Gaston County Dyeing Machine Company v. Brown Brief in Opposition to Certiorari

    gutpran? (taurt at tty In lt^  States
October Term, 1972 

No. 72-293

1st t h e

G aston  C otjhty D y ein g  M a c h in e  C o m pa n y ,

Petitioner,
v.

M arvin  W . B r o w n ,
Respondent.

BRIEF IN OPPOSITION TO CERTIORARI

J ack  G reenberg  
J am es M . N a b eit , III 
W il l ia m  L . R obinson  
M orris J .  B aller

10 Columbus Circle
New York, New York 10019

J .  LeV oN N E C h a m bers  
R obert B elto n
C h a m b er s , S t e in , F erguson  &  L a n n in g  

237 West Trade Street 
Charlotte, North Carolina

C onrad 0 .  P earson
203% E. Chapel Hill Street 
P. O. Box 1428 
Durham, North Carolina

Attorneys for Respondent.
Of Counsel
A lbert  J .  R o se n t h a l  

435 West 116 Street 
New York, New York 10027



I N D E X

PAGE

Questions Presented for Review ...................................  1

Statement of the Case ...................................................  2

A r g u m e n t ............................................................................................ 6

C o n c lu sio n  ...........................................................................................  26

T able of A u t h o r it ie s

Cases:
Alabama v. United States, 304 F.2d 583 (5th Cir. 1962), 

affirmed, 371 U.S. 37 (1962).......................................  20

Boudreaux v. Baton Rouge Marine, 437 F.2d 1011 (5th
Cir. 1971) ..................................................................... 14

Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir.
1969) ...............      8

Brady v. Bristol Myers, 459 F.2d 621 (8th Cir. 1972).... 14

Caldwell v. National Brewing Co., 443 F.2d 1044 (5th
Cir. 1971), cert, denied, 404 U.S. 998 (1971)—......... 13-14

Carr v. Conoco Plastics, Inc., 423 F.2d 57 (5th Cir.
1970) , cert, denied, 400 U.S. 951 (1970)..................  8

Clark v. American Marine Corp., 297 F. Supp. 1305
(E.D. La. 1969) ............    21

Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2nd Cir.
1968) ................      10

Hackett v. McGuire Brothers, Inc., 445 F.2d 442 (3rd
Cir. 1971) .................................... .................. ..9,11,12,13

Hall v. Werthan Bag Corp., 251 F. Supp. 184 (M.D. 
Tenn. 1966) 7-8



u

Heard v. Mueller Co., ----- - F.2d — , 4 EPD 1)7904
(1972) ................... ....................................................12,13

Hodges v. United States, 203 U.S. 1 (1906).................  14
Huff v. N. D. Cass Co.,----- F.2d — , 4 EPD 1)7775

(1972), reh’g granted (CA 5 1972), 4 EPD 1)7775 .... 12

Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir.
1968) ........................................................................... 9,18

Johnson v. Georgia Highway Express, Inc., 417 F.2d
1122 (5th Cir. 1969) ..................... ....................... 8,11,12

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)....13,14,
16,17

Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 
(10th Cir., 1970) ................................ .........................  20

Kahan v. Rosenstiel, 424 F.2d 161 (3rd Cir. 1970)......  11

Lea v. Cone Mills Corp., 301 F. Supp. 97 (D.C. N.C.
1969) , aff’d in part and vacated in part per curiam,
438 F.2d 86 (4th Cir. 1971)............................ .........21,24

Local 53 of International Association of Heat and 
Frost Insulators and Asbestos Workers v. Vogler,
407 F.2d 1047 (5th Cir. 1969)....... ............ ............... 18

Mack v. General Electric Co., 329 F. Supp. 72 (E.D.
Pa. 1971) ...... ....................... ........... ............ .............9-10

Marquez v. Omaha District Sales Office, Ford Division,
440 F.2d 1157 (8th Cir. 1971)..... ........... ................... 20

Miller v. Mackey International, Inc., 452 F.2d 424 (5th
Cir. 1971) ......... ....................................... ............... 11

Mills v. Electric Auto Lite Co., 396 U.S. 375 (1969)..... 25

Newman v. Piggie Park Enterprises, 390 U.S. 400 
(1968)

PAGE

25



I l l

Parham v. Southwestern Bell Telephone Co., 433 F.2d
421 (8th Cir. 1970) .......................................11-12,18,19,

20, 21, 23
Potts v. Flax, 313 F.2d 284 (5th Cir. 1963)................. 9

Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.
1971), cert, dismissed, 404 U.S. 1006 (1972).............. 24

Rowe v. General Motors Corp.,----- F.2d------ , 4 EPD
117689 (5th Cir. 1972) ...... ...........................................  20

Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir.
1970), cert, denied, 401 IT.S. 948 (1971)...................  14

Sullivan v. Little Hunting Park, Inc., 396 IT.S. 229, 90 
S.Ct. 400, 24 L.ed. 2d 386 (1969)......... ......................  17

Tipler v. E. I. duPont de Nemours & Co., 443 F.2d 125 
(6th Cir. 1971) ................ ............... ....................... ..11,13

United States v. Bethlehem Steel Corp., 446 F.2d 652
(2nd Cir. 1971) ....... ............................................ ....... 20

United States v. Hayes International Corp., 415 F.2d
1038 (5th Cir. 1969) .................................................. 20

United States v. IBEW, Local 18, 428 F.2d 144 (6th
Cir. 1970), cert, denied, 400 U.S. 943 (1970)............ 20

United States v. Jacksonville Terminal Co., 451 F.2d 
418 (5th Cir. 1971), cert, denied, —— U.S. —
(1972) ..................................................... ............ 18,20,21

United States v. Sheet Metal Workers, Local 36, 416
F.2d 123 (8th Cir. 1969) ........................................... 21

United States v. W. T. Grant Co., 345 U.S. 629 (1953) 23

Waters v. Wisconsin Steel Works, 427 F.2d 476 (7th 
Cir. 1970), cert, denied, 400 U.S. 911 (1970)...... 14,16,17

PAGE



IV

Yatfe v. Powers, 454 F.2d 13G2 (1st Cir. 1972)............ 11
Young v. International Tel. & Tel. Co., 348 F.2d 757 

(3rd Cir. 1971) ....................................... .......... ........ 13

Statutes and Other Authorities:
42 U.S.C. § 1982 ................. ..... ....................................  14
42 U.S.C. § 1981 ..............................1, 2,13,14,15-16,17, 23
Equal Employment Opportunity Act of 1972, P.L. 

92-261 ................... ....................................................10,15
Federal Rules of Civil Procedure, Rule 12 (h) (2)..... 16
Federal Rules of Civil Procedure, Rule 23 ........ 3,7,9,10,

PAGE

11,12

H.R. Rep. 92-238 (1971) ................................................  15
Title VII of the Civil Rights Act of 1964—

42 U.S.C. § 2000e et seq. ....................................passim

118 Cong. Rec. S. 2300 (daily ed. Feb. 22, 1972)..........  10
118 Cong. Rec. H. 1863 (daily ed. March 8, 1972)........  10



Isr t h e

dmtrt of thp Hnttp& States
October Term, 1972 

No. 72-293

G aston  C o u n ty  D y ein g  M a c h in e  C o m pa n y ,

v.
Petitioner,

M arvin  W . B r o w n ,
Respondent.

BRIEF IN OPPOSITION TO CERTIORARI

Questions Presented for Review

1. If a plaintiff sues Ms former employer under Title 
VII of the Civil Rights Act of 1964, on his own behalf 
and on behalf of a class of other, present and future em­
ployees of the defendant, alleging racial discrimination 
against blacks in pay, terms, conditions and privileges of 
employment, and if the district court orders the case tried 
as a class action and the case is so tried, and the district 
court renders a decision on the merits as to both the indi­
vidual and class claims asserted, did either the fact that 
the individual plaintiff was a former employee not seek­
ing reinstatement or the fact that his individual claim was 
dismissed deprive the court of appeals of discretion to 
order class relief for the protection of present and future 
employees of the defendant?

2. Is racial discrimination against blacks on the part 
of private employers actionable under 42 U.S.C. §1981!



2

3. On the facts of this case, was it error for the court 
of appeals to hold that statistics, showing* that almost all 
of the better paying jobs in petitioner’s plant were held 
by whites and that almost all blacks w*ere kept in menial 
low-paying jobs, gave rise to a prima facie showing of 
racial discrimination, that the evidence presented by peti­
tioner had not rebutted this presumption, while other evi­
dence had corroborated it, and that the case should there­
fore be remanded to the district court for retention on its 
docket for a reasonable time, at the end of which the dis­
trict court may dismiss the action if it finds that unlawful 
employment practices have been eliminated but must issue 
appropriate injunctive relief if it finds that such practices 
remain ?

4. On the facts of this case, was it error for the court 
of appeals to direct that plaintiff be awarded his costs 
and reasonable counsel fees?

Statement of the Case

This action was filed in the United States District 
Court for the Western District of North Carolina on May 
31, 1966. Respondent Marvin W. Brown (hereinafter 
“plaintiff”) sued “to secure protection of and redress de­
privation of rights secured by (a) Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. § 20Q0e . . .  and (b) 42 U.S.C. 
§1981 . . . . ” (Complaint HI, A3).* The complaint spe­
cifically designated the action as a class action under Rule 
23 of the Federal Rules of Civil Procedure. Injunctive re­
lief against racial discrimination and against denials of

* Page references herein prefaced by “A” relate to . pages-in the 
record on appeal to the court of appeals. Page references to the 
appendix to the Petition for Certiorari are designated “——a”).



3

equal employment opportunity rights granted by both of 
the aforementioned statutes was requested on behalf of 
both the plaintiff individually and the class, as well as back 
pay for the plaintiff individually. (A3-7).

The answer denied plaintiff’s allegations of discrimina­
tion. (A6-8). Petitioner moved to dismiss the complaint 
on the ground that the Equal Employment Opportunity 
Commission had not undertaken conciliation efforts. A 
district court order of dismissal was reversed by the court 
of appeals, 405 F. 2d 887 (4th Cir. 1968), and certiorari 
was denied, 394 U.S. 918 (1969).

The defendant then challenged the standing of plaintiff 
to pursue this claim as a class action. On August 26, 1969 
the district court entered an order determining that this 
action was a proper class action under Rule 23(a), (b)(2), 
of the Federal Rules of Civil Procedure. (A14). Petitioner 
did not thereafter move to amend this order, and the case 
was tried on the merits, as a class action, on September 
29 and 30 and October 1, 1970.

The district court in an Opinion and Order filed De­
cember 31, 1970, denied both the individual and class claims 
for relief and dismissed the action. (24a). The court found 
that although plaintiff had completed a two-year college 
course in welding and related skills, he wTas employed by 
petitioner in 1960 to do “picking and grinding” (28a), a 
low-skill, low-pay job (A15-17, 8a).* The district court

* While the complaint had stated “The plaintiff was employed 
by the defendant in November, 1961 as a welder and worked as 
such through January 31, 1966 (([VII, A4), the answer responded 
that plaintiff had commenced employment with defendant “on June 
29, 1960, and having been transferred during such period of em­
ployment to the job of welder-fabricator trainee in November of 
1961 .(([VII, A7). The chronology set forth in the answer was 
correct, and the ease was tried on that basis, with considerable



4

found: “Brown asked for employment as welder and was 
given to understand by supervisory people that it was 
premature to try to place a Negro in a job as welder with 
the defendant.” (28a). Only when the president of the 
company personally intervened over a year later was plain­
tiff given a welding job. (Id.).

The district court found that once plaintiff wras assigned 
to welding, he was subject to no further discrimination, 
and denied him any individual relief. (29a-30a). It gave 
no explanation for its failure to accord relief for the 
period from June 1960 to November 1961 during which 
petitioner was barring all blacks from welding jobs.

Class relief was also refused, despite the district court’s 
findings that “at least in prior years, welding and high 
pay in the defendant’s shop were not for black men” (30a), 
and “No black employees participated in the welder train­
ing program until about 1968.” (27a). The reasons as­
signed by the court in denying relief to the class were the 
long-standing desegregation of company functions, an­
nouncement by the petitioner in 1965 when Title VII be­
came effective that it would be observed, a finding that 
“advertisements for welders for at least two years [!] 
have been without regard to race,” the “genuine” and 
often successful efforts of petitioner to recruit black 
workers for the higher paying welding jobs, and that 
blacks sometimes dropped out of welding work. (30a-31a).

testimony addressed to the circumstances of plaintiff’s hiring and 
initial assignment as a pickier and grinder in 1960. (E.g., A89-93, 
A186-191, A322). Issues concerning this period were properly be­
fore the court, since IfYII of the complaint alleged, inter “alia, 
“Throughout plaintiff’s employment with the defendant, the de­
fendant has limited and classified plaintiff . . . solely because 
of the plaintiff’s race and color.” (A4).



5

On appeal, the court of appeals held:
1. The district court’s findings established that the peti­

tioner had violated 42 U.S.C. §1981, by denying plaintiff 
a welding* job because of his race between the time he 
applied in 1960 and the time he was assigned to welding 
in 1961, and that he was therefore entitled to back pay in 
the amount of the difference between what he had earned 
and what he would have earned as a welder. (4a).

2. The district court’s finding that plaintiff had not 
been the victim of racial discrimination after he had become 
a welder was supported by the record and was binding 
on appeal. Thus, plaintiff’s claim for individual relief 
under Title VII for this period was denied. (4a-5a).

3. The failure of the plaintiff to prove his individual 
Title VII claim did not deprive the class he represented 
of a remedy. (5a). At least a prima facie case of racial 
discrimination against the class of black employees was 
shown by the striking concentration of whites in the higher 
paying positions and blacks in the lowest (7a-9a), which 
was not rebutted by such efforts as the petitioner made 
since 1965 to hire and promote black employees. (10a). 
The court also noted the long delay on the part of peti­
tioner in admitting blacks to its after-hours training pro­
gram in welding (5a-6a), and it found that the petitioner’s 
lack of objective, formal guidelines for hiring, promotion 
and transfer, and its failure to give notice of vacancies 
within the plant except by w*ord of mouth (6a, 10a-12a) 
served “to corroborate, not to rebut, the racial bias pictured 
by the statistical patterns of the company’s work force.” 
(12a).

4. Despite improvement in many of the petitioner’s 
practices, most of which had occurred since institution of



6

this suit, the transition to a shop free from discrimination 
was still incomplete. (12a-13a). If the litigation were pre­
maturely terminated, members of the class might run the 
risk that this progress would abruptly end. The case was 
therefore remanded to the district court “for retention 
on its docket for a reasonable time. If, at the end of this 
period, the court finds that the company’s employment 
policies have completely eliminated the unlawful practices 
prohibited by § 703(a) [of the Civil Rights Act of 1964], 
it may dismiss this action. However, if any unlawful 
employment practices remain, the court must order appro­
priate injunctive relief. In either event, the plaintiff is 
entitled to recover his costs and reasonable counsel fees.” 
(13a).

Rehearing en banc was denied on May 22, 1972. (23a).

ARGUMENT

1. Class Relief: Petitioner contends that the class relief 
awarded by the court of appeals was improper, on the 
ground that the named plaintiff had not proved his in­
dividual claim under Title VII of the Civil Rights Act 
of 1964 and that he had resigned from employment with 
the petitioner before instituting this action.

Over a year before the trial the district court had 
ordered that the action be maintained as a class action 
“insofar as it seeks injunctive relief from the alleged 
racially discriminatory employment, practices existing at 
any time since the effective date of Title YII . . . .  The 
class which the plaintiff represents includes those Negroes 
presently employed as well as those who may subsequently 
be employed by the defendant . . . .” (A14). The Title YII 
aspect of the case was tried as a class action, and the



district court’s decision dealt (albeit adversely) not only 
with the plaintiff’s individual claim but also specifically 
with the claim for class relief. (30a-31a). When the 
plaintiff appealed to the Court of Appeals from the district 
court’s denial of both individual and class relief, the de­
fendant’s brief argued only the correctness of the district 
court’s . decision on the merits, but did not cross-appeal 
from the order that the case be maintained as a class action. 
Only now, in its petition for certiorari, does the petitioner 
raise this question.

But even if this issue could properly be raised before 
this Court at this late date, petitioner’s position has no 
merit. The test, under Buie 23 of the Federal Rules of 
Civil Procedure, is not whether the claims of the class 
representative are identical with those of the class—only 
whether they are “typical” of them. When an employer 
practices discrimination against blacks, it characteristically 
creeps into almost every aspect of his employee relations— 
hiring, job assignments, promotions, transfers, discharge. 
We have found no case in which a court has held that the 
victims of each of these manifestations of an over-all dis­
criminatory policy must be placed in a separate class and 
that one who has suffered from one of these forms of 
discrimination is barred from representing a class includ­
ing victims of other forms. The courts have consistently 
recognized that the claims of one who has suffered from 
racial discrimination in one of these respects are typical 
of those who have suffered from racial discrimination 
in any of them. It is the discrimination that is the common 
denominator.

“Racial discrimination is by definition a class dis­
crimination. If it exists, it applies throughout the 
class. This does not mean, however, that the effects

7



8

of the discrimination will always be felt equally by 
all the members of the racial class . . . .  But although 
the actual effects of a discriminatory policy may thus 
vary throughout the class, the existence of the dis­
criminatory policy threatens the entire class. And 
whether the Damoclean threat of a racially discrimina­
tory policy hangs over the racial class is a question 
of fact common to all the members of the class.” Hall 
v. Werthan Bag Corp., 251 F. Supp. 184, 186 (M.D. 
Tenn. 1966) *

Thus, the courts have consistently held that named plain­
tiffs in Title VII actions may represent not only those 
who suffered racial discrimination in identical form, but 
all victims of the racially discriminatory practices of the 
same employer.

For example, individual plaintiffs claiming* that they 
were denied employment because of their race may rep­
resent a class that also includes incumbent employees, and 
secure injunctive relief against racial discrimination in 
the conditions of their employment. Carr v. Conoco 
Plastics, Inc., 423 F.2d 57 (5th Cir. 1970), cert, denied, 
400 U.S. 951 (1970). An individual plaintiff claiming to 
have been discharged for racial reasons may represent 
a class of all past, present and future black employees 
and seek plant-wide relief against racial discrimination 
not only in firing of employees but also in hiring, promo­
tion and maintenance of facilities. Johnson v. Georgia 
Highway Express, Inc., 417 F.2d 1122 (5th Cir. 1969). A

* “The very nature of a Title VII violation rests upon discrim­
ination against a class characteristic, i.e., race, religion, sex or 
national origin.” Parham v. Southwestern Bell Telephone Go., 433 
F.2d 421, 428 (8th Cir. 1970). See also Bowe v. Colgate-Palmolive 
Go., 416 F.2d 711, 719 (7th Cir. 1969) ; Hutchings v. United, States 
Industries, Inc., 428 F.2d 303, 311 (5th Cir. 1970).



9

pensioner claiming that he had previously been a victim 
of discriminatory discharge may pursue a class action 
complaining of discrimination in hiring, promotion and 
seniority, as well as his individual claims. Hackett v. 
McGuire Brothers, Inc., 455 F.2d 442 (3rd Cir. 1971). An 
employee, whose individual claim was one of racial dis­
crimination in refusing to give him a promotion, was per- 
mited to pursue a class action attacking every aspect of 
racial discrimination in employment by the defendant and 
the granting to him of the job he sought shortly after the 
suit was brought was held not to moot either his individual 
claim or his class action for injunctive relief on behalf 
of all black employees. The. court specifically rejected the 
contention that there was no class represented by the 
plaintiff since the only other Negro denied the same pro­
motion had also since been granted it, by asserting “this 
ignores element (2) of the claim—plant-wide system-wide 
racially discriminatory employment practices.” Jenkins v. 
United Gas Corp., 400 F.2d 28, 34 (5th Cir. 1968). Compare 
also Potts v. Flax, 313 F.2d 284 (5th Cir. 1963).

“Congress has taken giant strides to legislate bias out 
of our economy. Given the tools that Congress has 
now provided, courts would be remiss if they were 
not used to the fullest extent. The broad Congressional 
purpose, expressed in the civil rights acts, of eliminat­
ing job bias can well be effectuated by allowing any 
Negro claiming that an employer has discriminated 
against him on racial grounds to sue to end all that 
employer’s racial discrimination.” Mack v. General 
Electric Co., 329 F. Supp. 72, 75-76 (E.D. Pa. 1971).

And, as pointed out in Mack, “the across-the-board ap­
proach allows those who need not fear adverse job con­
sequences to sue to end discrimination against those who



10

might fear to bring such suits, such as present employees 
concerned about job security.” Id.

. Thus, the only pertinent question in a case such as this 
is whether there has been compliance with the test set forth 
in Rule 23 (a) (4), F.E.C.P., that “the representative par­
ties will fairly and adequately protect the interests of the 
class.” As stated by Judge Medina in Eisen v. Carlisle & 
Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968),

“an essential concomitant of adequate representation is 
that the party’s attorney be qualified, experienced, 
and generally able to conduct the proposed litigation. 
Additionally, it is necessary to eliminate so far as 
possible the likelihood that the litigants are involved 
in a collusive suit or that plaintiff has interests an­
tagonistic to those of the remainder of the class.” *

* Nor does anything in the legislative history of the Equal Em­
ployment Opportunity Act of 1972, P.L. 92-261, amending Title 
VII, suggest an intention to narrow the Title VII class action law 
developed prior to the amendment’s enactment; indeed, there is 
clear indication of Congressional recognition and approval of the 
line of cases allowing class actions broadly, and in particular per­
mitting class representatives to assert claims on behalf of the class 
that differ from their individual grievances. This is reflected in 
the section-by-section analysis of the bill as it emerged from the 
Conference Coniinittee, submitted by Senator Williams before adop­
tion of the conference bill:

“In establishing the enforcement provisions under this subsec­
tion 706(f) generally, it is not intended that any of the pro­
visions contained therein are desgined to affect the present use 
of class action lawsuits in Title VII in conjunction with Rule 
23 of the Federal Rules of Civil Procedure. The courts have 
been particularly cognizant of the fact that claims under Title 
VII involve the vindication of a major public interest,’ and 
that any action under the Act involves consideration beyond 
those raised by the individual claimant; As a consequence, the 
leading cases in this area to date have recognized that Title 
VII claims are necessarily class action complaints.” 118 Cong. 
Rec. S.3462 (daily ed. March 6, 1972) ; 118 Cong. Rec. If.1863 
(daily ed. March 8, 1972) • see also 118 Cong. Rec. S.2300 
(daily ed. Feb. 22, 1972).



11

Neither court below has indicated any doubt that this 
test has been met; indeed, the.vigor with which this case 
has been pursued, on behalf of the class as well as of the 
named plaintiff, and the successful result accomplished on 
behalf of the class in the court below, themselves demon­
strate how fairly and adequately the interests of the class 
have been protected. Certainly, what amounts to a deter­
mination by both courts below that the tests of Rule 23 
have been met is scarcely appropriate for reconsideration, 
by this Court, and at this stage in the proceedings.

Neither can it be maintained that the loss by the plain­
tiff on the issue of his individual Title VII claim deprived 
him of standing to represent the class and required dis­
missal of the class aspects of the case after they had been 
fully tried. If this were so, class actions would have to be 
terminated whenever the individual plaintiff for one rea­
son or another (e.g., promotion, settlement, disability, or 
discharge) lost his right to individual relief. But cf. 
Jenkins v. United Gas Corp., supra. And such a rule 
would offer an incentive to employers to find “valid” rea­
sons to discharge plaintiffs who bring class actions under 
Title VII.

Thus, it is scarcely surprising that every court of ap­
peals that has considered this question has ruled that 
the validity of a class action does not depend on the suc­
cess or failure of the individual claims of the class repre­
sentatives. Yaffe v. Powers, 454 F.2d 1362 (1st Cir. 1972); 
Hackett v. McGuire Brothers, Inc., 445 F.2d 442 (3rd Cir.
1971); Kahan v. Rosenstiel, 424 F.2d 161 (3rd Cir. 1970); 
Miller v. Mackey International, Inc., 452 F.2d 424 (5th 
Cir. 1971); Johnson v. Georgia Highway Express, Inc., 
417 F.2d 1122 (5th Cir. 1969); Tipler v. E.I. duPont de 
Nemours & Co., 443 F.2d 125 (6th Cir. 1971); Parham v.



12

Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir.
1970).*

Neither do the cases relied on by petitioner show a con­
flict in the circuits. In Huff v. N.D. Cass Co., —— F.2d 
----- , 4 EPI) 1J7775 (1972), a panel of the Court of Ap­
peals for the Fifth Circuit affirmed findings of fact by 
the district court that two of the prerequisites of a elass 
action set forth in Rule 23 were lacking—that the class 
was not so; numerous that joinder of all members was 
impracticable, and that the plaintiff could not and would 
not fairly and adequately protect the interests of the class. 
Neither factor is present in the instant case; the order of 
the district court can only be regarded as finding precisely 
the opposite, and it was not thereafter modified or even 
challenged.

Moreover, even if the Huff case were in point, it ap­
pears to run counter to a long line of Fifth Circuit de­
cisions, some of which are cited above; the Fifth Circuit 
has ordered a rehearing en banc, and has the case under 
advisement. At the most, what we have is not a conflict 
between circuits but rather a conflict between panels of 
the same circuit, which it is itself seeking to resolve. The 
issue is neither ripe nor appropriate for intervention by 
the Supreme Court.

Similarly, the Sixth Circuit case of Heard v. Mueller 
Co.,----- F .2d------ , 4 EPD H7904 (1972), is not in point.

* Couching the issue in terms of plaintiff’s “standing” adds noth­
ing to an analysis of the problem. As pointed out by the Court of 
Appeals for the Third Circuit in Hackett v. McGuire Brothers, Inc., 
supra, at 446, the statutory description, in Title VII, of a qualified 
complainant, “a person claiming to be aggrieved” “shows a con­
gressional intention to define standing as broadly as is permitted 
by Article III of the Constitution.” The issue thus necessarily re­
mains solely whether the requirements of Rule 23 of the Federal 
Rules of Civil Procedure have been met. See Johnson v. Georgia 
Highway Express, Inc., supra, at 1124-25.



13

There the individual plaintiff did not originally bring his 
case as a class action; eleven months later and after hav­
ing voluntarily left the company, he moved to change the 
nature of his action to a class action, the district court 
held the motion moot, and the court of appeals affirmed. 
There was obviously lacking the vigorous effort to protect 
the entire class from the inception of the action, that char­
acterized the instant case, and to the extent that the district 
court might be deemed to have made a finding it was that 
the individual plaintiff would not properly represent the 
class; precisely the contrary elements were present in the 
instant case.

Moreover, here again, even if the Heard case were in 
point, it would reflect a conflict within the Sixth Circuit, 
since in Tipler v. E l. duPont deNemours & Go., supra, 
another panel of the same circuit had specifically held 
that the discharge of the named plaintiff did not prevent 
the action from going forward, on behalf of those con­
tinuing in employment, against discrimination in promo­
tions and other incidents of employment. Here too, if in­
deed there is conflict at all, it is an intra-circuit rather than 
an inter-circuit conflict which is asserted.

2. 42 U.S.C. § 1981: Petitioner’s criticism of the hold­
ing of the court of appeals in favor of the individual 
plaintiff pursuant to 42 U.S.C. § 1981 is equally untenable. 
Every court of appeals that haa. passed upon the question 
since the decision of £his Court,)in Jones v. Alfred II. 
Mayer Co., 392 U.S. 409 (1968), has held § 1981 applicable 
to racial discrimination, by private employers, against 
blacks. Ilackett v. McGuire Brothers, Inc., 445 F.2d 442 
(3rd Cir. 1971); Young v. International Tel. & Tel. Co., 
438 F.2d 757 (3rd Cir. 1971); Caldwell v. National Brewing 
Co., 443 F.2d 1044 (5th Cir. 1971), cert, denied, 404 U.S.

L  •* -,/AJ

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14

998 (1971) ; Boudreaux v. Baton Rouge Marine Contract­
ing Co., 437 F.2d 1011 (5th Cir. 1971) ; Sanders v. Dobbs 
Houses, 431 F.2d 1097 (5th Cir. 1970), cer£. denied,
401 U.S. 948 (1971); IFaters v. Wisconsin Steel Works, 
427 F.2d 476 (7th Cir. 1970), cert, denied, 400 U.S. 911 
(1970)^ Brady v. Bristol Myers, 459 F.2d 621 (8th Cir.
1972). j

“[T]he same right . . .  to make and enforce contracts,” 
in § 1981, and “the same right . . .  to inherit, purchase, 
lease, sell, hold, and convey real and personal property,” 
in § 1982, were both derived from the same sentence of 
the same section (1) of the Civil Rights Act of 1866. This 
Court, in Jones, construed § 1982 to apply to private 
discrimination, with no requirement that state action be 
shown, and upheld the statute so construed as a valid exer­
cise of the power of Congress to implement the abolition 
of slavery. There is no conceivable basis, in history or 
logic, whereby these provisions can be fragmented so that 
state action can be required for one to be invoked but not 
the other. Each of the courts of appeals cited above, now 
joined by that for the Fourth Circuit, has so held.

Moreover, this Court, in Jones, supra, at 442-43, n. 78, 
expressly overruled Hodges v. United States, 203 U.S. 1 
(1906), an earlier case suggesting that §1981 was inap­
plicable to employment discrimination in the absence of 
state action. See Waters v. Wisconsin Steel Works, supra, 
at 482. And, as a matter of principle, this rule in employ­
ment discrimination cases is an a fortiori application of 
the principle of Jones. Restrictions on the right to dis­
pose of one’s labor without discrimination are even more 
inherently badges of slavery than restrictions on the right 
to own property; there have been societies, such as ancient 
Greece and Rome, in which slaves were allowed to own 
property, but restraints on freedom to use one’s labor as



15

one wishes is inherent in slavery, indeed virtually the 
definition of slavery.

It should also be noted that in its consideration of what 
was to become the Equal Employment Opportunity Act of 
1972, P.L. 92-261, the House Committee on Education, and 
Labor re-affirmed the intention of Congress in enacting 
Title VII that remedies for employment discrimination 
under other federal legislation would not be preempted, 
and specifically cited with approval the decisions in Young 
v. International Tel. & Tel. Co.,, and Sanders v. Dolls 
Houses, Inc., supra., stating that they “have affirmed this 
Committee’s belief that the remedies available to the indi­
vidual under Title VII are co-extensive with the indi­
vidual’s right to sue under the provisions of the Civil 
Rights Act of 1866, 42 IJ.S.C. § 1981, and that the two pro­
cedures augment each other and are not mutually ex­
clusive.” H.R. Rep. 92-238, pp. 18-19 (1971). See also the 
recognition that “charges of discriminatory employment 
conditions may still be brought under prior existing federal 
statutes such as . . . the Civil Rights Act of 1866”, in the 
expression of views of a minority of the Committee which 
had unsuccessfully sought to make Title VII the exclusive 
federal remedy for employment discrimination. Id., at 66.

Hence the decision of the court below on this issue is in 
accordance with the intention of Congress and with the 
decision of the courts of appeals of every other circuit that 
has considered it ; it is completely consistent with the de­
cisions of this Court; and it is correct as a matter of 
principle. Every factor leads to the same conclusion; there 
are no uncertainties, and no conflicts, for this Court to 
resolve.

Petitioner professes surprise, however, at the granting 
of backpay to the individual plaintiff pursuant to 42 IJ.S.C.



16

§ 1981, suggesting that it had no way of anticipating or 
meeting this issue in view of its understanding, at least 
prior to Jones, that § 1981 applied only to state action. 
This suggestion appears to be disingenuous. Petitioner 
or its lawyers may have misunderstood § 1981, but such 
misunderstanding was by no means universal. Plaintiff’s 
complaint, filed in 1966 (two years before Jones) alleged 
violations of § 1981 as well as of Title VII of the Civil 
Eights Act of 1964. Moreover the case was not tried 
until September 1970,* over two years after Jones and 
over five months after Waters v. Wisconsin Steel Works, 
supra. Plaintiff’s attorneys made quite clear at the trial 
that they were proceeding under both statutes. See, e.g., 
A82, A235. And an entire section (point V) of their brief 
in the Court of Appeals was devoted to the question of 
the applicability of § 1981, and eight decisions of circuit 
and district courts in point were cited. Petitioner’s attor­
neys never responded to this issue, but they can scarcely 
claim surprise at this late date.

The same considerations apply to their assertion that 
they were denied the opportunity to plead the statute 
of limitations to the claim under § 1981. It is far from 
clear that the applicable statute would have barred plain­
tiff’s claim; but even if it were, there must eventually 
come a time when defenses not asserted must be regarded 
as waived. Cf. Rule 12 (h) (2), P.R.C.P. Even if peti­
tioner would have had some basis before or at the start of 
the trial for asking permission to amend its answers in 
order to plead the statute of limitations, the time for such

* The principal reason for the lapse of time was the attempt of 
the petitioner to challenge on grounds of exhaustion of remedies, 
the right of the plaintiff to proceed under Title VII. See p. 3, 
supra. This unsuccessful effort, which culminated in denial of 
certiorari by this Court, stalled the case for a period of almost 
three years.



17

amendment is long since past. The policy against assertion 
of state claims must have a counterpart in a policy against 
assertion of stale defenses.

Petitioner is also mistaken when it asserts that the only 
finding of the district court upon which the Court of 
Appeals based its holding that § 1981 was applicable to 
petitioner’s refusal to employ the plaintiff as a welder was 
its statement, “Although Brown may have been originally 
denied a welding job because of race. . . . ” (29). Petitioner 
overlooks the finding of the district court “Brown asked 
for employment as a welder and was given to understand 
by supervisory people that it was premature to try to place 
a Negro in a job as a welder with the defendant.” (28a).

Neither is there merit in petitioner’s objection to what 
it regards as a “retroactive” application of the Jones 
doctrine. As stated by the Court of Appeals for the Seventh 
Circuit in Waters, supra, at 484: “This argument is
sufficiently answered by the fact that the Supreme Court 
has already applied the Jones case retroactively in Sullivan 
v. Little Hunting Park, Inc., 396 U.S. 229, 90 S. Ct. 400, 
24 L. Ed. 2d 386 (1969).”

3. Proof of Discrimination: Petitioner’s challenge to 
the decision of the court of appeals as to class discrimina­
tion is based upon misreading of the findings of the district 
court, of the decision of the circuit court of appeals, and 
of the applicable law.

The repeated references in the Petition for Certiorari 
(pp. 3, 13, 21 et seq.), to “findings” of the district court 
that petitioner had not engaged in racial discrimination in 
violation of Title VII, have no basis whatever. There were 
no such findings. If anything, a fair inference from the 
court’s opinion would be that it did find such discrimina­



18

tion: [“TJhere are some statistics and some testimony 
which show that, at least in prior years, welding and high 
pay in the defendant’s shop were not for black men.” (30a). 
“Advertisements for welders for at least' two years have 
been without regard to race.” (Id.), (emphasis supplied). 
“No black employees participated in the welder training 
program until about 1968.” (27a). What the district court 
did was to reach a conclusion of law, that the steps peti­
tioner had taken to treat blacks more fairly, most of them 
recent and since institution of this lawsuit, justified refusal 
of relief. (30a-31a).

Even if there had been a finding that petitioner had not 
engaged in discrimination in violation of Title VII, it would 
have been a finding of “ultimate fact” of which review 
on appeal is not hampered by the “clearly erroneous” rule. 
United States v. Jacksonville Terminal Co., 451 F.2d 418,
423-24 (5th Cir. 1971) Cert, denied,----- U.S.------  (1972),
and cases there cited. Moreover, even if the court had 
found that violations had ceased at the time of decision, 
this would not necessarily have precluded relief where 
there was a showing that the petitioner had been violating 
the Act in the past. Parham v. Southwestern Bell Tele­
phone Co., 433 F.2d 421, 426, 429 (8th Cir. 1970); Jenkins 
v. United Gas Corp., 400 F.2d 28, 33 (5th Cir. 1968); 
Local 53 of Ini’l Ass’n of Heat & Frost Insulators and 
Asbestos Workers v. Vogler, 407 F.2d 1047, 1055 (5th Cir. 
1969). But the court actually made no findings whatever 
that can properly be read as absolving petitioner from 
having violated Title VII, either in the past or in the 
present.

The decision of the court of appeals is similarly mis­
construed by petitioner. It did not base its conclusion 
solely on a single day’s statistical tabulation (Petition, 
pp. 3, 13, 21, 22), or on a comparison between those figures



19

and the population statistics of the area. (Id. p. 3). It did 
not impose racial quotas or require that “the racial make-up 
of its various job categories shall become altered so as 
to correspond to that of the surrounding community” 
(Petition, p. 3, see also id., pp. 21, 27), or that preferences 
be granted to minority employees (Id. pp. 27-30). And it 
did not bolster its conclusion by referring to a lack of 
“written objective criteria for promotion” (Petition, p. 31; 
italics in petition). We return, then, from the imaginary 
decision postulated by petitioner to the actual holding of 
the case.

What the court of appeals did hold was that the over­
whelming statistical evidence of relegation of blacks with 
almost no exceptions to the least skilled and poorest pay­
ing jobs (7a-9a) was at least presumptive evidence of racial 
discrimination; that it had not been rebutted by the peti­
tioner’s efforts since 1965 to hire and promote black em­
ployees (10a); and that the lack of objective standards for 
hiring, pay increases and promotions (10a-12a), as well as 
the passing on of news of vacancies by word of mouth in 
a plant where job classifications were segregated, instead 
of the posting of notices (12a), “serve to corroborate, not 
to rebut, the racial bias pictured by the statistical pattern 
of the company’s work force.” (12a). It also pointed out 
that from 1958 to 1968, only one black employee Was ad­
mitted to its after-hour training prog*ram (6a).

It is a truism that Title VII forbids concealed, as well 
as overt, racial discrimination. Such discrimination often 
can be most effectively proved through statistical evidence. 
Indeed, at least one court of appeals has held statistical 
evidence to have itself established a violation of Title VII 
as a matter of law. Parham v. Southwestern Bell Tele­
phone Go., supra, a t 426. The court of appeals in the in­
stant, case did not, go that far, basing its. decision on the



20

failure of petitioner to rebut the inference to be drawn 
from the statistics, together with the corroborating factors 
set forth above (10a). But the courts of appeals have 
repeatedly held, without exception, that such statistical 
evidence is at least presumptive proof of discrimination. 
United States v. Jacksonville Terminal Co., 451 F.2d 418, 
442 (5th Cir. 1971), cert, denied, — v.s. — (1972). United 
States v. Hayes International Corp., 415 F.2d 1038, 1041, 
1043-44 (5th Cir. 1969); United States v. IBEW, Local 18, 
428 F. d 144, 151 (6th Cir. 1970); Cert, denied 400 U.S. 
943 (1970). Marques v. Omaha District Sales Office, Ford 
Division, 440 F.2d 1157, 1160-61 (8th Cir. 1971); Parham 
v. Southwestern Bell Telephone Co., 433 F.2d 421, 426 
(8th Cir. 1970); Jones v. Lee Way Motor Freight, Inc., 
431 F.2d 245, 247 (10th Cir., 1970), cert, denied, 401 II.S. 
954 (1971).*

The reliance by the court of appeals upon the other 
corroborative evidence of discriminatory practices by de­
fendant was also in accord with precedent. The lack of 
objective standards in hiring, classification and promotion 
was held discriminatory in United States v. Bethlehem 
Steel Corp., 446 F.2d 652, 655 (2d Cir. 1971); Rowe v. 
General Motors Corp., 357 F.2d 348 (5th Cir. 1972); see 
also United States v. Jacksonville Terminal Co., supra, 
at 499. And the failure to post notices of openings for 
better jobs with dependence upon word of mouth com­
munication by white employees and the resulting unlikeli­
hood of blacks learning of the opportunities in time, has

* As stated in Jones v. Lee Way Motor Freight, Inc., supra, at 
247, “ [i]n racial discrimination cases, statistics often demonstrate 
more that the testimony of many witnesses, and they should be 
given proper effect by the courts.” See also Alabama v. United 
States, 304 F.2d 583, 586 (5th Cir. 1962), affirmed, 371 U.S. 37 
(1962) : “In the problem of racial discrimination, statistics often 
tell much, and courts listen.”



21

similarly been held discriminatory in Parham v. Southwest­
ern Bell Telephone Co., supra, at 427, and United States 
v. Sheet Metal Workers, Local 36, 416 F.2d 123, 137 (8th 
Cir. 1969); Lea v. Cone Mills Corp., 301 F. Supp. 97 
(DC NO 1969) aff’d in part and vacated in part per curiam, 
438 F.2d 86 (4th Cir. 1971); Clark v. American Marine 
Corp., 297 F. Supp. 1305 (E.D.La. 1969).

Petitioners assert, however, that the decision below con­
flicts with that of the Court of Appeals for the Fifth Circuit 
in United States v. Jacksonville Terminal Go., supra, at 
446-48. But the court in that case clearly followed the 
mainstream of decisions holding that statistical evidence 
afforded prima facie proof of racial discrimination without 
any necessity of a showing of individual discriminatory 
acts. Id., at 422, 448-49. It did hold, but as to one issue only 
(new hires), that the employer had met the burden of 
rebutting the statistical evidence by showing that, because 
of the unique facts of sharply declining employment in 
the railroad industry, coupled with a pre-Act history of 
restriction of certain positions to whites, the most ex­
perienced applicants for vacancies really were all white. 
Id. at 445. But it declined to find any such rebuttal as to 
promotions and transfers {id, at 448 et seq.), and even as 
to the new hires the court stated expressly :

“All of the persons so hired were white. In a stable 
or expanding industry, this fact would be damning, 
especially in regard to unskilled or semi-skilled posi­
tions . . .  .” (Id, at 445).

There is no comparable explanation for the statistics 
adduced in the instant case. Petitioner is engaged in a 
stable or expanding industry.* The facts, with respect

* The total number of hourly employees rose, from 216 in Sep­
tember, 1969 (8a) to 230' in September, 1970 at the time of trial 
(A384).



22

both to initial assignments and to transfers and promo­
tions, are indeed “damning*.”

Petitioner’s stress upon the fact that the employment 
statistics reflected the work force on a single day (Sept. 3, 
1969), is scarcely well taken. The information was derived 
from petitioner’s answer to plaintiff’s interrogatories. The 
interrogatories were filed on June 30, 1966 (A9), and not 
answered by petitioner until September 18, 1969 (A15). 
Petitioner itself selected the date as of which the data was 
compiled. Nevertheless, if the figures at the time of trial, 
over a year later, had shown less of a segregated pattern, 
petitioner could have introduced such evidence, by way 
of explanation or rebuttal, at trial. It did not.*

Such belated efforts at compliance with Title VII as 
were undertaken by petitioner do not justify dismissal 
of the action. The pattern of almost total segregation 
of employees in low-paying jobs still persisted in Sep­
tember, 1969, over three years after the complaint had been 
filed in the instant case and over four years after the 
effective date of Title VII. The district court found “No 
black employees participated in the welder training pro­
gram until about 1968.” (27a). Such progress as has
been made has occurred largely since the inception of this 
action (13a; see also 31a), but the Court of Appeals noted 
that if the action were prematurely dismissed members of 
the class would run the risk that progress would abruptly 
end. (13a). Accordingly, while it gave recognition to the 
efforts of petitioner by not ordering injunctive relief, it 
directed that the ease be remanded to the district court

* The Personnel Director of petitioner testified as to the work 
force as of the time of trial. The total number of black hourly 
employees had dropped from 29 out of 216 in September, 1969 to 
24 or 25 out of 230 in September, 1970. No breakdown by job 
categories or pay scales was offered. (A384).



23

for retention on its docket for a reasonable time, directing 
that if at the end of that time the court found that illegal 
discrimination had been eliminated it might. dismiss the 
action but that if it found that the unlawful practices 
were continuing it must order injunctive relief, (13a).*

This procedure was in conformity with that ordered by 
the Eighth Circuit in Parham v. Southwestern Bell Tele­
phone Co., supra. Moreover, later repentance does not 
necessarily render even injunctive relief inappropriate, 
much less the less stringent form of relief ordered by the 
Court of Appeals. Parham, supra; Jones v. Lee Way 
Motor Freight, Inc., supra, at 248; United States v. W. T. 
Grant Co., 345 U.S. 629, 632-33 (1953); Rowe v. General 
Motors Corp., supra.

4. Counsel Fees: petitioner also challenges the direction 
of the Court of Appeals, in remanding the case to the 
district court, to award the plaintiff, costs and counsel fees. 
The award of counsel fees in Title YII cases, and pre­
sumably also in 42 U.S.C. §1981 cases, is discretionary; 
nevertheless, where a refusal by a district court to awrard 
counsel fees would be an abuse of discretion it is entirely 
fitting that the Court of Appeals in remanding the case 
direct that such an award be made. Economy of judicial 
effort is served thereby.

The propriety of counsel fees in the circumstances of 
this case is clear. The decision below is in accord with 
precedent. While petitioner stresses that the plaintiff lost 
on his individual Title YII claim, he won on his claim 
under Sec. 1981 and, more importantly, he won a significant

* Contrary to petitioner’s assertions (Petition, pp. 3, 21, 27), the 
Court of Appeals did not require that to establish compliance peti­
tioner must meet any racial quotas, achieve reeial balance in job 
categories, or give preferential treatment to racial minorities.



24

victory for the class of other black employees, present and 
future, of the petitioner. In the almost identical circum­
stances of Parham v. Southwestern Bell Telephone Co., 
supra, the individual plaintiff failed with respect to his 
personal claim, but succeeded in persuading the appellate 
court to order a remand of the cause to the district court 
to retain jurisdiction in order to ensure continued progress 
toward equal employment. The court stated, at 429-30:

“Although we find no injunction warranted here, we 
believe Parham’s lawsuit acted as a catalyst which 
prompted the appellee to take action implementing 
its own fair employment policies and seeking compli­
ance with the requirements of Title VII. In this sense, 
Parham performed a valuable public service in bring­
ing this action. Having prevailed in his contentions 
of racial discrimination against blacks generally prior 
to February, 1967, Parham is entitled to reasonable at­
torney’s fees . . . .”

See also Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir.
1971); Robinson v. Lorillard Corp., 444 F.2d 791, 804 (4th 
Cir. 1971), cert, dismissed, 404 IT.S. 1006 (1972).

In the case of Title II (the public accommodations pro­
visions) of the same Civil Bights Act of 1964, identical 
language as to counsel fees* was applied by this Court to 
hold that it was an abuse of discretion to refuse to grant 
such fees to the victorious plaintiff:

“When the Civil Rights Act of 1964 was passed, it 
was evident that enforcement would prove difficult and 
that the Nation would have to rely in part upon private 
litigation as a means of securing broad compliance 
with the law. A Title II suit is thus private in form

* Compare § 204(b), 42 U.S.C. §2000a-3(b), with § 706(k), 42 
U.S.C. § 2000e-6(k).



25

only. When a plaintiff brings an action under that 
Title, he cannot recover damages. If he obtains an 
injunction, he does so not for himself alone but also 
as a ‘private attorney general,’ vindicating a policy 
that Congress considered of the highest priority. If 
successful plaintiffs were routinely forced to bear 
their own attorneys’ fee, a few aggrieved parties would 
be in a position to advance the public interest by in­
voking the injunctive powers of the federal courts. 
Congress therefore enacted the provision for counsel 
fees—not simply to penalize litigants who deliberately 
advance arguments they know to be untenable but, 
more broadly, to encourage individuals injured by 
racial discrimination to seek judicial relief under 
Title II.

“It follows that one who succeeds in obtaining an 
injunction under that Title should ordinarily recover 
an attorney’s fee unless special circumstances would 
render such an award unjust. Because no such cir­
cumstances are present here, the District Court on 
remand should include reasonable counsel fees as part 
of the costs to be assessed against the respondents.” 
Newman v. Piggie Park Enterprises, Inc., 390 U.S. 
400, 402-403 (1968) (footnotes omitted).

And even in the absence of specific statutory provision 
for counsel fees, success on behalf of a class may itself be 
sufficient reason for such an award. E.g., Mills v. Electric 
Auto-Lite Co., 396 U.S. 375, 389-97 (1969).



26

CONCLUSION

As demonstrated above, the Court of Appeals in this 
case did no more than remand the case to the district court 
for entry of an order in conformity with the facts found 
by the district court and to retain jurisdiction of the case 
for entry of such future orders as might be necessary. 
This remand—consistent with the decisions of other cir­
cuits—is merely an example of the Court of Appeals based 
on the record as a whole exercising its supervisory ad­
ministrative responsibilities over the district courts to 
ensure proper case management. The petition for a writ 
of certiorari should be denied.

Respectfully submitted,

J ack  G reen berg  
J am es M. N a brit , III 
W il l ia m  L. R o binson  
M orris J .  B aller

10 Columbus Circle
New York, New York 10019

J. LeV oN N E C h a m bers  
R obert B elto n
C h a m b er s , S t e in , F erguson  & B annin g  

237 West Trade Street 
Charlotte, North Carolina

C onrad 0 .  P earson
203% E. Chapel Hill Street 
P. O. Box 1428 
Durham, North Carolina

Attorneys for Respondent.
Of Counsel
A lbert  J .  R o se n t h a l  

435 West 116 Street 
New York, New York 10027



4

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