsters decision, is that the award of seniority rights by the District Court should be sustained on the basis of the Executive Order but at the same time should be modified to reflect the points made by plaintiffs on their appeal taken before the Teamsters decision. The argument is presented by both plaintiffs but since plaintiff EEOC was made a party only with respect to Title VII aspects, only the United States as plaintiff appears to have standing to urge the Executive Order. We do not dwell on this point but will continue to refer to both plaintiffs.

The Executive Order imposes obligations on government contractors and subcontractors designed to eliminate employment discrimination of the same sort to which Title VII is directed. The order is authorized by the broad grant of procurement authority. 40 U.S.C. § 486(a).

As the complaint makes clear, it is only ET which is a government contractor or subcontractor; the Union is neither. The Secretary of Labor is responsible for the administration of the Executive Order. 6.

There seems to be no authority in the Executive Order for any action against a labor union except a union “engaged in work under government contracts” and as to such a union the action authorized is for violation of Title VI or Title VII and this only after “best efforts” to cause cooperation (Sec. 207). It is not claimed that the Union here was “engaged in work under government contracts” and, of course, if it were, only a Title VII action would be authorized.