Russell v. The American Tobacco Company Reply Brief

    \

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 
NOS. 74-1650 and 74-1652

EDGAR RUSSELL, et al.,

Plaintiffs-Appellants, 
v.

THE AMERICAN TOBACCO COMPANY,
Appellee,

and
LOCAL 192, TOBACCO WORKERS 
INTERNATIONAL UNION, AFL-CIO,

Defendant-Cross-Appellant,

On Appeal From The United States District Court 
For The Middle District Of North Carolina, Greensboro Division

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS

OF COUNSEL
Chambers, Stein, Ferguson 
and Lanning

Charlotte, North Carolina

ROBERT BELTON 
JONATHAN WALLAS 
J. LeVONNE CHAMBERS 
Suite 730 East Independence Plaza 
951 South Independence Boulevard 
Charlotte, North Carolina 23202

JACK GREENBERG 
MORRIS J. BALLER
0. PETER SHERWOOD 
10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs-App



IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
NO. 74-16 50

EDGAR RUSSELL, et al..
Plaintiffs-Appellants, 

v.
THE AMERICAN TOBACCO COMPANY,

Appellee,

and
LOCAL 192, TOBACCO WORKERS 
INTERNATIONAL UNION, AFL-CIO,

Defendant-Cross-Appellant.

On Appeal From the United States District Court 
For The Middle District of North Carolina, Greensboro Division

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS

ROBERT BELTON 
JONATHAN WALLAS 
J. LeVONNE CHAMBERS 
Suite 730 East Independence Plaza 
951 South Independence Boulevard 
Charlotte, North Carolina 28202

OF COUNSEL
Chambers, Stein,Ferguson 
and Lanning

Charlotte, North Carolina

JACK GREENBERG 
MORRIS J. BALLER
0. PETER SHERWOOD 
10 Columbus Circle 
New York, New York 10019



Plaintiffs' reply brief will address the issues raised 
by Local 192 in its cross-appeal and several of the arguments 
advanced by the Company in response to plaintiffs' main brief. 
Plaintiffs will rely on the arguments set forth in their main

brief as to the remaining issues.
Local 192 adopts the statement of fact set forth in 

plaintiffs' main brief (Pis' Br. pp. 12—33) as being sub­
stantially correct" (Local's Br. p. 2). The Company's arguments 
with the plaintiffs' statement of fact attempt only "to clarify 
some statements in plaintiffs' recitation of the facts which 
the Company conceives to be misleading" (Company's Br. pp. 1- 

2) .
Plaintiffs will first discuss the issues raised by 

Local 192. Most of these issues are jurisdictional.
A. The Jurisdictional Issues Raised By Local 192.

1. Jurisdictional prerequisites
Local 192 argues that the court below did not have 

jurisdiction because the action was not timely. In support of 
this argument, Local 192 states on p. 16 of its brief that 
"there is no evidence that this action was instituted within 
thirty (30) days after any one of the plaintiffs received 
notice from the EEOC of his right to sue". Prior to filing 
its answer to the complaint, Local 192, on February 14, 1968, 
filed a motion to dismiss alleging, inter alia, that the



-2-

district court did not have jurisdiction because the plaintiffs 
had alleged no facts in the complaint "from which it could be 
affirmatively and positively determined that the requirements 
of Sections 706(d) [42 U.S.C. Section 2000e-5(d)] and Section
706 (e) [42 U.S.C. Section 2000e-5(e)] of the Civil Rights Act

i/of 1964 have been observed". In the same motion Local 192
moved to strike Exhibits A and B attached to the complaint on
the grounds that Section 706(a), 42 U.S.C. Section 2000e-5(a),
of Title VII provides that a charge taken by EEOC shall not
be public or used as evidence in a subseauent proceeding.

2/
Exhibit B to the complaint is a copy of a letter from EEOC 
to plaintiff Edgar Russell dated December 5, 1967 advising 
Russell that conciliation efforts in EEOC Case No. AT 68-8-129E 
and 129U against both the defendants herein had failed and that 
he had a right to institute an action in federal court within 
thirty (30) days after receipt of said letter. The complaint

3 /was filed on January 5, 1968 (A.60).

1/
This motion is not reproduced in the Appendix.

2/
Exhibit B is not reproduced in the Appendix but a 

copy is attached to the brief for the convenience of the 
court.

See Rule 6(a), Federal Rules of Civil Procedure.
3/



-3-

On January 10, 1969 the court below entered a Memorandum 
and Order denying the motion of Local 192 to strike Exhibit B 
on the ground that "if for no other reason, the charges and 
the 30-day letters of notification are relevant and material 
to show that the plaintiffs have exhausted their administrative 
remedies" (A.73). That same order allowed plaintiff to file 
an amendment to the complaint to correctly state the dates on 
which the right to sue letters were received by the named 

plaintiffs (A. 75-77).
On July 17, 1970 the court heard oral arguments on the 

defendants' motions to dismiss the complaint on the grounds 
that the plaintiffs had failed to exhaust their administrative 
remedies before EEOC. The motions addressed to the juris­
diction of the court were denied in a Memorandum and Order 
filed on January 20, 1971 and the reasons are specified.
The basis on which the district court relied are fully set 
forth in its Memorandum and Order which appears at A. 97-105. 
The jurisdictional facts relied on by the court were as 

follows:
1. Charges were filed with EEOC by the plaintiffs 
on August 3, 1966 and June 15, 1967. Plaintiff Russell 
filed an additional charge dated July 26, 1967.



-4-

Local 192's own evidence, Exhibit 12, shows that 
these charges were so filed.
2. Two sets of right to sue letters were issued 
to the plaintiffs by EEOC. Those plaintiffs who 
filed charges in 1966 were informed by letters 
dated December 1, 1967. Those who had filed 
charges in 1967 were informed by letters dated 
December 5, 1967.
3. The notice of right to sue letter on Russell's 
July 27, 1967 charge to EEOC was issued December 5,
1967. See copy attached hereto.
4. The court also found that defendants "admitted 
that Russell's [December 5, 1967] letter was re­
ceived within the thirty-day span previous to the 
complaint" (A.99). This admission has not been 
challenged by Local 192.
These facts, as found by the district court, clearly 

support the finding of the district court that the plaintiffs 
had exhausted their administrative remedies before EEOC, and 
that at least one of the plaintiffs had filed his complaint in 
the court below within thirty days of receipt of his notice. 
See Johnson v. Seaboard Coast Line Railroad Co., 405 F.2d 645
(4th Cir. 1968), cert.denied 394 U.S. 918 (1969). See also



-5-

Oatis v. Crown Zellerbach Corp., 39 F.2d 496 (5th Cir. 1969).
At the trial on the merits, Local 192 objected to the 

July 27, 1967 charge of EEOC being received. This charge was 
identified as plaintiffs' trial Exhibit 29. At the time this 
exhibit was offered, Local 192 moved to strike this exhibit. 
The court denied the motion but granted Local 192 leave to 
renew the motion at a later time. Tr. 43, 51. At no time, 
either at the close of plaintiffs' evidence, Tr. 527, nor at 
the close of the evidence offered on behalf of Local 192,
Tr. 1201, was this motion renewed. Local 192 did renew its 
motion to dismiss for lack of jurisdiction but did not renew 
its motion to strike plaintiffs' Exhibit 29.

Moreover, if Local 192 had any serious questions about 
December 7, 1968 as the date on which Russell received his 
notice, it has ample opportunity to cross examine Russell on 
this issue. Russell testified at trial and Local 192 covered 
approximately 44 pages of cross examination of Russell (Tr. 
450-494) without raising at any time any questions about the 
December 7, 1968 receipt date.

2. Local 192 not properly a respondent before EEOC.
Local 192 makes several arguments in support of its 

contention that it was not properly a respondent before EEOC. 
First, Local 192 argues that the July 27, 1967 charge of



-6-

Russell which clearly named Local 192 as a respondent was not 
under oath. Local's Br. at 18. Local 192 cites no authority 
for this argument but is apparently familiar with the cases
holding that the requirement for verification of a charge be­
fore EEOC is merely administrative in character. Indeed, the
authority is to the contrary of Local 1921s position. In the
leading case on this issue the Seventh Circuit in Choate v\_
Caterpillar Tractor Co., 402 F.2d 357, 360 (1968) held:

Given the fact that the administrative 
remedy alone may be insufficient to vindi­
cate the rights of aggrieved parties, we 
believe that it would be unnecessarily 
harsh and in derogation of the interests 
of those whom the Act was designed to pro­
tect to interpret the statutory language 
denying substantive rights in the district 
court because of procedural defects before 
the Commission. If the Commission under­
takes to process a charge which is not 
"under oath", we perceive no reason why 
the district court should not treat the 
omission of the oath as a permissive waiver 
by the Commission. To deny relief under 
these circumstances would be a meaningless 
triumph of form over substance.

Accord, Blue Bell Boats, Inc, v. EEOC, 418 F.2d 355 (6th Cir.
1969), and cases cited therein at 357.

Second, Local 192 argues that the failure of EEOC to serve 
on it copies of the charges deprived the district court of 
jurisdiction. This argument was rejected by the court in



-7-

Mondy v. Crown Zellerbach Corp., 271 F. Supp. 258, 261 (E.D.
La. 1967). The court below relied on this decision in reject­
ing Local 192’s position on this issue. The rationale
of Judge Butzner in Quarles v. Philip Morris, Inc., 271 F. Supp. 
842, 846 (E.D. Va. 1967) in rejecting the defendant's claim 
that jurisdiction is defeated where EEOC fails to attempt con­
ciliation is equally applicable here: "The plaintiff is not
responsible for the acts or omissions of the Commission.

Local 192 next argues that the failure of EEOC to enter 
into conciliation discussions with it defeats the jurisdiction 
of the court. This argument just simply overlooks the decision 
of this court in Johnson v. Seaboard Coast Line Railroad Co.,
405 F.2d 648 (1968), cert. denied 394 U.S. 918 (1968) which 
holds that conciliation efforts is not a jurisdictional pre­

requisite .
B. Other Ground Asserted by Local 192.

Local 192 apparently lumps under its jurisdictional 
attack the order of the district court denying its motion to 
require plaintiffs to join two other locals— one in Durham,
North Carolina and the other in Richmond, Virginia— as defendants 
in this case. Although not articulated in its brief, it seems 
that Local 192's argument is that the Durham and Richmond 
Locals are indispensable parties and the failure of the plaintiff



-8-

to sue these locals, in this case, deprives the court of 
jurisdiction. The obvious answer to this argument is the 
Richmond and Durham locals are not indispensable parties; 
the court did not attempt to adjudicate the rights of the 
Durham and Richmond locals; and there is nothing in the 
March 8, 1974 judgment of the district court which, in any way, 
purports to adjudicate the rights of the Durham and Richmond 
locals. Cf. United States v. Pilot Freight Carriers, Inc.,
54 F.R.D. 519, 521-522 (M.D.N.C. 1972).

Moreover, the court extended an invitation to these 
locals to join in this case by directing the clerk to send 
copies of its order to these locals. Apparently, these locals 
did not feel that their rights and obligations were in any 
way affected by the pendency of this lawsuit for the reason 
that they did not seek to join in this lawsuit.

Local 192 next argues that assuming that its jurisdictional 
arguments are rejected, Russell has no standing to represent 
regular or seasonal employees of Leaf. This argument was re­
jected by the court below (A.102)and must be rejected by this 
Court. The court below found that allegations in the July 27, 
1967 EEOC charge filed by Russell were sufficient to allow the 
plaintiffs to raise issues and to challenge the discriminatory 
practices of the defendants at both Leaf and Branch. In so 
ruling the court below held:



-9-

However, it is not required that the 
charge be worded with the specificity 
often associated with legal expertise.
So long as the charge contains a general 
notice of the situation, courts have 
permitted matters reasonably related to 
those charged and those growing out of 
the charge to be considered in a court 
action. Sciaraffa v. Oxford Paper Co._,
310 F. Supp. 891 (D. Maine 1970);
Younger v. Glamorgan Pipe & Foundry Co.,
310 F. Supp. 195 (D. West Va. 1970);
Bowe v. Colgate-Palmolive Co., 416 F.2d 
711 (7th Cir. 1969); Logan v. General 
Fireproofing Co., 309 F . Supp. 1096 
(W.D.N.C. 1969) .

(A. 100). The cases relied on by the district court fully 
supports its ruling. See also Graniteville Co. (Sibley Div.) v^ 

EEOC, 438 F.2d 32, 37-38 (4th Cir. 1971).
Joined as plaintiffs in this action were black employees 

of Branch and Leaf. See Pis' Br. p.2, n.2. The court found 
that this action was properly maintained as a class action 
( A .  91-92) and further held that "although the others [named 
plaintiffs other than Russell] might be precluded from individual­
ly maintaining an action by reason of the time limitations, 
they are included in the class of black employees of the 
American Tobacco Company in Reidsville, North Carolina, and 
are properly designated as plaintiffs in this action .

In support of its argument that black Leaf employees were 
improperly joined in this action, Local 192 relied on the 
decision of the Fifth Circuit in Oatis v. Crown Zellerbach



-10-

Corp., 398 F.2d 496 (1968). The Oatis case fully supports
the reasoning of the district court.

In Oatis, the district court had allowed a Title VII
action to proceed as a class action but had limited the class to
those members who had filed charges with EEOC. Joined in the
action were plaintiffs who had filed charges with EEOC and
plaintiffs who had not filed charges. On appeal, the Fifth
Circuit reversed holding that:

Additionally, it is not necessary that 
members of the class bring a charge with 
the EEOC as a prerequisite to joining as 
co-plaintiffs in the litigation. It is 
sufficient that they are in a class and 
assert the same or some of the same issues.
This emphasizes the reasons for Oatis,
Johnson and Young to appear as co-plaintiffs.
They were each employed in a separate de­
partment of the plant. They were repre­
sentatives of their respective departments, 
as Hill was of his, in the class action.
They, as co-plaintiffs must proceed however 
within the periphery of the issues which 
Hill could assert. Under Rule 23(a) they 
would be representatives of the class con­
sisting of Negro employees in their depart­
ments so as to fairly and adequately protect 
their interest. This follows from the fact 
that due to the inapplicability of some of 
the issues to all members of the class, the 
proceedings might be facilitated by the use 
of sub-classes. In such event one or more 
of the co-plaintiffs might represent a sub­
class. It was error, therefore, to dismiss 
appellants. They should have been permitted 
to remain in the case as plaintiffs but with 
their participation limited to the issues 
asserted by Hill.

398 F. 2d at 499.



-11-

This is precisely what happened in this case. The two 
major departments of the Company are Leaf and Branch and joined 
as plaintiffs in this action are black employees of both Leaf 

and Branch.
The Union also argues that there is antagonism between 

blacks at Leaf and blacks at Branch. But a close reading of 
the complaint and the facts established in this case clearly 
demonstrates that the claims asserted by the representative 
plaintiffs of Brahch and Leaf are not antagonistic. All that 
the plaintiffs desire is to have their employment opportunities 
uneffected by racial discrimination. This is the common 
question of fact and law in the case. The argument advanced 
by Local 192 is not unlike the reasoning relied on by the 
district court in Jenkins v. United Gas Corp., 261 F. Supp.
762, 763-764 (E.D. Tex. 1966). There the district court dis­
missed a class action on the grounds that "no common question 
of fact exists as to all Negro employees of the defendant, since 
different circumstances surround their different jobs and 
qualifications in the structure of the corporation". This 
argument was rejected by the court of appeals in Jenkins v. 
United Gas Corp., 400 F.2d 28, 33-34 (1968).

Local 192 takes the position that the mere presence at 
a meeting where the 1968 collective bargaining agreement was



-12-

accepted by the union membership is a sufficient basis on 
which this court can find that special circumstances are 
present to defeat imposition of back pay as against it. The 
only thing that the evidence shows is that some of the named 
plaintiffs were present at the 1968 meeting when the unanimous 
vote was made. There was no showing that any of these 
plaintiffs participated in the unanimous vote since the vote 
was not taken by a secret ballot.

Even if it were shown that the plaintiffs had voted for 
the 1968 collective bargaining agreement establishing a single 
seniority line for Branch and a separate seniority line for 
Leaf there would be nothing inconsistent with that vote and 
what they seek in this action. As plaintiffs have pointed 
out in their main briefs, they are not asking for the merger 
of the seniority lines at Leaf and Branch. The only relief 
requested for the Leaf personnel is that they be given an 
opportunity to transfer from their racially segregated jobs in 
Leaf to the more lucrative and better paying jobs at Branch 
without a loss of seniority. The relief requested by the 
Leaf plaintiffs does not mean that the Company and Local 192 
must establish a single line of seniority for all of the 
employees at Leaf and Branch.

The good faith argument advanced by Local 192 has not 
been demonstrated on this record. In 1968 when the Company



-13-

offered the thirty-five day prevailing rate proposal for certain 
jobs at Branch, the union leadership rejected the proposal 
solely on the grounds that white employees who had theretofore 
performed those jobs were subject to a much longer period 
before reaching prevailing rate. The union leadership did not 
even discuss this proposal with its membership. Furthermore, 
Local 192 made no efforts to disestablish its racially 
segregated union of its own initiative. That initiative had 
to be supplied by threat from the Company that it could no 
longer continue to negotiate with the racially segregrated 
unions and at the same time continue to maintain its contracts 
with the federal government. When the segregated locals did 
merge in 1963, Local 192 simply absorbed the members of the 
black local and assumed possession and control of all of 
the property, assets and bargaining rights of the black 

local.
The arguments by Local 192 that it is not a profit making 

organization and has no resources other than those gleamed 
from its members and that it has no substantial source of income 
or accumulated capital from which to pay an award are not 
supported by the record in any way. Moreover, these are issues 
which have been left to further determination by the court.
See the March 8, 1974 judgment at A. 56-57.



-14-

C. The Brief Filed by the Defendant Company.
Plaintiffs will address only two of the arguments advanced 

by the Company in support of its position that the district 
court did not err in failing to afford full relief to black 
employees at Leaf.

The first argument is the reliance by the Company on 
Rule 52(A), Federal Rules of Civil Procedure, as a hurdle to re­
versal of the district court finding that Leaf employees had 
equal opportunities to be employed at Leaf or Branch. Courts 
of appeals review findings of fact in Title VII cases in the 
same manner as other findings of fact of the trial court are 
reviewed. Findings of fact are not set aside unless the 
court of appeals is able to conclude that such findings are 
clearly erroneous. Smith v. Delta Airlines, Inc,, 486 F.2d 
512, 514 (5th Cir. 1973); Baxter v. Savannah Sugar Refining 
Corp., 495 F.2d 437, 445 (5th Cir. 1974). It is equally clear 
that where district courts have failed to evaluate claims of 
Title VII violations under applicable legal standards, courts 
of appeals have not hesitated to reverse. See Pettway v. 
American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974);
Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 (4th 
Cir. 1972) reversing 325 F. Supp. 541 (W.D.N.C. 1970); Jones



-15-

v. Lee Way Motor Freight, 431 F.2d 245 (10th Cir. 1970); 
reversing 300 F. Supp. 653 (W.D. Okla. 1969); Griggs v. Duke 
Power Co., 420 F.2d 1225 (4th Cir. 1970), reversing in part, 
292 F. Supp. 243 (M.D.N.C. 1968). See also United States v 
Chesterfield County School District, 484 F.2d 70 (4th Cir.
1973); Walston v. County School Board of Nansemond_County./
492 F.2d 919 (4th Cir. 1974); Eslinger v. Thomas, 476 F.2d 

225 (4th Cir. 197^).
All of the cases cited by the defendant Company on pp. 

brief11-24 of its /support the arguments set forth by the plaintiffs
in their main briefs rather than the position asserted by the
„ 4_/Company.—

On page 2 of its brief the Company "concedes" that the 
two operations are owned by the same corporation. At this 
point, the Company argues, all similarities between Leaf and 
Branch ceases. The Company then argues on page 4 of its 
brief that the collective bargaining agreements between Local 
192 and the Company establish a contractual method for trans-

4_/Reliance by the Company on United States v. H. K. 
Porter Co., 296 F. Supp. 40 (N.D. Ala. 1968) is no authority 
whatsoever for the company's position. On March 19, 1974 
the Fifth Circuit reversed the decision of the district 
court and remanded with instructions that the district court 
enter an attached decree. 491 F„2d 1105 (1974).



-16-

fers between Leaf and Branch, but on p. 11 the Company refers 
to this contractual method as a "limited transfer privilege. 
The evidence on this point is that neither the employees at 
Branch nor Leaf have / privilege as a matter of a contractual 
provision to transfer from Leaf to Branch or vice versa and 
at the same time have the full benefit of accumulated Company 
seniority for all purposes for which seniority is used.

According to the collective bargaining agreements em­
ployees cannot transfer between Leaf and Branch and have bene­
fit of their full company seniority for all purposes for which 
seniority is used unless the transfer is effectuated at the 
request of management of either Leaf or Branch. Management 
of Leaf and Branch have exercised their discretion to re­
quest employees to transfer between the two facilities and 
in each and every instance the employees affected have been 

white.
On pp. 11-12 of its brief the Company asserts that "the 

Company did not require or force [Leaf employees] to become 
employed at Leaf in the first instance and employment in the 
Branch was also open to Negroes at all times relevant to 
this action." If by "times relevant" the Company intends 
to refer to the post July 2, 1965 date, then its assertion



-17-

that Leaf employees could have been employed at Branch is 
factually inaorrect. The only way Leaf employees who were em­
ployed prior to July 2, 1965 can move to Branch and have 
full benefit of their Company seniority would be only at 
the request of management of Leaf or Branch. If a transfer 
from Leaf to Branch is effectuated at the instance of the 
Leaf employee, he would lose all of the benefit of his com­
pany seniority and would have to start as a new employee with 
Branch. On the other hand, by reference to "times relevant" 
the Company was referring to the pre-July 2, 1965 period, 
then the only jobs that were open to black Leaf employees 
would have been the all black jobs in pre-fabrication at 
Branch. The court made a finding that prior to July 2, 1965 
the Company had engaged in racially discriminatory hiring 
practices at Branch (A.21). This finding is fully supported 
t>y the evidence. With clear evidence that the Company had 
engaged in discriminatory hiring at Branch prior to 1965 
and the findings by the Court that this was true, then if 
Leaf employees had applied at Branch and had been hired they 
would have been hired only into all black jobs at Branch.
This can hardly qualify as "equality of opportunity" to be
hired at Leaf or Branch.



-18-
D. The Company's reliance on 42 U.S.C. Section 2000e-2(h).

42 U.S.C. Section 2000e-2(h) provides in part that it 
shall not he an unlawful employment practice for an employer 
to apply different standards of compensation, or different 
terms, conditions or privileges of employment to employees 
who work in different locations. The Company argues that 
this section is applicable to its operations in Reidsville 
and Rockingham County and is, therefore, a complete defense 
to treating Leaf and Branch as single facilities for purposes 
of this case.

The application of this section of Title VII is an is­
sue of first impression. Counsel for the plaintiffs have 
been unable to find any cases construing this section. 
Plaintiffs concede that if the facilities at Reidsville and 
Richmond (or Durham) of the Company were involved in this 
case, then the applicability of Section 703(h) would be mani­
fest. But that is not the situation here. Here we have two 
operations of the Company which constitute a functionally 
integrated operation which receives green leaf tobacco 
from the market, processes it into cigarettes and other to­
bacco products, packages it and ships it to the consumer 
market. That the two operations are functionally integrated



-19-

is underscored by the testimony of one of the witnesses for 
the Company who, in testifying about the reasons for having 
Leaf "adjunct to Branch, as it is in Reidsville and Rocking­
ham County" is "the convenience of moving tobacco to Branch, 
or . - . having a stemmery near where the source of the to­
bacco is" (A.316). Leaf does not supply tobacco for further 
processing to any of the Company's three other cigarette 
manufacturing facilities. See Plaintiffs' Trial Exhibit 1, 
Company's Answers to Interrogatory No. 3, page 2.

These two departments are also integrated for purposes 
of labor management relations (A.219; A.226). A single col­
lective bargaining agreement covers both Branch and regular 
Leaf employees (A.226). Management of both Leaf and Branch 
have reserved the right to contract to transfer its regular 
bargaining unit employees between Leaf and Branch (E.355;
E.486). When the transfer is made at the request of manage­
ment of either Leaf or Branch, the employee forfeits none of 
the seniority; if the employee transfers at its own request, 
he forfeits all of his seniority (E.406-407). The Company 
draws its work force from the same labor market, i.e. Reids­
ville and Rockingham County. That same labor market does not



-20-

provide a source of workers for the Company's operations 
in Richmond, Virginia and Durham, North Carolina.

Furthermore, a part of the Leaf operation is performed 
at the Branch facility in Reidsville.

In deciding whether Section 703(h) applies to the in­
stant case, the court does not have the benefit of very 
much legislative history. In fact, whatever legislative 
history there is is set forth on page 41 of the Company s 

brief.
Plaintiffs have argued in their main brief that Section 

706(h) should have no applicability to the facts of this case. 
See plaintiffs' brief pp. 46-52. In addition to the argu­
ments set out on those pages, it should be noted that Title 
VII on which this action is based is remedial in character 
and in the absence of specific legislative intent to the con­
trary, the provisions of Title VII should be construed to
achieve its purpose. See Johnson v. Seaboard Airline R._R.,
Co., 405 F.2d 645 (4th Cir. 1968) cert, denied, 394 U.S. 918 
(1968); Culpepper v. Reynolds Metals Co., 421 F.2d 888, 891 
(5th Cir. 1970); Henderson v. Eastern Freight Ways, Inc.,
460 F.2d 258, 260 (4th Cir. 1972).



CONCLUSION

For the reasons set forth in the brief for plaintiffs 
appellants filed heretofore and the reasons set forth in 
this reply brief, plaintiffs respectfully pray that this 
Court reverse the decision of the court below.

This 29th day of August, 1974,
Respectfully submitted,1

A
ROBERT BELTON 
JONATHAN WALLAS 
J. LeVONNE CHAMBERS

Suite 730, East Independence Plaza 
951 South Independence Boulevard 
Charlotte, North Carolina 28202

JACK GREENBERG 
MORRIS J. BALLER

OF COUNSEL O. PETER SHERWOOD
10 Columbus Circle

Chambers, Stein, New York, New York 10019
Ferguson & LanningCharlotte, North Carolina Attorneys for Plaintiffs-Appellants



,'*Sw O

r O ’ -AL E M P L O Y M E N T  O P P O R T U N IT Y  CO 

W A S H IN G T O N . D C. 20506
jon EXHIBIT B

J :
m c ;’ op rig in1 to
WITHIN 30 DAYS

CERTIFIED MAIL RE1U 
RECEIPT REQUESTED

DEC 5 1367 In Reply Refer To:
Case No. AT 68-8-129E & 129U 
American Tobacco Co. & L o c u i  
Union 192, Tobacco Wkrs. Int 
Union, Reidsville, N. C.

r*v.i'*r. ct j ai
P. 0. Ecx 92 
Ruffin, N. C. 27327
Dear Mr. Russell:

This is to advi.se you that conciliation efforts in the above 
matter have railed to achieve voluntary compliance with Title 
VII of the Civil Rights Act of 1964. Pursuant to Section 706(e) 
of the Act, you are hereby notified that you may, within thirtv 
(30)̂  days of the receipt of letter, institute a civil action 
in the appropriate Federal District Court. If you are unable 
to retain an attorney, the Federal Court is authorized in its 
discretron, to appoint an attorney to represent you and to 
authorize the commencement of the suit without payment of fees, 
costs or security. if you decide to institute suit and find 
you need such assistance, you may take this letter, along with 
the Commission determination of reasonable cause to believe 
Title VI* h •>.: \ "n violated, to the Clerk of the federal District 
Court nearest to the place where the alleged discrimination occur- 
reo, and request that a Federal District Judge appoint counsel to represent you.

Please feel free to contact the Commission if vou have any ques­
tions about this matter.

Sincerely,
j\ L~t n* /'/■£.(/

Pert L. Randolph(Acting)

/  
i / \ s

Director of Compliance

-■ y jm " " ...' "SF’I T '



CERTIFICATE OF SERVICE
The undersigned certifies that copies of the foregoing 

Reply Brief for Plaintiffs-Appellants have been served on 
counsel for each of the parties separately represented by 
serving two copies each of said brief on:

Charles T. Hagan, Jr., Esq. and 
Daniel W. Fouts, Esq.
Adams, Kleemeir, Hagan, Hannah & Fouts 
611 Jefferson Standard Building 
Greensboro, North Carolina
Julius J. Gwyn, Esq.
Gwyn, Gwyn & Morgan 
108 South Main Street 
Reidsville, North Carolina
Ms. Margaret C. Poles
Attorney at Law
Office of the General Counsel
Equal Employment Opportunity Commission
1800 G Street, N. W.
Washington, D. C. 20506

This 29th day of August, 1974.
Respectfully submitted

Counsel for Plaintiffs-Appellants