                              _____________

                              No. 94-2305EA
                              _____________

Robert Webb; James R. Douglas;       *
                                     *
            Plaintiffs,              *
                                     *
Southwest Workers Federation,        *
Transportation Subclass,             *
Maintenance of Way Subclass;         *
Lawrence Barbee; Billy Joe           *
Collins; Barry Duran Stewart;        *
                                     *
            Plaintiffs-Appellees,    *
                                     *
Sidney Williams; Earnest             *
Franklin;                            *
                                     *   Appeal from the United States
            Intervenor-Plaintiffs-* District Court for the Eastern
            Appellees,               *   District of Arkansas.
                                     *
Loraine Robinson; Jerry Deloney;*
Curtis Carter; Betty Stewart;        *
John Sykes,                          *
                                     *
            Intervenor-Plaintiffs,*
                                     *
      v.                             *
                                     *
Missouri Pacific Railroad            *
Company; Union Pacific Railroad      *
Company,                             *
                                     *
            Defendants-Appellants.*
                               _____________

                        Submitted:   May 15, 1996

                          Filed: October 22, 1996
                              _____________

Before FAGG, WOLLMAN, and LOKEN, Circuit Judges.
                              _____________


FAGG, Circuit Judge.


     In 1975, several black employees and the Southwest Workers
Federation    (collectively      the   Federation)    brought       this    employment
discrimination lawsuit against the Missouri Pacific Railroad Company
(Missouri Pacific).      See 42 U.S.C. §§ 1981, 2000e-5(f) (1994).         About seven
years after the filing of the Federation's complaint, the district court
granted the Federation's motion for class certification.                   See Webb v.
Missouri Pac. R.R., 95 F.R.D. 357, 359-60, 370 (E.D. Ark. 1982).                 Trial of
the case's liability phase was conducted between November 1985 and December
1989 and involved ninety-five days of live testimony.               In the spring of
1986, Missouri Pacific merged with the Union Pacific Railroad Company
(Union Pacific).   Relying almost exclusively on evidence of discriminatory
treatment from before the merger, see Webb v. Missouri Pac. R.R., 826 F.
Supp. 1192, 1205-20 (E.D. Ark. 1993), and nearly three and one-half years
after the trial record was closed, the district court found there was
class-wide discrimination and ruled in favor of the employees in Missouri
Pacific's maintenance-of-way (MOW) and transportation departments, id. at
1203-11.     Despite the age of the trial record, on April 15, 1994 the
district court "enjoined [Union Pacific] from creating or tolerating a
racially    oppressive    work   environment   for   any   member    of    the    MOW   or
Transportation [departments]."         Webb v. Missouri Pac. R.R., No. LR-75-C-
189, slip op. at 2 (E.D. Ark. Apr. 15, 1994).              The district court also
enjoined Union Pacific from using discriminatory practices in discipline,
promotions, and job assignments within the MOW department.           See id. at 3-4.
Union Pacific filed this interlocutory appeal challenging the district
court's decision to grant an injunction.             See 28 U.S.C. § 1292(a)(1)
(1994).


     After carefully reviewing the record, we conclude the evidence does
not support the district court's decision to grant class-wide injunctive
relief.    Aside from the liability phase record that was closed in December
1989, the only other evidence before the district court about the working
conditions and any possible discriminatory treatment of the class action
employees under Union




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Pacific's regime was an uncontested affidavit by Union Pacific's equal
opportunity compliance manager.                 This affidavit was presented shortly
before the district court issued the injunction.                    In his affidavit, the
compliance manager explained Union Pacific's extensive antidiscrimination
and affirmative action programs and reported that "since December of 1989,
there have been no [formal or informal] complaints of racial harassment by
MOW employees on the Arkansas Division roster."                    In short, the district
court had no information about discrimination since the liability phase of
the   trial    ended    in     1989    except   an    affidavit    showing    the   effective
implementation of comprehensive antidiscrimination and affirmative action
programs      after    Union    Pacific    took       control   over     Missouri   Pacific's
operation.      See Parham v. Southwestern Bell Tel. Co., 433 F.2d 421, 429
(8th Cir. 1970) (employer's voluntary use of salutary employment policies
eliminated the need for an injunction).                 Contrary to the district court's
view, injunctive relief should not be considered unless the record shows
"a real threat of [a] future violation [of the law] or a contemporary
violation of a nature likely to continue or recur."                        United States v.
Oregon State Medical Soc'y, 343 U.S. 326, 333 (1952); see Farmer v.
Brennan, 114 S. Ct. 1970, 1983 (1994).                Even assuming the district court's
findings of widespread discrimination are correct, Missouri Pacific's past
transgressions will not support an injunction that was not issued until
five years after the close of all the evidence.                   See Oregon State Medical
Soc'y, 343 U.S. at 333-34; Boykin v. Georgia-Pacific Corp., 706 F.2d 1384,
1394 (5th Cir. 1983) (injunction inappropriate when last testimony about
class-wide discriminatory treatment was seven years old); Taylor v.
Teletype      Corp.,    648     F.2d    1129,    1136    (8th     Cir.   1981)   (injunction
inappropriate absent evidence of racial discrimination for the past three
years); Donnell v. General Motors Corp., 576 F.2d 1292, 1301 (8th Cir.
1978) (same).          Simply stated, we are unable to say Union Pacific's
employment practices justify the district court's decision to grant class-
wide injunctive relief.




                                                -3-
     Having concluded the district court abused its discretion by granting
an injunction on a stale record, we reject Union Pacific's suggestion that
we should consider whether the district court improperly granted class
certification, and whether the district court's findings of class-wide
employment discrimination are clearly erroneous.    Although Union Pacific
correctly argues that we may review nonfinal and normally unappealable
orders if their propriety is necessarily intertwined with the validity of
the injunction, see Fogie v. Thorn Americas, Inc., No. 95-3694, 1996 WL
501757, at *2 (8th Cir. Sept. 6, 1996), we refrain from doing so in this
case because we have disposed of the injunction "without venturing into
otherwise nonreviewable matters," Hoxworth v. Blinder, Robinson & Co., 903
F.2d 186, 208-09 (3rd Cir. 1990).


     We thus vacate the injunction and return the case to the district
court with one final comment.   After twenty years of on-and-off litigation
in the district court, it is time for this case to come to an end.    That
being said, we urge the district court to conduct the yet-to-be-tried
remedy phase with dispatch.


     A true copy.


           Attest:


                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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