_____________ 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

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Federation (collectively the Federation) brought this employmen t di scrimination lawsuit against the Missouri Pacific Railroad Compan y (Missouri Pacific). See 42 U.S.C. §§ 1981, 2000e-5(f) (1994). About seve n 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 Decembe r 1989 and involved ninety-five days of live testimony. In the spring o f 1986, Missouri Pacific merged with the Union Pacific Railroad Compan y (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 wa s class-wide discrimina tion 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 th e distri ct court "enjoined [Union Pacific] from creating or tolerating a racia llyoppressive work environment for any member of the MOW o r Transportation [departments]." Webb v. Missouri Pac. R.R. , No. LR-75-C189, slip op. at 2 (E.D. Ark. Apr. 15, 1994). The district court als o enjoined Union Pacifi c from using discriminatory practices in discipline, promotions, and job assignments within the MOW department. See id. at 3-4
. Unio n Pacific filed this interlocutory appeal challenging the distric t cour t's decision to grant an injunction. See 28 U.S.C. § 1292(a)(1 ) (1994).
After car efully 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 t hat 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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Pacifi c's regime was an uncontested affidavit by Union Pacific's equa l opportu nitycompliance manager. This affidavit was presented shortl y before the district court issued the injunction. In his affidavit, th e compliance manager explained Union Pacific's extensive antidiscrimination and affirmative action programs and reported tha t "since December of 1989, there have been no [formal or informal] complain ts of racial harassment by MOW employees on the Arkansas Division roster." In short, the distric t court had no information about discrimination si nce the liability phase of the t rial ended in 1989 except an affidavit showing the effectiv e implementation of com prehensive antidiscrimination and affirmative action pro grams after Union Pacific took control over Missouri Pacific' s operation
. See Parham v. Southwestern Bell Tel. Co. , 433 F.2d 421, 42 9 (8th Cir. 1970) (empl oyer's voluntary use of salutary employment policies eliminated the need f or 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 contemporar y vio lation of a nature likely to continue or recur." United States v
. Oregon St ate Medical Soc'y , 343 U.S. 326, 333 (1952); see Farmer v . Brennan , 114 S. Ct. 1970, 1983 (1994). Even ass uming the district court's findings of widespread discrimination are correc t, Missouri Pacific's past tra nsgressions will not support an injunction that was not issued unti l five years after the close of all the evidence. See Oregon State Medical Soc'y , 343 U.S. at 333-34; Boykin v. Georgia-Pac ific 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
. Telety pe Corp. , 648 F.2d 1129, 1136 (8th Cir. 1981) (injunctio n inappropriate absent evidence of racial discrimination for the past three years ); Donnell v. General Motors Corp. , 576 F.2d 1292, 1301 (8th Cir
. 197 8) (same). Simply stated, we are unable to say Union Pacific' s employment practices justify the district court' s decision to grant classwide injunctive relief.

### -4- Having concluded the district court abused its discretion by gr anting an injunction on a stale record, we reject UnionPacific's suggestion that we sho uld consider whether the district court improperly granted clas s cert ification, and whether the district court's findings of class-wid e employment discrimination are clearly erroneous. Although Union Pacific correc tlyargues that we may review nonfinal and normally unappealabl e orders if their propr iety is necessarily intertwined with the validity of the injunction, see Fogie v. Thorn Americas, Inc. , No. 95-3694, 1996 W L 501757, at *2 (8th Cir. Sept. 6, 1996), we refrain from doing so in this
cas e because we have disposed of the injunction "without venturing int o otherwise nonreviewable matters," Hoxworth v. Bl inder, Robinson & Co. , 903 F.2d 186, 208-09 (3rd Cir. 1990).

We thus vacate the injunction and return the case to the distric t court with one final comment. After twenty year s of on-and-off litigation in the district court, it is time for this case to come to an end. That being s aid, we urge the district court to conduct the yet-to-be-trie d remedy phase with dispatch.
A true copy.

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