Correspondence from Winner to Phillips; from Winner to Leonard; Supplemental Memorandum in Support of Motion for Further Relief

    IN THE

UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

NO. 81-2150

WILLIS L. GANTLIN, et al.,

Plaintiff s-Appellants,

vs.
WEST VIRGINIA PULP AND PAPER COMPANY, et al., 

Defendants-Appellees.

On Appeal from the United States District Court 

for the District of South Carolina

BRIEF FOR APPELLANTS

JACK GREENBERG 
0. PETER SHERWOOD 
GAIL J. WRIGHT
10 Columbus Circle, Suite 2030 
New York, NY 10019 
(212) 586-8397

ARTHUR MC FARLAND 
205 King Street, Suite 120 
Charleston, SC 29401 
(803) 722-3376
MORRIS J. BALLER 
28 Geary Street, 6th Floor 
San Francisco, CA 94108 
(415) 981-5800



INDEX

PAGE
TABLE OF AUTHORITIES..................................... ii
QUESTIONS PRESENTED................................  1
STATEMENT OF THE CASE..........................
STATEMENT OF FACTS ..................................  5

A. Overview of Factual Issues....................... 5

B. The Mill and Its Segregated Departments
and Jobs...........................................

C. Segregated Unions and Union
Representation Units.............................

D. Segregated Seniority Structure.................. 13
E. "Merger" of Segregated Sequences and

Local Unions in May 1968 ......................  15

F. Adoption of Mill Seniority System................. 25

G. Refusal to Implement Mill Seniority System . . 29
SUMMARY OF ARGUMENT....................................  41
ARGUMENT.............................................  4 2

The District Court Erred in Holding Defendants' 
Seniority System Bona Fide.......................  42

A. The Seniority System Had Its Origin In
Discrimination.........................  44

B. The Seniority System Applied Unequally to
Blacks............................ 47

C. The Seniority System Was Maintained and 
Manipulated With Intent To Discriminate. . . .  50

D. The Racially—Defined Dual Seniority System
Was Neither Rational Nor Consistent With 
Legitimate Industrial Needs..................... 59

E. The Finding That The Seniority System Was 
Not The Result Of An Intent To Discriminate
Is Clearly Erroneous...................  62

CONCLUSION.......................... 65

-i-



TABLE OF AUTHORITIES

Cases
Page

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). . . .  64
American Tobacco Co. v. Patterson,

___U.S.___, 71 L . Ed . 2d 748 (1982)...................  42
Bigelow v. Virginia, 421 U.S. 809 (1975)...............  65
Chrapliwy v. Uniroyal Corp., F.Supp. ,

15 EPD 1| 7933 (N.D. Ind. 1977). . . .~7~ . . . . .  46,59
Chris-Craft Industries v. Piper Aircraft Corp.,

516 F . 2d 172 (2d Cir. 1975).......................... 65
Griggs v. Duke Power Co., 401 U.S. 424 (1971)........... 42
Gulf Oil Corp. v. Bernard, 452 U.S. 89 (1981)...........4
International Brotherhood of Teamsters v.

United States, 431 U.S. 324 (1971)...........41,42,43,61
James v. Stockham Valves & Fittings Co.

559 F . 2d 310 (5th Cir. 1977)....................... 41,43

Johnson v. Ryder Truck Lines, Inc. 575 F.2d 471
(4th Cir. 1981), cert, denied 440 U.S. 979 (1979) . . 43

King v. Georgia Power Co., 634 F .2d 929
(5th Cir. 1981), vac'd and rem'd 72 L.Ed.2d 477 (1982) .45-46,

........ 49-50
Levin v. Mississippi River Corp., 386 U.S. 612. . . .  65

(1967)

Local 189, United Papermakers & Paperworkers v.
United States, 416 F .2d 980 (5th Cir. 1969),
cert, denied 397 U.S. 919 (1970)................... 25,61

Miller v. Continental Can Co., 46,50,61,
___F.Supp. ___, 26 FEP Cases 151 (S.D. Ga. 1981). . . 62

Myers v. Gilman Paper Co., F.Supp.
25 FEP Cases 468 (S.D. Ga. 1981).............47,50,61,62

li



TABLE OF AUTHORITIES (Cont'd)

Cases
Page

Patterson v. American Tobacco Co.,
634 F .2d 744 (4th Cir. en banc 1980), 
rev'd 71 L.Ed.2d 748 (1982).............

Pullman-Standard, Inc. v. Swint, U.S.
72 L . Ed. 2d 66 (1982)........ “7“. .

Quarles v. Philip Morris, Inc., 279 F.Supp. 
505 (E.D. Va. 1968).....................

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

Rogers v. Int'l Paper Co., 510 F2d 1340 
(8th Cir. 1975), vac'd and remanded 
423 U.S. 809 (1975).............

........ 43

.41,42,62,63 

........ 25

25

. 61
Russell v. American Tobacco Co., F.Supp. 

26 FEP Cases ___ (M.D. N.C. 198lJ. .

Sears v. Atchison, Topeka & Santa Fe Rwy. Co., 
645 F.2d 1365 (10th Cir. 1981), cert, denied 
72 L.Ed.2d 479 (1981), aff'g in pert, part 
454 F.Supp. 158 (D.Kan. 1979)...............

Stevenson v. Int'l Paper Co., 516 F.2d 103 
(5th Cir. 1976)...............

Swint v. Pullman-Standard, Inc., 624 F.2d 525
(5th Cir. 1980), rev'd 72 L.Ed.2d 66 (1982). . . 11,43,64

Terrell v. United States Pipe & Foundry Co.,
644 F .2d 1112 (5th Cir. 1981), vac'd and rem' d
72 L . Ed. 2d 479 (1982)................................  11,46

Trans World Airlines, Inc. v. Hardison,
432 U.S. 63 (1977).......................  42

United States v. Hayes Int'l Corp., 
456 F .2d 112 (5th Cir. 1972) . . . 54



TABLE OF AUTHORITIES (Cont'd)

United States v. United States Gypsum Co.,
333 U.S. 364 (1948)................................  64

United Steelworkers of America v. Weber,
443 U.S. 193 (1979)................................  H

Village of Arlington Heights v. Metropolitan
Housing Development Council, 429 U.S. 252 (1976). . 50,62

Watkins v. Scott Paper Co., 530 F .2d 1159
(5th Cir. 1976)....................................  59,61

Wattleton v. Ladish Co., 520 F.Supp. 1329
(E.D. Wis. 1981), aff'd sub nom Wattleton v.
Int'l Brotherhood of Boilermakers, etc.,
___F -2d___ (7th Cir. No. 81-2411, July 16 , 1982). . . .  62

Statutes and Rules
28 U.S.C. § 1291.....................................  5

42 U.S.C. §1981......................................  3/43

42 U.S.C. §2000e et seg., Title VII................... passim

42 U.S.C. §2000e-2(h), Section 703(h)................1,5,42,65

Rule 23, F.R.C.P.....................................  3

Rule 52(a), F.R.C.P.................................  43,44,64

Other Authorities
Brooks, G., and S. Gamm, "The Practice of Seniority 

in Soughern Paper Mills", Monthly Labor Review 
(July 1955).............. ........................ 62

Jacobson, J., The Negro and the American Labor
Movement (1968) . 7 7 ! ] ! ! 7 ! ! ! ! ! ~ . . g2

Marshall, F. Ray, The Negro and Organized Labor
<1965) . . . .  7 .............! ............ .......... 62

Northrup, H., and R. Rowan, The Negro in the Paper
Industry (1968)........ 7 ! ! 7 7 7 7 7 7 7 7~ # _ 62

Page
Cases

IV



UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 81-2150

Willis L. Gantlin, et al.,

Plaintiffs-Appellants,
vs.

West Virginia Pulp and Paper Company, et al.,

Defendants-Appellees.

Appeal from the United States District Court 
for the District of South Carolina

BRIEF FOR APPELLANTS 

QUESTION PRESENTED

Did the District Court erroneously determine that a 
seniority system, whose divisions precisely traced the racial 

allocation of job opportunities and whose discriminatory effects 
were tenaciously maintained and defended for as long as possible, 
was bona fide and therefore shielded by Section 703(h) of Title 
VII?

STATEMENT OF THE CASE

This is a Title VII action challenging discriminatory 
promotion practices, centering on defendants' seniority system, 
as they have affected a class of black paper mill workers. The

-1-



2
case comes to this Court on appeal, eight years after trial, 

from a decision of the District Court finding no actionable 
discrimination of any sort.

Plaintiffs-Appellants Willis L. Gantlin, et al. (hereafter 
"plaintiffs") are six black employees of defendant West Virginia 
Pulp and Paper Co. (hereafter "Westvaco") at its paper mill 
located in North Charleston, South Carolina (Op. 1). Five 

plaintiffs were employed at the time of trial; one had been dis­

charged before trial (Op. 1). All six were members of defendants

United Papermakers and Paperworkers International Union (hereafter
2

"UPIU," or as appropriate the "Paperworkers" or "Papermakers" ) 
and its Local Union No. 508 (hereafter "Local 508"; other defen­
dant local unions are cited in similar form). Other unions which 

represent employees at Westvaco's North Charleston mill were 

also joined as defendants: UPIU Local 435, the International 
Brotherhood of Electrical Workers ("IBEW") and its Local 1753, 

and the International Association of Machinists ("IAM") and its 
Lodge 183.

1 Citations in the form "Op. " are to pages of the 
District Court's Order, Findings of Facts, and Con­

clusions of Law entered October 19, 1981. Citations to the 
trial transcript are by page number (e.g., "Tr. 302"), and the 
witness may be identified by surname. Other citations are to 
trial exhibits by party introducing them (e.g., "Pi. Ex. ") 
or other record items as indicated.

2 UPIU was formed by merger of the United Papermakers 
and Papers (UPP) and International Brotherhood of

Pulp and Sulphite Workers (IBPS) in 1972 (Stip. 1(3.)

3 IAM and Lodge 183 have been dismissed, with plain­
tiffs' assent, as parties to this appeal (Order

entered August 13, 1982). All other defendants are appellees here.



3
Plaintiffs' complaint filed June 15, 1972, alleged a number

of discriminatory employment practices and claimed violations

of Title VII of the Civil Rights Act of 1964, 42 U.S. §§2000e
et seq., and 42 U.S.C. §1981 (Complaint). The complaint was
based on a series of EEOC and administrative agency charges

4
of discrimination, beginning on July 28, 1966, by which plain­

tiffs fulfilled the prerequisites to suit under Title VII. See
5

Stipulation 1M| 35-43, Stip. Ex. 11-24. On behalf of a class 

of present and past black Westvaco employees, the complaint sought 
relief from discrimination in, inter alia, hiring and promotions, 

and specifically complained of discriminatory operation of defen­
dants' seniority system (Complaint). All parties took voluminous 

discovery through written interrogatories and requests, document 
inspections, and depositions.

On March 14, 1973, the District Court certified the case 
as a class action under Rule 23, F.R.C.P., but narrowed the 
scope of the class represented by plaintiffs to black workers 

in "production and maintenance" jobs during the relevant time 
period:

4 Other charges were filed by plaintiffs on August 4 
and November 16, 1966, April 25, 1967, November 3,

1967, March 11, 1969, March 10, 1970 and July 6, 1971. The 
District Court apparently treated the EEOC charge of April 25, 
1967 (Stip. Ex. 14) as the first charge (Op. 55). However, 
the July 28, 1966, letter from plaintiff Gantlin to the Presi­
dent's Committee on Equal Employment Opportunity (Stip. Ex.
12) was properly treated by EEOC as a charge of discrimina­
tion under Title VII, filed August 4, 1966 (PI. Ex. 1, 2).

5 This Stipulation is described in the text at p. 4, 
infra.



4
■̂dl black persons employed in bargaining 
unit jobs at Westvaco's North Charleston 
Paper Mill between July 2, 1965 and March 14, 1973.

(Op. 2). Over 200 black employees, plus as many former employees, 
are members of that class (Pi. Ex. 27(a), 27(b)).6

On the eve of trial, July 16, 1974, the parties entered into a 
lengthy factual stipulation which included some 24 attached ex­

hibits (Stip.). This stipulation traces, in broad outline, defen­
dants basic seniority and employment practices, and plaintiffs' 
complaints against them. Trial lasted from July 17, 1974, to 

August 15, 1974, on "Stage I" issues of liability for class dis­
crimination, the Court having bifurcated Stage II issues of indi­
vidual monetary and other relief for later trial if necessary 

(Op. 3). At the conclusion of trial, and at the Court's urging, 

the parties agreed to defer preparation of post-trial briefs 

until completion of the trial transcript, which was estimated 
to require several months. The transcription was in fact only 

completed some four years later, as a result of special arrange­
ments made directly by this Court. Thereafter extensive and

6 Shortly after it had certified the class, the court 
d as, ^mposed a '^ag rule" against communications witht mamb<frs and required class members to "opt in" by filina a
border June 7 assistance of c o u L e l ^ o r ^ e ^ L sl raers or June /, 1973)-, These actions, which appear to be
rC,* 1®arn^ ? ® ® ° f discretion, see Gulf Oil Corp. v. Bernard. 452 
U.S. 89 (1981), are not directly before~he Court at this time.

ter.rePeated and unsuccessful efforts to get the
cr-ini- nr- C°Urt to assure completion of the trans­cript or to decide the case without a transcript, and after 

o urgent appeals to the Chief Judge of this Court, the
^ r ^ Ptl°n ™ teS and tapes were removed to Richmond and there transcribed. See letters of Jack Greenberg to Hon

i3 7 ^ YnSWOrth' Jr-' APril 9, 1976, October 25, 1976,



5
detailed briefs were filed by the parties, and after a day of 

post-trial argument on July 17, 1980, the District Court entered 
its decision, rejecting every one of plaintiffs' claims, fifteen 
months later.

Judgment was entered below on November 2, 1981 (R. ).

Plaintiffs filed their Notice of Appeal on November 13, 1981
(R. ). This Court has jurisdiction under 28 U.S.C. §1291.
In this appeal, plaintiffs focus on their principal claim: that

defendants' "lock-in" seniority system discriminatorily inhibited
class members' advancement from 1965 to the date of trial, and

that the seniority system, being the instrument of intentional
discrimination, is not bona fide within the meaning of §703(h)

8
of Title VII, 42 U.S.C. §2000e-2(h).

STATEMENT OF FACTS
A. Overview of Factual Issues.

From the mill's beginning, every aspect of work at Westvaco 
was totally segregated by race, and this complete racial separa­
tion continued until at least 1964. As the parties stipulated, 

all jobs, promotional lines, seniority units, and local unions 
were either for whites only or for blacks only during this pre- 
Title VII period. See Stip. 111(5-7, Stip. Ex. 1 and 2 (Op. 70- 

97), 3. Although defendants made some changes in hiring practices

8 A second claim, which plaintiffs had intended to fully 
brief and argue —  that the District Court erred in 

finding no discrimination in hiring and initial assignment to 
production jobs in the period 1964-May 1968 —  has been elimi­
nated in order to bring this brief within the 65 page limit 
ordered by this Court. It remains our position, nevertheless, 
that such hiring discrimination continued during that period. 
^ e ' Rost-Trial Brief for Plaintiffs, filed February 2 , 1979 , pp 
17-33, 104-111; Post-Trial Reply Brief for Plaintiffs, filed 
November 27, 1979 , pp . 40-43; and see, pp. 51-53, infra.



6
beginning in 1964, and some changes in seniority units and 

seniority practices beginning in 1968, plaintiffs contend that 

those hiring changes were cosmetic and insignificant, and that 
class members continued to be assigned to black jobs on a racial 

basis. Plaintiffs further contend that the seniority system in 

effect before 1968 was intentionally designed and manipulated to 

keep black workers in their inferior places both before and 
after the initiation of changes in the strictly segregated 
seniority structure.

B. The Mill and Its Segregated Departments and Jobs.

Westvaco's North Charleston mill produces kraft paper from 
wood and wood chips through chemical pulping and mechanical roll­
ing and finishing, and chemical by-products of the pulping pro­

cess (Stip. 114). At the time of trial, Westvaco employed 1,049 
unionized, hourly-paid employees in production and maintenance 
jobs at the mill, of whom 827 (79%) were white and 222 (21%) 

were black (Op. 5). In addition, several hundred salaried 

employees worked at the mill as foremen and supervisors, mana­

gers, professional and technical workers, clerical workers, 

guards, and the like; these employees' jobs were excluded from 

the scope of the lawsuit before trial by the Court's class 
action determination (Stip. p. 3; Order of March 14, 1973).

Westvaco's production and maintenance employees were
9 10

organized into 14 departments , of which two were no longer

9 Woodyard Service, Woodyard Operating, Pulp Mill, Recovery, 
Paper Mill, Technical Services, Water Treatment, Finish­

ing and Shipping, Converting, Power, Tall Oil, Polychemicals, 
Receiving and Stores, and Maintenance. See Op. 4-5, Stip., pp. 2-3.

10 Water Treatment and Converting.



7
staffed or operating by time of trial. The large maintenance

department, containing approximately 350 jobs, is responsible
11

for repair and maintenance of plant and equipment (Op. 5).
The Woodyard Operating and Pulp Mill departments prepare pulp 

for rolling into kraft paper (Op. 4). The Paper Mill and Finish- 
« ing and Shipping departments produce and package the paper in

r°ll form (Op. 4—5). The Recovery, Tall Oil, and Polychemicals 
departments recover and process chemical by-products (Op. 4-5). 
The Woodyard Service (mill-wide), Technical Service, Receiving 
and Stores, and Power departments perform ancillary functions 
as indicated by their names and described in the parties' Stipu­
lation (Op. 4-5). Jobs in the eleven primary production depart­
ments are grouped into one or more "sequences" or promotional 
ladders of functionally related positions (Op. 5).

Three different unions represented workers in Maintenance 
department positions —  Machinists Lodge 183 (machinists and 

oilers), Electrical Workers Local 1753 (electricians), Pulp 
Sulphite Workers Local 508 (other craftworkers) (Stip. 115) .
All these positions were staffed by whites only (Stip. p. 5).

All production workers' positions were governed by a single 
joint bargaining unit including members of Local 508, Local 
435 and the former black Local 620 (Stip. pp. 6-7). Local 

508's jurisdiction included the white workers in the pulp, 
chemical recovery, and plant service operations; Local 435

11 Jobs in the Maintenance Department are grouped by
crafts (e.g., Carpenter, Machinist, etc.) and skill 

levels within many of the crafts (e.g., apprentice and jour­
neyman) (Stip. 1MI28-29).



8
included the white workers in the papermaking and finishing 

areas; and Local 620 included all black workers, who were laborers 
or held menial positions in all departments (Stip. p. 4, Stip.
Ex. 2; see pp. 11-12,infra). Local 1753 represented white produc­
tion workers in a single sequence in the Power department (Stip.
P. 4) .

In six of the production departments —  Woodyard Operating, 
Recovery, Finishing and Shipping, Receiving and Stores, Tall Oil, 

and Polychemicals —  there were two separate sequences, one rep­
resented by Local 620 and staffed by black employees, the other 
represented by Local 508 or Local 435 and staffed by white 

employees (Stip. pp. 4-5; Stip. Ex. 2 & 3). These departments 
were the principal focus of the evidence at trial. The other 

departments —  Pulp Mill, Paper Mill, Technical Services, and 
Power —  had only white sequences represented by Local 508 or 

Local 435 with a single black laborer/janitor job, represented 
by Local 620, attached to the department but not to the sequences 
(Op. 70-83, Stip. pp. 24-25).

Black jobs and sequences were not only separate from white 
sequences, but also inferior. With very few exceptions, all 
white jobs, including the lowest, paid higher wages and offered 

greater opportunities for advancement than even the highest black 

position. In terms of May 1968 pay rates, the only black (Local 

620) jobs in the Paper Mill, Pulp Mill, Technical Services, and 

Power departments carried the laborer's base pay rate of $2,535/ 
hr., equal to the lowest wage in the mill. In the Woodyard Ser­
vice, Finishing and Shipping, Receiving and Stores, Recovery,



9
Polychemicals and Tall Oil departments the maximum black job 
pay rate ranged only slightly higher, between $2.58 and $2.80/hrc, 
Only in the Long Wood operation of the Woodyard —  not a tradi­

tional black sequence but a recently-created position assigned 
to Local 620 —  did a position held by blacks pay as much as 

$3.15/hr. In contrast, the pay scale for traditionally white 
jobs in the Local 435 and Local 508 sequences was substantially
higher, ranging from a minimum entry level in the range of 

12 13
$2.645-$2.79 to maximum wages in the range $3.24-$4.09.

Salaried positions were for whites only. Not a single one of
Westvaco's 19 managers and officials, 280 professional and techni
cal personnel, or 88 clerical staff employed in 1963 was black
(PI. Ex. 33, p. 2). By 1972, Westvaco had employed only one

14
black person —  as foreman of janitors —  out of about 100 
line supervisors (Pi. Ex. 14, 14a, No. 65; Pi. Ex. 9, p. 189,
Tr. 420—22, 424, Hendricks). Likewise, all 571 maintenance 

craft workers in 1963 were white (Pi. Ex. 33, p. 2; Tr. 1833-34, 
Allison).

The inferiority of the black jobs is reflected in gross pay 

disparities between black and white workers, analyzed in a 
detailed series of exhibits (PI. Ex. 68-77). Overall, white 

workers' incomes were 25 percent higher than blacks' in the

12 Laborer-type jobs in the Paper Mill and Finishing and 
Shipping_departments paid slightly less. These jobs

were not actually in the lines of progression.

13 Source of these wage comparisons: Stip. Ex. 2.

14 When this individual was promoted to foreman in 1966, 
he had been at the mill 25 years, mostly as a janitor.

PI. Ex. 14 (a), #65.



10
period 1965-1972, or about $1900/year higher (Pi. Ex. 69, p. 3, 
Pi. Ex. 70, p. 3; Tr. 2069, Mador). Even restricting the com­

parison to production workers only, and controlling for years 

of seniority, the same degree of income disparity is present 

among workers hired before 1966 (PI. Ex. 73). Similar dispari­
ties were consistently present in each department (PI. Ex. 74).

The racial segregation of unions, sequences, and jobs at
the mill remained absolute until at least December 1963 (Stip.
pp. 4-5, 8). All other aspects of the mill were also strictly
segregated. Personal facilities such as restrooms, shower and

locker rooms, and cafeteria were physically separate and sepa-
15

rately used by the two races until at least 1969.

C. Segregated Unions and Union Representation Units.

The defendant unions are lineal descendants of unions which 
organized Westvaco's production and maintenance employees soon 

after the mill opened in 1937. In that year IBEW and the prede­

cessor of Local 1735 became the bargaining agent for the plant's 

electricians (Op. 6). The remaining unions organized their bar­
gaining units by joint agreement in 1944 —  the UPP and its Local 

435 shared with IBPS and its Local 508 representation of a single 
bargaining unit consisting of white mill production workers in 
all-white jobs,_while IAM and its Lodge 183 obtained bargaining

15 These segregated facilities were merged only after
the EEOC noted their existence and found a Title VII 

violation in its May 7, 1969 decision (Pi. Ex. 3, pp. 2-3; Tr. 
1496, 1499, Gantlin; Tr. 1281, Jenkins). One final segregated 
"amenity" —  Westvaco's recreational "Athletic Association" —  
was never desegregated and Westvaco was orderd by OFCC to sever 
its ties with this all-white "club" in July 1970 (PI. Ex. 9, pp. 
195-96; PI. Ex. 85, Co. Ex. 98(b)).



11
rights for a unit of machinists (id.). At first black employees
were left outside the union structure, but later in 1944 IBPS

chartered a separate Local 508-A to represent blacks in unskilled
jobs (id.). Local 508-A then entered the joint bargaining unit

of Locals 435 and 508. Because there was no contest over union
recognition or bargaining units, there is no official record of
union or job structure at that time, such as exists in cases

involving intra-union disputes resolved before the National
16

Labor Relations Board. Except for changes in the number of two

locals, this union representation structure remained unchanged 
until 1968.

Each of the locals was strictly segregated. The Machinists
and Electricians excluded blacks until the late 1960s or early

17
1970s by union constitution or convention as well as by local 

practice at Westvaco (Stip. 119). The two paper mill internationals, 
UPP and IBPS, did not charter racially integrated locals anywhere 
until at least the 1960s (PI. Ex. 8, pp. 104-12, Dunaway).

Where either one represented black workers, they were segregated 
in an all-black local.

These traditions of segregation were respected at Westvaco 
(PI. Ex. 14(a), No. 14). Local 508-A became Local 620 and at 

all times had only black members (PI. Ex. 9, pp. 12-13; Pi. Ex.

16 See, for example, Swint v. Pullman-Standard Co.,
624 F.2d 525 (5th Cir. 1980), reversed 72 L.Ed.2d

66 (1982); and Terrell v. United States Pipe & Foundry Co., 
644̂  F. 2d 1112 (5th Cir. 1981) , vac'd and rem'd sub nom. Int'l 
Ass n of Machinists v. Terrell, 72 L.Ed. 2d 479 (1982) ----

17 Terrell_v. united States Pipe & Foundry Co., supra, 
644 F.2d at 1119; United Steelworkers of America v.

Weber, 443 U.S. 193, 198 n. 1 (1979) .------- ------------------



12
7, p. 14). Its "brother" locals, 435 and 508, had white members 
only (PI. Ex. 7, p. 14; Tr. 3102). Even when in the mid-1960s 

a few blacks began to enter previously all-white jobs in the 
white union jurisdictions, and a few whites appeared in jobs 

within Local 620's jurisdiction, the locals themselves remained 
segregated; apparently those few whites' and blacks' union 
affiliation was determined by their race rather than, as for 
other employees, their job (Stip. 1f9; Tr. 1565, 3440).

At all times until 1968, divisions of Westvaco positions 

within the scope of the joint (IBPS-UPP) bargaining unit between 
black Local 620 and white Locals 435 and 508 precisely traced 
Westvaco's original segregated job structure. Local 620 repre­
sented only those jobs or sequences which were staffed with
black workers. Locals 435 and 508 represented all other jobs,

18
from which blacks had been excluded. Moreover, the hand of 

racial segregation did not trace racial lines only between depart­

ments. It divided single departments and even functionally 

integrated job groups between white and black unions' jurisdic­
tions, according to the jobholders' race. Thus, the Woodyard 

Operating Department contained two sequences in Local 508's 
jurisdiction and two in Local 620's (Op. 70; Stip. Ex. 2). In 

Recovery blacks in the three bottom jobs, included in Local 

620's jurisdiction, assisted whites in operator positions

18 The only minor exception came in the Woodyard, with 
the creation in 1964 of short new progressions in 

the Long Wood (620) and Scaler (508) operations (Stip. 1116). 
Although the District Court made detailed findings about the 
organization and bargaining jurisdiction of the unions, it 
failed to mention the undisputed fact that they corresponded 
precisely to the segregated job structure. See Op. 5-7.



13
included in Local 508 territory. In the Pulp Mill, Paper Mill, 

Technical Service, and Power Departments, black janitors and 
laborers in Local 620 jobs assisted and cleaned up after whites 
represented by Local 508, Local 435, or Local 1753 (Op. 74-75, 
78-79; Stip. Ex. 2). In Finishing and Shipping whites in the 

lower portion of the 435 sequence worked closely with blacks 

in a separate 620 line (Op. 76; Stip. Ex. 2). Polychemicals, 

Tall Oil, and Receiving and Stores all contained truncated black 

sequences within Local 620's jurisdiction, along with longer 
sequences of Local 508 jobs held by whites (Op. 80-82; Stip. Ex. 

2). In every department, union representation reflected not 
the close physical or functional proximity of white and black 

workers, but the prevalent system of dividing even small units 
into their racially defined component parts.

D. Segregated Seniority Structure
Seniority units at Westvaco prior to May 1968 coincided 

precisely with the segregated structure of jobs and local 

unions. Production and maintenance positions were arranged in 
patterns that built in promotional opportunities which care­
fully observed the traditional barriers between whites and

blacks, and seniority was the currency of those promotional 
19

opportunities.

19 Maintenance craft positions, not involved in this 
appeal (see p. 7 , supra), did not observe

seniority-based promotions in the true sense. Rather, helpers 
or apprentices progressed to journeymen in their particular 
trade as they attained necessary skill levels. Although plain­
tiffs do not here challenge Westvaco's hiring for maintenance 
craft positions, we note that there were no blacks employed as 
apprentices, the gateway to journeyman positions in the high- 
skilled ̂ crafts , until shortly after the May 1968 mergers in 
production job areas.



14
Almost all production positions were linked to promotional 

ladders —  lines of progression or "sequences" —  leading to 

other positions. Thus, typically, a new production employee 
entered some part of the plant at a low—skill, entry—level 
position, and then promoted up the ladder or sequence to which 

that job gave entry according to seniority at each job step and 

to qualifications. Since qualifications were judged only on a 

Pass-fail" basis, job seniority was the governing factor in 
determining which one among at least minimally qualified employees 
was promoted to a higher job in the sequence (Stip. 1(20) .

Temporary promotions or "push-ups", which gave valuable oppor­
tunity for training and qualification in higher level jobs, were
. 20 also governed by job seniority within the progression. Some

of the entry jobs were "pool" positions whose occupants usually
worked in various locations around the mill and who could then

promote according to seniority into any of several sequences at
its entry point (Stip. 1(19).

Both the progressions and the pools were segregated by 

race. The job seniority rights acquired by whites in white jobs 
in white sequences were applicable to promotion to higher jobs 

in the same sequences (Stip. 1(20). Likewise, job seniority 

acquired by black workers in black sequences led only to oppor­
tunities for promotion within the segregated sequence (id.).

20 When promotions are of short duration, they are 
filled by an employee from the same shift. For 

longer-term push-ups, a job-senior employee may exercise his 
job seniority rights on another shift. (Stip. 1(21) . Such 
long-term or "regular" push-ups are both common and important 
for the reasons stated in the accompanying text.



15
In reductions-m-force,job seniority within a sequence was also 

the governing factor (Stip. 1(23). Job seniority did not apply 

to promotions from one sequence to another; such moves were con­
sidered transfers. Transfers were allowed only to the bottom or 

entry level of another sequence, at the discretion of management, 
and without the carry-over of accumulated job seniority (Stip. pp 
16-17). Thus, the transferee would start in the new sequence 
as a new employee, insofar as promotion and demotion within that 
sequence is concerned (id.). In contrast to the hazards atten­
dant on transfer between sequences, promotions within a sequence 
are automatic, assuming adequate qualifications. The employee 
with most job seniority in the job in sequence below the vacant 

position is given the promotion unless he declines or "waives" 
it (Stip. 1(22).

The restrictive effect of this seniority system on black 

workers is best illustrated by examining the seniority situation 
of a black employee in one of the segregated sequences —  for 

example, the Recovery sequence (see Op. 72). A black employee 
in the position of First Service Operator, the top job of 

the black sequence of jobs represented by Local 620, was not 
routinely considered for promotion to the position of Utility 
Man in the white sequence represented by Local 508 —  even 

though the duties of the jobs were functionally related and 

even though the Utility Man position paid slightly more than the 

First Service Operator (Stip. Ex. 2). Rather, the black employee, 
who necessarily had substantial job security as a First Service 
Operator, had a theoretical option —  which was barred in prac­

tice by the racial barrier until at least 1964 —  of applying



16
transfer to the Local 508 job as a new man in terms of job 

seniority. If the senior black failed to apply or, more realis­
tically, if Westvaco would not consider a black for a white job, 

then another worker, usually a "new man" in the true sense, would 

be placed. In effect, defendants administered a series of self- 

contained small seniority units with only minimal openness to
2

penetration from outside the unit, clearly identifiable by race.

E • "Merger" of Segregated Sequences and Local Unions.
1. Effective May 8, 1968, Westvaco and the UPIU unions 

merged the pairs of formerly segregated sequences and local 
unions into single, nominally integrated units (Stip. 1MJ11-14) . 
The 1968 mergers were the direct result of nearly a decade of 

demands by Local 620. Defendants acceded to some of those de­
mands only after years of fierce resistance, polite neglect, 
and interminable delay.

Plaintiff Gantlin began by 1963 to have frequent and con­

tinuing discussions of merger of the sequences and locals with 

other Local 620 members, mill management and the white unions 

(Tr. 1473-75, 1480-81, 1484-86, 1489, 1692, Gantlin; Pi. Ex. 9, 
pp. 78-7 9, Hendricks).

21 The collective bargaining agreements recognized de­
partmental seniority and mill seniority in addition 

to job seniority, but the latter was by far the predeominant 
factor. Mill seniority governed only layoff or demotion from 
entry positions to the plant-wide pool, and transfers from the 
pool to the bottom of a sequence (Stip. fl23). Department 
seniority had little significance, since sequences rather than 
departments were the critical seniority units.



17
On June 8, 1963, Gantlin wrote to the Presidents of Locals 

435 and 508, proposing to negotiate a program of equal employment 

opportunities consistent with Executive Order 10925 (1961); he 
also sent copies of the letter to the Pulp Sulphite Workers' 

International Representative, President, and Southern regional 
Vice President, as well as Westvaco's Industrial Relations 

Manager (Stip. Ex. 9; Tr. 1481, Gantlin; PI. Ex. 9, pp. 78-79). 
The only official response to the letter came from the Inter­

national President, who stated that there was "no use in delay­
ing merger, but merely referred Local 620 to negotiations with 
Local 508 (Stip. Ex. 10; Tr. 1482). Neither of the white locals' 

Presidents responded and the International Representative just 
said, "the time is not right" (Tr. 1483-84). Westvaco took 
the position that merger was an internal union affair; and the 
locals remained adamantly opposed to any merger (Tr. 382-83, 

Hendricks; Tr. 1483, 1486, 1488, 1496, Gantlin; Pi. Ex. 6, pp.

57, 59, Rodgers; PI. Ex. 7, pp. 15-16, 18, McCants). Finally 

Gantlin complained in 1966 to the President's Committee on Equal 

Employment Opportunity, and wrote to the President of Westvaco 
(Stip. Ex. 11; Tr. 1486—87), and the Regional Vice President 

of the Pulp Sulphite Workers, who again referred the matter to 

the Locals (Stip. Ex. 12-13; Tr. 1495, 1718, Gantlin). Although 

Westvaco realized as early as 1963 that Local 620's demand for 

merger was proper and inevitable (PI. Ex. 9, pp. 84-87), it took 
no steps to bring it about until 1967 (PI. Ex. 9, pp. 82-83,



18
22

92—93; Tr. 1497, Gantlin). Gantlin continued to make no 

progress until EEOC representatives investigated his complaints 
and took a formal EEOC charge on April 25, 1967 (Tr. 1496-98; 
see Stip. Ex. 14) .

Defendants first positive response was several discussions 
during late 1967 followed by a meeting on January 15, 1968 at 
which Westvaco made a specific proposal (PI. Ex. 30(a); Tr. 
1051-02, Gantlin; PI. Ex. 7, p. 19). On February 6, 1968,

Local 620 rejected the Company's proposal and authorized a 

counter-proposal to the Company's plan; the Local 620 plan 
would have given Local 620 employees carry-over seniority in 

the merged sequences back to June 8, 1963 (PI. Ex. 31; Tr. 

1503-08, 1597-98, 1722, Gantlin; Tr. 694, 713, Melvin; Tr. 386- 

"̂7 f Hendricks) . Local 620 also opposed the Company plan because 
it provided special "run-around" rights in the Finishing and 
Shipping department which would perpetuate white workers' 
priority (Tr. 1504, 1515—16, 1601—02). Local 435 of course 
insisted on preserving the "run-around" rights (Tr. 1514-15; 
cf. PI. Ex. 7, pp. 25-28; Tr. 3081-82, Colbert).

22 Westvaco's delay is particularly revealing since the 
Industrial Relations Managr knew in 1963 that Local 

620 sought LOP merger with carry-over seniority (Tr. 386, 
Hendricks; PI. Ex. 9, pp. 92-93), and sincehe met with Gantlin, 
Melvin, and the white locals, to discuss merger from 1965 to 
1967 (PI. Ex. 9, pp. 88 — 91) . The Manager could not offer any 
explanation for why it took Westvaco nearly five years to make 
its first proposal (Tr. 383; PI. Ex. 9, pp. 86-87).



19
Local 62 0 's objections and counter-proposals were ignored. 

Locals 435 and 508 voted by April 28, 1968 to accept the merger 

as proposed (Pi. Ex. 30(d), 30(e); Tr. 3084, Colbert). Local 
620 voted 45-3 to reject the merger (Tr. 1516; PI. Ex. 30(e)). 
The Pulp Sulphite Workers overrode Local 620's opposition by 
pronouncing the merger accepted by majority vote of the three 

Locals (PI. Ex. 30(e)), and by revoking Local 620's charter 
and disbanding Local 620 (PI. Ex. 32(c)). Locals 435 and 508 
absorbed former 620 members and accounts. Gantlin's refusal 

to sign the Memorandum of Agreement on May 8, 1968 for Local 

620 was therefore futile. He finally signed in June (Tr. 

1521-27, 1724, Gantlin; PI. Ex. 9, pp. 100-01; Tr. 714, Melvin; 
see PI. Ex. 30 (f) .

2. As the foregoing narrative makes plain, defendants 

agreed to the 1968 merger reluctantly, with qualifying condi­

tions to impede swift black advancement, and under considerable 

pressure from the filing of plaintiffs' charges and complaints 
of discrimination. (See pp. 16-19, supra.) These mergers 

brought a major change in the structure of collective bargain­

ing representation, seniority units, and promotional practices.



20
In all these mergers, the interests of all black employees 

were subordinated to those of all whites then employed. However, 

subsequently hired whites were deprived of the automatic prece­
dence which their earlier counterparts had enjoyed. Local 620, 
which had become a vehicle for expression of black employees' 

complaints and interests, was abolished (Pi. Ex. 32(a), 32(b), 
32(c)). Locals 435 and 508 absorbed its membership (PI. Ex. 
32(c)), without any new election of officers (Stip. 1(12, PI.
Ex. 6, pp. 70-71). IBPS revoked the charter of Local 620 and 
placed its assets in receivership.

Simultaneously, the jobs and sequences within the Local 620 
jurisdiction were merged into the units represented by Locals 
435 and 508. Westvaco and Locals 435 and 508 signed on May 8,
1968, a document entitled "Memorandum of Agreement" (Stip. Ex,

236) which embodied the terms of the merger (Stip. 1(11). in

every department except the Woodyard, separate sequences and

jobs were combined in a single progression based on the jobs'
24pay rates (see Stip. Ex. 1-2; Pi. Ex. 6, pp. 66-67), In

23 Local 620 had refused to agree to the merger because 
of objections to "run-around" rights given to white

employees by the merger (Tr. 1521-24, 1526-27, 1724, Gantlin, 
Tr. 714, Melvin; Pi. Ex. 9, pp. 100-01). IBPS' dissolution of 
Local 620 and its announcement that the merger was approved by 
majority vote of the three combined locals bypassed Local 620's 
objections (PI. Ex. 30(e)). Subsequently plaintiff Gantlin, as 
ex-President of Local 620, signed the Memorandum of Agreement 
after it had already been imposed (Tr. 1325-26, Gantlin.)

24 The Woodyard merger was complicated by the existence 
of four separate sequences (see Stip. Ex. 2). All

jobs in the traditional 620 (black) sequence —  the Chipper 
Feeder line —  were below all jobs in the traditional 508 
(white) sequence —  the Crane Operator sequence (Stip. Ex.
2). However, the two other recently-established lines —
Wood Scaler (508) and Long Wood (620) —  had pay ranges which 
overlapped the lower and higher scales of the older sequences, 
and had both white and black workers (Stip. 1(16) .



21

nine of the eleven operating departments —  the exceptions were

the Woodyard and Finishing & Shipping —  this method resulted
in all former 620 (black) jobs being placed below all former

435 or 508 (white) jobs in the merged sequence, as a result of
the pay disparities summarized at p. 8 above (compare Stip.

25
Ex. 2 and Stip. Ex. 1). In all departments, the dual entry

points which had existed before the merger —— one for whites
bound for higher operator jobs, the other for blacks doomed to
labor —  were consolidated into a single entry job denominated 

26poolman and placed at the bottom of the merged sequence 

(Stip. Ex. 1; Tr. 400, Hendricks). Within the merged sequences, 
promotions and demotions continued to be governed by job seni- 

ority (Stip. Ex. 6, p. 1; PI. Ex. 9, pp. 102, 126). As a result, 
white employees in higher paid former 435 or 508 jobs acquired 

job seniority equal to their existing pre-merger seniority dates 
in their current position and all lower jobs, including former 

620 jobs, within the merged sequence. Black Local 620 employees 
who became poolmen, however, were given job seniority dates of 
May 8, 1968, as poolmen; and those who promoted subsequently to 
former 435 or 508 jobs took their promotion date as their new

25 In some departments with dead-end 620 (black) jobs
for janitors or laborers —  Power, Technical Services, 

Receiving & Stores —  those positions were attached to the new 
departmental sequence at the bottom (entry) level (Stip. Ex. 1, 
2; Tr. 395-96, Hendricks). In the Pulp Mill and Paper Mill, 
the 620 janitor jobs were eliminated from the departmental se­
quence (id.). In the departments with formerly separate 620 
sequences —  Recovery, Polychemicals, and Tall Oil —  the 
black jobs were tacked on to the bottom of the white sequence 
positions, but above the new poolman entry job (Stip. Ex. 1-2).

"Brokeman" in the Paper Mill department; "Woodhandler" 
in the Woodyard.

26



22
seniority date (Tr. 389-90, Hendricks; PI. Ex. 9, pp. 111-12; 
Stip. Ex. 6).

In both Finishing & Shipping and Woodyard Operating Depart­
ments, Westvaco and the white local unions negotiated special 
"run-around" provisions to protect white workers from losing 
ground to black 620 members who, because of the merger, were 
slotted above them in the merged sequence. In the pre-merger 

negotiations, Local 620 protested these "run-around" provisions 

and their foreseeable effects (Tr. 1505-08, 1515-16, 1601-02, 
Gantlin). Local 435, on behalf of its white members, insisted 
on recognition of "prior rights" (Pi. Ex. 7, pp. 25-28; Tr. 

1514-15, Gantlin; Tr. 3081-82, Colbert), and prevailed over 
Local 620's opposition.

27
In Finishing & Shipping, "prior right" employees in 

the Senior Roll Finisher category —  all of whom were white
—  were allowed continued priority in promotions to the lucra-

*
tive Truck Driver position, even though the merger had inserted 
the black position of Car Bracer into the line above Senior Roll 
Finisher (Stip. Ex. 6, p. 1; see Stip. Ex. 1; Pi. Ex. 7, pp.
24-25; Tr. 606-08, Collins). These "run-around" rights proved 

extremely advantageous to white employees for many years after 

the merger, during which they prevented qualified black employees, 
with greater job seniority in the job immediately below Truck

27 Prior rights were recognized for employees who had
previously held, on a permanent or regular temporary 

promotion basis, the next higher position. Of course, only 
435 (white) employees had so held the Truck Driver job.



23
Driver, from gaining promotions ahead of "prior right" whites

(Tr. 606-07, 613-18, D. Collins; see Pi. Ex. 25(h)).28 Although
"prior right" black employees in the Poolman and Car Bracer

category were given reciprocal rights to the Car Loader and Car
Bracer positions, respectively, these rights were obviously

destined to be, and proved, meaningless, since the absence of

vacancies prevented theoretical beneficiaries from taking advan- 
29

tage of them. In practice, all pre-1968 whites in the depart- 

ment continued to promote ahead of pre—1968 black employees 
even when the latter had greater job seniority.

In the Woodyard, the "prior rights" provision of the mer­
ger gave a number of white 508 members, who had previously held 
but been demoted from the Woodyard Assistant job, seniority in 

the Wood Scaler position and jobs in the former 620 line although 
they had never worked in those jobs. Subsequently, these.whites 
exercised demotion or recall rights into those jobs ahead of 
blacks with longer service in them (Tr. 1074-78, Middleton;
Tr. 3299, 3400-02, 3408, Nichols; Tr. 1163-65, Graham).

The actual effect of the 1968 merger on the relative stand­
ing of black and white incumbent employees was nil. The use of

28 Some 12 or 13 whites were thereby placed ahead of up 
to 24 black Car Bracers (Pi. Ex. 25(h),; Tr. 579-81,

588, 589, Ford, Tr. 653-54). These preferential promotions 
continued until 1973 (Tr. 620, Collins).

29 The black Car Bracers were blocked in that category 
by the promotion of "prior right" whites to Truck

Driver. This blockage rendered empty the "prior rights" of 
four black Car Loaders to promote to the Car Bracer job (Tr. 
610, Collins; Tr. 579-80, Ford; PI. Ex. 25(h)). The black 
Poolmen who had theoretical "prior rights" to become Car 
Bracers could not advance to Truck Driver because they could 
not qualify for the job (Tr. 637-40, Collins).



24
strict job seniority in those departments where all blacks were 

below whites in the merged lines, and the departure from strict 
job seniority through "prior rights" in the remaining depart­

ments, combined to assure that white employees' seniority—based 

expectations, established during the period of overt segregation, 
would not be disappointed.

Adoption of Mill Seniority System.

The next significant change in the Westvaco seniority sys­
tem was the signing, by the Company and the UPIU unions, on 

November 13, 1970, of a "Memorandum of Understanding" (Stip. Ex.
7) negotiated by Westvaco and the Office of Federal Contract

30
Compliance (OFCC) (Stip. 1f27) .

Following approval of the form of the Memorandum of Under­

standing by OFCC, Westvaco presented it as a fiat to the unions, 
which had not been consulted or involved in its negotiations 

(Tr. 2921-23, 3062, Hendricks; Tr. 3249, 3256, Dunaway; Pi. Ex.
8, pp. 120-24). Initially, Local 435 voted to reject the Memo­

randum of Understanding in August 1970 (UPIU Ex. 4; Pi. Ex. 8, 

pp. 124-25). Local 508, which had a substantial black member­

ship as a result of absorbing the former 620 Woodyard employees
31

into its unit, voted under some pressure to accept the

30 OFCC had investigated Westvaco in response to dis­
crimination charges filed by plaintiffs on March 11,

1969 (Co. Ex. 2). The record contains extensive documentation 
of and testimony about the negotiations leading to the Memorandum 
of Understanding (PI. Ex. 84-92; Co. Ex. 94-99; PI. Ex. 93-94;

^^3-31, 2958-67, 3039-59, Hendricks). These documents show 
that OFCC compelled a reluctant and dilatory Westvaco to agree 
to adopt a mill seniority system by issuing a "show cause" letter 
which would have triggered debarment of Westvaco from federal 
contracts (PI. Ex. 97, p. 1; PI. Ex.93, pp. 21-24, 26-28).

31 It acted after the IBPS International Representative 
characterized the Memorandum as "pretty good" and

sta^ed that if it were rejected the government would stuff a 
"worse one" down their throats (Tr. 3199, Kane).



25

Memorandum. Westvaco, under a gun held by OFCC (Co. Ex. 103;

Tr. 2926, Hendricks), insisted that Local 435 approve the Memo-
32

randum, and the union capitulated.

The Memorandum of Understanding identified an "affected 
class of black employees ("ACs") hired before May 1968 into 

black (620) jobs, and gave them an opportunity to exercise 
rights to promote, resist layoff, transfer, and be recalled
based on "mill seniority", or total length of employment at

33
Westvaco, rather than job seniority. The purpose of the

seniority system was to break the seniority roadblock
that confronted black employees whose prior relegation to
lower jobs on a racial basis was perpetuated through the use

34
of job seniority.

agreeing in contractual form to change their seni­
ority system in the manner specified by the Memorandum, defen­
dants proceeded to alter its terms in several significant ways.*
Each of these alterations took the form of an unwritten inter­
pretation, limiting or counteracting the thrust of the mill- 

seniority provisions in ways not authorized,or specifically 
rejected,by OFCC.

32 The UPP International Representative explained to the 
membership that it had to authorize signing, and the 

Local voted to accept it in October 1970 (PI. Ex. 7, pp. 33-34* 
Tr. 3252, Dunaway; UPIU Ex. 5).

33 See, e.g., Quarles v. Philip Morris, Inc., 279 F.Supp, 
505 (E.D. Va. 1968); Robinson v. Lorillard Corp., 444 

F.2d 791 (4th Cir. 1971), cert, dismissed 404 U.S. 1006 (1971); 
Local 189, United Papermakers & Paperworkers v. United States, 
416 F.2d 9 0 (5th Cir. 1969), cert, denied 397 U.S. 919 (1970).

The Memorandum applied mill seniority to production 
sequences only. It did not apply to maintenance 

positions represented by Local 508, Local 1753, or Lodge 183 
(stip. Ex. 7; PI. EX. 9, pp. 158, 160, Tr. 411, Hendricks).



---- — ----------------------------------------------------- ----------
As initially proposed by Westvaco, the mill seniority plan

applied only to vacancies in permanent jobs (Co. Ex. 98(b), Sec. 
VIA, 2.a and 2.b). OFCC required Westvaco to strike the word 

"permanent", so that all vacancies, including temporary ones, 
would be covered (Co. Ex. 98, p. 1, 1(6; Pi. Ex. 92). Subse­

quently, the UPP International Representative told Westvaco that 

failure to include 'temporary" explicitly was a defect that made 
it unlikely that the Memorandum would "stand up", but Westvaco 
stood firm (Pi. Ex. 9, pp. 126-27; Tr. 3256-57, Dunaway). In 

its later implementation of the Memorandum, Westvaco managers 
took the position that mill seniority was inapplicable to tem­
porary promotions (see Tr. 406, Hendricks; PI. Ex. 51, pp. 13-14, 
Tr. 883-89, Chaddick). OFCC was never informed of this inter­
pretation of the Memorandum, and never discovered it.

Defendants also agreed to construe the Memorandum as sub­
ject to non-contractual "prior rights" which were recognized 
only by informal custom (Tr. 2932-33, Hendricks), and "recall 

rights" recognized in union contracts. These prior rights 

and recall rights, which resulted from employees' having pre­

viously held a higher position than their present job, gave
35

many or even most white employees significant competitive 

advantages over black employees. Since before May 1968 black 
employees had been barred by the dual seniority lines from 

progressing into white positions, blacks had not been able to

35 Due to both reductions in force and temporary promo­
tions due to injury, vacation, or workload, the ma­

jority of employees eligible for promotion had worked as many 
as three or four levels above their current jobs (Stip. 1[21,
Op. 46; Tr. 380-81, 418, Hendricks; Tr. 3311-15, 3405, Nichols;
Tr. 3455-59, Sparkman).



accumulate prior rights or recall rights in the higher-paid jobs. 

Westvaco never proposed or mentioned recognition of these rights 
in its negotiations with OFCC, even though OFCC clearly intended 
by the adoption of mill seniority to alter the formal and infor­

mal expectations of white employees based on job seniority accrued 
during a period of overt segregation of job opportunities (Tr. 
2936-37, 2994-96, Hendricks). In contrast to the avoidance of
these matters with OFCC, Westvaco negotiated them extensively

• 36with white union officials (Tr. 419, 2937-40, 2953, 2996, 
Hendricks), and reached firm but unwritten agreement that both 

rights and recall rights would be allowed to override the 
mill-seniority provisions of the Memorandum until all white 

employees had obtained permanent promo-tions to the jobs they had 

held on a temporary basis (Tr. 3017-20, 3001-02, 2954-55, 2937-40, 
Hendricks). While the Memorandum is silent as to "prior rights," 

it cannot be read to authorize their recognition, as Westvaco's 
Manager of Industrial Relations conceded (Tr. 419, 2938, 2992-93, 
2998, Hendricks).

Westvaco negotiated with OFCC a provision which limits 
use of mill seniority for promotion to the "next higher classi­
fication" above the AC employee's current job (Stip. Ex. 7,

36 Since the abolition of Local 620 without provision for 
black officials, the unions' leadership had been all- 

and no blacks had attended any of the company-union meet­
ings (PI. Ex. 7, p. 30; PI. Ex. 6, p. 84; Tr. 3224-26, 3234-35, 
Brisbane; Tr. 414, Hendricks).

3 This preference for white employees with expectations 
based on prior promotions was formally communicated by 

Westvaco's personnel officials to departmental managers and super­
visors (Tr. 1332-35, Naylor; Tr. 1456, 1471, Wright; Tr. 2753-54, 
Kennedy; Tr. 620-23, 643-49, Collins; Tr. 3308, Nichols).



28
Sec. A.2.a, Tr. 3019-20, Hendricks). This provision prevented 

black employees from promoting to vacancies more than one level 
higher, regardless of their qualification for the vacant job, 
even if the employee had previously worked and qualified in the 
intervening positions (Tr. 3020, PI. Ex. 9, p. 142, Hendricks; 
Tr. 3397, Nichols, Tr. 3460, Sparkman). Westvaco's Manager of 

Industrial Relations admitted that such promotions were feasi­
ble in many sequences but were not allowed only because OFCC 
did not insist on them (PI. Ex. 9, pp. 142-150, Tr. 409-10, 

Hendricks). Westvaco applied this provision in a still more 

restrictive manner, and one not required or expressly permitted 
by the Memorandum's terms, by interpreting the "next higher 

classification" language to refer to the position above the 
employee's permanent job —  rather than the temporary or long­
term temporary position in which the employee might actually be
working (Tr. 1050-51, Hartin; Tr. 3019-20, Hendricks; Tr. 868- 

38
69, Chaddick).

The effect of this interpretation was to limit fully quali­
fied ACs' ability to utilize mill seniority to competitions with 

white employees at the same permanent job level, and to prevent

38 Westvaco applied the same gloss, without any basis 
in the language of the Memorandum of Understanding, 

to demotions due to reduction in force. Thus a mill-senior 
black employee could be displaced by a junior white employee 
if the latter bumped down from a higher permanent job level —  
even if the two were actually working at the same job level, 
as in fact happened (Tr. 3022-33, Hendricks, Tr. 861-64, 
Chaddick).



ACs from catching up with whites who had, through job seniority, 
prior rights, or recall rights, remained ahead of them in perma­
nent job assignment level (Tr. 823, 811, 864, Chaddick).

G. Refusal to Implement Mill Seniority System.

The Memorandum of Understanding, by its terms, was supposed 
to be placed in effect January 1, 1971 (PI. Ex. 9, p. 175). Yet 

in actuality the seniority changes prescribed by the Memorandum 
did not occur until years later, and in the interim black em­

ployees were repeatedly denied promotions and other job oppor­
tunities to which they were entitled under the mill-seniority 
provisions of Westvaco's contracts with OFCC and the UPIU unions. 

In reality, defendants simply continued to follow a job seniority 
system until they were discovered doing so by plaintiffs in the 

course of this litigation. The dates when mill seniority was 
first substituted for job seniority in these departments are 
shown in the following table:

Department Date
Recovery June-July 1973 (temp.) 

June 1974 (perm.)
Tall Oil 1973 (temp.)

April 8, 1974 (perm.)
Polychemicals Sept. 3, 1973
Paper Mill May 28, 1973 (temp.)
Pulp Mill July 1973 or later
Technical Services Late 1973
Finishing & 
Shipping

December 1973

Woodyard April 30, 1973
Power August 1973



1348, Naylor). The department manager acknowledged that at
least until February 1973, "prior rights" were not affected by
the Memorandum of Understanding (Tr. 1334). Black employees

like Isaiah Moorer were denied mill seniority promotional rights
39d

until 1973 (Tr. 1014, 1016).
(4) Paper Mill. The first use of mill seniority for tem­

porary push-up came on May 28, 1973 (Stip. 1145, p. 28) . At the 
time his deposition was taken on July 19, 1973, the President 
of Local 435 (and a Paper Mill employee for 20 years) still
believed that job seniority governed temporary promotions (PI.

39e
Ex. 7, pp. 45-47).

(5) Pulp Mill. Apart from the John Smalls promotion offer,
see p. 30, supra, no other AC promotions using mill seniority

3 9f
were made in the Pulp Mill prior to 1973 or 1974.

(6) Technical Services. Job seniority governed push-ups
until the latter part of 1973. Only thereafter was AC member

*

_________________________________________________________________3 2

39d From May 1972 to February 1973, Winston Rabon, a junior 
white in the Second Operator job, pushed up to First 

Operator ahead of three senior black ACs who were also Second 
Operators (Tr. 1337, Naylor). Indeed, at his February 1973 depo­
sition, the manager did not even know what the term "affected 
class employee" meant (Tr. 1359, Naylor).

39e He stated that he understood the Memorandum was not 
supposed to operate in this manner, and was being 

changed "right now," PI. Ex. 7 at 47. William Gilliard, a black 
AC Paper Mill worker, testified that mill seniority was not used 
until he began to push ahead of several junior whites from Seventh
to Sixth Hand in 1973, after several years when those whites had
received priority for promotions (Tr. 1400-03, 1404, 1417).

39f When his deposition was taken on July 19, 1973, the
President of Local 508 had never heard of any bypassing

of a white employee by a mill-senior black employee, or any use of
the Memorandum of Agreement, anywhere in the 508 Jurisdiction (PI. 
Ex. 6, pp. 86-87, Rodgers).



George Smith allowed to utilize his mill seniority to push 
ahead of junior whites (Tr. 102-03, 114, 123, Smith).

(7) Finishing and Shipping. No promotions of ACs based 
on mill seniority rights under the Memorandum of Understanding 
occurred until December 1973 (Stip. 1(45) . The Supervisor tes­
tified that junior whites continued to exercise their run-around 
rights to the Truck Driver position, to the detriment of senior 
Blacks, until this practice was cut off, after discussions with
Personnel and union leadership, by implementation of the Memoran-

39g
dum of Understanding in early 1973 (Tr. 620, 643-44, 646, 649).

(8) Woodyard. Permanent promotions of AC employees on
the basis of mill seniority began on April 30, 1973 (Stip.

3 9h
1145) . Use of mill seniority resulted from a grievance
filed by a Black Committeeman on behalf of a senior black worker 
(Tr. 1213-14, Williams; Tr. 726-27, Melvin). Even after the 
first use of mill seniority in the Woodyard, Westvaco continued 
to resist full implementation of the Memorandum of Understanding 
and to make promotions of junior whites based on job seniority

33

39g The President of Local 435 affirmed that no mill seni­
ority promotions had occurred as of July 19, 1973 (PI.

Ex. 7, pp. 39, 45). Three Black employees testified that some par­
tial recognition of mill seniority rights began about 18 months 
before trial (Tr. 531, 536, Rhodes; Tr. 673, 677, Williams; Tr. 581 
84, Ford). Before and after that time, these three men were denied 
permanent and temporary promotions that went to junior whites (Tr. 
678, Williams; Tr. 579-82, 588-89, Ford; Tr. 535, 538, 554, Rhodes) 
The rights of others of the 7 black Car Bracers who had not waived 
promotions to Truck Driver were also subordinated to those of the 
junior whites (see PI. Ex. 25(h), 43; Tr. 619-621, 631, Collins).

39h Testimony that mill seniority had never been used before 
that date —  for permanent promotions, temporary push-ups 

or demotions —  was given by James Middleton and Wilson Melvin, Jr. 
both 508 committeemen (Tr. 691,706, 716, 719-21 Melvin; Tr. 1058-61 
Middleton). Plaintiff Clifford Graham and Paul Williams confirmed 
that date (Tr. 1163, Graham; Tr. 1215-16, 1221, 1207, Williams).



34

or "prior rights" (Tr. 1087,Middleton; Tr. 1191-1201 Williams;
39i

Tr. 1102-04, Middleton).

2. The record demonstrates that the reason for defendants' 
reluctant implementation of the mill seniority system, two to 
three years after its theoretical adoption, was discovery ini­
tiated by plaintiffs' counsel. On December 14, 1972, Westvaco's 
Manager of Industrial Relations testified in deposition that 
he didn't know how many promotions based on mill seniority had
actually occurred, and couldn't name any (PI. Ex. 9, pp. 175- 

40
77, Hendricks). His deputy, whom the Manager identified 
as more knowledgeable, was also unable to identify any ACs pro­
moted using mill seniority, at his deposition taken January

41
31, 1973 (PI. Ex. 10, pp. 63-66, Debnam). Westvaco depart­
mental managers conceded that mill seniority had never been 
actually applied in their departments at depositions taken 
January 31, 1973 (Hartin, Woodyard, at 43-45), February 1, 1973

39i As late as trial, the Woodyard Supervisor, Stoney Hartin, 
still had no idea when the Memorandum of Understanding 

was implemented; he testified that it went into effect in 1968 
(Tr. 1054-56) .

Prior to the full implementation of the Memorandum of 
Understanding, many blacks in the Woodyard lost contests for 
promotion or demotion to junior whites. Clifford Graham and 
other blacks lost promotion to white employee Tolle (Tr. 1163- 
65, Graham; Tr. 1074-76, Middleton), and Paul Williams was 
demoted from Long Log Operator, on the basis of job seniority 
while a junior white employee, Weaver, remained in the job (Tr. 
1187-88, Williams). The Woodyard Superintendent admitted that 
award of a Long Log job to white employee Tucker in April 1972 
(see Co. Ex. 104 (i)) was a "mistake"; had the Memorandum been 
followed, W.D. Lee, a black, would have been promoted based on 
mill seniority (Tr. 3317-18, 3407-08, Nichols).

40 Hendricks guessed at two specific promotions, as to 
one of which he was wrong (the other was Smalls), and

erroneously guessed that there had been "a number" of others.
41 Debnam thought there were "several" examples, and 

believed that use of mill seniority was "an absolute
thing"; but was unsure whether it had, in fact, been followed.



35

(Chaddick, Recovery, at 13-23, and Naylor, Polychemicals, at
10-12), March 14, 1973 (Wright, Tall Oil, at 28-32), and March

42
15, 1973 (Collins, Finishing & Shipping, at 16-17). Union 
officials testified similarly on July 19, 1973 (McCants, Local 
435, PI. Ex. 7, pp. 39, 43-45; and Rodgers, Local 508, PI. Ex. 6, 
pp. 86-87). Finally, two black union stewards in the Woodyard, 
who had learned about their entitlement to mill seniority from 
plaintiffs' counsel (Tr. 696, 705, 720-21, Melvin; Tr. 1058-61, 
Middleton), challenged officials of Local 508 and Westvaco in 
April 1973 about their failure to implement mill seniority for 
ACs (Tr. 717, 720-21, Melvin; Tr. 1083-85, 1119-21, Middleton).
The first recognition of AC mill seniority was triggered by this 
series of depositions.

3. The existence of the Memorandum of Understanding and the 
entitlement of ACs to use mill seniority was never effectively 
communicated to employees who might have benefitted from this * 
information. Although Westvaco promised OFCC to advise employees 
in writing of the new agreement (Co. Ex. 98(b) HE, Tr. 2973, 2980, 
Hendricks), and despite its frequent distribution of written in-

43
formation on relatively trivial subjects (Tr. 2973-80, Hendricks),

42 The page citations in text are to depositions in 
the record but not admitted in evidence. The cited

testimony is not disputed.
43 Westvaco regularly communicates in writing with its 

employees by special mailings, by posting notices
on bulletin boards, by handouts with paychecks or at the 
plant gate, and by Company newsletter. It has used such 
means to solicit assistance for a volunteer fire brigade, 
to announce the appointment of high corporate officers, to 
distribute W-2 forms and corporate annual reports, and to 
deliver gift turkey cards at Christmas (Tr. 2973-80, 
Hendricks).



36

Westvaco gave no written notice to affected AC employees (Tr. 
416, 2981, PI. Ex. 9, pp. 172, 175, Hendricks; PI. Ex. 10, pp. 
559, Debnam). Although personnel officials said they assumed 
that ACs would be told about their rights by departmental super­
visors or union officials, the personnel officials took no 
steps to assure that any communications occurred or to determine 
whether they had occurred (PI. Ex. 9, pp. 172-73, PI. Ex. 10, 
pp. 54-57, Tr. 415-16). Thus, even though George Debnam was 
in charge of both operation of the TRC system and implementa­
tion of the Memorandum of Understanding (PI. Ex. 9, pp. 170,
164; PI. Ex. 10, p. 46), when ACs came to discuss transfer with 
him, he didn't mention mill seniority because, as he said, "I 
feel like it is understood and known. But, I can't swear to 
it" (PI. Ex. 10, pp. 54-55). Neither Local 435 nor Local 508 
posted or distributed any written notice of the major change 
that had supposedly taken place in their seniority system, and 
neither Local's President ever spoke to any black employees 
about it until 1973 (PI. Ex. 7, pp. 84-86, 93, Rodgers; PI.
Ex. 6, pp. 34-38, McCants; Tr. 3231-40, Brisbane). C.A.
Rodgers, President of Local 508 from 1969 - 1972, testified 
that after the meeting (in August 1970) at which the local 
ratified the Memorandum, there was no further discussion of 
it at union meetings (PI. Ex. 6, pp. 84-85, Rodgers). The 
union never posted any notice of ratification, nor any copy 
of the Memorandum, and he never spoke to any black members 
about it since nobody told him to do so (id. at 85-86).



37

Rodgers believed it possible that no black member of 508 had ever 
heard of the Memorandum (id. at 93). Jerome McCants, President 
of Local 435 from 1966 to 1972, testified that apart from the 
meeting attended by Uly Rhodes and others the union never com­
municated with black members about the Memorandum, never posted 
a copy, and he personally had never spoken to any black employee 
about it since ratification (PI. Ex. 7, pp. 34-38, McCants).

Although a few AC members apparently heard oral references
to mill seniority at a single union meeting or around the mill,
the great majority of black employees were completely uninformed

44
of their supposed rights. Very few AC employees knew that 
they had promotional rights based on mill seniority. As a result, 
ACs were unaware throughout the 1971-73 period that their mill 
seniority rights were being consistently violated, and were 
unable to take any action to preclude further violations.

44 Uly Rhodes and two other black employees were present
at the Local 435 union meeting when the proposed Memo­

randum was rejected (Tr. 530, 539-40, Rhodes; Tr. 3089-90, Col­
bert) . Because no document was available, Rhodes did not under­
stand the proposal very well, and could not explain it to other 
black employees in his area, Finishing & Shipping (Tr. 547, 549, 
568, Rhodes; Tr. 585-86, Ford; Tr. 673-76, Williams). Rhodes 
and the others never received any information at that time from 
the Company (Tr. 541-43, 537-38, Collins; Tr. 592-95, Ford), 
and of course had no information that the Memorandum was even­
tually adopted.

Several other black employees were perhaps given some 
minimal information by departmental officials. But the only 
efforts of this sort were directed at several employees in Re­
covery and in Finishing and Shipping who had waived further pro­
motion, generally due to illiteracy (Tr. 791-96, 876-77, 893, 
Chaddick; Collins, Tr. 631, 643; Co. Ex. 10). No systematic 
effort was made to give any information to employees who could 
benefit from the information.

Thus, only in Finishing and Shipping was any informa­
tion given prior to 1973 to any Blacks to whom it might make any 
sense or difference. Even there, the information was so incom­
plete as to be useless.

Testimony by Black ACs who were kept ignorant of their 
rights is summarized at notes 44a-44i and accompanying text, 
infra.



Because there was no systematic, centralized effort to in­
form ACs about the Memorandum of Understanding or mill seniority 
rights, the testimony of individual employees takes on particular 
significance on this issue. Over 20 ACs testified that Westvaco 
and the unions had never informed them of the existence of the 
Memorandum of Understanding or their mill seniority rights. In 
virtually every case these employees first learned of their rights 
from plaintiffs, their counsel, or other employees in contact with 
them, after the introduction of the Memorandum as an issue in this 
case in December 1972-January 1973.

Among the employees who so testified were many of the most 
articulate, active, and concerned black employees at Westvaco's 
mill, including a number who were former Local 620 officers, 
recent 508 stewards, or persons who had a practice of closely 
following seniority changes. Plaintiff Gantlin testified that
he was first told of the Memorandum of Understanding late in

4 4a1972 by his attorneys (Tr. 1535-36, 1539). Wilson Melvin,
Jr., Local 508 Committeeman and shop steward, and longtime mer­
ger advocate, also learned of the Memorandum from counsel in

44b
early 1973 (Tr. 696) .

________________________________________________________________3î

44a This occurred despite the fact that he was in frequent 
contact with the Industrial Relations Manager, the Per­

sonnel department, and officers of Locals 435 and 508 and the Pulp 
Sulphite Workers International from 1970 to 1972, as he had been 
for years, about black employment opportunities (Tr. 1537-38,
1534, 1727).

44b Company and union officials had never previously dis­
cussed mill seniority with him (Tr. 696-97, 705, 720). 

When Melvin asked the Local 508 President, who did know about 
the Memorandum, why blacks had not been informed, he offered 
the excuse that he had not been President in 1970 (Tr. 696;
Tr. 1081-82, Middleton).



39

James Middleton, another 508 steward and Committeeman
and a regular attendee at union meetings, first heard of the
Memorandum or mill seniority when Melvin challenged the Local
President to explain his failure to give earlier information
to Black employees (Tr. 1079-82, 1059-60) . Five other Wood-
yard employees also testified that they had never been told

44c
about the Memorandum of Understanding or mill seniority.
Five Recovery department employees also testified that defendants
had never informed them of the Memorandum or their rights under 

44d
it. Other Black AC employees who gave similar testimony

44e 44f 44g
worked in the Paper Mill, Power, Technical Services,

44c See testimony of Paul Williams (first heard from coun­
sel in 1974) (Tr. 1206-07, 1215, 1223); A.L. Gardner 

(Tr. 1240, 1247); Franklin Carter (Tr. 1269-70); plaintiff Clifford 
Graham (informed of Memorandum by plaintiff Gantlin and counsel, 
but may have heard a rumor about mill seniority in 1972) (Tr. 
1161-62, 1172, 1175, 1176); William Frederick, Sr. (heard from 
counsel) (Tr. 1372); and plaintiff George Chatman (first heard 
of Memorandum of Understanding and mill seniority from counsel)
(Tr. 504, 517, 522).

44d See testimony of Elijah Sparkman, Jr. (told by counsel 
in December 1972; supervisor never discussed either 

Memorandum or mill seniority) (Tr. 734, 735, 747); plaintiff 
Alphonse Gilliard (same facts) (Tr. 912-13, 928, 932-33); Herbert 
DeLee (told by counsel in 1973, never heard at mill) (Tr. 946-47); 
Fred Green (Tr. 967-68); Leroy Jones (Tr. 986, 988); and Devonne 
Fladger (union steward) (Tr. 1959-61) .

44e William Gilliard never heard of the Memorandum, and
first learned of mill seniority from the President of 

Local 435 in 1973 (Tr. 1402-04, 1419-21).
44f Alfred Pinckney was first advised of his mill seniority 

rights (which he then waived) in August 1973 by his 
supervisor (Tr. 1998, 2000, 2003, 2013, 2016, 2027).

44g George Smith learned about the mill seniority system
from counsel, not from Westvaco, although in late 1973 

his supervisor also told him that he would be moved above whites 
with less seniority (Tr. 100-01, 121, 123).



40
44h 44i " “

Tall Oil, and Polychemicals Departments.

Westvaco officials made some attempt to claim that they had
informed a few Black employees of their supposed opportunities,
but their testimony is far too vague or off-point to rebut the
specific testimony of Black workers in virtually all departments
that the Memorandum and mill seniority were never communicated 

44 j
to them.

44h Plaintiff Charles Jenkins first heard mention of the 
Memorandum of Understanding during his deposition and 

had never been informed that black employees could use mill 
seniority to promote (Tr. 142-43, 169-70, 208-09).

44i Isaiah Moorer, although the oldest man in Polychemi­
cals, learned of the Memorandum from counsel in 1974, 

and first saw that mill seniority was in use during 1973 (Tr. 
1015-16). (Although Nelson Rivers, Jr., stated he had 
heard of mill seniority at a union meeting where other blacks 
were present, his testimony is confused and was not corrobo­
rated (Tr. 1001-04).)

44j In the Woodyard, Supervisor Stoney Hartin candidly
admitted that he had never had any meeting to explain 

any seniority changes to class members or employees since the 
1968 merger (Tr. 1056). Superintendent Nichols stated that he 
had explained the Memorandum of Understanding to some black 
employees, but couldn't name any (Tr. 3331). Westvaco did 
repeatedly encourage employees in the Woodyard labor pool to 
transfer to the sequences (PI. Ex. 10, pp. 45-49, 50-51, Tr. 
2608-09, Debnam), but this had also occurred prior to 1970 and 
these announcements did not involve specific discussions of 
the use of mill seniority, and were made by Stoney Hartin (PI. 
Ex. 10, pp. 51-53).

In Recovery, both employees whom the Superintendent 
claimed to have advised of their rights specifically denied it 
(compare Tr. 893, 897, Chaddick, to Tr. 1959-61, Fladger, and 
Tr. 912-13, 932-33, Gilliard). Plaintiff Gantlin, in Tall Oil, 
also denied having been told anything by his supervisors (Tr. 
1472-73, Tr. 1726-027).



41

SUMMARY OF ARGUMENT
The District Court's finding that defendants' seniority 

system was bona fide under §703(h) of Title VII is clearly 
erroneous and must be reversed under the standard of Pullman- 
Standard v. Swint, 72 L.Ed.2d 66 (1982). Applying the four- 
part test for bona fides of a seniority system, as expressed 
in Int'l Brotherhood of Teamsters v. United States, 431 U.S.
324 (1977) and James v. Stockham Valves & Fittings Co., 559 
F.2d 310 (5th Cir. 1977), cert, denied 434 u .S.1034 (1978), we 
show that all four analytical tests indicate the presence of 
intent to discriminate through the seniority system (pp. 42-44 ) .

The seniority system most clearly lacks bona fide character 
because it originated as part and parcel of an overtly racial 
division of jobs and sequences which initially relegated blacks 
to inferior positions and subsequently kept them trapped there 
(PP* 49-47). Defendants intentionally maintained this initially 
discriminatory system in effect for as long and to as great a 
degree as possible after they were forced to abandon the overt 
trappings of a segregated structure of jobs and promotional 
opportunities in May 1968, through unjustifiable restrictions 
on purportedly desegregatory changes in the seniority system 
and through unwarranted delay in implementing those changes 
(pp.50-59). The effect of the original system and of limita­
tions on its reform fell heavily on black employees, despite 
the facial neutrality of the seniority agreement's provisions 
(pp.47-50). The discriminatory system cannot be excused as a 
necessary response to the operational needs of the industry,



and is typical only of the deliberately discriminatory prac­
tices prevalent in similar plants (pp.59-62). The District 
Court's conclusion that the seniority system was bona fide 
can be reconciled neither with the result in virtually iden­
tical cases nor with the facts of record in this case, and 
should be reversed (pp.62-65).

ARGUMENT
THE DISTRICT COURT ERRED IN HOLDING DEFENDANTS'
SENIORITY SYSTEM BONA FIDE.
Under the holding of International Brotherhood of Teamsters 

v. United States, 431 U.S. 324 (1977) (hereafter "Teamsters"),
bona fide seniority systems are insulated from the usual Title 
VII standard applicable under Griggs v. Duke Power Co., 401 U.S. 
424 (1971), proscribing employment practices which have disparate 
impact on minority employees and are not shown to be necessary.

In Teamsters the Supreme Court construed §703(h) of Title VII,
42 U.S.C. §2000e-2(h), to authorize use of seniority systems 
which perpetuate the effects of past discrimination, so long as 
those systems are not themselves the product of intentional dis­
crimination. Trans World Airlines, Inc, v, Hardison, 432 U.S.
63, 82 (1977); Pullman-Standard v. Swint, ___ U.S. ___, 72
L.Ed.2d 66, 72-73 (1982) (hereafter "Swint"); American Tobacco
Co. v. Patterson, ___ U.S. ___, 71 L.Ed.2d 748, 752-53 (1982).
The determination of whether a particular seniority system is 
bona fide under §703(h) is essentially an issue of fact, to be 
initially decided by the trial court and to be reviewed on

_______________________________________________________________ 42



4 3
appeal subject to the "clearly erroneous" standard of Rule 52(a),

45
F.R.C.P., Swint, 72 L.Ed.2d at 80-81.

The Supreme Court in Teamsters provided scant guidance in 
delineating the characteristics of a bona fide seniority system, 
431 U.S. at 355-56. Most lower courts have taken guidance from 
the Fifth Circuit's application of the Teamsters test in James 
v. Stockham Valves & Fittings Co., supra, 559 F.2d at 
351-53. This Court has suggested that the James test is
appropriate. Patterson v. American Tobacco Co., 634 F.2d 744,
750 n.6 (4th Cir. en banc 1980), rev'd on other grounds 71 
L.Ed.2d 748 (1982). The Teamsters inquiry, as articulated 
in James, asks four questions:

1) whether the seniority system operates to dis­
courage all employees equally from transferring 
between seniority units;

2) whether the seniority units are in the same or 
separate bargaining units (if the latter, whether 
that structure is rational and in conformance with 
industry practice);

3) whether the seniority system had its genesis in 
racial discrimination; and

4) whether the system was negotiated and has been 
maintained free from any illegal purpose.

James v. Stockham Valves & Fittings Co., supra, 559 F.2d at 352.
The District Court purported to apply the principles set 

out in Teamsters and James (Op. 30-31). It made non-specific

45 Although plaintiffs also brought this action under 
42 U.S.C. §1981, we cannot assert that its applica­

tion would lead to a different decision on the issues presented 
here, in the face of Johnson v. Ryder Truck Lines, Inc., 575 
F.2d 471 (4th Cir. 1978), cert, denied 440 U.S. 979 (1979). 
Therefore no separate argument is made under §1981.



44

and conclusory findings as to the four cited factors (Op. 31- 
35), and upon those findings drew the conclusion that defen­
dants' seniority system was bona fide (Op. 62-63). These
findings are reviewable within the framework established by

46
the Swint decision. Upon such review the District Court's 
findings must be held clearly erroneous.

A. The Seniority System Had Its Origin In Discrimination.
As the Court below acknowledged (Op. 61), defendants de­

fined and established their seniority system at a time when each 
of them, and the surrounding society, strictly segregated blacks 
into inferior positions and excluded them from access to both 
equality in general and quality jobs in particular. The Court, 
heedless of the clear evidence of the racial definition of 
lines in that seniority system, ruled that evidence of pre­
vailing and surrounding discrimination was not enough to meet 
plaintiffs' burden (Op. 61-62). The evidence overlooked by 
the trial court shows that the discriminatory effects of de­
fendants' seniority system were not incidental, but rather 
were part of its design.

The critical fact, never mentioned by the District Court, 
is that seniority units at Westvaco had exactly the same boun­
daries as the racial lines drawn pursuant to overt policies of 
segregation. The most important seniority units —  sequences

46 The general and conclusory nature of the trial court's 
fact-finding on this issue, while it does not remove 

the findings from the Rule 52(a) blanket, does make searching 
appellate scrutiny especially appropriate.



45

or lines of progression —  were at that time, and remained for 
two decades, either all-white or all-black. An overtly segre­
gated local union, either all-white Locals 435 and 508, or all­
black Local 620, had jurisdiction over the segregated jobs and 
claimed their occupants as members. And all blacks hired into 
the bargaining unit were assigned to black jobs represented by 
Local 620, while all whites were assigned to jobs in sequences 
within the jurisdiction of Locals 435 or 508.

The arbitrary division of single functions or departments 
into two sequences or two separate job groups makes sense only 
if the hand tracing the boundaries was guided by racial con­
cerns. Once the seniority units were defined so as to isolate 
the most physically demanding, lowest-paid jobs from sequential 

progression to more desirable jobs, and once the black workers 
were assigned to those menial positions, the seniority system 
functioned efficiently and automatically to keep blacks in black 
jobs and out of white jobs. Such a smoothly functioning system 
was not some accidental by-product of the organization of the 
bargaining unit into seniority units, but its dominant feature.

Several other courts, in almost identical factual settings, 
have had no trouble in discerning the predominant role of classi­
fication by race. In King v. Georgia Power Co., 634 F.2d 929 (5th 
Cir. 1981), vac'd and rem'd for reconsideration sub nom. Local
Union No. 84, Int'l Brotherhood of Electrical Workers v. U.S., 72

47L.Ed.2d 477 (1982) the Court of Appeals reversed a District 

Court's holding that a seniority system was bona fide, in large 
part because

47 The Supreme Court's remand of Georgia Power was for 
reconsideration in light of Swint and in no way ex­

presses disapproval of the Fifth Circuit's opinion.



46

[T]he seniority system had its genesis in an era of 
overt racial discrimination at Georgia Power, when by 
formal policy blacks were prevented from holding any 
jobs other than those in the four lowest, most menial 
classifications. . . .
. . . [I]t can be clearly seen . . . that the seniority 
system negotiated through the collective bargaining 
process tracked and reinforced the purposefully segre­
gated job classification scheme maintained by the company 
and the conclusion is inescapable that the seniority sys­
tem itself shared in that same unlawful purpose. The 
seniority system under the collective bargaining agreement 
was but part and parcel of the total package of purposeful 
discrimination at Georgia Power.

48
634 F .2d at 936 (emphasis supplied). The same analysis appears 
in two decisions involving Georgia paper mills' seniority systems 
which are in all significant respects identical to Westvaco's 
system of dual sequences and isolated black jobs. In Miller 
v. Continental Can Co., ___ F.Supp. ___, 26 FEP Cases 151 (S.D.
Ga. 1981), the Court examined a system which had placed all 
blacks in a separate, segregated line of progression in the 
Woodyard, below but not feeding into a higher white Woodyard 
progression. After nothing that, "Obviously, then, the bifur­
cated woodyard seniority system was the devise [sic] which de­
fined the status of black employees," the Court held,

. . . [T]he Port Wentworth seniority system had its 
genesis in segregation. Such racial views were more 
than merely the overall social context in which the 
plant was organized. . . . They were the basis for a 
plant organization which presumed that blacks were and 
for the indefinite future would continue to be unsuited

48 See also, Terrell v. United States Pipe & Foundry 
Co., _supra, 644 F.2d at 1118; Sears v. Atchison, 

Topeka & Santa Fe Ry. Co., 645 F.2d 1365, 1373-74 (10th Cir. 
1981), cert, denied 72 L.Ed.2d 490 (1982), aff'g in pert, part 
454 F.Supp. 158 (D. Kan. 1979); Chrapilwy v. Uniroyal, Inc., 
____ F.Supp. ___, 15 EPD 1(7933 (N.D. Ind. 1977), at p. 6662.



for any job except the most menial and least 
remunerative.

26 FEP Cases at 165. And in another case involving a seniority 
system virtually identical to the Westvaco system, Myers v.
Gilman Paper Co., 25 FEP Cases 468 (S.D. Ga. 1981), the Court 
held,

The seniority system, jointly created by the Company 
and the unions, operated as an integral part of the 
discriminatory jurisdictional system of allocating 
jobs. This seniority system complemented and rein­
forced the purposefully segregated jurisdictional 
job classification system. . . .

25 FEP Cases at 472.
In failing to find that a seniority system which "tracked 

and reinforced" a racially defined scheme of job allocation had 
its genesis in purposeful discrimination, the District Court 
committed error.

B. The Seniority System Applied Unequally to Blacks.
On its face, the Westvaco seniority system applied equally 

to all employees within the joint bargaining unit. It had the 
common purpose and effect of discouraging employees from step­
ping out of the line they had entered, thereby fostering stability 
and training within sequences, the principal seniority units. 
Having found this much, the District Court terminated its super­
ficial inquiry (Op. 31-32). That conclusion overlooks the 
actual impact of the seniority system, which was very different 
for whites and blacks.

_____________________________________________ _______________ 47



43

Until the May 1968 mergers, by virtue of the seniority 
system, whites and blacks alike were "locked in" to their 
respective sequences. They could change sequences only by 
committing "seniority suicide". From May 1968 until the im­
plementation of mill seniority in 1973 or later, blacks could 
progress within their merged sequence into formerly white jobs, 
behind all incumbent whites in order of job seniority, but 
still had no opportunity to transfer with seniority into a more 
desirable sequence. In order to appreciate the inequality of 
these arrangements, one must consider the different starting 
points of white and black employees.

White employees were initially assigned to jobs and
sequences based only on their skills and abilities and the
available positions. For them, race was not a limiting fac- 

49
tor. Thus, the restrictive nature of the seniority system 
did not bind them to an initial placement grounded on the color 
of their skins, but to one determined by race-neutral factors. 
More fundamentally, the jobs held by the great majority of 
whites, and open to all whites through automatic promotion in 
the sequence were higher paid, generally less arduous, and more 
desirable than those to which blacks were relegated. Although 
the seniority system indeed restricted white workers, in Most

49 Except in the purely technical sense that, because
of race, whites would not be placed in a low-paying, 

hard, dirty job with no possibility of significant advancement. 
Strictly speaking, whites were excluded from those jobs, which 
were in the Local 620 unit.



49
50cases, to moving within the established sequences, such 

"restrictions" are vastly different from the limited horizons 
that boxed in black employees. At best, blacks worked in short 
sequences composed of a few low-paid jobs, the higher ones
slightly less arduous and more remunerative than the lowest,

51
but all basically dead-end laborers' jobs in nature. In 
contrast to white employees, who could attain substantial 
advancement in pay and responsibility without leaving their 
sequence or giving up seniority, black employees had little if 
any upward mobility within the confines of the seniority system.

Numerous courts have seen through the veneer of "equal 
treatment" to recognize the inherent inequality of seniority 
systems that freeze whites and blacks into grossly unequal and 
racially determined promotional possibilities. As the Fifth 
Circuit, in King v. Georgia Power Co., supra, wrote:

50 For example, it encouraged a Seventh Hand earning 
$2.65/hr. in 1968 to remain in line in the hope of

moving upward through six positions to the top job of Machine 
Tender ($4.58/hr.) and likewise "locked in" a Tall Oil "Extra 
Man" ($2.64/hr.) to a progression leading to seven jobs paying 
up to $3.68/hr. (Stip. Ex. 2).

51 in Tall Oil, for example, a black employee could 
"progress" only one step, from Laborer to Platform

Man. Other departments which had separate black sequences 
before the merger were: Woodyard (Crews progression - five 
jobs to Chipper Feeder ($2.79/hr.) and Long Wood progression - 
three jobs to Operator ($3,14/hr.)); Woodyard Cartage (three 
jobs to Dempster-Dumpster ($2.80/hr.)); Recovery (three jobs 
to First Service Operator ($2.71/hr.)); Finishing and Shipping 
(three jobs to Car Bracer ($2.72/hr.)); Receiving and Stores 
(three jobs to Truck Driver ($2.72/hr.)); and Polychemicals 
(two jobs to Platform Man ($2.58/hr.) ) Stip. Ex. 2. In 
several departments, there was no 620 sequence at all, but 
only a dead-end labor and clean—up position detached from 
the departmental promotional scheme. These departments 
include the Pulp Mill (Digester and Wet Room sides), Paper 
Mill, Technical Service, and Power. Stip. Ex. 2.



50

This facial equality . . . was but a mask for the 
gross inequality beneath . . . .  [U]nlike Teamsters,
. . . here the overwhelming majority of employees 
discouraged by a total loss of seniority from trans­
ferring to the better-paying, more desirable jobs 
were black. In this way, the seniority system 
operated to "lock" black workers into inferior 
jobs. . . .  It is thus apparent that in discoura­
ging transfers between seniority units, the seni­
ority system here did not operate equally on the 
races but had a disproportionately heavy negative 
impact on blacks.

634 F .2d at 935. The District Court made this same point 
in holding non-bona fide the same paper mill seniority sys­
tem in Miller v. Continental Can Co., supra, 26 FEP Cases 
at 165, and Myers v. Gilman Paper Co., supra, 25 FEP Cases 
at 473. And a District Court in this Circuit has recently 
made the same observation in finding a similar seniority sys­
tem non-bona fide, Russell v. American Tobacco Co., 26 FEP

52Cases 539, 546 (M.D. N.C. 1981).

In the difficult task of elucidating intent, the actual 
impact of a system is highly pertinent. Village of Arlington 
Heights v. Metropolitan Housing Development Council, 429 U.S. 
252, 266 (1976). The District Court's refusal to look be­
neath the transparent surface of the seniority system in this 
case, and to recognize its grossly and deliberately unequal 
impact on black employees, constitute clear error.

The Seniority System Was Maintained and Mani­
pulated With Intent To Discriminate.

Even if the seniority system were held to have originated
as an unfortunate but untainted by-product of a segregated time

52 See also, Sears v. Atchison, Topeka & Santa Fe. Ry. 
Co., supra, 645 F.2d at 1373.



51

and place, its consistent maintenance and manipulation by defen­
dants as a bulwark of invidious white privilege, since at least 
1960, renders the system non-bona fide. The record shows at 
least three different variations on the seniority system during 
the period encompassed by plaintiffs' complaints. From the 
effective date of Title VII to May 8, 1968, racially separate 
dual seniority lines and union jurisdictions remained in effect. 
From the 1968 merger until the adoption of the Memorandum of 
Understanding, the same basic seniority measure —  job seniority 
within a line —  was used in conjunction with merged lines and 
union jurisdictions. Following adoption of the Memorandum of 
Understanding, a mill seniority system (for ACs) existed on 
paper, but was not actually implemented until the time trial of 
this case drew close. In each of three periods, defendants 
defended, administered, and where necessary manipulated the 
system to keep black workers from advancing into the more 
desirable, traditionally white jobs.

During the pre-merger period, little subtlety was required 
to keep blacks in their place. The separation of sequences and 
seniority units provided a strong disincentive to aspirations 
of black employees for transfer into white sequences. Those 
few ambitious and risk-taking individuals who nevertheless 
sought promotion —  many of whom were younger employees without 
substantial amounts of accrued seniority at stake —  were given 
a run-around or simply ignored. They watched in frustration as 
numerous whites without seniority or experience were brought 
into vacancies in the white entry jobs which they had repeatedly



52

requested. The District Court's finding that "only" nine 
whites were so placed in three departments between July 2, 1965, 
and May 8, 1968 (Op. 14) seriously understates the true number 
of whites who were advanced ahead of blacks, in several ways. 
First, it excludes the many whites who were not initially 
assigned to jobs in the white sequences, but who quickly pro­
moted into them, as vacancies arose, ahead of senior blacks;
there were at least four of these in both the Woodyard and

53
Recovery departments and several in Tall Oil. Second, it 
neglected the numerous other white sequences into which blacks 
had sought entry, only to be bypassed in favor of whites, 
including Finishing & Shipping, Polychemicals, and Power.
Third, the Court below failed to consider the numerous whites 
so placed before July 2, 1965, a period whose overt discrimina­
tion, while not actionable, is highly probative of the discrimi­
natory intent pervading defendants' maintenance of their seniority 

55
system. Nowhere mentioned in the Court's decision is the 

salient fact that not a single black worker obtained a permanent 
position in a traditionally white sequence until April 25, 1966.

53 Compare Op. 14 with Tr. 1158-60, Graham, Tr. 1069- 
71, 1116-17, 1142, Middleton (Woodyard), Tr. 1771-

72, 1776, Cook (Woodyard); Tr. 1954-58, 966, Green, Tr. 939- 
45, DeLee (Recovery); Tr. 133-40, Jenkins (Tall Oil).

54 See Tr. 578-79, Ford (Finishing & Shipping); Tr. 
1012-13, Moore (Polychemicals); Tr. 1986-88, 2010,

Pinckney (Power).
55 See, e.g., Tr. 125-33, Jenkins (Polychemicals);

Tr. 87-98, Smith (several departments); Tr. 1549-
52, Gantlin (Tall Oil).



PI. Ex. 9, pp. 22-23. The Court also failed to consider defen­
dants' telling admission that the racial identity of white and 
black sequences remained unchanged throughout the pre-merger 
period (Stip. 1[8) . It remained that way because defendants 
administered their system so that no significant desegregation 

occurred.
The May 8, 1968 merger was the culmination of a protracted 

struggle by Local 620 to gain access for black employees to 
better jobs in white sequences by removing seniority and 
jurisdictional divisions. Defendants had ignored and resisted 
these demands for as long as possible. See pp. 17-20 / supra. 
Even when defendants finally acknowledged the inevitability 
of merger, they negotiated special provisions, over Local 
620's strong objections, to eliminate the possibility that 
any junior white employees might be overtaken by senior black 
employees in the newly merged sequences. See pp. 20-23 , 
supra. The intent and effect of these special run-around 
provisions in the Finishing & Shipping and Woodyard depart­
ments was to assure that, among pre-merger black and white 
employees, promotions and demotions would continue to be 
made as if no merger had taken place. The District Court's 
finding that these provisions merely "preserved vested con­
tract rights" (Op. 30) ignores two critical points. First, 
those contract rights were merely shop custom, nowhere



54

formalized or written down. Second, the "vesting" approved by 
the Court below was itself the product of a discriminatory 
dual system which prevented blacks from obtaining similar 
rights to white jobs, and was in derogation of the merger 
purportedly brought about by the Memorandum of Agreement.
See, United States v. Hayes International Corp., 456 F.2d 
112, 118 (5th Cir. 1972) .

Under orders from OFCC following plaintiffs' complaint 
to that agency, in 1970, Westvaco accepted a conversion in 
theory to a modified seniority system granting AC employees 
remedial use of mill seniority. Later that year, defendants 
signed the Memorandum of Understanding, embodying that system. 
See pp. 24-25, supra. Even in that concession, however, defen­
dants went to great length to delay and minimize the remedial 
impact of the seniority change. In negotiating the terms of 
the Memorandum, Westvaco sought a qualification limiting use 
of mill seniority to permanent promotions only; when OFCC re­
fused to accept the limitation, Westvaco nonetheless construed 
its agreement to exclude temporary positions. See p. 26, 
supra. Likewise, Westvaco limited the application of mill 
seniority to one-step-at-a-time moves by black employees from 
their permanent job levels, regardless of their qualification 
for higher level work. See pp. 27-28 , supra. The most dramatic



evidence of defendants' intent to minimize the impact of mill 
seniority was the recognition of "prior rights" and "recall 
rights". Nowhere authorized in the Memorandum, never even men­
tioned to OFCC, and squarely at odds with the mill seniority 
concept, these white workers' "rights" were nevertheless assured 
through formal bargaining between the company and the unions, 
and were strictly enforced as a matter of company personnel 
policy. See pp. 26-27, supra. The obvious and intended effect 
of these limiting interpretations was to postpone indefinitely 
the implementation of mill seniority, contrary to Westvaco's 
written agreement with OFCC and the terms of its modified 
contract with the unions.

The District Court's willingness to excuse these poli­
cies as being required by the business necessity of training 
employees (Op. 46-47) is wholly unsupported on the record.
In the first place, many of the black ACs who were prevented 
from obtaining temporary or permanent positions by one or more 
of the restrictive interpretations had already qualified for, 
and in some cases even temporarily worked in, those same posi­
tions. See p. 28, supra. Second, the decision to honor 
"prior rights" was not limited to any period deemed necessary 
to train black employees to begin moving toward their "right­
ful place"; the "prior rights" were to be honored indefinitely 
until all those expectations, based on past discrimination, had



56

been fulfilled. Third, Westvaco's own management officials 
pointed to a number of progressions and jobs into which black 
employees could have moved with little if any further training 
(Tr. 418, 3015-16, 3019-20, 3000, Hendricks; Tr. 816-19, 868-69, 
Chaddick); and the "prior rights" rule was also used to allow 
junior whites to displace senior blacks from positions, or to pro­
mote into permanent jobs, in which the latter had worked and by 
definition had qualified (Tr. 828, 839-41, 2806-09, Chaddick; Tr. 
1187-88, Williams; Tr. 3317-18, 3407-08, Nichols; Tr. 588-89, Ford).

The fact that with one isolated exception no decisions based 
on mill seniority were made until after depositions surfaced this 
non-implementation issue (see pp. 30-3^ supra) is a tell­
ing indication of defendant's intent to maintain a strict job 
seniority system for as long as they could get away with it. The 
Court's finding that, by-apparent coincidence, "by the time of 
trial, the regular push-up man rule had exhausted itself and the 
Company and Unions had ceased to recognize recall rights" (Op.
47) blinks at both overall reality and a large volume of record 
evidence. That record demonstrates that in several departments 
the belated but sudden conversion to mill seniority came to the 
surprise and chagrin of white employees who had not yet finished
availing themselves of "prior rights" by obtaining permanent 

56
promotions. Defendants' adherence to whites' precedence

56 See Tr. 982-85, Jones (Recovery); Tr. 1400-04, Gilliard, 
Pi. Ex. 7, pp. 45-47, McCants (Paper Mill); Tr. 102-03, 

114, 123, Smith (Technical Service); Tr. 583-84, Ford (Finishing 
& Shipping); Tr. 1199-1201, Williams, Tr. 1102-03, Middleton 
(Woodyard Operating).



57

based on job seniority in dozens of specific situations, before 
mill seniority was ever followed, cannot be presumed adventi­
tious. The "many examples of promotions by black employees 
with mill seniority around white employees with job seniority" 
referred to by the Cout below (Op. 47) are, in fact, a single 
anomalous instance in a 2-1/2 year period. The occasional 
recognition of ACs' right to use mill seniority only began dur­
ing trial preparation and solidified into a consistent practice 
in the weeks immediately before trial.

The observed delay in implementation of the Memorandum of 
Understanding is both corroborated and explained by defendants' 
failure to inform affected employees of their newly-acquired 
rights. See pp. 35-40, supra. Had a substantial number of ACs 
—  and especially the more articulate and aggressive leaders of 
the black workers —  been aware of these rights or of the Memo­
randum of Understanding, it is inconceivable that the refusal 
to implement mill seniority could have gone unquestioned and 
unchallenged for over two years. Indeed, when plaintiffs and 
their representatives did finally discover the unenforced con­
tract in December 1972-January 1973 (see p.34, supra), they soon

57
pressed Westvaco into the first steps toward compliance.

Even if this Court credits the District Court’s finding 
that defendants did not "conspire [] to conceal the existence

57 See p. 35, supra. For a graphic illustration of
how use of mill seniority came about in the Woodyard, 

see Tr. 1199-1201, 1213-14, Williams; Tr. 696, 717, 720-21, 
726-27, Melvin; Tr. 1079-85, 1119-21, Middleton.



58

of the memorandum and to delay its implementation"(Op. 47), 
it must find that defendants made no systematic or effective 
effort to disseminate the information to most affected class 
members or to their leaders; that defendants failed to include 
any mention of this most critical change in their frequent 
written communications with all employees; and that whatever 
information a few ACs obtained was haphazard, incomplete, and 
contradicted by absence of follow-up and complete absence of 
visible steps toward implementation. See pp. 35-37 , 
and n. 44 , supra. The facts that the Memorandum was briefly
discussed in several union meetings which black members might

58
have attended (but apparently did not attend) and lodged 
in official record books (which nobody read) (Op. 48-49) do 
not demonstrate adequate actual notice. Nor did Westvaco's 
efforts to inform its management and supervisory officials of 
the purported change (Op. 47-48) constitute a plan to advise 
affected black workers. Indeed, in most departments there 
was no claim that any effort was made to inform workers, and 
of the three departmental supervisors who claimed they either 
did or might have held employee meetings on this subject, the 
testimony of two is contradicted by every named employee who 
testified (see p. 37 , n. 44 , supra), and the third testified 
that he deliberately limited his discussion to those workers 
who had waived any further promotion (id.).

58 At the meetings attended by named black employees,
listed by the District Court (Op. 51), the Memorandum 

was not discussed. Defendant unions' efforts to place black 
employees at meetings where mill seniority was discussed (other 
than the single instance noted at p. 37 , supra) were unsuccessful. 
See, Tr. 3173-80, 3281-95, 3200-06, Kane; Tr. 3228, 3235, Brisbane).



59

In a case of less egregious failure to give adequate 
explanation of newly-acquired mill seniority rights to black 
employees supposed to benefit thereby, the Fifth Circuit found 
significant default. Watkins v. Scott Paper Co., 530 F.2d 
1159, 1169 (5th Cir. 1976). At a minimum, this Court must 
set aside the District Court's finding that "the Memorandum 
was well communicated throughout the plant" (Op. 52). Defen­
dants' failure to take steps to assure that black employees 
would know of their rights allowed defendants to deny those 
rights sub silentio.

That failure also confirms defendants' intention to use 
job seniority and dubious interpretations of the Memorandum's 
provisions to perpetuate white advantage as long and as much as 
possible. In similar but less dramatic circumstances, the 
Court in Russell v. American Tobacco Co., supra, found an un­
written agreement to honor white employees' "prior rights" to 
be highly probative of discriminatory intent to maintain a
lock-in seniority system, 26 FEP Cases at 545. The same con-

59elusion follows from the evidence in the instant record.
D. The Racially-Defined Dual Seniority Sytem Was

Neither Rational Nor Consistent With Legitimate 
Industrial Needs.

Both defendants and the Court below concentrate their 
defense of the seniority system's rationality and typicality 
on the structure of the merged lines of progression after May

59 See, Chrapilwy v. Uniroyal, Inc., supra, 15 EPD 
at p0 6662.



bO

1968. See Op. 62-63. They avoid careful consideration of 
the pre-1968, dual seniority structure, rooted in and defined 
by racial divisions, which is the most fundamental feature of 
the case at bar. Upon such consideration, the dual system is 
manifestly irrational and typical only of similar discrimina­
tory seniority schemes.

As the parties stipulated (Stip. 1(4) and the Court found 
(Op. 4), the mill's departments form "functionally related 
areas of operation." The bifurcation of such areas into black 
and white zones is explainable in racial but not operational 
terms. The isolation of black employees in each department 
from progression to the jobs of whites whom they worked with,
assisted, and on occasion informally relieved, on a day-to-day

6 0
basis, has no business justification. It made no business 
sense to neglect the accumulated experience and familiarity 
with operations of all black employees in Local 620 jobs,

*

while bringing in new, untrained whites. While many blacks, 
especially the older ones, may not have qualified for advance­
ment into more highly skilled positions (Op. 35-40), others 
could qualify and later did; thus an across-the-board prefer­
ence for new hires was irrational. Defendants' merger of the

60 Black Car Loaders and Car Bracers in Finishing 
and Shipping worked closely with white Truck 

Drivers; black Truck Drivers and Laborers in Receiving and 
Stores worked alonside white Utility Clerks; the black Plat­
form Man in Tall Oil and Polychemicals assisted the white 
Utility Man; the First Service Operator (Spout Man) and 
Second Service Operator (Lancer) in Recovery worked with 
whites classified as No. 6, 7, 8, and 9 Unit Operators; 
black Front End Loaders in the Woodyard pushed logs into 
position for Crane Operators, and black Chipper Feeders fed 
wood chips into machinery controlled by the Woodyard Assis­
tant and Operator.



61

lines in 1968 and the subsequent advancement of blacks from 

former 620 jobs to higher positions dispels any doubt that 
the dual system shunted aside a reservoir of talent and ex­
perience that a rational system would have utilized.

The District Court incorrectly relied upon the fact that
all production positions were part of a single joint bargain-

61
ing unit (Op. 6-7, 62-63). The existence, for legitimate 
reasons, of separate bargaining units might provide some 

racially-neutral reason for the dual system, see Teamsters, 
supra, 431 U.S. at 356. In a single unit, that "redeeming 
factor" is unavailable to defendants, Russell, supra, 26 FEP 
Cases at 546.

As the Court also noted, the seniority system was thoroughly
typical of the Southern pulp-and-paper industry (Op. 62). The
numerous reported decisions in Title VII cases challenging that 

62
system disclose that, with minor variations, this observation 
is accurate. The UPP International Representative testified 
that the Westvaco system fits the discriminatory industry-wide 
pattern (Pi. Ex. 8, pp. 104-112, Dunaway). Published histori­
cal studies show that Westvaco's dual seniority and job assign­
ment system had its roots in industry-wide practices of com­
panies and unions consistent with racial attitudes prevalent

61 The Court's further point about the appropriateness 
of separate bargaining units for Machinists and

Electricians positions (Op. 62) is irrelevant since plain­
tiffs do not challenge those seniority arrangements, see n. 
19, supra.

62 See, e.g., Miller v. Continental Can Co., supra; 
Myers v. Gilman Paper Co., supra; Stevenson v.

Int'l Paper Co., 516 F.2d 103 (5th Cir. 1975); Watkins v, 
Scott Paper Co., supra; Rogers v. Int'l Paper Co., 510 F.2d 
1340 (8th Cir. 1975), vac'd and rem'd on other grounds 423 
U.S. 809 (1975); Local 189 v. United States, supra.



£ 2
throughout the Southern states from the 1930s to the 1950s,

63
when the pulp-and-paper plants were established. But the 
fact that discriminatory practices at Westvaco closely para­
lleled those elsewhere in the era of Jim Crow can hardly support 
the conclusion that the intent underlying them had nothing to 
do with race. And although use of job seniority is widespread 
in other regions and other industries, the combination of job 
seniority in a line of progression and historically segregated
progressions appears to be uniquely prevalent in Southern pulp 

64
mills.

E. The Finding That The Seniority System Was Not The 
Result Of An Intent To Discriminate Is Clearly 
Erroneous.

We recognize that the burden of persuasion, imposed on
appellants by Pullman-Standard v. Swint, supra, is a heavy
one. Yet, critical appellate review is required since

Determining whether invidious discriminatory 
purpose was a motivating factor demands a sensitive 
inquiry into such circumstantial and direct evidence 
as may be available.

Village of Arlington Heights v. Metropolitan Housing Develop­
ment Corp., 429 U.S. 252, 266 (1976). Racially unequal effects 
of a practice, like the Westvaco dual lines and job seniority

63 H. Northrup and R. Rowan, The Negro in the Paper 
Industry (1968); J. Jacobson, The Negro and the

American Labor Movement (1968); F. Ray Marshall, The Negro 
and Organized Labor (T965) ; G. Brooks and S. Gamm, "The 
Practice of Seniority in Southern Pulp Mills," Monthly Labor 
Review (July 1955).

64 See, Miller v. Continental Can Co., supra, 26 FEP 
Cases at 164; Myers v. Gilman Paper Co., supra, 25

FEP Cases at 474.



63

system, are an important signal of intent, and historical cir­
cumstances, like defendants' long and recently renewed practices 
of preferring white over black employees, are of particular 
significance, id., 429 U.S. at 266-67.

Here, the burden is met. This is a seniority case, like 
Russell,

[w]here a clear pattern, unexplainable on grounds 
other than race is shown, [and] even though the 
[seniority system] on its face appears neutral, a 
determination that a discriminatory purpose was a 
motivating factor necessarily follows,

26 FEP Case at 546, quoting Arlington Heights. See also,
Wattleton v. Ladish Co., 520 F.Supp. 1329 (E.D. Wis. 1981),
aff'd sub nom Wattleton v. Int'l Brotherhood of Boilermakers,
etc., ___ F.2d ___ (7th Cir. No. 81-2411, July 16, 1982). The
facts of this case are clear and compelling —  the evidence of
discriminatory intent embedded in seniority practices is as
strong here as that in Georgia Power, Myers, and Sears, and

65even stronger than that in Miller and Russell. And, signifi­
cantly, the facts showing intent are far stronger than those 
in Swint. There was never a formalized dual system at Pullman- 
Standard. Departments were racially mixed, there were no lines 
of progression within departments, and departmental seniority 
was followed, 72 L.Ed.2d at 73-74. There was no finding in 
Swint of resistance or delay in the OFCC-mandated implementa­
tion of remedial seniority, id. at 74 n. 7. The union charged 
as a party to discrimination in Swint was not only itself free 
of discriminatory motives, but had pioneered in the struggle

65 See case citations at pp. 46-47, 50, supra.



64

for improved conditions for black members and had taken blacks 
into an active and equal leadership role, id. at 75 n.ll, 
see also id., 624 F.2d 525, 532 (5th Cir. 1980).

If the law under §703(h) is to have any predictability 
or consistency, the opinion below cannot withstand appellate 
review. And the twin objectives of predictability and con­
sistency are critical to effectuation of both the national 
labor policy and the specific goals of Title VII, as well as 
to the role of the judiciary in construction of social legis­
lation. The Supreme Court has held that Title VII's grant of 
broad remedial discretion to trial courts does not make their 
determinations "unfettered by meaningful standards or shielded 
from thorough appellate review," and does not leave decisions 
"to a court's 'inclination, but to its judgment. . . guided 
by sound legal principles'," Albemarle Paper Co. v. Moody,
422 U.S. 405, 416 (1975). Surely it cannot have meant Rule 
52(a) to permit results in Title VII seniority cases utterly 
inconsistent with the underlying record and with indistin­
guishable cases; to do so would condemn the victims of dis­
criminatory seniority systems to "equity [which] varies like 
the Chancellor's foot," id., 422 U.S. at 417.

In preceding sections, we demonstrate the numerous errors 
made below in application of legal principles to the facts of 
this case. As a result of these errors, a careful review leads 
to a "definite and firm conviction that a mistake has been 
committed," United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948). Since it is clear that error has occurred and



6 5
since the ample record in this case proves that an intent to
discriminate pervaded defendants' uses of seniority, this
Court should, in the interests of expediting the resolution
of old litigation and efficient use of judicial resources,
remand with instructions that the seniority system is not

66, 67
bona fide under §703(h).

CONCLUSION
This Court should reverse the District Court's erroneous 

determination that appellees' seniority system was bona fide 
within the meaning of Section 703(h) and should further hold 
that appellees' seniority system violated Title VII rights 
of plaintiffs and their class.

Respectfully submitted,

JACK GREENBERG 
O. PETER SHERWOOD 
GAIL J. WRIGHT
10 Columbus Circle, Suite 2030 
New York, NY 10019
Ar th ur c. McFarland
120 King Street, Suite 205
Charleston, SC 29401
MORRIS J. BALLER
28 Geary Street, 6th Floor
San Francisco, CA 94108
Attorneys for Appellants

66 See, e.g., 28 U.S.C. §2106 (1970); Bigelow v. 
Virginia, 421 U.S. 809, 826-27 (1975) ; Levin~v.

Mississippi River Corp., 386 U.S. 162, 170 (1967); Chris- 
Craft Industries v. Piper Aircraft Corp., 516 F.2d 172,
186-87 (2nd Cir. 1975), and cases there cited.

67 Statement pursuant to Local Rule 7 (c). Appellants 
believe oral argument is necessary because of the

complexity of the facts and the size of the record, and because 
the application of Swint is novel.



CERTIFICATE OF SERVICE

The undersigned attorney for appellants hereby certi­
fies that on this 10th day of November 1982, he served two 
copies of Appellants' brief upon counsel for each Appellee —  
Hill B. Wellford, Jr.; Leonard Appel; Harris Jacobs; and 
J. R. Goldthwaite, Jr. —  at their office addresses, by 
placing same in the United States mail, postage prepaid.

MORRIS J. BALLER