Remarks of Gus Heningburg to Overseas Press Club

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 27,703

UNITED STATES OF AMERICA,

-v. Appellant,

H. K. PORTER COMPANY, INC.; 
UNITED STEELWORKERS OF AMERICA 

AFL-CIO; and LOCAL UNION No. 2250,
Appellees.

On Appeal From The United States District Court For The
Northern District of Alabama

BRIEF FOR ALVIN C„ MULDROW, HENRY SMITH, 
AND COUNCIL O'NEIL JACKSON„ AS 

AMICI CURIAE

JACK GREENBERGRICHARD B. SOBOL
1823 Jefferson Place,N.W. ! Washington, D. C.

6EORGE COOPER
435 West 116th Street 
New York, New York

NORMAN C. AMAKER 
ROBERT BELTON

10 Columbus Circle 
New York, New York 10019

OSCAR W, ADAMS, JR.
1630 Fourth Avenue North 
Birmingham, Alabama

Attorneys for Alvin C. Muldrow, 
Henry Smith, and Council O'Neil Jackson.



INDEX
Page

I. Interest of Amici Curiae . ..............  1
II. Statement of the Issue ................  3

III. Statement of the Case ................. 3
IV. Argument

The Court Should Reverse and Remand 
This Case, With Instruction, In 
Light Of This Court's Recent Decision 
In Local 189, United. Papermakers And 
Paperworkers, AFL-CIO v. United
States, No. 25956 .................  6

Conclusion ...................................  13

Table of Cases

Dent v. St. Louis-San Francisco Railway Co.,
406 F. 2d 399 (5th Cir. 1969) ..............  2

pent v. St. Louis-San Francisco Railway Co.,
265 F. Supp. 56 (N.D. Ala. 1967) ..........  2

pocal 189, United Papermakers and Paperworkers, 
AFL-CIO v. United States, No. 25956 (5th
Cir. July 28, 1969) ................  6,7,8,10,12

IjMuldrow v. H. K. Porter, Civil Action No.
66-206 (N.D. Ala.) ............ ............ 1,2

iQuarles v. Philip Morris, Inc., 279 F. Supp.
1 505 (E.D. Va. 1968) .......................  7
United States v. Local 189, 60 CCH Lab. Cas.

Para. 9274 (June 26, 1969) .............  9,10,11
United States v.,H. K. Porter, 296 F. Supp.

40 (N.D. Ala. 1968) .......................  9,11
Statutes Involved. ,

15 U.S.C. §13 (b) ......... . . .................. 12i
Civil Rights Act of 1964, Title VII, 42 U.S.C.

§2000e et. seg............... ............... 2
7!Section 703(h)



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 27,703

UNITED STATES OF AMERICA,
Appellant,

v.
H. K. PORTER COMPANY, INC.;
UNITED STEELWORKERS OF AMERICA, 
AFL-CIO; and LOCAL UNION No. 2250,

Appellees.

On Appeal From The United States District Court For The
Northern District Of Alabama

BRIEF FOR ALVIN C. MULDROW, HENRY SMITH,
AND COUNCIL O'NEIL JACKSON, AS 

AMICI CURIAE

I.
Interest of Amici Curiae

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Amici Alvin C. Muldrow, Henry Smith, and Council O'Neil 

Jackson, Negro citizens employed by H. K. Porter, one of the 
appellees herein, are the plaintiffs in Muldrow v. H. K. Porter,
jCivil Action No. 66-206, Northern District of Alabama. ThatS
action was filed on March 31, 1966, seeking relief under Title

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VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. 
The case was dismissed by the district court on March 10, 1967, 
on authority of that court1s opinion in Dent v . St. Louis—San 
Francisco Railway Co., 265 F. Supp. 56 (N.D. Ala. 1967) for 
the reason that there had been no effort at conciliation by the 
Equal Employment Opportunity Commission prior to suit. The 
dismissal was reversed by this Court with Dent on January 8, 
1969, 406 F .2d 399, and the case was remanded to the district 
court. Two weeks earlier, the decision of the lower court in 
this case was rendered.

The lower court's decision disposes of, and decides 
adversely to the plaintiffs, the main issues that are raised 
in the MuIdrow case relating to the legality of the prevailing
seniority systems at the H. K. Porter plant in Birmingham, 
Alabama. For this reason, plaintiffs in the MuIdrow case moved 
tiie court below for a stay of proceedings pending disposition 
of this appeal. That stay was granted on July 3, 1969.

Since the decision of this appeal on the seniority issue 
will decide one way or another the seniority issue raised in 
the MuIdrow case, amici have a crucial interest in the outcome
Iof this proceeding. It is for this reason they seek to present 

their views to the court on this appeal. The filing of this 
amicus brief has been agreed to by counsel for the appellees 
and copies of letters of consent will be filed with the Clerk
of this Court.

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II.
Statement of the Issue

Whether Title VII entitles a Negro employee who was 
formerly excluded from a line of progression because of 
race to compete for jobs within that line of progression 
solely on the basis of his total length of service and 
his qualifications, in supervention of any prevailing 
seniority or transfer rules?

III.
Statement of the Case

Although the proceedings below were protracted and 
‘the opinion of the district court lengthy, the relevant- 
facts on the seniority, promotion and transfer issues in 
this case can be simply stated.

1. Prior to the fall of 1962, the steel mill operated 
by the H. K. Porter Company in Birmingham, Alabama, was 
.totally segregated as to race; each job in the mill was 
absolutely restricted to either white or to black employees, 
jin several of the departments in the plant, all of the jobs 
were restricted to whites, and in those departments all 
jobs were included in a single line of progression. In 
most other departments, there were both white and black jobs 
and the jobs for each race were structured in separate lines

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(Of progression. With the exception of three black jobs, alli
of the white jobs in the racially mixed departments were more 
highly paid and involved greater responsibility than the best

I!job in the black line of progression.

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2. In October, 1962, these formal racial restrictions 
were abandoned and the black employees were permitted to 
enter formerly white-only jobs. In the racially mixed 
departments, the two separate lines of progression were 
merged. The jobs in the merged lines were ranked on the 
basis of rates of pay. With the exception of the three black 
jobs referred to above, this meant that the Negro lines were 
simply tacked on to the bottom of the existing white lines. 
After these mergers, black employees were permitted to 
progress up the merged progression line to the former 
white-only jobs on the basis of job seniority. This meant 
that whenever a vacancy occurred anywhere in the progression 
|line it would be filled by the man in the job slot below the 
vacancy, who, among all the men in that job slot, had served 
!in that slot the longest. No consideration was paid to the 
total length of service of the competing employees. In other 
words, assuming qualifications and no voluntary waiver of 
advancement, when a vacancy occurred anywhere in a line of 
progression the employee in each lower ranking job slot with 
greatest time in his slot would move up one notch until there 
was a vacancy at the bottom of the line. After October, 1962, 
black employees at the Porter plant were also permitted to 
transfer to formerly all white departments as vacancies 
occurred at the entry level in those progression lines.

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Thereafter, they were permitted to advance up the progression 
ladder on the basis of job seniority.

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3. The result of the continued application of the job 
seniority standard of promotion was that when a Negro employee 
either moved up into the section of a merged progression line 
that was formerly the separate white line, or transferred to 
the entry level of a formerly all-white department, he would 
take his place behind all the white employees who had entered 
the white portion of the merged line or the all-white depart­
ment before him, and move up in his turn behind these men.
■This result occurred even though he may have had years of 
service with the company, while the men ahead of him were 
relative newcomers who had been permitted to enter the line 
before him solely on grounds of race, and even though under 
this system, the senior Negro newly permitted to enter the 
white line would often not be able in his remaining years of 
jservice ever to reach the upper echelons of that line where 
his white contemporaries were employed.

In this proceeding, the Government contended that, 
wherever qualifications permitted, Negroes who had been 
employed by the company prior to October, 1962, should be 
permitted to bid, on the basis of their total length of 
employment, for vacancies in their lines of progression and 
for jobs above the entry level in other progression lines.
In other words, -the Government contended that access to 
better paying jobs either within a progression line or in 
.another progression line could not be denied because of'* i!
standards that incorporated and perpetuated the effects of

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a black employee's prior exclusion from the white seniority 
units. These contentions were rejected by the district court. 
The substantive issue before this Court is whether Title VII 
permits companies and unions in formerly segregated plants 
to award promotions and to structure access to better paying 
former white jobs on the basis of a commodity —  time in white 
jobs -- that blacks had traditionally been prohibited from 
acquiring.

IV.
Argument

THE COURT SHOULD REVERSE AND REMAND 
THIS CASE, WITH INSTRUCTION, IN LIGHT 
OF THIS COURT'S RECENT DECISION IN 
LOCAL 189, UNITED PAPERMAKERS AND 
PAPERWORRERS,'AFL-CIO V. UNITED STATES, 
NO. 25956.

On July 28, 1969, the legal issue raised in this appealj
was decided by this Court favorably to the position asserted

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by the Government in this case. Local 189, United Papermakers
j and Paperworkers, AFL-CIO v. United States, No. 25956.

The facts of the Local 189 case were virtually identical
to those presented here. This Court upheld the lower court's
decision that the use of job seniority to govern the promotional
rights of black workers in jobs from which they were formerly
excluded violates Title VII. Judge Wisdom, writing for a
unanimous courtj stated:

The defendants assert, paradoxically, that 
even though the system conditions future employ- 

' ment opportunities upon a previously determined
racial status the system is itself raciallyi

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neutral and not in violation of Title VII.
The translation of racial status to job-seniority 
status cannot obscure the hard, cold fact that 
Negroes at Crown's mill will lose promotions 
which, but for their race, they would surely 
have won. Every time a Negro worker hired 
under the old segregated system bids against 
a white worker in his job slot, the old racial 
classification reasserts itself, and the Negro 
suffers anew for his employer's previous bias.
It is not decisive therefore that a seniority 
system may appear to be neutral on its face if 
the inevitable effect of tying the system to 
the past is to cut into the employees present 
right not to be discriminated against on the 
ground of race. (Slip opinion, pp. 14-15)

Relying on Judge Butzner's discussion in Quarles v.
Philip Morris, Inc., 279 F. Supp. 505, 516 (E.D. Va. 1968),
Jthis Court in Local 189 held that the legislative history 
was not inconsistent with a prohibition of job seniority 
;as a measure of promotion of black workers in formerly 
segregated plants. Specific support for this conclusion 
was drawn from Section 703(h) of the Act, relating to seniority 
systems.

Section 703 (h) expressly states the seniority 
system must be bona fide. The purpose of the 
act is to eliminate racial discrimination in 
covered employment. Obviously one characteristic 
of a bona fide seniority system must be lack of 
discrimination. Nothing in §703(h), or in its 
legislative history suggests that a racially 
discriminatory seniority system established 
before, the act is a bona fide seniority system 
under the act.

Quarles v. Philip Morris, Inc., supra, 279 F. Supp. at 517, 
quoted with approval in Local 189 v. United States, supra, 
slip opinion at 14. !

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In the Local 189 case, the court carefully limited its
holding "that facially neutral but needlessly restrictive 
tests may not be imposed where they perpetuate the effects 
of previous racial discrimination" (slip opinion, p. 22) to 
situations in which the criteria sought to be imposed by the 
employer could not be justified on the basis of "business 
necessity." (;[d., pp. 10, 17-19, 27-28, 38). The Court in 
Local 189 noted that in the lower court opinion in the instant 
case Judge Allgood appeared to have found that job seniority 
was justified on grounds of business necessity, and on that 
basis, Judge Wisdom stated that "we see no necessary conflict 
between Porter's holding on this point and our holding in 
■the present case." (I_d. , p. 28) (Emphasis added.) The only 
open issue before this Court, therefore, is the validity of 
;Judge Allgood's factual finding that the job seniority system 
iand other promotional and transfer restrictions are a business 
necessity at the Porter plant.

The only reference in Judge Allgood's opinion to business
II justification for the job seniority system is as follows:

[T]he abolition of this procedure [job seniority] 
would advance employees who might have the least 
time on a job and therefore the least training for 
the next job. This is a result which requires the 
assumption that with less than the amount of 
on-the-job-training now acquired by reason of the 
progression procedure, employees could move into 
the jobs in the progression lines and perform 
those jobs satisfactorily and —  more importantly 
—  without danger of physical injury to themselves 
and their fellow employees, and that is not a 

j permissible assumption on the record of this case.
(296 F.Supp. at 91).

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To the contrary, the assumption that in some cases 
employees could effectively and safely perform the next 
higher job in their progression line without all the job 
training afforded by the job seniority system is the only 
permissible assumption on the record of this case. The 
lower court's contrary finding is clearly erroneous and 
should be reversed.

The Court can take notice that there is some definable 
period for each job in any plant within which its requirements 
'and its educational potential for the next higher job can 
be mastered. Neither the government nor amici contend that 
an employee should be allowed promotion after a lesser period 
jof time. In the Local 189 case, Judge Heebe in the district 
court entered a detailed order establishing a minimum period 
of residence for each job in the plant, which must be satisfied 
before an employee is eligible for promotion under the newly 
jadopted mill seniority system. See United States v. Local 189, 
(60 CCH Lab. Cas. para 9274, p. 6637 and Appendix A (June 26, 
1969). In addition, Judge Heebe's order specifically 
recognizes an overriding right of the company to deny a 
promotion, regardless of seniority, to any employee who does 
not have the necessary qualifications. (Ibid.) Such carefully 
tailored requirements could similarly be imposed in this case. 
They fully satisfy considerations of safety and efficiency.

But it is plainly wrong to suggest that in every case 
these considerations are satisfied automatically, withoutI

irequiring too much or too little job training, by a job

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seniority system. The job seniority system, like any other 
seniority system, depends on the vagaries of turnover in 
manpower and of expansion or contraction in the level of 
production. It may take one employee five years to move 
from one job to the next, and then take another employee 
five months. Concededly, a job seniority system makes it 
more likely than does an employment seniority system that 
the senior employee will have sufficient training to qualify 
for promotion, but it also makes more likely that a formerly 
excluded black worker will be denied a promotion for which 
he is qualified and for which he is senior on the basis of 
employment seniority. Given the holding of the court in 
-Local 189, the business necessity requirement must be satis­
fied in the narrowest possible way —  reliance on job senioritv 
for the purpose of assuring qualifications is tantamount to

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jrelying on a sledgehammer to kill a fly. There are, as Judge 
jHeebe s June 26, 1969, order in the Local 189 case demonstrates, 
Luch more limited procedures to assure qualifications without 
broadly and unnecessarily preferring junior whites to senior 
Negroes.

A more difficult question is raised by Judge Allgood's 
[finding that with a single exception each job in the plant 
provides necessary training for every job higher in its pro­
gression line. The question is more difficult because, unlike 
the lower court's finding concerning job seniority, it is at 
least theoretically possible that this finding is correct. It 
appears from the record that neither side below submitted

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detailed evidence on the interrelationship of each job to 
others above it, and Judge Allgood's finding on this question 
seems to be a response to this lack of evidence. (296 F.Supp. 
at 54-55)

Amici suggest that the case be remanded for further 
evidentiary proceedings on this issue for two reasons:

First, it seems probable that in a plant with sixteen 
progression lines and hundreds of jobs, the progression lines 
will, at least in some cases, contain entry level jobs that 
are simply menial jobs without any training content. (Compare 
United States v. Local 189, June 26, 1969, District Court 
Order, 60 CCH Lab. Cas. para. 9274, pp. 6638-39, listing the 
gobs at the Crown Zellerbach plant which the company conceded 
and the court found do not afford necessary training for 
higher positions in the progression lines.) Indeed, the very
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(fact that for many years what are now merged progression lines
jin the racially mixed departments were maintained as separate
i(lines, and that white employees could enter the white line at 
ja point that is now in the middle of the merged line establishes 
that there cannot be indispensable job relation at every level 
iof every line. Of course, the fact that the court is able to 
point to several examples where there is such necessary train­
ing is beside the point. (296 F. Supp. at 55) Amici do not 
contend that there is no functional or training relationship 
between any progression line jobs, we simply ask the court to 
'reject the equally extreme contrary conclusion that every job

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provides indispensable training for every other job further 
up its progression line. In view of the lower court's 
incorrect view of the applicable legal principles at the time 
it rendered its opinion, its manifestly erroneous factual 
findings on the job seniority issue, and the strong considera­
tions rendering it improbable that the lower court findings 
on job relation are in every case correct, we suggest that 
this issue be remanded with the others for further evidentiary 
■ findings.

Second, since all the relevant evidence on questions of 
job relation will, in every case, be peculiarly within the 
possession of the company, and the plaintiffs in these cases 
:wi.ll always be unfamiliar with all the technicalities of the 
operation of the plant, we submit that the business justifica­
tion issue should be treated as a defense, with the burden 
of establishing the defense on the defendant. Compare 15 
jU.S.C. §13(b). As a practical matter, it is only by imposing 
on the company the burden of establishing the extent of its 
business justification for transfer and promotional rules that 
the principles articulated by this Court in Local 189 can be
Effectively implemented. Since the defendant has not introduced

ilevidence establishing this defense, further proceedings for 
that purpose should be ordered. i

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V.
Conclusion

The judgment of the lower court should be reversed 
and remanded with instructions to enter an order requiring 
the discontinuance of the job seniority promotional system, 
and for further evidentiary proceedings on the issue of 
business necessity of the company's transfer rules.

Respectfully submitted,

Richard B. Sobol
1823 Jefferson Place, N.W. 
Washington, D. C.

Jack Greenberg 
Norman C. Amaker 
Robert Belton

10 Columbus Circle 
New York, New York 10019

George Cooper
435 West 116th Street 
New York, New York

Oscar W. Adams, Jr.
1630 Fourth Avenue North 
Birmingham, Alabama

Attorneys for Alvin C. Muldrow, 
Henry Smith, and Council O'Neil Jackson



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