Culpepper v. Reynolds Metal Company Joint Appendix

    I n  t h e

I n i ( t o r t  ni Appeals
F ob t h e  F if t h  C ir cu it

No. 27,547

S a m u e l  C u lpepper ,

Plaintiff-Appellant-Cross Appellee,

—v.—

R eynolds M etals C o m p a n y ,

Defendant-Appellee-Cross Appellant.

appeal  from  t h e  u n ited  states district court
FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION

JOINT APPENDIX

H oward M oore, J r .
P eter  E. R in d sko pf

859% Hunter Street, N.W. 
Atlanta, Georgia 30314

J ack  G reenberg 
J am es M . N abrit , III 
N orm an  C. A m a k e r  
R obert B elton  
Y il m a  M artin e z  S inger  

10 Columbus Circle 
New York, New York 10019 

Attorneys for Appellant
A lbert  J . R o sen th al  

435 W. 116th Street 
New York, New York 10027

Of counsel



I N D E X

Relevant Docket Entries ..................... ........ ..........—  la

Complaint------ ----- -.... ...... ...................... ...... ........ -..... - 2a

Motion for Preliminary Injunction ........... -..........-......  9a

Answer  .................... —-  —.............- ......... —- ....... 10'a

Motion to Strike Defendant’s Jury Demand.........-....  13a

Plaintiff’s Motion for Leave to Amend Complaint and 
Amended Complaint - .............. -................................. 14a

Order Allowing Amendment to Complaint ....... .......... - 15a

Order and Opinion, 27 December, 1968 ........... ............ 16a

Order, 8 January, 1969  ........................— ..............—~ 37a

Plaintiff’s Motion to Amend or Alter an Order ........... 38a

Order on Plaintiff’s Motion to Amend or A lter..........  39a

Notice of Appeal .............. .................... ........................  42a

Order Extending Time for Transmitting Record and 
Transcript  ................... ..............................................  43a

Transcript of Hearings November 7 and December 4,
5, 1968 ............................ ..... ......... .......................... . 44a

Stipulation re Record on Appeal ................................. 333a.

PAGE

Clerk’s Certificate 335a



11

T estim o n y

Plaintiff’s Witnesses:

Samuel Culpepper-
Direct ........................
Cross ..........................
Redirect .................. _.
Recross ......................

William Jackson Ennis—
Direct ........................
Cross .........................

James Culpepper—
Direct ........................
Cross ..........................

James A. M cLain-
Direct ............. ......... .
Cross ..........................

Defendant’s Witnesses:

William A. Deering—
Direct ........................
Cross ..........................
Redirect ....................

Arthur William Collins—
Direct .........................
Cross ..........................

W. H. Anderson-—
Direct ........................
Cross .................... ......

James H. Barker—
Direct ........................
Cross ................... .......

PAGE

..72a, 313a 
121a, 316a
------ 144a
....... 153a

154a
185a

190a
198a

234a
241a

243a
247a
252a

254a
257a

279a
285a

295a
299a



Marion L. Peek
Direct .......
Cross ..........

in

PAGE

................  301a
200a, 307a, 319a

E x h ib it s*
OFFERED 

PAGE
Plaintiff’s Exhibits:

1— Grievance of James Culpepper................... 85a
2— Intercompany Correspondence ...................... . 85a

3— Notice dated March 28, 1967 ....   87a

4— Intercompany Correspondence ..................  88a

5— -Grievance of Samuel Culpepper................  88a

6— Reply from Culpepper ................................ 89a
7— Grievance of Samuel Culpepper...... .......   92a

8— Memorandum signed W. J. Ennis ....   104a

9— Charge of Discrimination ..........................  104a

10 for Ident.—-Notice of Right to S u e................. . 104a

11—Plant-wise Seniority Schedule ......................  106a

12 for Ident.—Agreement .....................................  107a
13 for Ident.—-Letter directed to Ennis ..............  177a
14— Seniority Roster  ........... .... ..........................  241a

15— Wage Rates  ....................................................  243a

Not included in Joint Appendix.



IV

OFFERED
PAGE

Defendant’s Exhibits:

1— Diagram ........................... -................................ . 144a

2— Lot Identification etc......................................  144a

3— Record—Schedule A etc. ___ _____ _______ 297a

4 for Ident.—Letter dated March 1, 1963 _______  306a



Relevant Docket Entries

Complaint filed 24 October, 1968
Motion for Preliminary Injunction filed 24 October, 1968
Answer filed 29 November, 1968
Motion to Strike Defendant’s Jury Demand filed 4 Decem­

ber, 1968
Plaintiff’s Motion for Leave to Amend Complaint filed 4 

December, 1968
Order Allowing Amendment to Complaint filed 4 December, 

1968
Order and Opinion by Smith, D.J. filed 27 December, 1968
Order filed 8 January, 1969
Plaintiff’s Motion to Amend or Alter an Order filed 15 

January, 1969
Order on Plaintiff’s Motion to Amend or Alter filed 20 

January, 1969
Notice of Appeal filed 27 January, 1969
Order Extending Time for Transmitting Record and Tran­

script 7 March, 1969
Transcript of Hearings November 7 and December 4, 5, 

1968 filed 1 April, 1969
Stipulation re Record on Appeal filed 3 April, 1969



2a

Complaint

(Filed October 24, 1968)

I n  t h e

UNITED STATES DISTRICT COURT

F oe t h e  N orthern  D istrict  of G eorgia 
A tlan ta  D ivision

Civil Action No. 12179

S am u e l  C u lpepper ,
Plaintiff,

—v.—

R eynolds M etals C o m pan y ,
Defendant.

I.

Jurisdiction of this Court is invoked pursuant to 28 
United States Code, Section 1343. This is a suit in equity 
authorized and instituted pursuant to Title VII of the Civil 
Rights Act of 1964, 42 United States Code, -Section 2000e, 
et seq., and 42 United States Code, Section 1983. The juris­
diction of this Court is invoked to secure protection of 
and to redress deprivation of rights secured by (a) Title 
VII of the Civil Rights Act of 1964, 42 United States Code, 
Section 2000e, providing for injunctive and other relief 
against racial discrimination in employment, and (b) 42 
United States Code, Section 1981, providing for equal 
rights of citizens and all persons within the jurisdiction 
of the United States.



3a

This is also a suit for a declaratory judgment, pursuant 
to the provisions of Section 2201, et seep, 28 United States 
Code, declaring and adjudging that the unlawful employ­
ment practices alleged herein deprive and withhold from 
plaintiff and the class represented by Mm rights, secured 
by Sections 1981 and 2000(e) (2) (a) (1) (2) and (b) and 
2000(e)-2, (d), 42 United States Code. There exists be­
tween the parties hereto an actual controversy of a justi­
ciable nature.

II.
Plaintiff brings this action on his behalf and on behalf 

of all others similarly situated pursuant to Rule 23(a), 
and (b) (1) (2), Federal Rules of Civil Procedure. The 
class is so numerous that joinder of all members is im­
practicable. There are questions of law or fact common 
to the class with respect to the terms, conditions, or privi­
leges of employment, or employment opportunities, or 
which otherwise adversely affect their status as employees 
on the basis of their race or color. The claims of the named 
plaintiff are typical of the claims of the class. The named 
plaintiff will fairly and adequately protect the interests 
of the class. The prosecution of separate actions by indi­
vidual members of the class would create a risk of adjudi­
cations with respect to individual members of the class 
which would as a practical matter be dispositive of the 
interests of other members not parties to the adjudication 
or substantially impair or impede their ability to protect 
their interest; and the defendant herein has acted or re­
fused to act on grounds generally applicable to the class, 
thereby making appropriate the final injunctive and de­
claratory relief sought herein with respect to the class as 
a whole.

Complaint



4a

III.

This is a proceeding for a preliminary and permanent 
injunction, as well as a declaratory judgment, restraining 
and enjoining the defendant, R eynolds M etals C o m pan y , 
(hereinafter referred to as Reynolds), from maintaining 
any policy, practice, custom, and usage of withholding, de­
nying, attempting to withhold and deny, and depriving, 
or attempting to deprive and otherwise interfere, with the 
rights of plaintiff and others similarly situated to equal 
employment opportunities on the grounds of race and color.

IV.

Plaintiff, S a m u e l  C u lpepper , is a Negro citizen of the 
United States, residing in the State of Georgia, City of 
Atlanta.

Complaint

V.

Defendant, Reynolds Metals Company, is engaged in 
interstate commerce within the meaning of Title VII of 
the Civil Rights Act of 1964. Defendant is an aluminum 
manufacturer and maintains a plant in Atlanta, Fulton 
County, Georgia. Defendant employs sixty-five (65) per­
sons in its Atlanta plant, including sixteen (16) Negroes. 
None of the Negro employees is assigned to a classifica­
tion higher than unskilled or semi-skilled. Defendant is a 
federal government contractor, having pledged not to dis­
criminate in the opportunities for employment on the basis 
of race or color.

VI.

Plaintiff, Samuel Culpepper, on or about March 20, 1967, 
signed a bid for the then vacant position of Relief Slitter



5a

Operator, a position which has never been held by a Negro. 
On or about March 28, 1967, the position was awarded to 
a white employee with far less seniority than the plaintiff, 
who had been employed by the defendant in its Fabricating 
Department for approximately twelve years.

VII.

Defendant has refused and continues to refuse to give 
the plaintiff the proper and normal instructions required 
to master the job of Eelief Slitter Operator as provided 
for in the Collective Bargaining Agreement entered into 
by the defendant with the International Brotherhood of 
Firemen and Oilers, Local Union 288. The defendant has 
threatened to discharge other employees who were willing 
and able to give the plaintiff the on-the-job instructions 
which would have qualified him for the position of Relief 
Slitter Operator.

Complaint

VIII.

On or about April 4, 1967, plaintiff filed a grievance 
protesting the assignment of the junior white employee to 
the vacant position. On or about May 5, 1968, defendant 
offered to settle the grievance by “allowing” plaintiff to 
work on the Slitter as a helper at a lower rate of pay for 
three months and then, if the job were to become vacant, 
and if plaintiff’s bid were to be accepted, defendant would 
allow the plaintiff a twenty-day trial period for the job of 
Relief Slitter Operator. The terms and conditions for com­
posing the grievance tended to adversely affect plaintiff’s 
status as an employee on the grounds of his race or color.



6a

IX.

Plaintiff was well-qualified to fill the vacancy of Relief 
Slitter Operator. Plaintiff is presently classified as a De­
coder Operator and holds the highest position held by a 
Negro in the Fabricating Department. Plaintiff is pres­
ently employed at the rate of $2.52 per hour. Plaintiff was 
number eight on the seniority list, while the promoted 
white employee was number thirty-nine.

X.

Neither the State of Georgia nor the City of Atlanta has 
a law prohibiting the unlawful practices alleged herein. On 
July 15, 1967, within ninety days from the racial discrim­
ination in employment practiced by defendant, plaintiff filed 
a complaint, under oath, with the Equal Employment Op­
portunity Commission, alleging denial by defendant of his 
rights under Title VII of the Civil Rights Act of 1964, 42 
United States Code, §2000e, et seq. Subsequently, in a 
letter dated August 16, 1968, the Commission notified the 
plaintiff of the existence of reasonable cause to believe 
that unlawful employment practices within the meaning 
of Title VII of the Civil Rights Act of 1964 had been 
committed; that the Commission would attempt to elim­
inate said practices by conciliation as provided in Title 
VII of the Civil Rights Act of 1964; and that plaintiff 
would be kept informed of the progress of conciliation ef­
forts. On September 26, 1968, the Commission notified the 
plaintiff that defendant’s compliance with Title VII had 
not been accomplished and that the plaintiff is, therefore, 
entitled to maintain a civil action for relief in the United 
States District Court.

Complaint



7a

XI.

Plaintiff lias no plain, adequate, complete remedy at law 
to redress the wrongs alleged, and this suit for a pre­
liminary and permanent injunction is his only means of 
securing adequate relief. Plaintiff and the class he repre­
sents are now suffering and will continue to suffer irrep­
arable injury from defendant’s policies, practices, customs 
and usages as set forth herein.

W herefore , plaintiff respectfully prays that this Court 
advance this cause on the docket, order a speedy hearing 
at the earliest practicable date, cause this ease to be in 
every way expedited, and upon such hearing to :

(1) Grant plaintiff and the class he represents a pre­
liminary and permanent injunction enjoining and restrain­
ing defendant R eynolds M etals Co m pan y , its agents, suc­
cessors, employees, attorneys, and those acting in concert 
with it, and at its direction, from continuing or maintain­
ing any policy, practice, custom and usage of denying, 
abridging, withholding, conditioning, limiting, or otherwise 
interfering with the right of plaintiff to equal employment 
opportunities on the basis of race or color;

(2) Grant plaintiff and the class he represents a pre­
liminary and permanent injunction enjoining and restrain­
ing defendant, R eynolds M etals C o m pan y , its agents, em­
ployees, attorneys, and those acting in concert with it, 
and at its direction, from continuing or maintaining any 
policy, practice, custom and usage of discriminating against 
the plaintiff and the class he represents by depriving and 
withholding from them opportunities for employment, lim­
iting them to lower paying jobs, and depriving and with­

Complaint



Complaint

holding from them equal opportunities for on-the-job train­
ing because of their race or color;

(3 ) Grant plaintiff, S am u e l  C u lpeppeb , an award o f  
money representing the difference between what he actu­
ally made in employment with the defendant as a Decoder 
Operator and what he would have had if he had been em­
ployed by the defendant from March 20, 1967 as a Relief 
Slitter Operator to the present;

(4) Grant plaintiff and the class he represents a declara­
tory judgment declaring and adjudging that the unlawful 
employment practices engaged in by the defendant of with­
holding from them opportunities for employment, limiting 
them to lower paying jobs, denying and depriving them 
equal on-the-job training opportunities because of their 
race or color constitutes a violation of Title VII of the 
Civil Rights Act of 1964, Sections 1981 and 2000e, et seq., 
42 United States Code; and

(5) Allow plaintiff his costs herein, including reasonable 
attorneys’ fees, and such other and additional relief as 
may appear to the Court to be equitable and just.



9a

Motion for Preliminary Injunction
(Filed October 24, 1968)

Plaintiff, S am u e l  C ulpepper , b y  his undersigned attor­
neys, for himself, and the class which he represents, moves 
the Court for a preliminary injunction enjoining and re­
straining the defendant, its agents, successors, employees, 
attorneys, and those acting in concert with it, and at its 
direction, from:

(1) Continuing or maintaining any policy, practice, cus­
tom and usage of denying, abridging, withholding, condi­
tioning, limiting, or otherwise interfering with the right 
of plaintiff to equal employment opportunities on the basis 
of race or color; and

(2) Continuing or maintaining any policy, practice, cus­
tom and usage of discriminating against plaintiff and the 
class he represents by depriving and withholding from them 
opportunities for employment, limiting them to lower pay­
ing jobs, and depriving and withholding from them equal 
opportunities for on-the-job training because of their race 
or color.

Plaintiff prays that an order be issued directed to the 
defendant to show cause at a full evidentiary hearing, on 
a day certain, why this motion for a preliminary injunc­
tion, to be made permanent subsequently, should not be 
allowed, and plaintiff allowed a reasonable attorney’s fee 
as an element of his relief herein, as authorized by Section 
2000e-5(k), 42 United States Code.



10a

Answer

(Filed November 29, 1968)

First Defense

The complaint fails to state a claim upon which relief 
can he granted.

Second Defense

The court does not have jurisdiction of the claim, for 
the reason that a charge was not filed with the Equal Em­
ployment Opportunity Commission within ninety days after 
the alleged violation, as required under Section 706(d) of 
the Civil Eights Act of 1964, 42 U.S.C. § 2000e-5(d).

Third Defense

The claim is barred by the statute of limitations in 
Section 706(d) of the Civil Eights Act of 1964, for the 
reason that no charge was filed with the Equal Employ­
ment Opportunity Commission within ninety days after 
the alleged violation.

Fourth Defense

The complaint fails to state a claim under Title 42, Sec­
tion 1981 of the United States Code, upon which relief 
can be granted.

Fifth Defense

The demand for injunctive relief fails because there is 
no authority in law for the granting of injunctions under 
the Civil Eights Act of 1964, unless the action is brought 
by the Attorney General of the United States.



11a

Answer 

Sixth Defense

The complaint fails to state a claim upon which injunc­
tive relief can he granted.

Seventh Defense

The complaint fails to state proper grounds for injunc­
tive relief.

Eighth Defense

The complaint fails to state a proper class action since 
(a) there is no description of the class; (b) there is no 
showing of a common right or claim shared by members 
of a class; (c) plaintiff is not in a position to represent 
members of any class composed of part or all of defen­
dant’s employees, for the reason that he states no claim 
of his own on which relief can be granted; and (d) there 
are potentially conflicting claims and interests among any 
class of defendant’s employees whom plaintiff undertakes 
to represent.

Ninth Defense

Defendant answers the specific allegations of the com­
plaint as follows:

Paragraph I requires no answer.
Paragraph II is denied.
Paragraph III requires no answer.
Paragraph IY is admitted.
Answering paragraph V, defendant admits the first three 

sentences thereof. Defendant denies the fourth sentence. 
The fifth sentence is correct but is irrelevant to this action. 

Paragraph VI is admitted.
Paragraph VII is denied.



Answer

The first sentence of paragraph VIII is admitted. The 
second sentence refers to an offer of settlement evidence 
of which is inadmissible in this action. It is immaterial to 
this action and requires no answer of defendant. The third 
sentence of paragraph VIII is denied.

Answering paragraph IX, defendant denies the first sen­
tence thereof and admits the remainder of the paragraph.

Answering paragraph X, defendant admits the first sen­
tence thereof. Defendant admits that plaintiff filed a charge 
with the Equal Employment Opportunity Commission on 
July 15, 1967, but denies that the charge was filed within 
ninety days after the alleged discrimination. The state­
ment in paragraph X  concerning the letter of August 16, 
1968, from the Commission to plaintiff is irrelevant to the 
plaintiff’s action and requires no answer of defendant. 
Defendant admits that on September 26, 1968, the Com­
mission notified plaintiff that it had been unable to con­
ciliate the matter.

Paragraph X I is denied.

W herefore , d e fen dan t dem ands ju d gm en t in its  fa v o r .

D emahd  for J u ry  T rial

Defendant is entitled to a trial by jury under the Sev­
enth Amendment of the Constitution of the United States, 
and hereby makes demand for a jury trial.



13a

Motion to Strike Defendant’s Demand 
for Trial by Jury

(Filed December 4, 1968)

S a m u e l  C u l p e p p e r , plaintiff in the above-styled and num­
bered civil action, moves this Honorable Court for an 
order striking and dismissing defendant’s demand for 
trial by jury, made by endorsement upon its answer and 
defensive pleadings filed herein on November 26, 1968, on 
the grounds that defendant is not entitled to a trial by 
jury as a matter of law.

Dated: December 2, 1968.



14a

Amendment to the Complaint

(Filed December 4, 1968)

S am uel , C u lpepper , plaintiff named in the above-cap­
tioned and numbered civil action, moves this Honorable 
Court for leave to amend his complaint as follows:

(a) By striking paragraph V of the complaint in its 
entirety and substituting therefor the following to be 
known as paragraph V :

“V. Defendant, Reynolds Metals Company, is engaged 
in interstate commerce within the meaning of Title YII 
of the Civil Rights Act of 1964. Defendant is an aluminum 
manufacturer and maintains a plant in Atlanta, Fulton 
County, Georgia.

Defendant employs sixty-five (65) persons in its Atlanta 
plant, including sixteen (16) Negroes. Only a few of the 
Negro employees are assigned to jobs in higher paying 
classifications, even though the majority of the Negro 
employees have as much or more seniority than whites 
assigned jobs in such classifications. Defendant is a fed­
eral government contractor, having pledged not to dis­
criminate in the opportunities for employment on the basis 
of race or color.”

(b) By striking paragraph VIII of the complaint in its 
entirety and substituting therefor the following to be known 
as paragraph V III :

“VIII. On or about April 4, 1967, plaintiff filed a 
grievance protesting the assignment of the junior white 
employee to the vacant position. On or about May 5, 1967, 
defendant offered to settle the grievance by ‘allowing’ 
plaintiff to work on the slitter as a helper at a lower rate 
of pay for three months and then, if the job were to 
become vacant, and if plaintiff’s bid were to be accepted, 
defendant would allow the plaintiff a twenty-day trial 
period for the job of Relief Slitter Operator. The terms 
and conditions for settling the grievance tended to ad­
versely affect plaintiff’s status as an employee on the 
grounds of his race or color.”



15a

Order

(Filed December 4, 1968)

The above and foregoing amendment read and con­
sidered,

I t is  h e r e b y  o r d e r e d  a l l o w e d  a n d  f il e d , subject to any 
later motions or objections.

This 4th day of December, 1968.

/ s /  S idn ey  O. S m it h  
S id n ey  O. S m it h

Chief, United States District Judge



16a

(Filed December 27, 1968)

This is a fair employment practices case proceeding 
under Title VII of the Civil Rights Act of 1964. 42 U.S.C.A. 
§2000e, If. The petition as finally amended set out an in­
dividual complaint and a class-type complaint against the 
defendant employer. In addition, the petition seeks im­
mediate injunctive relief. The defendant disputes any 
right to temporary injunctive relief under the Act, relies 
on jurisdictional defenses as well as the merits, and has 
further demanded a jury trial on the issues. To facilitate 
a ruling on the legal questions involved, the court heard 
all of the evidence.

Insofar as is necessary to reach the points raised, the 
dispute arises out of the following facts:

Samuel Culpepper, a 48 year old negro was originally 
employed at defendant’s Atlanta “ Colorweld” plant (for­
merly Southern Iron & Roofing Co.) in 1955. The plant 
is primarily concerned with the cutting, shaping, and 
painting of aluminum siding produced by its Alabama 
plant and is the final processing before delivery to the 
customer. The plant is divided into three main depart­
ments : receiving, fabrication, and painting. Culpepper’s 
entering job was in receiving. He later moved into fabri­
cation and is now qualified as a “machine operator” at 
$2.62 per hour. This job classification is the highest wage 
rate within the fabrication department other than a single 
slitter operator, which carries 15  ̂ per hour more.

This is a union-plant and has been since 1956. By virtue 
of present and prior agreements between defendant and 
the International Brotherhood of Firemen & Oilers, each 
employee holds “plant seniority” (petitioner is 8th) and 
“departmental seniority” (petitioner is 5th). On job open-

Order and Opinion



17a

mgs, the filling is based on the principles of “qualifications 
and seniority.” Each new job or vacancy in an existing 
job is posted or bulletined by management for the period 
of 24-hours and interested employees bid the job by sign­
ing the bulletin. Priority for the job opening is based 
first on departmental seniority. Failure of an applicant 
with departmental seniority to qualify opens the bid to 
employees in other departments based on plant seniority. 
The senior bidder is granted a 20-day trial period. If he 
successfully completes the trial period (apparently in the 
judgment of management), he is deemed qualified and 
promoted. If not, the next senior bidder is granted a trial 
period and similarly until a bidder is qualified.

As stated, the only job within the fabrication depart­
ment higher than that presently held by Culpepper is that 
of slitter operator. The slitter machine is a cutting device 
which must be set up to cut to thousandths of an inch 
and length as ordered. The skill involved relates to a 
translation of an order to the machine by attaching spacers 
(down to 1/64" in size) and shims (down to .001" in size) 
between the cutting knives. While interpolating charts 
are available to the operator for the ordinary require­
ments, a facility with figures and mathematics is almost 
mandatory for a good operator to make the necessary 
“ set ups” for each order, some of which require as much 
as two hours. Normally, job applicants for slitter opera­
tor come from helpers, wdio have assisted in and about 
the machine along with the other duties of laborers over 
a period of time.

Culpepper unsuccessfully bid the job first in the fall of 
1962, it going to a white junior employee. In April, 1963, 
he successfully bid the job and was granted the 20-day 
trial period in May and June. Inasmuch as he had filed

Order and Opinion



18a

a grievance about the 1962 bid he was granted an addi­
tional 10-day trial period not required by the contract in 
July. Based upon performance figures, indicating approxi­
mately a 25% production record as compared with an 
established operator, he was deemed not qualified in 1963, 
and the job went to another white employee, Sells.

On December 29, 1964, the job was posted again, but 
Culpepper did not bid because it involved night work.

On March 20, 1967, the job of “relief slitter operator” 
was posted. This opening was to qualify in order to serve 
as slitter operator for the regular employee during vaca­
tions, absences, and, in this instance, union contract nego­
tiations. Petitioner and two white employees bid the job, 
with Culpepper holding seniority based on the union con­
tract. In spite of the seniority, the job was awarded to 
Arthur Collins on March 28, 1967. Collins immediately 
began his trial period and subsequently qualified on the 
machine.

Under the union contract, Culpepper pursued his griev­
ance procedure by filing his complaint on April 4, 1967. 
Following the prescribed course, of charges, meetings, etc,, 
management issued its formal reply on May 5, 1967, in 
which it offered a 90-day position as slitter helper at help­
er’s rates with opportunity to bid on the next opening. 
This offer was refused inasmuch as it involved a pay re­
duction for the 90-day period. Management’s position was 
that Culpepper had been given the prior trial in 1963 and 
deemed not qualified. This was likewise the position of 
Collins, who would have grieved any refusal to award him 
the job on the same basis, namely, that Culpepper had 
failed in the prior opportunity.

On July 15, 1967, Culpepper filed his formal charge with 
the Equal Employment Opportunity Commission as pro­

Order and Opinion



19a

vided by the Act. 42 U.S.C.A. §2000e-5(a). Following con­
ciliation procedures a suit letter was issued to Culpepper 
on September 26, 1968, and this action was filed within 
30 days thereafter. 42 U.S.C.A. §2000e-5(e).

Under the pleadings and this state of facts, the case 
presents three central questions:

1. Does the court have jurisdiction?

2. If so, may a temporary injunction issue in such 
cases?

3. Is defendant entitled to a jury trial?

I .  JUBISDICTIONAL QUESTIONS.

The Act provides that an unfair employment charge be 
filed within ninety days after the alleged unlawful prac­
tice occurs. 42 U.S.C.A. §2000e-5. This court has consist­
ently held along with the majority of the other district 
courts that this 90-day period is jurisdictional and consti­
tutes in effect a limitation by Congress on the right to 
proceed before the Equal Employment Opportunity Com­
mission or in a subsequent suit in district court. See 
Georgia Power Co. v. EEOC, ——  F. Supp. ------  (No.
II, 858, N.D. Ga., August, 1968); Bowe v. Colgate-Palmolive
Co., 272 F. Supp. 332 (D. Ind. 1967). However, if the al­
leged violation is deemed to be “continuing” , the 90-day 
period is of little practical effect. See King v. Georgia 
Power C o.,------F. Supp. ------- - (N.D. Ga., No. 11,723, Au­
gust, 1968). Consequently, it is necessary to determine 
whether the failure by defendant to “awTard” the job on 
March 28, 1967, to petitioner is an isolated transaction or 
whether the entire circumstances involving the grievance 
procedure, etc. are continuing in nature.

Order and Opinion



20a

The court concludes that the failure by the company to 
award the job on March 28, 1967, was not continuing hut 
was a completed act when effected. This is true because 
complainant’s right to file a charge with Equal Employ­
ment Opportunity Commission accrued immediately, with­
out regard to union contract, grievance procedure, or any 
unofficial reconsideration by management. There is no 
known authority to the effect that a failure to rectify an 
alleged unlawful act converts it into a continuing trans­
action or suspends the 90-day period.1

Standing alone, then, the act occurred on March 28, 1967, 
and the charge with Equal Employment Opportunity Com­
mission was not filed until July 15, 1967, well in excess of 
the 90-day period. Such failure is normally jurisdictional 
and bars any further proceedings. Michel v. S. C. State 
Employment Service, 377 F.2d 239 (4th Cir. 1967). How­
ever, petitioner argues and not without logic that the use 
of existing grievance procedures should be encouraged prior 
to placing the burden on Equal Employment Opportunity 
Commission or the courts. Despite the obvious appeal of 
this argument to those courts already facing an avalanche 
of fair employment cases, it is untenable. By inference, 
this court has already ruled that contractual grievance 
procedures need not be exhausted prior to the filing of an

1 This conclusion is supported in several directions. The Gen­
eral Counsel of the Equal Employment Opportunity Commission 
has ruled that a transfer is not continuing (Dec. 2, 1965, LRX 
1892a), that the discontinuance of a work assignment is not con­
tinuing (Nov. 26, 1965, LRX 1892a), that a lay-off or discrimina­
tory recall is not continuing (Jan. 11, 1966, LRX 1892a). All of 
such acts are similar to that here—a failure to promote or to 
award a trial-period leading to promotion. Likewise, there is 
comparative logic by holdings in the labor field dealing with the 
six months period in which to file charges. E.g., Local Lodge 1424, 
Machinists v. NLRB, 362 U. S. 411 (1960); Am. Federation of 
Grain Millers v. NLRB, 197 F.2d 451 (5th Cir. 1952).

Order and Opinion



21a

Equal Employment Opportunity Commission charge. See 
King v. Georgia Power Co., supra. Some employees have 
an opportunity for grievance procedures, some do not. The 
conclusion is that the law does not distinguish between 
the two in this respect. Those without such contractual 
benefits must file within 90-days; those with a union con­
tract must likewise file within 90 days, without regard to 
whether they waive, ignore or concurrently pursue such 
benefits. There is no concern here with an “ election of 
remedies.” See Dewey v. Reynolds Metals Company (W.D. 
Mich. 1968, 37 L. W. 2278). No such inconsistent remedies 
exist nor does the Act provide for any alternative pro­
cedure to that imposed here.2

Such holding does not end the problem, however. The 
petition as amended generally claims a maintenance by 
the company of a policy or practice of discrimination for­
bidden by the act. The right to proceed on a class basis 
in these cases has been heretofore granted by this court 
within appropriate limitations. See King v. Georgia Power 
Co., supra; Colbert v. H. K. Corporation, ■—— F. Supp.
------  (NJD. Ga., No. 11599, August, 1968). The general
right to maintenance of a class action has been put to rest 
by Oatis v. Crown Zellerbach Corp., 398 F.2d 496 at 499 
(5th Cir. 1968). Such a claim is, by nature, a continuing 
violation as part of the dual character of many cases. 
See Jenkins v. United Gas Co., 400 F.2d 28 (5th Cir. 1968).

2 The allegations attempting to invoke 42 U.S.C.A. §1981 ff. as 
an independent basis of jurisdiction without regard to the 90-day 
period do not change the result. There is no evidence whatever 
that defendant committed or omitted any act under “color of state 
law” essential to such actions. See Lucom v. Atlantic Nat’l Bank 
of West Palm Beach, Florida, 354 F.2d 51 at 55 (5th Cir. 1965);
Kendrick v. American Bakery Co., ------  F. Supp. ------  (N.D. Ga
No. 11490, July, 1968).

Order and Opinion



22a

This court has previously held that “a complaint alleging 
racial discrimination against an employer may not be dis­
missed on the grounds that it was not timely filed where 
the suit challenges the maintenance of an allegedly dis­
criminatory system, rather than one isolated instance be­
cause such a violation is continuous in nature.” Banks v.
Lockheed-Georgia,------F. Supp.-------(N.D. Ga., No. 11675,
June, 1968).8 Consequently, insofar as the class-type claim 
of discrimination is concerned, a motion to dismiss as not 
timely must necessarily fail, and such is the case here.

I I .  I n ju n c t iv e  R e l ie f .

In both the individual and class-type claims, petitioner 
insists that he is entitled to the immediate and sometimes 
drastic relief of temporary injunction. Where the law 
grants such a remedy, it normally seeks by the presenta­
tion of a prima facie case and a showing of irreparable 
damage to preserve the status quo between the parties. 
7 Moore’s Federal Practice U65.04 [1] and [3] (2d ed. 
1968). Such orders do not presume to determine finally 
the specifics of the suit on the question of money damages.

Under the act in question, insofar as individual relief is 
concerned, the powers of the court are explicit. 42 U.S.C.A. 
§2000e-5(g) provides:

If the court finds that the respondent has intentionally 
engaged in or is intentionally engaging in an unlawful 
employment practice charged in the complaint, the 
court may enjoin the respondent from engaging in 
such unlawful employment practice, and order such 3

3 Such conclusion likewise receives support from the field of 
labor law, on which this act was modeled. Hall v. Werthan Bag 
Co., 251 F. Supp. 184 (M.D. Tenn. 1966). E.g., NLRB v. Dallas 
General Drivers, 228 F.2d 702 (5th Cir. 1956).

Order and Opinion



23a

affirmative action as may be appropriate, which may 
include reinstatement or hiring of employees, with or 
without back pay (payable by the employer, employ­
ment agency, or labor organization, as the case may 
be, responsible for the unlawful employment practice). 
Interim earnings or amounts earnable with reasonable 
diligence by the person or persons discriminated 
against shall operate to reduce the back pay other­
wise allowable. No order of the court shall require 
the admission or reinstatement of an individual as a 
member of a union or the hiring, reinstatement, or 
promotion of an individual as an employee, or the 
payment to him of any back pay, if such individual 
was refused admission, suspended, or expelled or was 
refused employment or advancement or was suspended 
or discharged for any reason other than discrimination 
on account of race, color, religion, sex or national 
origin or in violation of section 2000e-3(a) of this title.

However, the exercise of such powers presupposes a final 
determination on the merits of the claim itself. Thus, the 
phrase “If the court finds”  and “No order of the court 
shall require the admission or reinstatement of an indi­
vidual as a member of a union or the hiring, reinstatement, 
or promotion of an individual as an employee, or the pay­
ment to him of any back pay, if such individual was re­
fused admission, suspended, or expelled or was refused 
employment or advancement or was suspended or dis­
charged for any reason other than discrimination on ac­
count of race, color, religion, sex or national origin or in 
violation of section 2000e-3(a) of this title.” is inserted in 
the Act granting such powers to the court, with no men­
tion of temporary relief.

Order and Opinion



24a

In such posture, the court concludes that the remedy of 
temporary injunction is inappropriate for individual re­
lief and nowhere authorized by the Act. On a temporary 
basis, what more could the court do than enjoin the defen­
dant from discriminating against the plaintiff, which it is 
already forbidden to do by the Act itself? Certainly it 
would be harsh on a prima facie showing to order plain­
tiff to be placed in a particular job, award back-pay as 
damages, or possibly oust another employee from a posi­
tion without a full and final determination on the merits. 
If the remedy were available, it would require a full trial 
and determination at the temporary hearing, consequently 
advancing the final trial in all such cases by the simple 
expedient of a prayer for temporary injunction. No such 
procedure is contemplated by the Act nor would it be fair 
to the other litigants who must necessarily await their day 
in court. Moreover, there is adequate relief in damages 
in the provisions of 42 U.S.C.A. §2000e-5(g) to obviate the 
need for injunctive relief prior to a determination on the 
merits. Accordingly, the request for injunctive relief on 
the individual claim is denied on these grounds.

Not so, however, with class-type relief. Upon a clear 
showing of a broad discriminatory practice, such relief 
would be both practical and appropriate. Thus, a tempo­
rary injunction might usefully be framed to remove an 
obvious discriminatory practice on a prima facie showing, 
such as a refusal to hire any negroes, segregated working 
facilities, discriminatory pay or hours, etc. Unlike the in­
dividual claims, such relief is contemplated by the provi­
sion allowing the Attorney-General to proceed in such 
instances before a three-judge court. 42 U.S.C.A. §2000e-6.

Having determined that a class-type complaint may af­
ford a proper basis for temporary injunctive relief, a

Order and Opinion



25a

farther consideration of the evidence in this respect is 
demanded. Why this particular defendant was selected 
for litigation is uncertain. The plaintiff’s personal diffi­
culties appear more of a union-management problem than 
due to any act of racial discrimination since 1965 (which 
is not decided here). As to the class complaint, there is 
no showing to the court of any company-wide policy of 
racial discrimination. The plaintiff, along with several 
other negro employees, was hired over 13 years ago. By 
1959, all departments were integrated, the last being the 
paint line which is generally high wage scale. Presently, 
25 out of 50 departmental workers are negro. Negroes 
have consistently been allowed to bid and qualify on all 
job positions since 1962 and, in fact, hold jobs in virtually 
all categories. While no negro has successfully bid the 
slitter operator’s job, negroes hold other jobs throughout 
the plant of equal and higher pay. Culpepper himself has 
had several opportunities to bid a higher paying job on 
the paint line, which he chose not to do because of the 
probability of night work. Negroes presently serve as 
helpers to the regular slitter operator, who has been quali­
fied for many years. According to plaintiff’s witnesses, 
negroes have been treated “ OK” since 1960 or 1962 and 
well before the effective date of the Act.

The apparent thrust of plaintiff’s evidence here is that, 
in certain instances, there is an imbalance for negroes in 
departmental seniority as compared to plant-wide seniority. 
Thus presently, while 13 out of the 15 top employees in 
plant-wide seniority are negroes, including the first five, 
apparently only 5 out of the first 15 in seniority on the 
paint line are negroes (highest 5th). In fabrication, they 
occupy 12 out of the first 15 (highest 1st); in receiving, 
they likewise occupy 12 out of the first 15 (highest 3rd).

Order and Opinion



26a

As seen, tlie paint line was the last department integrated 
in 1959 and undoubtedly the presence of white employees 
in the first position there and in receiving is a holdover 
from older days far antedating the Civil Rights Act of 
1964. There is absolutely no evidence of any company­
wide discrimination in this respect since the inception of 
the Act or even during a reasonable anticipatory period 
preceding it. To the contrary, the company has handled 
seniority in strict accordance with the contract since at 
least 1962.

The argument is advanced that somehow the court 
should step in and regardless of accrued departmental 
seniority, contract terms, or performance by management 
since 1965, “eradicate the vestiges” of ancient discrimina­
tion by an employer. Doubtless a similar statistical show­
ing of white employees in higher positions could be made 
as to almost any company anywhere in the United States 
with a sufficient operating history. Furthermore, there is 
no practical way to displace white employees with years 
of departmental seniority in favor of negro employees 
who have not bid or qualified for a job without creating 
untoward confusion and serious labor-management prob­
lems. The Act created a new right to equality and not 
preference in this area and nothing is found which indi­
cates that it is to be applied retrospectively.4

Order and Opinion

4 To this effect, the legislative history reveals:
“ Title VII would have no effect on established seniority rights. 

Its effect is prospective and not retrospective. Thus, for ex­
ample, if a business has been discriminating in the past and 
as a result has an all-white working force, when the title 
comes into effect the employer’s obligation would be simply 
to fill future vacancies on a nondiscriminatory basis. He 
would not be obliged— or indeed, permitted—to fire whites 
in order to hire Negroes, or to prefer Negroes for future



27a

In such matters, the Act specifically negates any require­
ment of affirmative conviction of a statistical racial im­
balance. Thus, 42 U.S.C.A. §2000e-2(j) provides:

Nothing contained in this subchapter shall be inter­
preted to require any employer, employment agency, 
labor organization, or joint labor-management com­
mittee subject to this subchapter to grant preferential 
treatment to any individual or to any group because 
of the race, color, religion, sex, or national origin 
of such individual or group on account of an im­
balance which may exist with respect to the total 
number or percentage of persons of any race, color, 
religion, sex, or national origin employed by any 
employer, referred or classified for employment by 
any employment agency or labor organization admitted 
to membership or classified by any labor organiza­
tion, or admitted to, or employed in, any apprentice­
ship or other training program, in comparison with 
the total number or percentages of persons of such 
race, color, religion, sex, or national origin in any 
community, State, section, or other area, or in the 
available work force in any community, State, section, 
or other area. Pub. L. 88-352, Title VII, §703, July 2, 
1964, 78 Stat. 255.

Accordingly, under the evidence injunctive relief is de­
nied on the class-type complaint.

Order and Opinion

vacancies or, once Negroes are hired, to give them special 
seniority rights at the expense of the white workers hired 
earlier.” (Interpretive Memorandum on Title VII, Senators 
Clark and Case, Senate 4-8-64. pp. 7212-7215).



28a

Order and Opinion

III. J ury T rial .

Lastly, the court considers the vexsome problem of the 
right to jury trial, if any, in these cases. Proeedurally, 
this is as yet a great unanswered question in the gap 
between legislative action and practical application and 
there is no definitive authority on the subject. Thus, the 
consideration is necessarily lengthy.

As seen, the enforcement provisions of the equal em­
ployment opportunities portion of the Civil Bights Act 
of 1964 are found at 42 U.S.C.A. §2000e-5 (g ) :

If the court finds that the respondent has intentionally 
engaged in or is intentionally engaging in any unlaw­
ful employment practice charged in the complaint, 
the court may enjoin the respondent from engaging 
in such unlawful employment practice, and order such 
affirmative action as may be appropriate, which may 
include reinstatement or hiring of employees, with or 
without back pay . . . [Emphasis supplied].

While the subject of jury trial is not mentioned in the 
above provision, the underscored language suggests 
strongly that the Congress intended that the issues be 
tried by the Court rather than by a jury. This section 
is not only drafted so as to direct that “ the court” under­
take these responsibilities but also the section provides 
for appropriate “affirmative action” , suggesting again the 
intent to have the court pass upon these matters. The 
right to trial by jury is expressly granted in criminal 
contempt proceedings arising under the Act. See 42 U.S. 
C.A. §2000h. However, the statute does not mention the 
right to jury trial in ordinary enforcement litigation of 
the nature now before the Court. The legislative history



29a

is not overly helpful with regard to many of the proce­
dural features of the Act.5 The majority reports do not 
deal with this question but many of the bill’s opponents 
emphasized that the Act was just another attempt to create 
government by court injunction, suggesting, at least in 
the view of the opponents of the bill, that juries were not 
contemplated except where specifically mentioned. On the 
basis of the above materials the court must conclude that 
the statute does not contemplate the use of jury trials in 
civil suits under Title VII. Thus, the inquiry shifts to 
the constitutional question of whether this Act violates the 
Seventh Amendment, The Seventh Amendment to the 
United States Constitution provides:

In Suits at common law, where the value in contro­
versy shall exceed twenty dollars, the right of trial 
by jury shall be preserved, and no fact tried by the

Order and Opinion

6 One might suspect that the drafters of the bill were willing to 
gloss oyer many of the technical and controversial aspects of the 
bill to insure passage, leaving to the courts the task of spelling 
out many features of the bill. Irrespective of the reason for this 
lack of clarity the bill is in places inartfully drawn giving rise 
to much uncertainty as to its precise meaning. Vaas, Title VII:  
Legislative History, 7 Boston College Ind. & Comm. L. Rev. 457-58 
(Spring 1966). The right to jury trial is mentioned in a number 
of places in the legislative history, but none of these references 
give a definite answer as to the intent of Congress. See, e.g., 
(References are to the legislative history as found in a publication 
entitled “ Legislative History of Titles VII and X I of Civil Rights 
Act of 1964” distributed by the Equal Employment Opportunity 
Commission) the discussion between Senator Ervin and Senator 
Case at pp. 3295-96; the Dirksen amendments to strike the use of 
masters at p. 3268; the remarks of Senator Carlson at pp. 3371-73; 
the remarks of Senator Johnston and Senator Ervin at p. 3379 
dealing with the development of government by injunction. Though 
this sampling from the legislative history does not reveal a definite 
answer, this Court must conclude that the proponents of the bill 
did not envision a broad right to trial by jury except where spe­
cifically authorized or where required by the United States Con­
stitution.



30a

jury, shall be otherwise reexamined in any Court of 
the United States, than according to the rules of the 
common law.

Apparently, very few courts have been called upon to 
decide directly the question of whether the Seventh Amend­
ment requires a trial by jury under this Act. This ques­
tion was recently considered in Hayes v. Seaboard Coast 
Line Rd. Co., Civil Action No. 2371 (S.D. Ga., Decem­
ber 9, 1968). Judge Lawrence concluded that the denial 
of a jury trial in an Equal Employment Opportunity Com­
mission case did not contravene the Constitution. The 
other cases brought to this Court’s attention considering 
the question are at best inconclusive and none have ap­
parently given a thorough study to this subject. See, e.g., 
Johnson v. Georgia Highway Express, Inc., Civil Action 
No. 11598 (N.D. Ga. June 24, 1968) (claim viewed as an 
action for breach of an employment contract); Allen v. 
Braswell Motor Freight Lines, Inc., Civil Action No. 3-2112 
(N. D. Tex., May 15, 1968) (jury trial granted where com­
pensatory and punitive damages were claimed); Lea v. 
Cone Mills, Civil Action No. C-176-D-66 (N.D.N.C., March 
25, 1968) (demand for jury trial stricken without discus­
sion) ; Banks v. Local 136, IBEW , Civil Action No. 67-598 
(N.D. Ala., January 25, 1968) (demand for jury trial 
stricken without discussion); Anthony v. Brooks, Civil Ac­
tion No. 9947 (N.D. Ga., September 18, 1967) (suit against 
the state viewed as allowing only injunctive relief and 
therefore demand for jury trial was refused).

Although logical development of this subject might best 
be served by beginning this discussion at another point 
several decisions have been so dominant in this area that 
they must be discussed at the outset. In 1959 the Supreme

Order and Opinion



31a

Court decided the case of Beacon Theatres v. Westover, 
359 U.S. 500 (1959). In Beacon Theatres the plaintiff 
sought declaratory relief and an injunction prohibiting de­
fendant from instituting suit under the anti-trust laws. 
Defendant counterclaimed alleging that the practices in­
volved violated the anti-trust laws, and demanded a jury 
trial on all factual issues. The District Court ruled that 
it would try in equity without a jury the issues common 
to both proceedings before trying petitioner’s counter­
claim. The Supreme Court ruled that this was error:

It follows that if Beacon wrould have been entitled 
to a jury trial in a treble damage suit against Fox it 
cannot be deprived of that right merely because Fox 
took advantage of the availability of declaratory relief 
to sue Beacon first. Since the right to trial by jury 
applies to treble damage suits under the anti-trust 
laws, and is, in fact, an essential part of the congres­
sional plea for making competition rather than monop­
oly the rule of trade . . . the Sherman and Clayton 
Act issues on which Fox sought a declaration were 
essentially jury questions.

Id. at 504. The Court emphasized that the basis for in­
junctive relief in the federal courts has always been 
irreparable harm and inadequacy of legal remedies. The 
Court then reviewed various changes in our judicial sys­
tem and concluded that the right to trial by jury on all 
legal claims could not except “under the most imperative 
circumstances” be lost through prior determination of 
equitable claims. See Thermo-Stitch, Inc. v. Ghemi-Cord 
Processing Corp., 294 F.2d 486 (5th Cir. 1961), wherein 
the Fifth Circuit discussed the holding in Beacon Theatres.

Order and Opinion



32a

In Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962), plain­
tiff contended that defendant had breached its contract 
to pay for the exclusive use of a trademark. Plaintiff 
sued for (1) temporary and permanent injunctions to 
restrain defendant from any future use of or dealing- 
in the franchise and trademark, (2) an accounting to de­
termine the exact amount of money owing by defendant 
and a judgment for that amount, and (3) an injunction 
pending accounting to prevent defendant from collecting 
any money from franchised stores. Defendant’s demand 
for jury trial was denied on the grounds that either the 
action was “ purely equitable” or that whatever legal is­
sues were raised were “incidental” to equitable issues. 
The Supreme Court held this to be error, ruling that 
where both legal and equitable issues are presented in a 
case, even when the legal issues are incidental to the 
equitable issues, the legal issues must be presented to a 
jury. Even though the complaint was cast in terms of an 
“accounting,” this result still follows as the courts must 
look to the substance of the transaction involved. And 
the Court concluded that a claim of this nature for a 
money judgment was legal in nature. These two cases 
added considerable clarity to the constitutional right to 
a jury trial. For example, these cases clearly repudiated 
the older approach wherein legal issues could be freely 
tried by the court if they were “ incidental” to the equitable 
issues in the case. It became clear that the mere fact 
that the issues in a case arose under a statute of Congress 
did not change this requirement. Also the plaintiff’s 
phraseology as to the claims presented does not control. 
Therefore, the important decision here is whether the 
claims presented involve legal issues or whether they are 
“purely” equitable in nature. It must be remembered that

Order and Opinion



33a

even though an action was not provided for at common 
law, a jury is still required if the issues are in the nature 
of such a suit. NLRB v. Jones & Laughlin Steel Corp., 
301 U.S. 1 (1937) ; Klein v. Shell Oil Co., 386 F.2d 659 
(8th Cir. 1959).

In this Court’s view, the issues present in these cases 
are purely equitable. As seen, by the Act itself the right 
to recover any money judgment at all is optional with 
the court. Even then, such an award is automatically 
calculable, and not calling for settlement of serious dam­
age questions by the combined conscience of a jury. As 
indicated above, some courts have taken the view that an 
action for back wages is in essence an action for breach 
of the employment contract. This view fails to take into 
account the true nature of these proceedings. The focus 
of this Act is upon the elimination of discrimination in 
employment, the freedom from which there was no guaran­
tee at common law. While in Dairy Queen and Beacon 
Theatres, the claims were based on the individual’s pri­
vate right of action, this Act emphasizes not the collection 
of private debts but the protection of the public interest. 
The back pay remedy, which is actually only a small 
part of the remedial scheme envisioned by the Act, is 
public in nature, aimed at restoring the status which would 
have existed but for the forbidden discrimination. Al­
though the use of analogies is a dangerous device in this 
area,6 the public nature of this claim is similar to pro­

6 Discussions of the problem of the right to jury trial in analo­
gous areas can be found in Vaas, supra at 510; 5 Moore’s Federal 
Practice jf38.ll [7] (2d ed. 1968). These areas would include ac­
tions under the Emergency Price Control Act of 1942; actions 
under the Labor Management Reporting and Disclosure Act; ac­
tions under the National Labor Relations Act. The conclusions 
reached in these areas are not always in agreement and it is diffi­
cult to use these teachings in connection with the instant case.

Order and Opinion



34a

ceedings by the Secretary of Labor under §17 of the Fair 
Labor Standards Act wherein an injunction is sought to 
restrain the withholding of wages due under the Act’s 
minimum wage provisions. See Wirts v. Jones, 340 F.2d 
901 (5th Cir. 1965), wherein a demand for jury trial was 
ordered stricken, the Court characterizing the money claim 
therein involved as being equitable in nature. The provi­
sions of 16(c) of the Fair Labor Standards Act are not 
analogous for the sole purpose of §16 (c) is the recovery 
of money damages without the added element of injunc­
tive relief. The public nature of an action under Title VII 
has recently been emphasized by the Fifth Circuit in 
Jenkins v. United Cities Gas Corp., 400 F.2d 28 at 32 
and 35 (5th Cir. 1968), reversing 261 F. Supp. 762 (M.D. 
Tex. 1966). See also, Newman v. Piggy Park Enterprises,
Inc.,------U.S. — — (1968). The mere presence of a pleaded
claim for money damages does not make the issues prop­
erly triable before a jury. As the Fifth Circuit has care­
fully stated in Swofford v. B. & W. Inc., 336 F.2d 406 at 
414 (5th Cir. 1964) :

Beacon Theatres, Dairy Queen, and Thermo-Stitch deal 
with the problem presented when “legal” claims or 
remedies and “equitable” claims or remedies are 
joined in the same case. They resolve the problem 
in each of their respective situations by requiring the 
factual issues common to the “ legal” claims, or reme­
dies, and the “ equitable” claims, or remedies to be 
tried by a jury. This is not to say, however, that they 
have converted typical non-jury claims, or remedies, 
into jury ones. Therefore, we reject a view that the 
trio of Beacon Theatres, Dairy Queen, and Thermo- 
Stitch is a catalyst which suddenly converts any 
money request into a money claim triable by jury.

Order and Opinion



35a

See also the limitations placed on the proposition in Sim­
mons v. Avisco, Local 713, Textile Workers Union, 350 
F.2d 1012 at 1018 (5th Cir. 1965).7 Under the reasoning 
of Wirts v. Jones and similar cases and under the cases 
emphasizing the public nature of this remedy, the Court 
must conclude that the claims herein involved are purely 
equitable in nature and the demand for a jury trial must 
be denied. A practical consideration also enters into this 
discussion, a consideration evident in the Congressional 
intent to exclude trial by jury as heretofore discussed.

The duty of the Court to enjoin discrimination where 
it finds unlawful employment practices to exist is 
unravellably intertwined with the resulting money loss 
to a particular employee. Unequal opportunity in job 
classifications and in promotions, the establishment 
of new seniority lists, dealing with historically segre­
gated departments, the equalization of pay in separate 
job classifications but comparable work—in all of this 
a jury is at best ill-equipped to make determinations

Order and Opinion

7 The mere fact that this ease may be characterized as a civil 
rights action does not dictate a holding that the right to trial by 
jury is not applicable. See Horkless v. Sweeny Independent School 
District, 278 F. Supp. 632 (S.D. Tex. 1968) which was an action 
under 42 U.S.C.A. §1983 to require the rehiring of teachers in 
accordance with qualifications and experience, without regard to 
race, or color. The Court concluded that back pay as damages 
was a claim legal in nature and must be triable by a jury after 
which the Court would consider the remaining requests for relief, 
i.e., injunctions, costs, and attorney’s fees. However, the instant 
case involves an additional element which changes the result as 
to the question of right to trial by jury. As heretofore stressed 
an action under Title VII, unlike a suit under 42 U.S.C.A. §1983, 
involves the vindication of a public right.



36a

of so sophisticated issues involving so complicated com­
putations.

Hayes v. Seaboard Coast Line Rd. Co., supra.
Accordingly, plaintiff’s motion to strike defendant’s de­

mand for a jury trial is granted.
This opinion shall constitute findings of fact and con­

clusions of law under Rule 52.
The injunctive feature of this order is immediately 

appealable under 28 U.S.C.A. §1292(a)(I). As to the re­
maining questions, the court is of the opinion that they 
are controlling and as to which then is substantial ground 
for difference of opinion and that an immediate appeal 
may materially advance the ultimate determination of this 
and other litigation pending in the district and such cer­
tificate is included herein under the provisions of 28 U.S. 
C.A. §1292 (b).

It Is So O rdered,

This the 27th day of December, 1968.

/ s /  S idn ey  0 .  S m it h , Jb.
Sidney 0. Smith, Jr.
United States District Judge

Order and Opinion



37a

Order

(Filed January 8, 1969)

The Court on December 27, 1968, entered its order in 
this case, together with an opinion constituting its findings 
of fact and conclusions of law under Buie 52.

It Is H ereby Ordered that the said order dated Decem­
ber 27, 1968, together with the opinion, be and hereby is 
vacated.

It Is F u rth er  Ordered that the said opinion and order 
dated December 27, 1968, be and they hereby are re-entered 
in their entirety, to be effective as of this date.

This the 6th day of January, 1969.

/ s /  S id n ey  0 .  S m it h , Jr.
Sidney O. Smith, Jr.
United States District Judge



38a

(Filed January 15, 1969)

S am u el  Cu lpepper , plaintiff in the above-entitled civil 
action, pursuant to Buie 59(e) of the Federal Eules of 
Civil Procedure, within ten (10) days of the entry of 
the Order on January 6, 1969, re-entering in its entirety 
the opinion and order dated December 27, 1968, moves the 
Court for an order amending or altering this order to cor­
rect an error of law; namely:

A. That the Court did not have jurisdiction of the 
within civil action under the provisions of 42 United States 
Code, Section 1981, because there was “no evidence what­
ever that defendant committed or omitted any act under 
color of state law.” Plaintiff alleges that as a matter of 
law state action “under color of state law” is not a requisite 
of jurisdiction under Section 1981, 42 United States Code.

B. Alternatively, plaintiff moves the Court to amend 
the order of January 6, 1969 to expressly insert that a 
determination of the question of whether or not evidence 
of the commission or omission of acts under “color of 
state law” is a requisite of jurisdiction under 42 United 
States Code, Section 1981 involves a controlling question 
of law as to which there is substantial grounds for dif­
ference of opinion and that an immediate appeal from 
the order as to this question may materially advance the 
ultimate termination of the litigation.

Plaintiff’s Motion to Amend or
Alter an Order

Dated: January 14, 1969.



39a

(Filed January 20, 1969)

Plaintiff seeks review of the previous holding in this 
case to the effect that the Court did not have jurisdiction 
of the within civil action under the provisions of 42 U.S.C. 
§1981, because there was “no evidence whatever that de­
fendant committed or omitted any act under color of 
state law.” In the alternative, plaintiff seeks to amend the 
order of January 6, 1969, to expressly insert that a deter­
mination of the question of whether or not evidence of 
the commission or omission of acts under “ Color of state 
law” is a requisite of jurisdiction under 42 U.S.C. §1981 
involves a controlling question of law as to which there 
is substantial grounds for difference of opinion and that 
an immediate appeal from the order as to this question 
may materially advance the ultimate termination of the 
litigation.

The §1981 question was not urged upon the court at 
trial or by plaintiff’s brief and little time was devoted 
thereto in the original opinion in the interests of focusing 
on the other three central questions before the court. 
However, it was stated as a basis for suit in the original 
petition and the court ruled as stated. In this respect, 
the Court is not unmindful of the Supreme Court’s ruling 
in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), 
wherein it was held that the provisions of 42 U.S.C. 
§1982 reached private refusals to sell property and did 
not require the presence of state action. The Supreme 
Court specially withheld any indications as to the impact 
of its decision on the provisions of 42 U.S.C. §1983. Id. 
at 413-14, fn. 10. While the provisions of 42 U.S.C. §1982

Order on Plaintiff’s Motion to Amend or
Alter Order Dated December 27, 1968



40a

closely parallel the provisions of 42 U.S.C. §1981, id. at 
441-42, fn. 78, there remain substantial grounds for dis­
tinguishing the holding in Jones from the factual situa­
tion now before the Court. 42 U.S.C. §1982 is phrased in 
very specific language as to certain property rights, un­
like the general phraseology of 42 U.S.C. §1981. It has 
not been understood that there previously existed at com­
mon law or in our own case law a right to be free from 
discrimination in employment. Nor is the normal claim 
before the Equal Employment Opportunity Commission 
based on contract. Hence, Congress passed on compre­
hensive civil rights act creating such substantive rights 
and simultaneously creating a procedural basis of some 
detail by which to assert these rights. Much judicial energy 
has been expended in defining the precise scope of this 
new right and the precise procedural process by which 
the right is asserted. Before ruling in effect that all of 
the above mentioned procedure is really not relevant and 
may be by-passed simply by filing under 42 U.S.C. §1981, 
the trial courts need direction in this respect. Accordingly, 
the Court’s previous ruling that 42 U.S.C. §1981 does not 
provide a basis for jurisdiction in the instant case still 
stands. Admittedly, this is a difficult question1 and along 
with the other questions specifically outlined in the previous 
order, the court is of the opinion that they are controlling

1 See in this connection Baldwin v. Morgan, 251 F.2d 780 (1, 6) 
(5th Cir. 1958) ; Lucom v. Atlantic National Bank of West Palm 
Beach, Fla., 354 F.2d 51 (10) (5th Cir. 1965) and the results in 
Walker v. Blackwell, 360 F.2d 66(1) (5th Cir. 1966). Also, see 
42 U.S.C. §1988 enacted as part of the Civil Rights Acts of 1866 
and 1870, which arguably infers the adoption of future laws relat­
ing to the bringing of actions arising under the Acts such as the 
instant procedures.

Order on Plaintiff’s Motion to Amend or
Alter Order Dated December 27, 1968



41a

and as to which there is substantial ground for difference 
of opinion and that an immediate appeal may materially 
advance the ultimate determination of this and other litiga­
tion pending in the district and such certificate is included 
herein under the provisions of 28 U.S.C. §1292(b).

If there is any question that this jurisdictional question 
was covered by the original opinion and, therefore, sub­
ject to appeal, this order is issued in clarification thereof 
and the Clerk is directed to file the same as part of the 
original record in said case.

I t  I s So O rdered.

This the 17th day of January, 1969.

/ s /  S id n ey  0 .  S m it h , J r .
Sidney 0. Smith, Jr.
United States District Judge

Order on Plaintiff’s Motion to Amend or
Alter Order Bated December 27, 1968



42a

Notice of Appeal

(Filed January 27, 1969)

Notice is hereby given that S a m u e l  C u lpepper , plaintiff 
in the above-entitled civil action, hereby appeals to the 
United States Court of Appeals for the Fifth Circuit 
from so much of the order of the United States District 
Court for the Northern District of Georgia, Atlanta Divi­
sion, dated January 6, 1969, vacating and re-entering in 
its entirety the order entered December 27, 1968, denying 
to the plaintiff individually and the class which he repre­
sented jointly, the remedy of a preliminary or interlocu­
tory injunction, after an evidentiary hearing.

This 24th day of January, 1969.



43a

Order Extending Time for Transmitting 
Record and Transcript

(Filed March 7, 1969)

It having been made to appear that the time in which 
the record and transcript of proceedings in the above case 
may be transmitted to the United States Court of Appeals 
for the Fifth Circuit will expire on March 8, 1969, and that 
the said record and transcript are not yet prepared and 
ready,

It Is H ereby O rdered that the time in which the record 
and transcript of the proceedings may be transmitted to 
the United States Court of Appeals for the Fifth Circuit 
is hereby enlarged and extended from March 8, 1969, 
through and to include April 8th, 1969.

This 6th day of March, 1969.

/ s /  S id n ey  0 .  S m it h , Jr. 
S idn ey  0 .  S m it h , Jr.
Chief United States District 
Judge



44a

Transcript of Hearings

(Filed April 1, 1969)

The Court: Let me get straight here. You all, of course, 
represent the plaintiff, Mr. Bindskoff?

Mr. Bindskoff: Bight, and—
The Court: Who represents the defendant?
Mr. Pate: Is this the Beynolds matter ?
The Court: Yes.
Mr. Pate: I represent the defendant, W. M. Pate.
The Court: I found on my desk a motion to quash sub­

poena filed by the E. E. 0. C. Is anyone here representing 
them?

Mr. Charles Wilson: Yes, sir, I am.
The Court: Your name?
Mr. Wilson: Charles Wilson.
The Court: All right. Thank you.
Mr. Pate: Your Honor, if I may I would like to present, 

also, Mr. Fred B. Edney, who is a member of the Bar of 
Virginia, North Carolina and Kentucky, and is Assistant 
General Counsel of Beynolds Metals Company, and ask 
leave for him to participate in this matter.

The Court: Glad to have you, sir.
Mr. Edney: Thank you.
The Court: In fact, I think we need all the lawyers we 

can get in this matter.
Gentlemen, I ’d like to discuss with you first the propriety 

of the temporary injunction. When it was filed, Mr. Bind­
skoff and I had some conversation about it. I realize that 
the thing is so new there hasn’t been time for the filing of 
any kind of motions or anything.

The more I work with this Act, the more I have decided 
it was very inartfully drawn, not just regards this prob­



45a

lem, but several others we’ve run up against during the 
summer. Does anybody have any authorities from court, 
or legislative history, or even Law Review articles relat­
ing to the propriety or temporary injunction in a private 
suit under this section?

Mr. Rindskoff: I would think that the major authority 
for this would be the Act itself, which says these cases 
would be entitled to the highest priority, and they should 
go forward as rapidly as possible. It would seem to me if 
the plaintiff makes out his case, he should be entitled to 
injunctive relief.

The Court: Well, let’s talk about it just a minute. Of 
course, as you have heard me say before, we’re getting in 
Federal Court like the Georgia Lien Law, everybody is 
prior, everybody is entitled to be first, and it’s kind of 
pinching the Court because we can’t try everybody first.

The Act clearly contemplates an injunction in an action 
brought by the Attorney General. I think this is spelled 
out pretty well. It appears to me to be doubtful about 
injunctive relief in a private case on a temporary basis, 
for this reason: that the portion of the act that author­
izes injunctions follows a determination of the merits. Well, 
normally, on a temporary injunction you make out a prima 
facie showing, and then some temporary order issues by 
the Court.

So let’s take this case. I don’t know- anything about the 
specific complaint, because you all had the papers down 
here. I didn’t even have them until I got here. Let’s say 
that you make out a claim for discrimination on a prima 
facie basis. Then all I could do is issue a temporary order 
saying: Don’t discriminate. And that’s about all I can do. 
Well, what does that mean in terms of the individual com­

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46a

plaint? I don’t see that I could—is this a firing case, or 
new employment? I don’t even know that.

Mr. Eindskoff: This is a, for lack of a better word, let 
me call it a promotion case.

The Court: All right. Then I could not, until a final 
determination of all the merits, order a promotion, could I?

Mr. Pate: To do so would move someone else from the 
job who is not even in court, so—

The Court: Well, what Pm trying to think about is the 
practicality.

Mr. Pate: Yes.
The Court: Even if I can issue a temporary injunction, 

what would it do?
Mr. Pate: Plus the fact that the only thing really in­

volved is money, and certainly it can be compensated in 
money, if we’re found to be wrong. And as a practical 
matter, I don’t see what a restraining order or a temporary 
injunction would do at this point in the case.

The Court: Well, this is really the point I’m getting at. 
Now, if I ordered, say in a firing case, a reinstatement, 
or in this case, a promotion, and ordered pay rendered, 
they would have to give a bond period. The temporary 
injunction law requires a bond to reimburse all of this 
money, so I can’t see that, other than saying, “Now, don’t 
be naughty,” that I could do anything on a temporary basis.

Mr. RindskofT: Well, what will it mean if Your Honor 
were to say, “Don’t discriminate in a case where promotion 
is involved?” It means that if we made out our prima facie 
case, it involves the promotion, then the man has to be put 
in the position where he is either in the promoted position, 
or he is able to move into the promoted position when an 
opening occurs. We’re claiming that he’s being denied the 
opportunity to move up.

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47a

The Court: Well, suppose I said, “Do not discriminate,” 
and nothing happened1? I would assume that three or four 
months from now you would be back with a contempt cita­
tion of some kind, that this would be all that would happen.

But my point is, I don’t think without a final determina­
tion of the merits of the individual’s claim, that I can do 
anything effective with an injunction. This is my point.

Frankly, I have been very disappointed this summer 
with this Act. It is so unwieldly to me that I have concluded, 
in what research we have done, that it was passed under 
pressure, and rather than raise all these ghosts, everybody 
swept them under the rug in order to get the bill jjassed 
through, and I’m in complete sympathy with its purposes, 
but we, as you know, we have undertaken every kind of 
jurisdictional problem we know during the summer.

Again, does anybody have anything on the question in 
the way of authority1?

Mr. Moore: No, Your Honor.
Mr. Pate: I don’t have anything.
Mr. Moore: Your Honor, it is, undoubtedly the Court 

has authority to issue a preliminary injunction in this case, 
and that it is undoubted that it is consistent with the legis­
lative intents and purposes.

The Court has jurisdiction under 1651 to issue any 
appropriate remedy. It has traditional equity jurisdiction 
to issue a preliminary injunction, which could very well be 
the final order in the case, and that a preliminary injunc­
tion would follow after a hearing, after hearing which is 
essentially on the merits, and I believe that Norris-La- 
Guardia doesn’t apply. None of the anti-injunction statutes 
apply—

The Court: That’s correct.

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48a

Mr. Moore: —to the Title 7 Act, and the intendment of 
the Act is that there would he a rapid end of discrimina­
tion in employment, and a rapid end of discrimination in 
employment requires the Court to issue injunctive relief 
where it is appropriate.

The Court: Well, what you are saying is that we would 
have a full-blown trial on every injunction.

Mr. Moore: No, not on every injunction. I think you—
The Court: What is the distinction?
Mr. Moore: Well, the temporary injunction only runs 

for ten days, and issued only—
The Court: Well, that is an exparte you’re talking about.
Mr. Moore: In a dire situation, where there is—
The Court: We’re not worried with that.
Mr. Moore: Where there is irreparable harm threatened 

immediately. But in the situation of a preliminary injunc­
tion, the harm does not necessarily have to be immediate, 
in the sense that it is in a temporary restraining order.

The Court: Excuse me just a minute.
You know, normally the purpose of a preliminary in­

junction is to maintain the status quo. That is the purpose 
of a preliminary injunction.

Mr. Moore: Well, Your Honor please, that is under the 
old fashioned equity motions, but under modern equity 
motions under federal rule, preliminary injunction can 
have the effect of doing a mandatory act.

The Court: Well, there’s no question that Federal Court 
has the power to issue mandatory injunctions.

Mr. Moore: Not under the Bantom Weber (?), we’re 
not limited and restricted in that fashion.

The Court: Well, we’re all doing a lot of talking. Has 
anybody got anything I can read?

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49a

Mr. Moore: Well, I have a complaint, I have a motion.
The Court: I’m talking by way of authority and legisla­

tive history.
Mr. Moore: I have this.
The Court: What does it say?
Mr. Moore: Legislative history of Title 7.
Mr. Pate: Your Honor, may I suggest, also, that there 

is another question in this case that we say is dispositive 
of the case independently of this question.

Now we do think, to begin with, just as a matter of ex­
planation, that the speed with which this case may be 
brought to a final conclusion doesn’t mean that some kind 
of injunction should be entered in the case. We are per­
fectly in sympathy with having it resolved as rapidly as 
it can be resolved, but that doesn’t mean, as we see it, that 
this Court should enter some kind of preliminary injunc­
tion pending that speedy determination of it.

The point I wanted to make is that we think this case 
is barred by the Statute of Limitations, in any event. They 
allege an act of discrimination which they say occurred 
on March 20 and March 28, 1967; March 20 being the date 
that this plaintiff allegedly made his bid for the job in 
question; March 28, 1967 being the date on which the job 
was allegedy filled by a White employee with less seniority, 
and then they allege that on July 15, 1967—I may have 
referred to ’68, I mean 1967 on all of these date—July 15, 
1967, which they say is within ninety days after the dis­
crimination, the complaint was filed with the E. E. 0. C.

Well, just as a matter of fact, by reference to the com­
plaint and a little arithmetic, that is not within the ninety 
days, that is about a hundred and eight or a hundred and 
nine days, and we say for that reason it has not come

Colloquy



within the Statute of Limitations, which is ninety days 
of the—

Mr. Moore: Your Honor, that is just a gross misreading 
of the complaint. The complaint alleges a continuing act 
of discrimination, in that he grieved under the Collective 
Bargaining Agreement the failure to employ him, to pro­
mote him, and then, after they went through the grievance 
procedure, they then imposed terms upon him which we 
say again violate the Act, and when they submitted to him 
in May, in late May, 1967, these terms for employment, 
of advancement, which were oppressive, because of his 
race, he then, in July 1967, went to the Equal Employment 
Opportunity Commission, and certainly, from May, I think 
it was May 5th when they made the proposed settlement, 
up until July 15th is in the ninety days.

The Court: Excuse me. I don’t quite understand your 
terminology. What do you mean “proposed settlement” ?

Mr. Moore: Well, he grieved his—
The Court: You are talking about with the E. E. O. C.?
Mr. Moore: No, sir, he grieved it under the Collective 

Bargaining Agreement with the company, and then they 
made a settlement proposal which was unacceptable to the 
plaintiff in this case.

Mr. Pate: Well, an offer of settlement within ninety days 
doesn’t make the act of discrimination complained of within 
ninety days.

Mr. Moore: Well, if the offer of settlement is discrim­
inatory,—

The Court: Let me say this: the basic ruling that we 
reached in the summer was that if it was a continuing act, 
your ninety days doesn’t make a whole lot of difference.

Mr. Pate: I think that is correct.

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51a

The Court: But if it is a specific act, then the ninety 
days is jurisdictional. This is the effect of our ruling, 
so far.

Mr. Pate: As a matter of fact, that same distinction was 
made under National Labor Relations later, by the Su­
preme Court, in the case we usually call Bryan Manufac­
turing Company. That was the employer. It was N. L. R. B. 
Ys. International Association of Machinists, in 1960.

They had exactly the same question, about what is a 
continuing violation, and the Supreme Court held that 
where the Act that must initially be relied upon to showT 
the illegality of the continuing application of a contract, 
that it was illegal at the time of its execution, where that 
occurred before the six months Statute of Limitations, 
under that statute, then it cannot be relied on as the basis 
of a finding of unfair labor practice in the application of 
the contract later, where there is no illegal term in itself 
in the contract.

In that particular case, the rationale is the same, it ap­
pears to me, because in that case there was a Union secu­
rity contract, a Union shop contract that was lawful on 
its face, but which was shown to be unlawful because the 
Union was a minority Union when the employer entered 
into the contract with it, and the Board’s theory had been 
that the application of that Union shop contract, illegal 
in its inception, was a continuing violation of that statute 
each time it was applied, and went on into the period 
covered by that six months statute of limitations. Of course, 
the Supreme Court says that is not correct, that the cir­
cumstances which made it illegal existed at the time of 
its execution, and where that is the case, then you can’t

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52 a

go back and pick up those circumstances and use them to 
make the continuing application of that contract illegal.

Now, the same thing is true in a discharge case under 
the National Labor Relations case, the discrimination case. 
These contentions are not even made any more under that 
statute, and I don’t see how there is any basis whatsoever 
for a distinction in the rationale that is applicable in that 
case and the rule applicable to this case. The act is com­
pleted if the company discriminated against this man in 
filling that job, in failing to give it to him. They completed 
that act on March 28 when they put another man on the 
job, and the ninety days then passed. And that is juris­
dictional, Your Honor.

Mr. Moore: Your Honor, that is just a lot of irrelevance.
Paragraph 8 of the complaint is unmistakable. It al­

leges: “ On or about April 4, 1967, plaintiff filed a griev­
ance protesting the assignment of the junior White em­
ployee to the vacant position. On or about May 5, 1968, 
defendant offered to settle the grievance by ‘allowing’ plain­
tiff to work on the Slitter as a helper at a lower rate of 
pay for three months and then, if the job were to become 
vacant, and if the plaintiff’s bid were to be accepted, de­
fendant would allow the plaintiff a twenty-day trial period 
for the job of Relief Slitter Operator. The terms and con­
ditions for compromising the grievance tended to adversely 
affect plaintiff’s status as an employee on the grounds of 
his race or color.”

Paragraph 8 itself alleges a complete act of discrimina­
tion under the statute, and the complaint shows on its face 
that it was filed within ninety days.

The Court: Well, I don’t think he is disputing the fact 
that what you say occurred did occur in May, but he is just 
saying that is not the test.

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53a

Mr. Moore: Your Honor, what he says is really irrele­
vant, because of the fact that this, Your Honor, that under 
the Act, Title 7, to impose terms and conditions of employ­
ment that adversely affect the employment status because 
of race or color is itself a violation.

So, if you read the complaint, and you have to read it 
this way, that on May 5, 1967, when they proposed to him 
these terms which were oppressive because of his race, 
they committed an act of discrimination.

The Court: A different act than the non-promotion, is 
what you’re saying.

Mr. Moore: Yes, sir, and that under no circumstances 
could the Court dismiss the complaint for failure to file on 
time. I mean, if this disposes of it, then that reduces the 
act to mere triviality.

The Court: Well, what you’re saying is that if he is 
right, that you are not in court for not getting the promo­
tion in March, but that you are in court for whatever hap­
pened as the result of the—

Mr. Moore: We are in court anyway, then, as a matter 
of fact, Your Honor. It’s just, it must be 17th Century 
to ask this Court to read this complaint to punish the em­
ployee because he takes advantage of his Collective Bar­
gaining Agreement. I mean, there’s—

The Court: Excuse me. If your theory is correct, then 
this is the only act that we would be concerned with on the 
merits.

Mr. Moore: I am just saying, just to dispose of his 
argument, to show how frivolous it is, because of the com­
plaint, I make that argument. But I just don’t see, Your 
Honor, how you could conceivably read the complaint to, 
read this Act to punish the plaintiff.

Colloquy



The Court: Well, I mean, that is a lot of stuff. Let’s 
talk—

Mr. Moore: It’s not really stuff, it’s the heart of it.
The Court: Let’s talk about the facts.
Mr. Moore: Because under the Collective Bargaining 

Agreement he was certainly obligated to avail himself of 
the agreement, of this procedure. They have certain steps, 
I think it is a five-step procedure under the Collective 
Bargaining Agreement. He grieved it.

The Court: All right, sir. Well, suppose there were Col­
lective Bargaining Agreements that spelled out a six-month 
period from the date of an act complained o f ; that month 
“A ” you did so forth, month “ B” you do so forth, and it 
went for six months. Could the private Collective Bar­
gaining Agreement change the statute?

Mr. Moore: No. I think that what you would do, you 
would read the statute to say that he would have to file 
within ninety days after he completed his grievance pro­
cedure, because the Court—■

The Court: Well, have you got anything on that?
Mr. Pate: The defense takes a different view of it.
Mr. Moore: There must be some, on this particular point, 

that certainly the courts favor exhaustion of administra­
tive relief, they favor exhaustion of informal, non-judicial 
remedy, so the only judicial reading of the Act would be 
to read it ninety days after the—

Mr. Pate: I don’t believe that the plaintiff in this case 
really means to complain about our offer of settlement. I 
rather thought, from reading the complaint, that what they 
were complaining about was the fact that the plaintiff 
didn’t get the job, and if this case is limited to an offer 
of settlement that happened within ninety days before the 
complaint was filed with the E. E. 0. C., I don’t know what

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55a

it could lead to. It seems to me that would just fall on its 
face, because an offer of settlement couldn’t very well rea­
sonably be the basis of a complaint, anyhow.

The Court: Let me ask this: Is the grievance procedure 
mandatory in relation to this Act? Could not, on March 
29, your plaintiff have gone to the E. E. 0. C.?

Mr. Moore: Your Honor, I won’t make a binding state­
ment on this. I simply say that I wonder what the Court’s 
view would be if the plaintiff didn’t exhaust his grievance 
procedures, and the defendant came in and said, “Well, 
he never exhausted the grievance procedure.” I don’t think 
the Court would be too kindly disposed in considering the 
plaintiff’s case.

The Court: Well, you may be right. As I say, this is 
another loose end in this thing, and there are thousands 
of them, and I have been—

Mr. Moore: When I say that, Your Honor, I just take 
that position because I don’t know how you read these 
Collective Bargaining Agreements. I ’m not a lawyer’s 
lawyer.

The Court: Unfortunately, I ’m not, either, and I keep 
thinking Federal Courts don’t have anything to do with 
it, but I keep getting drawn into them one way or the 
other.

Mr. Moore: Your Honor,—
The Court: Mr. Edney, have you all had any of this 

litigation under this Act elsewhere?
Mr. Edney: Yes, sir, but not, we haven’t had cases that 

are relevant on this point, but if we could have a few min­
utes we can decide on this matter of exhaustion of reme­
dies. We can find Your Honor cases which have been de­
cided in the past year, which say that it is not necessary 
that they exhaust their remedies.

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56a

As a matter of fact, the case is not reported, but I under­
stand that was the ruling out of the District Court, Federal 
District Court in Grand Rapids, in a ease we are in. There 
we contended the man had exhausted his remedies, and the 
Court said it was irrelevant, because Title 7 rights were 
a different set of rights from collective bargaining rights.

The Court: This is the point I was making, that the 
private parties couldn’t change the statute by contract.

Mr. Edney: That, I understand to be the law, sir.
Mr. Pate: Well, I know there is one specific holding on 

that, rather recently, by the District Court in Indiana, in 
Bowe Vs. Colgate-Palmolive. This case, the Federal Sup­
plement citation was not available, but it is a 1967 case. 
It is in 56 Labor Cases, Paragraph 9069. They dealt spe­
cifically with that question and made that holding. I know 
it’s been, the National Labor Relations Act has been rather 
universally applied that way for a good many years. I 
guess I am more oriented toward that statute than I am 
this one, but it seems to me that the same principle would 
be applicable.

Mr. Edney: If Your Honor please, it seems that the 
plaintiff’s argument here almost has to fall on its face. 
What the plaintiff really is saying, is that there was a Col­
lective Bargaining Agreement under which he had a griev­
ance right, and he grieved that and he went through some 
of the steps, and the defendant made an offer of settlement. 
At the same time, the time was running for him to file his 
complaint with the Commission, which he didn’t do. There 
is nothing in the Collective Bargaining Agreement, nor in 
the defendant’s act, anyway, that would have prevented 
him from simultaneously filing his complaint or his charges 
with the Commission.

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57a

The Court: Well, this gets back to my question a minute 
ago. Could he not, on March 29, have gone to the E. E. 
0 . C .f

Mr. Edney: Yes, sir.
The Court: At that time?
Mr. Pate: Yes, sir.
Mr. Edney: Yes, sir.
Mr. Pate: As a matter of fact, by Opinion Letter on 

December 9, ’66, the General Counsel of the E. E. 0. C. 
took the position that the Commission could not suspend 
the process of complaints on its own motion until the reso­
lution of contractual grievance and arbitration proceedings.

The Court: Read that again. I missed it.
Mr. Pate: The General Counsel of the E. E. 0. C., in 

an Opinion Letter, took the position that the Commission 
could not suspend the processing of complaints on its own 
motion until the resolution of the contract grievance and 
arbitration procedure.

He pointed out that the Commission was obligated to at 
least attempt to process complaints within the ninety day 
period prescribed by Congress, and that they could not sus­
pend the resort to the grievance and arbitration proceed­
ings.

Then, in another case in which they issued an opinion 
letter, it was a discharge case, the General Counsel took 
the position that when an employee is discharged in vio­
lation of the Act, the violation occurs then, even though he 
may resort to the grievance and arbitration procedure of 
a contract, but that if there is some contract between the 
parties under which his employment is continued pending 
the resolution of the matter before the grievance procedure, 
so that his discharge is, in effect, postponed, then it would 
date from that latter time.

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58a

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The Court: Yes.
Mr. Pate: Of course, that is just—
Mr. Moore: Your Honor, those cases are not even rele­

vant, Your Honor. The relevant thing is the complaint, 
and in the complaint it’s very clear that the act of dis­
crimination is within the ninety days, and these cases are, 
to me seem to be remote, because before he filed his com­
plaint with the Equal Employment Opportunity Commis­
sion it wasn’t even involved, but the complaint on its face 
states that, it shows it was within the ninety days.

The Court: I don’t take it that they are necessarily lim­
iting their argument to a technical motion to dismiss, but 
that if the matter is opened up for proof, that the dates of 
March 20, 28, May 4th, and so forth, could be proven, and 
then a motion would be made to dismiss on the evidence, 
that legally they aren’t—we’re just talking about it from 
an academic point of view right now.

Mr. Moore: Your Honor, we have subpoenaed into court 
witnesses, and we are prepared to prove the allegations of 
our complaint, and the complaint shows on its face that it 
is filed timely, that the Court has jurisdiction, there are no 
jurisdictional defects in the complaint itself, and if the 
jurisdictional defects would appear, they have to appear 
by evidence, not by statements of counsel, and we are pre­
pared to go forward.

The Court: Do you have any cases at all on the current 
problem?

Mr. Moore: Your Honor, I have cases on the merits of 
the complaint.

The Court: Well, that is not what my question was. My 
question was: Do you have any authorities on the business 
of the timeliness that he’s been discussing?



59a

Mr. Moore: Your Honor, the statute itself is sufficient 
because the complaint on its face shows that it is filed 
within ninety days.

In Paragraph 7, it alleges that there is a continuing re­
fusal to give the plaintiff proper and normal instructions.

The Court: Well, I know it’s not what you call it.
Mr. Moore: It’s not what I call it, it’s in the complaint, 

and that you have to read the complaint.
The Court: Well, this is my point. The mere fact that 

you call it continuing doesn’t make it, as a matter of law, 
continuing. This is his point. His point is that, as a matter 
of law, it is not.

Mr. Moore: Your Honor, it’s a matter, Your Honor, 
it’s a matter of fact, it would he, whether or not it is con­
tinuing or not. They would have to show that they stopped 
refusing to give this man instructions.

The Court: Instructions?
Mr. Moore: Yes, sir. He alleges—in Paragraph 6 of the 

complaint, Your Honor, he alleges that in March 28, 1967, 
that they refused to promote him because of his race and 
color, and that they then promoted a White employee with 
less seniority than the plaintiff.

In Paragraph 7 of the complaint he alleges that—I’ll just 
summarize it-—that they refused, and they continued to 
refuse to give him the proper and normal instructions re­
quired to master the job of relief slitter operator, and that 
they have threatened employees who are willing and able 
to give him such training.

And in Paragraph 8 of the complaint, he alleges that on 
April 4 he filed his grievance, and that on or about May 5, 
1968, that there was—I think it should be ’67—there was 
an offer to settle the grievance on terms which were racially 
discriminatory.

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60a

Then in Paragraph 10 of the complaint, he alleges on 
July 15, 1967, within ninety day from the discrimination in 
employment, that he filed his complaint with the Equal 
Opportunity Commission.

The Court: Well, we’ve got a technical problem, without 
any doubt, in regard to that.

Look at your motion for preliminary injunction just a 
minute, Mr. Moore. If I grant an injunction incorporating 
Paragraphs 1 and 2, what would that do?

Mr. Moore: Your Honor, this would enjoin them from 
immediately continuing their policy of discriminating 
against employment opportunity by promoting junior 
White employees over Negro employees who have more 
seniority. This is what it would do immediately. It may 
not result in anybody immediately getting a job, because 
there may not be any job open, as such, but it means that 
the discrimination would cease forthwith as of the issu­
ance of the preliminary injunction.

The Court: Well, excuse me.
Is there a company rule that you get it by seniority?
Mr. Moore: Yes, sir, under the Collective Bargaining.
The Court: Other words,—
Mr. Pate: Seniority and qualification in the reverse 

order, qualification and seniority.
Mr. Moore: Then the injunction would have the effect 

of making the company stop tomorrow, today, or when­
ever it is issued, from refusing to give Negro employees 
the training required for promotion that is preventing 
them from actually qualifying for the job, by refusing to 
train them as they do White employees, so if there were 
a position in the company that is open for on-the-job 
training, or to work as a helper where experience was

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61a

required, which was the result of qualification, the com­
pany would have to cease and desist from its present 
practice, and this would be—

The Court: In other words, it would do nothing with 
this particular complaint other than as he would be af­
fected by this overall thing, that if he was entitled to 
instruction, that he would get it.

Mr. Moore: They would have to give it to him.
The Court: All right. Then, suppose they didn’t give 

your plaintiff here, Mr. Culpepper, some training next 
week! Then what would happen!

Mr. Moore: Well, Your Honor, that would be a question 
that would be brought out in the evidence, as to when 
they train, so that the decree, the injunction could be 
framed to meet the picture of this particular employer, 
and certainly, the Court wouldn’t—

The Court: Well, whenever—
Mr. Moore: —order them—
The Court: Whenever the appropriate time is.
Mr. Moore: Yes, sir.
The Court: All right. Then, suppose they didn’t do it, 

what would happen!
Mr. Moore: Then we would have to come back on 

motion for contempt.
The Court: All right. Suppose this were Lockheed, 

with twenty-five thousand jobs! Would I have twenty-five 
thousand contempt citations on a little preliminary in­
junction !

Mr. Moore: Well, I don’t think, I don’t think you would, 
Your Honor, on the basis of preliminary injunction, but 
what we have to assume is that the man is eligible for the 
job that he is going to be trained for, and we have to

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62a

run the risk that in a large situation it might be burden­
some, but we would think that an employer would obey 
the Court’s injunction, and would cease and desist from 
training, from refusing to train or to promote employees.

Your Honor, the other observation that my co-counsel 
makes, it that it would be burdensome on the Court, 
whether he .heard the contempt order after a preliminary 
injunction, or heard it after a final injunction, because 
the same thing, it would be the same time but at a different 
level.

The Court: Well, except that the permanent injunction 
would not be issued until a full hearing on the merits, 
would be this difference, that then you would have a legal 
basis, complete and made out, on which to move.

Now, it appears to me that what you want to do is to 
convert the temporary hearing to a final hearing. That’s 
what it amounts to.

Mr. Moore: Your Honor, we would be prepared to 
prove our case on the merits.

The Court: That is what I ’m talking about.
Mr. Moore: We ask for a final hearing.
The Court: Well, this is what I don’t know, whether 

the statute contemplates—for example, a problem that 
we’ve been working with for two months now, is your 
right to trial by jury. I don’t know the answer to that, 
We can’t find anything. We found one Law Review article 
that says you are, that’s all we have been able to find in 
two months of looking.

They very carefully avoided the problem in the legis­
lative history. Everybody, as I say, swept it under the 
rug and said, “Let’s go on and pass this Act.” Dumped

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all of these things back on us to try to work out by trial 
and error.

Mr. Moore: Your Honor, as we view the Act, the Act 
intends to get rid of discrimination in employment forth­
with.

The Court: Well, there wouldn’t really be any problem 
if our docket were current, because you would get a trial 
in six, seven or eight months.

Mr. Moore: Your Honor, the other aspect of it is that 
the history of litigation, not only in this district, but 
throughout the country, is that few of these cases reach 
an expeditious hearing on the merits.

The Court: I know it.
Mr. Moore: And that delay is the rule of the game.
The Court: Well, that’s been perfectly obvious during 

the summer, because we’ve had every kind of motion for 
delay that I know of in these cases.

I would like, if counsel would come out in chambers 
with me just a minute, and let’s do some discussing.

We’ll take about five minutes.

(Whereupon recess was called at 10:37 A.M., EST.)

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A fter, R ecess

The Court: After conference with counsel, it is the 
direction of the Court that this hearing be continued 
until 10:00 A. M. on Wednesday, December 4.

At that hearing, the plaintiff will present evidence on 
the merits of the claim of discrimination, and the defen­
dant will make its counter-showing before the Court. At 
the conclusion of the evidence the Court will make a



64a

ruling on the legal question of the availability of a tem­
porary, or preliminary injunction, and on the defendant’s 
position that the jurisdiction requirements are not met 
by the plaintiff’s delay in filing his complaint with the 
E. E. 0. C.

It is also anticipated that prior or concurrent to the 
hearing on December 4, that a demand for a jury trial 
will be made by one of the parties, and the Court will 
also make a ruling on that demand at the time of the 
hearing.

The question of the availability of temporary injunc­
tive relief, and the jurisdictional question of whether the 
offense is continuing or isolated, so as to invoke the 
ninety-day provision of the statute, will be briefed by 
counsel and submitted to the Court.

Could we say—what is the Monday after Thanksgiving? 
Is that the 2nd?

The Clerk: It’s the 2nd, Your Honor.
The Court: What are the changes of my getting it the 

day before Thanksgiving?
The Clerk: That is the 2nd, sir, December 2nd.
The Court: I don’t think it is going to be any great 

burden because I don’t think you can find anything on it.
Mr. Moore: Your Honor, we think we can get it in.
Mr. Pate: We can do that.
The Court: All right.
Simply to save time, the Court prefers that these just 

be letter type memorandum, and I ’d like them mailed 
directly to me at Gainesville, Box 1337. If you go through 
the formality of filing them in the Clerk’s office, they 
have to process them and mail them, and there’s a two 
or three day, or sometimes longer delay before I get

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65a

them. So if you will simply make it in letter form, and 
mail a copy to opposing counsel, that will be satisfactory.

There are two points that you are going to look up 
for us. One is the question of temporary injunction. 
Again, the Court is interested in legislative history on 
the question, the Law Review articles, any sort of material 
you can find. Of course, any opinion, published or un-; 
published, by another Federal Court would be appropriate.

Likewise, on the jurisdictional question, those same au­
thorities would be of help to the Court.

There is before the Court today a motion to quash a 
subpoena duces tecum by the E. E. 0. C., which is repre­
sented by counsel in Court.

At the conference, the regulations of the E. E. 0. C., 
regarding the securing of Commission records, have been 
explained to counsel, and the Court’s ruling on the motion 
to quash the subpoena is likewise postponed until De­
cember 4, to allow counsel to explore the securing of the 
documents sought by way of following the regulations in 
question.

Can anyone think of anything else that we could do 
constructively on this matter? If you can think of any 
other jurisdictional question that might be in the case, 
I will be pleased to try to arrive at some ruling on that. 
In other words, if the defendant foresees any other juris­
dictional ground other than the one mentioned, regarding 
compliance with the provisions of the statute, or the 
powers of the Court, or even constitutional questions—

Mr. Moore: Tour Honor, the only other question I can 
think of at this point that perhaps should be included, is, 
of course, is a defendant’s issue, and that is whether 
relief can be obtained under the Section 1981 of Title 42, 
United States Code, which is the 1870 Civil Rights Act.

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The Court: I thought we had already had a ruling on 
that this summer. You may want it again in this ease 
but—

Mr. Moore: I probably—
Mr. Rindskoff: Unless I am mistaken, I don’t believe 

we have ever really gotten to that point.
Mr. Moore: I think that Your Honor said that it wasn’t 

necessary to decide it because there was jurisdiction oc- 
curing under the other statute, and I think that you fol­
lowed that in one case, didn’t you!

The Court: Is that case on appeal, the one that—
Mr. Moore: No, sir, that is in Kendricks.
Mr. Rindskoff: Kendricks came back in, so there was 

never any disposition of that question.
The Court: All right.
Did you cast your petition under both?
Mr. Moore: Yes, sir.
The Court: What he is suggesting, is simply a motion 

to dismiss the complaint, insofar as the claim, the 1891 
relief.

Mr. Moore: Of course, that would be an issue if the 
Court agrees with them on the statute of limitations 
question.

The Court: Yes.
I might say that in my own mind, I don’t know how 

logical it is, but it appears to me that your position to 
convert the first hearing to a complete determination on 
the merits, is intertwined with the jury question, because 
this would, in effect, if jury trial is allowed, by-pass the 
jury trial by having a complete determination on the 
temporary motion. So, on that basis, it would appear con­
sistent to me for the defendant to demand a jury trial,



67a

and the plaintiffs say that it is not necessary because 
we’re entitled to relief on the injunctive side by the Court. 
This is the way it appears logical to me.

Inasmuch as we are sort of doing this on a fast basis, 
if anybody thinks of any problems, don’t hesitate to 
call me by telephone, and it’s all right. I ’m telling you 
both it’s all right for one of you to talk to me about 
the case in the absence of the other, in view of the emer­
gency, and the Court can communite with the opposite 
side if it becomes necessary.

All right, then we’ll adjourn until further order.

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■Wednesday M orning  D ecember 4, 1968

The Court: All right, Gentlemen, we have the matter of 
Culpepper vs. Eeynolds Metals, which was set over until 
today, and we’re still sailing uncharted seas.

The purpose of the hearing today is for the presenta­
tion of evidence on the plaintiff’s petition for a temporary 
injunction, and also a counter-showing by the defendants.

Does either side desire the rule, Gentlemen?
Mr. Pate: No, sir.
Mr. Moore: Yes, sir.
The Court: All right. If you’ll give the Clerk the list 

of your witnesses? I hope it’s not a great long list.
Mr. Pate: We’d like to keep Mr. Peek, the Manager, in.
The Court: You may keep one representative of the 

defendant—
Mr. Moore: No objection to that, Your Honor.
The Court: —in court.
All right, Mr. Clerk, if you will call those witnesses 

around.



68a

The Clerk: The following named witnesses, please an­
swer as your name is called, and step forward.

Samuel Culpepper. Marion L. Peek. William Ennis. 
James Culpepper. Jimmy McLain. W. H. Anderson. Wil­
liam Peering. James H. Barker.

Mr. Moore: Your Honor, we have three witnesses on 
call.

The Court: All right. If you will just be on the look­
out for them as they come in.

To the rest of you witnesses who were called, you have 
been called as witnesses in this case. It will be necessary 
for you to wait outside. While you are there, don’t dis­
cuss your testimony with anyone other than counsel in 
the case.

Mr. Marshal, if you’ll try to find them a place to stay.
Mr. Samuel Culpepper and Mr. Peek for the defendant, 

may remain in court, and the rest of you, if you will 
retire with the Marshal.

(Whereupon the witnesses retired from the courtroom.)
The Court: Mr. Wilson, as I discovered on the phone, 

the Commission has filed a brief, as you gentlemen are 
aware. I would presume that you are not really con­
cerned with the evidence.

Mr. Wilson: That is correct, Your Honor.
The Court: That it is only the legal point involved that 

concerns the Commission.
Mr. Wilson: That is correct.
The Court: Well, I didn’t know whether you wanted 

to participate in the trial or not, is the reason.
Mr. Wilson: I think our concern is limited to the 

legal problems involved as opposed to the evidence.
The Court: All right. I could not remember, when Mr. 

Cashdan called me from Washington, I told Mm that you

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69a

raised the question about whether they were going to be 
in the case or not, and I had forgotten what the answer 
was. I insisted that he notify you that they did propose 
to file a brief. I said that your main concern was that 
you wanted to make sure no new issues were injected 
at the last minute.

Of course, as far as the Court is concerned, I ’ll take 
anybody’s brief, if it gives me the answer, and to be 
honest with you, I haven’t found the answer so far. All 
right.

Well, if we can hear the evidence, then, Gentlemen.
Mr. Moore: Your Honor, we have, this is the applica­

tion of Samuel Culpepper for a preliminary injunction 
against the defendant Reynolds Metals Company. W7e 
have filed an amendment to the complaint, omitting Para­
graph 5 and Paragraph 8 of the original complaint. There 
was a proposed order presented together with the amend­
ment.

The Court: All right.
In relation to the first paragraph of the amendment, is 

there any question about the defendant being in inter­
state commerce?

Mr. Pate: No question about that.
The Court: Subject to the Act?
Mr. Pate: No question.
The Court: All right. So you need not offer any proof 

in that connection.
All right, without waiving anything, do you see any 

objections now to the amendment?
Mr. Pate: We have no objection for any purposes today.
He has alleged here that the company defendant is a 

federal government contractor. We think that is imma­

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70a

terial to any question in this case. We have that objection.
The Court: Well, I can’t see the relevance of it right 

now. Of course, Mr. Moore puts that in all his cases, sor 
it’s all right.

Mr. Moore: I think it will become relevant, Your Honor.
The Court: All right. I will allow it.
Of course, I think we all know what he’s alleging there 

in the amendment is what Judge Brown in that case called 
a Title 7 Policy, in the Fifth Circuit case, what was it— 
Jenkins?

Mr. Rindskoff: Yes.
Mr. Moore: Yes.
The Court: I mean, I assume this is the purpose of 

the amendment, so that if, for any reason, the individual 
complaint is barred, I assume what he’s trying to show 
here is a continuing policy on the part of the defendant 
company to plead into that Fifth Circuit ease.

No secret, is it, Mr. Moore?
Mr. Moore: No, sir. It bears on other aspects of the 

case, Your Honor—
The Court: Okay.
Mr. Moore: —also.
The Court: All right.
Mr. Moore: Your Honor, we need just one second, be­

cause we have got some documentary evidence that should 
be on file in the depositions, and if we could get those 
depositions we could proceed right along without any in­
terruption.

The Court: When were they filed?
Mr. Moore: I believe Mr. Emerson filed them yesterday. 

He must have them—
The Court: All right.

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71a

Mr. Moore: —because we didn’t tell him the hearing 
was coming up today.

The Court: All right.
Mr. Tidwell, if you will go—what is the name of the 

witness?
Mr. Moore: Mr. Culpepper and Mr. Peek.
The Court: All right.
Mr. Tidwell, if you will go around and see about them.
Mr. Moore: Tour Honor, Pd like to point out to the 

Court that the defendant did make a demand for jury 
trial. They endorsed that demand on their responsive 
pleadings, and we filed a motion to strike the jury demand. 
I don’t know whether it’s come to the attention of the Court 
or not. We did not file a brief in support of the motion, 
because I think most of the authorities were submitted to 
the Court, and as I recall the little conference, that was 
our agreement.

The Court: Well, as you know, the Commission has 
asked to file a brief on the jury trial question, which is 
to be filed by Monday.

Of course, I ’m going to have to write up whatever we 
do here for it to be intelligible, and if anybody has any­
thing, I don’t think you can find anything that I haven’t 
found, there’s very little on it.

Mr. Moore: Tour Honor, we didn’t, in our letter brief, 
we didn’t argue the question of 1981, the applicability of 
that section to these proceedings.

The Court: Well, I didn’t really know we had this 
problem in this case until I read the brief.

Mr. Moore: Tes, sir.
We may file a statement on that particular issue, cer­

tainly, if it becomes necessary.

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72a

The Court: All right. We can see what else needs to 
he done when we get through with this evidence.

The Clerk: They have not been filed, Your Honor.
Mr. Moore: Your Honor, I will proceed.
The Court: Let me ask you tins: Do you both have 

copies ?
Mr. Moore: Yes.
The Court: Well, couldn’t we use those?
Mr. Moore: There is no objection, no formal objections 

to the authenticity of any of these documents, anyway.
The Court: All right. Is there any—
Mr. Moore: There may be some other types of objections.
Mr. Culpepper, will you take the stand please?
The Clerk: Mr. Culpepper, raise your right hand, please.
You do solemnly swear that the evidence you shall give 

in the issue joined before this Court shall be the truth, 
the whole truth and nothing but the truth, so help you God?

Mr. Culpepper: I do.
Te Clerk: Have a seat, please, over there.

Samuel Culpepper—Plaintiff—Direct

M e . S am u el  Cu lpepper , ca lled  as a w itn ess in  h is ow n 
beh a lf, a fte r  h a v in g  first been  du ly  sw orn , testified  as 
f o l lo w s :

Direct Examination by Mr. Moore:
Q. Mr. Culpepper, would you speak up so His Honor can 

hear you, and so opposing counsel can hear you, and so 
we can hear you?

Will you state your full name, please? A. Samuel Cul­
pepper.

Q. And where do you live, Mr. Culpepper? A. 176 
Carter Avenue, S. E.



Q. Is that in the City of Atlanta, Georgia? A. Right.
Q. Do you live there with your family? A. Right,
Q. Are you a married man? A, Right.
Q. You have children? A. Two.
Q. And what are the ages of your children! A. Well, 

fifteen and nineteen.
Q. Do they live with you, or away! A. Right.
Q. Pardon me? A. Sure.
Q. Mr. Culpepper, are you a native of Atlanta, or from 

one of the surrounding counties, or outlying counties! A. 
Well, I was born out of Atlanta.

Q. And was that down in Talbot County? A. Right.
Q. And how old are you? A. I’m forty-eight.
Q. Are you a graduate of high school? A. Right.
Q. When did you receive your certificate from high 

school? A. In ’55.
Q. Since graduating from high school, have you taken 

any other courses? A. Well, draftsman, I taken that a 
while.

Q. Was this a course where you went to school and sat 
down to take the course, or was it a correspondence 
school, where you wrote away for it? A. That is right, 
wrote away for it.

Q, Do you recall the name of the school? A. I don’t 
remember the name of it, but it was in Chicago.

Q. How long did you take courses as a correspondent 
in that school? A, About seven or nine months, some­
thing like that.

Q. And when was that? A. That was in the last of, 
well, it was the last, the first of, last of ’54 and ’55.

Q. And that was a course in draftsmanship? A. Right.

Samuel Culpepper—Plaintiff—Direct



74a

Q. Dealing with, blueprints and other documents for 
construction of edifices and machinery1? A. Right,

Q. Now, Mr. Culpepper, you’ve served in the military, 
haven’t you? A. True.

Q. When did you serve in the service? A. From October 
11th, ’41, ’til December 4, in ’45.

Q. In what branch were you connected? A. Well, I was 
in the Medics and Air Force both, combined.

Q. Did you have any particular job or function in the 
Air Force? A. Well, I once was ambulance driver, and 
sometimes I was a guard, and patrol, and stuff like that.

Q. And you received an honorable discharge from the 
service, true? A. That’s right.

Q. Mr. Culpepper, you are a member of the Negro race, 
is that right? A. Correct.

Q. When did you start to work at the Reynolds Metals 
Company in Atlanta? A. In ’55.

Q. Pardon me? A. May, about May 6.
Q. 1955? A. Right.
Q. Immediately before you started your employment 

with Reynolds, where were you employed? A. Oh, at 
Hall’s Service Station.

Q. In Atlanta, Georgia? A. Right.
Q. And how long did you work there? A. I didn’t work 

there very long.
Q. Can you tell us how long you were at Hall’s? A. I 

can’t definitely tell you how long I was at Hall’s but it 
wasn’t very long.

Q. And before going to work at Hall’s, where did you 
work? A. I worked in Talbot County.

Q. Beg pardon? A. I worked in Talbot County, where 
I lived, where I was born at.

Samuel Culpepper— Plaintiff—Direct



75a

Q. What did you do down in Talbot County? A. Well, 
mostly I looked after my cousin’s job, run chain saws, and 
stuff like that.

Q. Chain saws?

The Court: Pulpwood.
The Witness: Right.

By Mr. Moore:

Q. How long did you pulpwood down there? A. I 
couldn’t tell exactly, pretty good while.

The Court: Well, I don’t blame you for quitting 
that, that’s hard work.

By Mr. Moore-.

Q. All right. Now, let’s get back to May, 1955, when 
you started at Reynolds. Was that the Reynolds plant 
out on Ellsworth Drive? A. Right.

Q. Was it known as Reynolds Metals at that time, or 
did it have some other name? A. At the time, its name 
was known as Southern Iron Roofing Company.

Q. That was in May, 1955? A. Right.
Q. How long did you work there when the business was 

known as the Southern Iron and Roofing Company? A. 
I couldn’t definitely say; until they made a change.

Q. Do you remember when they made a change? A. I 
really don’t.

Q. And what job did you start off with at the— A. 
Receiving Department.

Q. In the Receiving Department? A. Right.
Q. And did you work in the Receiving Department con­

tinuously up until the time it was changed over to Reynolds

Samuel Culpepper—Plaintiff—Direct



76a

Metals! A. Well, I don’t think so, because, I don’t ac­
tually know when that it was actually changed over to 
Reynolds Metals.

Q. What other department did you work in? A. Well, 
fabrication.

Q. What? A. From receiving to the fabrication de­
partment.

Q. And what job did you hold in the Fabricating De­
partment of the Southern Iron and Roofing Company? 
A. Well, machinery, operator, just operating a machine, 
press toggle and brake machine; first one thing and another.

Q. Were you holding down a job known as machine 
operator? A. Right.

Q. And what did you do on that job? A. Well, manu­
facture material.

Q. And did you hold any other jobs while the business 
was known as Southern Iron and Roofing Company? A. 
No, I didn’t.

Q. When you first went to the plant, did they have a 
Union? A. They did not.

Q. Did the Union come into the plant before it was 
turned over to Reynolds Metals Company? A. I don’t 
definitely know.

Q. Do you know whether or not Mr. Peek was the 
Manager when it was known as Southern Iron and Roof­
ing Company? A. I think he was the Manager when I 
first went there; I think he was.

Q. Do you know Mr. Peek? A. Sure.
Q. Do you see him in the courtroom? A. Sure.
Q. Would you point him out? A. That’s Mr. Peek set- 

tin’ there between the two other gentlemen.
Q. Is he known as Mr. Marion L. Peek? A. Right.

Samuel Culpepper—Plaintiff—Direct



77a

Mr. Moore: Let the record show that the plain­
tiff pointed to Mr. Peek, the Manager of Southern 
Iron and Roofing Company, who will later be 
identified as the Manager of Reynolds Metals.

By Mr. Moore:

Q. You don’t remember when the Union first came to 
the plant, do you? A. I really don’t.

The Court: Does anybody know?
Mr. Peek: Yes, sir; I can tell you.
The Court: Just what year, is all.
Mr. Pate: 1952, something like that.
Mr. Peek: First contract was with the Teamsters 

Union, effective May 7, 1956.
Mr. Moore: Also, if we could, could we clear up 

the date that the plant became Reynolds Metals ?
Mr. Peek: October 1, 1961.
Mr. Moore: Thank you.

By Mr. Moore:

Q. Mr. Culpepper, I want to bring your attention up to 
the early fall of 1962, and ask you whether or not you bid 
for a position of relief slitter operator, or slitter operator? 
A. I bid for slitter operator in 1962.

Q. Can you tell us what month you bid on the job? A. 
What month?

Q. Yes. A. I can’t exactly tell you what month.
Q. Was it in the fall?

The Court: Is this slitter, s-l-i-t-t-e-r? I assume 
that’s a special machine or something—

Samuel Culpepper—Plaintiff—Direct



78a

Samuel Culpepper—Plaintiff—Direct 

The Witness: Yes, sir.
The Court: —that paid more than whatever that 

other thing was that you were operating.
The Witness: Eight.

By Mr. Moore:

Q. Was this in the fall of 1962? A. I think so, I don’t 
know. I signed for the bid whenever it went up.

Q. All right. Did you get the job? A. No.
Q. I show you a grievance that was filed on October 1, 

1962, and ask you to look at this document and see if it will 
refresh your memory as to the events of 1962?

The Court: Any objection to me looking at this 
document?

Mr. Pate: No objection.
Mr. Moore: No, sir.
The Court: If you will hand that to me, Mr. Cul- 

pepper.
I presume when he didn’t get the job, he filed a 

grievance; is this it?
Mr. Moore: Yes, sir.
The Court: You can go ahead and talk to him 

while I am looking at this.

By Mr. Moore:

Q. Did that document refresh your recollection to the 
events of 1962? A. That’s right.

Q. You filed a grievance because you didn’t get the job 
of slitter operator, is that correct? A. That is true.

Q. Can you tell us who did get the job? A. Well, at the 
time, I don’t know who got it then, whether it was Dennis 
Elder, or who.



79a

Q. Was it a Negro or White man"? A. Oh, no, it was a 
White man.

The Court: How many Negroes were there at the 
time"?

The Witness: I disremember that.
Mr. Moore: Your Honor, we’ll bring that out later, 

as to the number of Negroes that were at the plant 
at the time.

By Mr. M oore:

Q. Now, as the result of the grievance that you filed, 
in May and June of 1963 you were given a period of train­
ing on the slitter, that right? A. Eight.

The Court: Trial period on what?
Mr. Moore: Your Honor, maybe I had better put 

the document into—
The Court: This one?
Mr. Moore: Yes, sir.
The Court: Well, I was just looking here.
Just for my own benefit, as I understand the way 

this thing works under this contract, when an open­
ing occurs, then people bid if they want the job, and 
then, based on seniority, they are put in the job 
for a trial period, and if they can cut it on the job, 
then they’re given the job. If they can’t cut it, then 
they don’t get the job. Is this—

Mr. Pate: Generally true, but seniority and qual­
ification. Seniority among qualified employees, I 
believe has been generally the contract language 
throughout the years.

8 amuel Culpepp er—Plaintiff—Direct



80a

The Court: Okay. So I assume what happened 
hack then, is that he bid it and he was not given the 
trial period. He filed a grievance, and just glancing 
through here, it looks like they gave him some later 
trial period for some other job.

Mr. Moore: Your Honor, I would like to mark 
that as Plaintiff’s Exhibit #1. I think they’ll—

The Clerk: Mark for identification Plaintiff’s Ex­
hibit 1, Grievance of James Culpepper, with attach­
ments.

(Whereupon the above paper was marked for 
identification only as Plaintiff’s Exhibit #1 .)

Mr. Pate: That, Your Honor, was the results of 
a subsequent bidding for this job, that I believe he 
was given a trial period. There was some agree­
ments that, throughout the handling of that griev­
ance, and I think we will develop all of that.

Mr. Moore: Your Honor, I think that we could 
show that Plaintiff’s Exhibit #1  is a grievance filed 
by Samuel Culpepper on October 1,1962, with a letter 
from Marion L. Peek attached on March 1, 1963, 
and a memorandum of August 21, 1963, from M. L. 
Peek, Plant Manager.

Mr. Pate: We have no objection to any of those 
records.

The Court: All right.
Mr. Pate: They’re authentic.

By Mr. Moore-.

Q, Mr. Culpepper, as the result of your having filed a 
grievance in October, 1962, there was an effort to grieve

Samuel Culpepper—Plaintiff—Direct



81a

this through the Union or contract procedures, is that cor­
rect ? A. Eight.

Q. And in March, March 1, 1963, it was agreed that you 
would be given a period of training on the slitter, that 
correct? A. That’s right.

Q. And the period of training was to run through May 
of 1963 up until June 10, 1963, is that correct? A. Eight.

Q. Now, back in 1963, when you were given this period 
of training, twenty-day period, were you given twenty con­
secutive days of training, or were the days broken? A. 
They were broken.

Q. Would you tell the Court in what manner the days of 
training were broken? A. Some day, one week you might 
work three days on there, then you wouldn’t work on there 
until the next week, you might work two days on the end of 
the next week, like that, just off and on.

Q. Did you work a full day, or did you work just part 
of the day during that period of training? A. We worked 
a full day, like two days at the time, you know what I 
mean, not the whole week, not five days.

Q. Do you remember whether or not you were actually 
given twenty full days of training on the slitter back in 
1963? A. I figured that I had twenty days, but they was 
all, you know, separate like, like I told you first, three 
days this week and probably two days on the end of next 
week, or something like that; it wasn’t right in rotation.

Q. And after you completed this period, they offered you 
another period of ten days in July, 1963, that correct? A. 
That’s right.

Q. Did you actually get an opportunity to work on the 
slitter during those ten days in 1963? A. That’s right.

Q. Now, this job of slitter operator was again posted 
on December 29, 1964, wasn’t it? A. Eight.

Samuel Culpepper—Plaintiff—Direct



82a

Q. You did not bid on it on that occasion, is that correct! 
A. ’64! At night? It was posted for night?

Q. I don’t know whether it was posted for night or not. 
A. Well, I bidded on everyone, excusing the one that was 
posted for night.

Q. You didn’t want to accept night work, is that correct? 
A. Well, I, that’s right.

Q. And is it your testimony that you have bid on every 
notice of vacancy for slitter operator since 1962, except the 
one that was posted for night work? A. That’s right.

Q. Will you tell the Court how many bids have been 
posted for that job? A. Definitely, I couldn’t.

Q. Do you have any— A. At least—
Q. —recollection? Pardon me? A. I say, definitely I 

couldn’t tell you exactly, but at least four or five that I 
have signed for.

Q. And you have never been considered, that right? A. 
That’s right.

Q. Do you know whether or not White or Black persons 
have been assigned to this job on the occasions when it’s 
been posted? A. Always White.

By the Court:

Q. Well now, on these four or five other times that you 
are talking about, did you file any grievance on any of 
those? A. Some of them.

Q. Well, did you get any more trial periods as the result 
of the grievances? A. No, sir, some of them I just, be­
cause I knowed it wasn’t going to do any good.

Q. Well, I ’m not asking you that. I ’m asking if you filed 
a grievance, and as the result of the grievance did you 
get any trial periods! A. No, sir.

Samuel Culpepper—Plaintiff—Direct



83a

Q. Did yon ask for any? A. In my grievance, I always 
filed that I, figured that I was, you know, turned away for 
no good at all.

Q. Other words, you just assumed, when you filed a griev­
ance, that you would not be given a trial period, is that 
right? A. Well, I filed one every chance that I could.

Q. Well, what I ’m wanting to know is : What did you do 
except file a grievance and say, “I ’m not being treated 
right? A. Well, that was about the best I could do, just 
file the grievance.

Q. The Union contract didn’t give the Union the right 
to get you a trial? A. Well, they can go so far.

By Mr. M oore:

Q. Mr. Culpepper, I want to bring your attention now 
to March 20, 1967—

Mr. Moore: Would you mark this, please, Mr. 
Tidwell?

The Clerk: Mark for identification intercompany 
correspondence from M. L. Peek to all employees, 
# 2-

(Whereupon the above paper was marked for 
identification only as Plaintiff’s Exhibit #2.)

By Mr. M oore:

Q. Mr. Culpepper, I show you Plaintiff’s Exhibit #2, 
and ask you if you recognize it as being the notice of bid 
for the job of relief slitter operator, posted by the plant 
on March 20, 1967? A. Eight.

Q. Did you bid on that job? A. Right.

Samuel Culpepper—Plaintiff—Direct



84a

Q. Does your signature appear on it! A. On the first, 
I  was the first one bid.

Q. Do you see the name of any other person who bid on 
the job? A. Well, Nance, Nance was the only one that 
was on that one.

The Court: Is that Nance?
Mr. Moore: Nance, R. H. Nance, Jr.
The Witness: Right.

By Mr. M oore:

Q. Do you see the name of Arthur Collins ? A. Right, on 
the bottom.

Q. Are the two persons listed on this grievance, other 
than yourself, Negro or White persons? A. They’re all 
White, I’m the only Negro.

Q. The other two are White? A. True.
Q. Now, did you have an occasion to observe the notice 

of bid that, while it was posted on the bulletin board at the 
plant during this period? A. The notice?

Q. Yes. A. Every once in a while, as near as I would 
go by to check to see if anybody else signed for it.

Q. All right. Did you ever see the name of Arthur Col­
lins posted on, or signed on the notice during the time it 
was posted? A. I didn’t.

Q. And are there any marks on the bottom of the notice 
to show the hours at which it was posted? A. That’s right.

Q. And it shows from March 20, 1967, at 3:30 P. M. 
through March 21, 1967, at 3:30 P. M.? A. Right.

Q. And it’s your testimony that you did not see the 
name of Arthur Collins posted on this, signed to this no­
tice during that time ? A. Sure didn’t.

Samuel Culpepper—Plaintiff—Direct



85a

Q. How many time did you have occasion to observe the 
bulletin board during the time this notice was posted? A. 
Like break time, and at lunch time.

Q. And how many times would that be! A. That would 
be about three times a day.

Q. And how many days did you see the notice posted? 
A. Well, there was, when I saw it wras about two days, 
something like that, inside of two days.

Q. And at no time did you see the name of Arthur Col­
lins? A. No.

Q. Is that correct? A. No, I didn’t.

Mr. Moore: Is there objection to that? I ’m of­
fering it as Exhibit #2.

Mr. Pate: No objection.
Mr. Moore: We offer and file into evidence at this 

time Plaintiff’s Exhibit # 2 , the bid that was posted.
The Court: All right, Exhibits #1  and #2  are 

admitted in evidence.

(Whereupon Plaintiff’s Exhibits # 1  and #2  
were admitted into evidence.)

By Mr. M oore:

Q. Mr. Culpepper, what was the last time you saw the 
bid that’s been admitted into evidence as #2? A. Beg 
your pardon?

Q. When is the last time that you saw the bid posted 
at the plant? A. Oh, it was evening, I mean in the after­
noon, about, right around, I don’t know, about 3 :00 o’clock, 
something like that.

Q. About 3:00 o’clock? A. That’s right.
Q. Did you have a purpose in going to the bulletin board 

to see if anyone else had signed? A. Well, only at break

Samuel Culpepper—Plaintiff—-Direct



86a

time, 2 :30 break, I’d mostly come by there and sort of 
glance at it.

Q. Now, on the last day that the bid was posted, did 
you go to the bulletin board and look for the signatures of 
persons who had signed it other than yourself, around 3 :00 
o’clock? A. I checked it all the way through.

Q. When you checked it all the way through, do you 
mean that you checked it at 3 :00 o’clock on the last day it 
was posted? A. Eight.

Mr. Moore: Would you mark this please, as #3? 
The Clerk: Mark for identification Plaintiff’s Ex­

hibit #3, notice dated March 28, 1967, signed M. L. 
Peek.

(Whereupon the above paper was marked for 
identification only as Plaintiff’s Exhibit #3.)

By Mr. M oore:

Q. Mr. Culpepper, I show you Plaintiff’s Exhibit P-3, 
and ask you if you recognize it as being the notice posted 
by Mr. Peek that the job had been awarded to Mr. Collins? 
A. That’s right.

Q. And this was dated March 28, 1967? A. That’s right. 
Q. And did you see this notice posted in the plant? A. 

That’s right.
Q. On the same bulletin board where the bid was posted? 

A. That’s right.

Mr. Moore: We offer into evidence at this time 
Plaintiff’s Exhibit 3, the notice indicating that Mr. 
Collins had been appointed.

Mr. Pate: We have no objection.

Samuel Culpepper—Plaintiff—Direct



87a

We might save him some trouble on some of these 
others. I think he probably has others that we admit. 

The Court: Okay.
# 3  admitted into evidence, Mr. Clerk.

(Whereupon Plaintiff’s Exhibit # 3  was ad­
mitted into evidence.)

By Mr. M oore:

Q. Mr. Culpepper, after you had learned that Mr. Col­
lins, who is White, had been given the job on March 28, 
1967, did you ask Mr. Peek for a statement of reasons why 
you were not given the job? A. I spoke to the Steward. 

Q. The Shop Steward? A. Eight.
Q. Was that Mr. Ennis? A. That’s right.
Q. Did you ask Mr. Ennis to procure from Mr. Peek a 

statement of reasons why you weren’t given the job? A. 
Eight.

Mr. Moore: Plaintiff's #4.
The Clerk: For identification Plaintiff’s Exhibit 

#4 , inter-company correspondence from M. L. Peek 
to Samuel Culpepper, dated March 29, 1967.

(Whereupon the above paper was marked for 
identification only as Plaintiff’s Exhibit #4.)

By Mr. Moore:

Q. Mr. Culpepper, you recognize this as being a corre­
spondence from Mr. Peek to you, dated March 29, 1967, giv­
ing the reasons why you were not assigned the job of relief 
slitter operator? A. Correct.

Mr. Moore: May we admit that into evidence, 
Your Honor?

Samuel Culpepper— Plaintiff—Direct



88a

Mr. Pate: No objection.
The Court: # 4  is admitted, Mr. Clerk.

(Whereupon Plaintiff's Exhibit # 4  was ad­
mitted into evidence.)

Mr. Moore: #5 .
The Clerk: Plaintiff’s Exhibit # 5  marked for 

identification, grievance of Samuel Culpepper, dated 
April 4, 1967.

(Whereupon the above paper was marked for 
identification only as Plaintiff’s Exhibit #5.)

Bp Mr. M oore:

Q. Mr. Culpepper, I show you Plaintiff’s Exhibit # 5, 
which is a grievance filed by you on April 4, 1967, is that 
correct? A. Eight.

Q. And in this grievance you complain about not being 
assigned the job of relief slitter operator. A. Eight.

Q. Is that your signature on it? A. Eight.

Mr. Moore: Your Honor, we move, and offer into 
evidence at this time, Plaintiff’s Exhibit # 5, the 
grievance as signed by Plaintiff Culpepper.

Mr. Pate: We have no objection.
The Court: All right. # 4  and # 5  are admitted 

in evidence.
(Whereupon Plaintiff’s Exhibits # 4  and # 5  

were read into evidence.)

Mr. Moore: Your Honor, would you want me to 
read those into the record?

The Court: They’re in there already. In fact, I 
have—

Samuel Culpepper—Plaintiff—Direct



89a

Mr. Moore: Plaintiff’s Exhibit #6.
The Clerk: Marked for identification as Plain­

tiff’s Exhibit #6, memorandum dated April 7, 1967, 
signed by M. L. Peek.

The Court: What do you call this in the trade?
Mr. Moore: This particular document?
The Court: Yes.
Mr. Moore: Your Honor, I don’t know exactly 

what this is. This is a reply to the Shop Steward, 
among others, and to the head of the Union.

The Court: Sort of reply to the grievance com­
mittee, or something like that?

Mr. Peek: Answer from the company; step three 
of the greivance procedure.

Mr. Moore: I have been told it is the answer
from the company, step three of the greivance 
procedure.

The Court: This thing is like the Army, with 
the forms.

By Mr. Moore:

Q. Mr. Culpepper, I show you Plaintiff’s Exhibit #6, 
which is a reply from Mr. Culpepper, step three of the 
grievance. Do you recognize it as being such? A. Right.

Q. Did you receive it? A. Right.

Mr. Moore: Your Honor, we offer this in evi­
dence at this time.

Mr. Pate: No objection.
The Court: Admitted in evidence.

(Whereupon Plaintiff’s Exhibit # 6  was admit­
ted in evidence.)

Samuel Culpepper—Plaintiff—Direct



90a

Mr. Moore: Plaintiff’s Exhibit #7.
The Clerk: For identification Plaintiff’s Exhibit 

# 7, grievance of Samnel Culpepper, dated May 5, 
1967, signed M. L. Peek.

(Whereupon the above paper was marked for 
identification only as Plaintiff’s Exhibit #7.)

By Mr. Moore:

Q. Mr. Culpepper, after you had taken your grievance 
through step three, and had received the reply that’s 
been admitted as Plaintiff’s Exhibit, did you go to step 
four of the grievance procedure? A. No.

Q. You have no recollection of going to step four? A. 
No.

Q. Now, on April 4, 1967, did you receive a communique 
from Mr. Peek, that has been marked for identification 
as Plaintiff’s Exhibit #7? A. That’s right.

Q. Do you recognize this communique from Mr. Peek of 
April 4, 1967, as being an effort to resolve your grievance?

The Court: Excuse me. Isn’t it May 5th, is 
what the Clerk called out, May 5th, 1967.

Mr. Moore: Pardon me, I’m sorry.

By Mr. Moore:

Q. May 5th, 1967.

The Court: Okay.

A. (The Witness) That’s right.
Q. You do? A. Sure.

Samuel Culpepper—Plaintiff—Direct



91a

Q. And this sets forth the substance of the method by 
which they would resolve the grievance, that correct? A. 
That’s right.

Mr. Moore: We offer into evidence at this time 
as Plaintiff’s Exhibit #7, a communique from Mr. 
M. L. Peek to Mr. Samuel Culpepper.

Mr. Pate: Your Honor, we object to this exhibit 
for the reason that it is, it shows on its face that 
it’s an offer of compromise of a dispute. It has been 
offered as such, and it’s not admissible in evidence.

The Court: Well, I assume it’s not being offered 
for that purpose.

The present position by brief is that this docu­
ment itself, and whatever went into it, is an act 
of discrimination, and it will be admitted by the 
Court, not as an offer in compromise, but as evi­
dence of his contention that this was an act in 
itself of discrimination.

Mr. Pate: Of course, our position is, in substance, 
that it cannot—

The Court: Be one.
Mr. Pate: —cannot be one.
The Court: I understand that, sure.
Mr. Moore: Your Honor, I  would also like to 

make the record further clear, that we don’t offer it 
as evidence of compromise, but merely as an offer 
to resolve or to settle the dispute.

The Court: Well, I don’t understand the semantic 
difference, but I think we all know the legal point 
here.

Mr. Moore: At this time, we do offer this com­
munique of May 5, 1967 into evidence.

Samuel Culpepper—Plaintiff—Direct



T.he Court: All right. It is admitted for the 
purposes stated.

(Whereupon Plaintiff’s Exhibit # 7  was ad­
mitted into evidence.)

By Mr. M oore:

Q. Now, under the offer to settle, Mr. Culpepper, you 
would have had to have taken a reduced, a reduction or a 
cut in pay, that correct? A. That’s right.

Q. At the time that this offer was made, you were em­
ployed as a decoder operator? A. That’s right.

Q. Now, what was your rate of pay? A. My rate of 
pay was, let’s see, I believe it was two fifty-two.

Q. Two fifty-two or two sixty-two? A. Yes.

The Court: Excuse me.

By the Court:

Q. I didn’t quite understand it. This is a decoder oper­
ator? A. That is true, Your Honor.

Q. When did you go into that job? A. Well, after I 
quit operating the press, in other words, I run it so long a 
time, then go back to the other machine, just wherever I 
was needed at.

Q. Well, was it a job that you bid, the decoder operator? 
A. Well, you didn’t bid on that one, because I was author­
ized for it, completely without a bid.

Q. In other words, it is in the same job category as what­
ever this other machine was you had been operating for 
several years? A. Well, fifteen cents difference in the 
slitter and the decoder.

Samuel Culpepper—Plaintiff—Direct



93a

Q. Well, is there any difference in this machine you 
worked and the deeoiler! That’s what I’m trying to find out. 
A. True.

Q. All right. How much difference? A. Fifteen cents 
difference.

Q. In other words, at some point between 1962 and when 
all this happened last year, you had secured the job of de­
coder at a fifteen cent an hour increase? A. True.

Q. Was this a bid job or not? A. Well, I had already 
run it and was, you know, and you didn’t have to bid for 
it because I was the next one.

Q. Well, did you have to ask for the job? A. Well, not, 
well, that’s right.

Q. Yes. In other words, if you wanted it you had to say, 
“I want to be a decoder operator?” A. That’s right.

Q. To get the extra fifteen cents.

The Court: Okay.

By Mr. Moore:

Q. Now, let’s make this clear, Mr. Culpepper. The job 
that the Judge is asking you about is, you testified earlier 
that you worked as a machine operator? A. That’s right.

Q. Remember it? A. That’s right.
Q. The Judge wants to know when did you stop being a 

machine operator and take on the job of decoder operator? 
A. Well, as I am trying to say to you now, I work every­
where I ’m needed at, and so far, you know, what I mean, 
that is up until now, although I still run the decoder, but 
if they are short someplace else, they send me someplace 
else.

Q. Did you bid on the deeoiler? A. Well, I didn’t. I was 
next one in step for the decoder.

Samuel Culpepper—Plaintiff—Direct



94a

Q. And you went on to the decoder ! A. That’s right, 
because there wasn’t anybody else.

By the Court-.

Q. Well, when was that! A. Well, I couldn’t actually 
say.

Samuel Culpepper—Plaintiff—Direct

The Court: Well, I guess you’ve got some records. 

By Mr. Moore:

Q. And how much was the wage differential between your 
job as machine operator, or press operator, and decoiler 
operator! A. Fifteen cents an hour.

Q. Fifteen cents an hour!

By the Court:

Q. And then slitter operator is another fifteen cents on 
top! A. Right.

Q. Which would be two sixty-seven, I guess.

Mr. Moore: We are going to put the rates in, Your 
Honor, later.

By Mr. M oore:
Q. Now, Mr. Culpepper, you were required to take a re­

duction in pay— A. That’s right.
Q. —in order to take the ninety-day training! A. That’s 

right.

The Court: All right, now, what is that about, be­
cause it doesn’t say anything about it in here.

Mr. Moore: It says the appropriate, it refers to 
the appropriate job during the ninety-day period, or



95a

at the appropriate rate; I think that is what the 
first paragraph says.

The Court: Yes, you will be allowed to work on 
the slitter as helper at the appropriate rate for a 
period of ninety days.

By Mr. Moore:

Q. Now, Mr. Culpepper, what is the rate for a slitter 
helper! A. That’s, I actually don’t know right now, but 
anyway, it’s about twenty-five cents less than decoder.

Q. You know that for a fact, is that right? A. That is 
true.

Q. And for you to take the job of slitter helper would 
have required you to take, to experience a reduction in pay! 
A. That’s right.

By the Court-.

Q. Well, is this true of anybody that tries to qualify? 
A. Not as before.

Mr. Pate: We couldn’t hear that last answer.
The Court: He said no, as I understood his answer.
What I was trying to find out is, when Arthur 

Collins went on the trial period, did he have to take 
the same kind of reduction as this man, or not? Is 
this a standard thing, that when you go to learn a 
new job in a helper capacity, that you take an ap­
propriate wage rate or not? He says nobody else 
had to do it before.

By the Court-.

Q. That is what you answered? A. That’s right.
Q. This is the first time?

Samuel Culpepper—Plaintiff—Direct



96a

Q. Now, Mr. Culpepper, under the terms of the settle­
ment, you were not assured of getting a job, were you"? 
A. That’s right.

Q. The only thing that you would have achieved by taking 
the ninety days cut in pay, is the opportunity to bid on the 
job if it were ever posted again, is that right! A. That’s 
right.

Samuel Culpepper—Plaintiff—Direct

By Mr. Moore-.

The Court: Well, in essence, all this amounted to 
is, “We’ll give you some extra training, so if the job 
is posted again you will be in better shape to bid it.”

Isn’t that the sum and substance of what was of­
fered!

Mr. Moore: No, sir, Your Honor, that’s not, I 
think, a fair construction.

The Court: All right, what is the fair construc­
tion!

Mr. Moore: The fair construction is that they im­
pose an adverse condition upon his opportunity for 
employment.

The Court: Oh, I realize it was at less pay, but I 
mean, this is all that it offered, is a chance, because 
he did not do well on the test in 1962, to get better 
qualified, isn’t it?

Mr. Moore: No, sir, Your Honor. That’s not the 
proper construction of the contract which we’re go­
ing to put in evidence later, and it’s not a proper 
construction of the evidence.

The proper construction of the evidence is that 
they’re trying to make the job less attractive to this
man.



'97a

The Court: I understand that, but I mean, what 
I ’m saying is that all it would give him, if he took it, 
is the chance to get better qualified so he could bid it 
next time. That’s the most he could get out of it, 
isn’t it?

Mr. Moore: That would be the most he could get 
out of it.

The Court: All right.
Mr. Moore: I f the job ever became available.
The Court: Eight.
Mr. Moore: He could be getting training that he 

would never use, because the job may be terminated 
by technological changes in the plant.

The Court: I understand that.
Mr. Moore: There’s no immediate opening for the 

bid.

By Mr. Moore:

Q. Now, Mr. Culpepper, you have no personal knowledge 
of these kind of conditions being imposed upon a white 
person who bid on a job of slitter operator, or relief slitter 
operator, is that right?

Mr. Pate: I object to the question. He has laid 
no foundation for it. He hasn’t shown this witness 
knows anything about any condition that’s been im­
posed on any White operator.

The Court: Well, all he is saying is that he never 
has heard of them. It is no proof that there was or 
wasn’t.

Mr. Pate: It’s a negative type hearsay.

Samuel Culpepper—Plaintiff—Direct



Q. You don’t have any knowledge of that, do you? A. I 
don’t.

Mr. Moore: Would you mark this as Plaintiff’s 
Exhibit #8, please.

The Clerk: Marked as Plaintiff’s Exhibit #8, 
handwritten memorandum, “ To Whom It May Con­
cern,” signed William J. Ennis. Undated.

(Whereupon the above paper was marked for 
identification only as Plaintiff’s Exhibit #8.)

The Court: Is Ennis the Steward?
Mr. Moore: Yes, sir.

By Mr. Moore-.

Q. Mr. Culpepper, I show you Plaintiff’s Exhibit #8 ,—

Mr. Pate: Excuse me just a minute, Your Honor. 
We do not agree that Mr. Ennis was the Steward. 
That statement was made, I think.

The Court: Well, whatever he was.
Mr. Pate: I think he was on the Bargaining Com­

mittee, but I don’t think he was the Steward.
The Court: I mean, I don’t understand all these 

technicalities about the Labor Law.

By Mr. Moore-.

Q. Mr. Culpepper, I show you Plaintiff’s Exhibit # 8, 
and ask you if you recognize it as a copy of a letter you 
received from Mr. William J. Ennis? A. That’s right.

Q. All right. Can you tell the Court when you received 
this letter? A. Well, definitely I couldn’t say right exactly

Samuel Culpepper—Plaintiff—Direct

By Mr. M oore:



99a

what day, but something like that, a date, hut I just re­
member when he came in and gave it to me.

By the Court:

Q. Well, was it after this offer to, the ninety-day deal 
that you didn’t want to take ? A. That is right.

Q. After that? A. I believe it was.

By Mr. Moore:

Q. Was it sometime in July, 1967? A. I believe it was. 
Q. All right. Did it occur at the plant? A. That’s right. 
Q. What time of day did it occur? A. Well, that was in 

the morning, before we ever started to work,
Q. Do you remember what hour of the morning? A. 

Oh, something to eight, I’d say around quarter to eight, or 
something like that.

Q. What time do you start to work? A. 8:00 o’clock.
Q. And where were you at the time he gave it to you? 

A. In the bathroom.
Q. And did he state to you that, that he would train you 

for the position of slitter operator but for a threat—

Mr. Pate: Your Honor, I object—

By Mr. Moore:

Q. —threat from the company as to his job? A. That’s 
right.

Samuel Culpepper—Plaintiff—Direct

Mr. Pate: Your Honor, I object to the question, 
and move to strike the answer.

The Court: Why wouldn’t it be hearsay?
Mr. Moore: Your Honor, I think it is admissible



100a

to come in to show that, to show that the conversa­
tion, not the conversation hut the letter was actually, 
that the letter was actually exchanged between the 
plaintiff and this employee—

The Court: Why isn’t the letter hearsay!
Mr. Moore: —of the company.
Your Honor, the letter is hearsay only if it’s of­

fered for the truth of the matter contained therein.
The Court: Well, now, if you want to explain why 

this man did something by the conversation, I ’ll let 
you do it, but it has no probative value, it doesn’t 
prove any threats were made, or anything else. If it 
explains why he did something, like go to the 
E. E. O. C., it is admissible for that limited purpose, 
but has no probative value.

Mr. Moore: All right, sir.

By Mr. Moore-.

Q. Following the receipt of this letter, did you then go 
to the Equal Employment Opportunity Commission! A. 
That’s true.

Q. And at that time did you make a complaint against 
your employer— A. Yes, sir.

Q. —that he discriminated against you on the grounds 
of race! A. That is true.

Q. Now, Mr. Ennis is a White man, isn’t he? A. That’s 
true.

Samuel Culpepper—Plaintiff—Direct

The Clerk: Marked for identification Plaintiff’s 
Exhibit 9, Charge of Discrimination by Samuel Cul­
pepper.

(Whereupon the above paper was marked for 
identification only as Plaintiff’s Exhibit #9 .)



101a

Q. Had you ever heard of the E. E. 0. C. before that? 
A, Well, lightly.

Q. Lightly? A. I mean, 1 never actually knowed there 
was anything to it.

Q. Well, I mean, when did you know that you could even 
go down there and file a complaint? A. Well, I mean, when 
Dewberry, you know, had a deal with them. I knew it just 
a little bit before he did that, before he tried it.

Q. Dewberry? Who is he? A. Leon Dewberry.
Q. Who is he? Who is Dewberry? Is he another worker?

Mr. Peek: Another employee in the plant.

Q. And he had already been down to the E. E. 0. C. once 
before? A. That’s right.

Q. And told you about it? A. Well, that’s right.
Q. What I ’m trying to find out is : How did you find out 

how to go there? From Dewberry? A. Well, actually how 
to go there, that’s right, but James, the Shop Steward 
spoken about, you know,—

Q. When? A. When you can’t get nothing done for you, 
or something like that.

Q. When? A. That was before then, that was probably 
in May, or something like that, or June. • I couldn’t definitely 
say for sure.

Q. Well, was the spring of 1967 the first you had ever 
heard of the E. E. 0. C.? A. Well, as far as knowing 
where it was located, and who to see, and whatsoever.

Q. Well, what did you know about it before? A. I didn’t 
know anything about it.

Q. Well, you just said— A. I didn’t know who to see.

Samuel Culpepper—Plaintiff—Direct

By the Court:



102a

Q. You just said as far as who to go to see. A. That’s 
right.

Q. Well, wasn’t it posted out there on the bulletin board, 
a notice about it? A. Not as I remember, sir.

Q. The Union didn’t tell you anything about it? A. Not 
as I remember.

The Court: Okay.
Mr. Moore: Your Honor, I would like to say, in 

connection with Plaintiff’s Exhibit #8, the letter, 
that Mr. Ennis is under subpoena. He is going to be 
here to testify,—

The Court: All right.
Mr. Moore: —and I think that—
The Court: All right.
Mr. Moore: —that’s ground enough for receiving 

the letter into evidence.
The Court: On what theory?
Mr. Moore: On the theory that the testimony is 

made reliable by the opportunity afforded the defen­
dant to cross-examine the witness that wrote it.

The Court: Well, but it doesn’t bind them. You 
see, this is just a statement. I could go out and 
write up the statement myself.

Mr. Moore: It doesn’t bind them; that is a ques­
tion of credibility.

The Court: Well, of course, I don’t know what is 
in the letter, but his statement of what happened 
would not be binding on the defendant.

Now, what he wants to testify happened, all right, 
but you don’t normally allow somebody to testify, 
and then write up a little memorandum and submit 
with it. That’s what this amounts to.

Samuel Culpepper—Plaintiff—Direct



103a

Mr. Moore: But that is the letter, Your Honor. 
He is going to be here to testify.

The Court: Yes. Okay, this will be fine. What I’m 
saying is, I don’t see any way you can get the letter 
in.

Mr. Moore: Well, Your Honor, if you won’t let it 
in, I can’t get it in.

The Court: Well, I mean, if you’ll give me a good 
theory, I will, but it is the same as allowing a wit­
ness to write up, or type up what he wants, and put 
it in the evidence, because he’s not the agent of the 
company, so far as the purposes of this suit is con­
cerned.

Mr. Moore: Your Honor, it comes in just to show 
that the letter was actually delivered by the witness 
to the plaintiff in the case.

The Court: Okay. Well, I’ll admit it for the pur­
pose of showing he got the letter, and as the result 
of that and the conversation, he went to the 
E. E. 0. C. No problem about that.

By Mr. Moore:

Q. Now, you did make a complaint on July 15, 1967, with 
the Equal Employment Opportunity Commission, is that 
right? A. That’s right.

Q. I hand you Plaintiff’s Exhibit #9, and ask you if you 
recognize it as a Charge of Discrimination that you made 
on July 15, 1967? A. That’s right.

Mr. Moore: Any objection?
Mr. Pate: No objection.
The Court: All right. # 9  is admitted in evidence.

Samuel Culpepper—Plaintiff—Direct



104a

(Whereupon Plaintiff’s Exhibit # 9  was admit­
ted into evidence.)

The Court: # 8  is admitted into evidence for the 
limited purposes state. It has no probative value as 
to contents.

Mr. Moore: Yes, sir, and #9 , Your Honor, is the 
Statement of the Complaint of the plaintiff to 
E. E. 0. C. on July 15, 1967,—

The Court: Okay.
Mr. Moore: —under oath.
The Court: Okay.

(Whereupon Plaintiff’s Exhibit # 8  was admit­
ted into evidence.)

Mr. Moore: Plaintiff’s Exhibit #10.
The Clerk: Marked for identification Plaintiff’s 

Exhibit #10, Notice of Right to Sue within thirty 
days, dated September 26, 1968, signed Donald L. 
Hollowell.

(Whereupon the above paper was marked for 
identification only as Plaintiff’s Exhibit #10.)

The Court: Could we do a little stipulating here, 
that he did get his suit letter, and filed suit within 
thirty days thereafter?

Mr. Moore: September 26, 1968.
Mr. Pate: Yes.
Mr. Moore: #9 , then, is withdrawn, has no proba­

tive value.
The Court: All right, sir.
Mr, Moore: I mean #10.

Samuel Culpepper—Plaintiff—Direct



105a

Q. Mr. Culpepper, oil March 20, 1967, do you know what 
your seniority was, plant-wise, at Reynolds? A. I don’t 
definitely know, but, other words, it was pretty good up.

Q. Do you know whether or not you had more or less 
seniority than Arthur Collins? A. Oh, sure; more.

The Clerk: Marked for identification Plaintiff’s 
Exhibit #11, Plant-wise Seniority Schedule as of 
September 30, 1968.

(Whereupon the above paper was marked for 
identification only as Plaintiff’s Exhibit #11.)

By Mr. Moore:

Q. Mr. Culpepper, I show you Plaintiff’s Exhibit #11, 
Seniority Roster, Alloys-Atlanta, plant-wise seniority as 
of September 20, 1968, and ask you whether or not you see 
your name on there? A. That’s right, I see it on there.

Q. And what position does it have, from the top?

The Court: Excuse me.
Is there any question he had more seniority than 

Collins?
Mr. Pate: No question about it. We admit it.
Mr. Moore: Your Honor, this document, Plaintiff’s 

Exhibit #11—
The Court: They don’t object to it. I mean, there’s 

just no need to ask him all this, I mean.
Mr. Moore: I ’m not going to ask him, just going 

to make this for the record.
The record shows the race and the name, depart­

ment, rate of pay, date of seniority and job classifi­
cation for, I believe, each worker at the plant.

Samuel Culpepper— Plaintiff—Direct

B y Mr. M oore:



106a

Is that correct?
I think that will be qualified to be each production 

worker, wouldn’t it, Mr. Pate?
Mr. Peek: Each worker, each hourly employee, 

yes.
The Court: What does that say on the left, their 

check number?
Mr. Peek: Clock number.
Mr. Moore: Clock number.
The Court: Clock number? In other words, that 

is your badge, whatever it is?
Mr. Pate: Actually, it covers everybody who comes 

under the Union contract, who is in their Union.
The Court: Okay.
#11 is admitted, I assume?
Mr. Pate: Yes.

(Whereupon Plaintiff’s Exhibit #11 was ad­
mitted into evidence.)

Mr. Pate: Your Honor, I would like to state that 
this record was prepared for purposes of this case 
in response to a subpoena.

I just want to make it clear that the seniority list 
would not normally have race on there. This was 
put on there for a purpose.

The Court: Yes, that thought crossed my mind.
Mr. Moore: Your Honor, we’d like to have this 

marked as Plaintiff’s Exhibit #12, which is the con­
tract, the Union contract, and I believe it is complete; 
but in the event it is not complete, we would like to 
reserve the right to put in the complete contract to 
show all the appendixes. Most of the appendixes are 
irrelevant. The only one that is relevant is the wage.

Samuel Culpepper—Plaintiff—Direct



107a

The Court: Yes. Would you all tell me what part 
of it is, before we get through? Like I say, I don’t 
understand these things, anyway.

Mr. Moore: All right.
The Clerk: For identification Plaintiff’s Exhibit 

#12, agreement as described by Mr. Moore.

(Whereupon the above paper was marked for 
identification only as Plaintiff’s Exhibit #12.)

The Court: The grievance procedure really is 
what is relevant.

Mr. Moore: Yes, sir.
Is there any objection to this contract?
Mr. Pate: We have no objection.
The Court: All right.
Mr. Moore: Your Honor, in connection with the 

contract, which is dated 24 May, 1967,—
The Court: Well, let me ask a question there.
Were the provisions we’re talking about the same 

on March 20, as are now in this exhibit? I f you all 
have the one that was in effect March 20 and up 
through May 5, you might let him use that as the 
exhibit in place of this one.

Mr. Pate: Yes. We had planned to put that in 
evidence.

The Court: All right. Why don’t we do that?
Mr. Moore: Your Honor, in connection with the 

contract, the provisions that are most essential are 
Article 14, Jobs Bulletin.

The Court: Excuse me.
How about looking at this one, and see if they 

compare ?

Sam,uel Culpepper—Plaintiff—Direct



108a

Samuel Culpepper—Plaintiff—Direct 

Mr. Moore: Okay.
The Court: Maybe Mr. Rindskoff could do that 

for you, and we could go on with the evidence. We’ve 
got to move.

Mr. Moore: Your Honor, this compares. This 
would be Article 14, Jobs Bulletin, Page 9 of the 
contract dated May 12, 1964, which we will substi­
tute for our exhibit—

The Court: 12.
Mr. Moore: —12.
The Court: All right.
Let this one in your hand, if it is all right with 

defense counsel, become #12.
Mr. Moore: Very well.
The Court: Is that all right, Mr. Pate?
Mr. Pate: Yes, Your Honor.
The Court: We’ll use this one.
Mr. Pate: We agree.
The Court: All right.
Okay, Mr. Clerk, you can give that one the number. 
Mr. Moore: And the grievance procedures of 

Article 4, Pages 1, 2 and 3.
The Court: Okay.

By Mr. Moore:
Q. Now, Mr. Culpepper, since you have been an employee 

at the Reynolds Plant, have you received any actual in­
structions or training from anyone for the purpose of do­
ing the job of slitter operator? A. I received some train­
ing from—

Q. Pardon me? A. -—Deerings.
Q. And when was that? A. That was in, I believe it was 

in ’63, when I had the trial period; twenty days.



109 a

Q. Was lie actually instructing you, or was he the person 
in charge of you? A. Well, he was in charge of me and in­
structing all the same time, which seemed to be, was to 
learn me the job at the first starting, I ’ll say that, and after 
was, he seemed to fall, you know, he wasn’t interested in it, 
wasn’t trying to learn me nothing.

By the Court:

Q. What do you mean “afterwards” ? A. After it looked 
like somebody had talked with him, I don’t know about that, 
but I said, just exchanged—

Q. This back in 1963, you’re talking about? A. When I 
had my trial period.

By Mr. M oore:

Q. Now, don’t go into what it looked like.
Now, you started in May on the slitter, back in ’63, is 

that right? A. Yes, sir.
Q. Now, Mr. Deering—D-e-e-r-i-n-g? A. Bight,
Q. Was the supervisor, and was to give you instructions, 

is that right? A. That’s right.
Q. Now, when you first started on the job of slitter, did 

he give you any instructions? A. That’s right.
Q. What kind of instruction did he give you? A. Well, 

he give me a fair sort of instruction then, trying to tell me 
what you was supposed to use, whatsoever, and what you 
needs between each knife and whatsoever, shims.

Q. How many days did he give you instruction? A. 
Well, I say in all it probably was about six days.

Q. About six days? A. That’s right.
Q. Was it a full day of instruction, or was it an hour of 

instruction, or just what? A. Well, just when you get 
ready to set up, the instruction was.

Samuel Culpepper—Plaintiff—Direct



110 a

Q. He would give you instruction as to how to set up 
the slitter machine, is that right? A. That’s right.

Q. That is, how to put in the various parts that you 
need, and the cuts to make it work? A. That’s right.

Q. Now, you say that after a period of about six days, 
that the character of the instructions changed, is that right? 
A. That is true.

Q. Now, tell the Court how, in what manner the character 
of the instruction changed after the first six days? A. 
"Well, it seemed that he wasn’t interested in trying to tell 
me definitely what was happening, or whatsoever, then, and 
at the time when the machine was, they had the little spaces 
in there, it was running low and affecting the metal, and so 
I asked him and Mr. Anderson, I say, “What’s the cause 
of that, either too low or either too high?” And so, if they 
knowed, they was supposed to told me, I thought.

Q. Pardon? A. If they knowed, they supposed to told 
me actually what was causing the defects of the metal.

Q. You mean that the metal was getting sort of a burn 
on it, as it would go through the machine ? A. A bur, that’s 
right.

Q. A  bur? A. Like a crinkled edge.
Q. And you would ask for an explanation of what was 

causing a bur? A. That’s right.
Q. Did this happen on more than one occasion? A. One 

occasion.
Q. After the first six days, did you receive any more day- 

to-day instructions? A. Day-to-day, no. This, as I say, I 
just work on there probably two days, or something like 
that, then switch back out to something else, back and 
forth, just like that.

Q. Did that interfere with your ability to master the job? 
A. Sure.

Samuel Culpepper—Plaintiff—Direct



I lia

The Reporter: I can’t hear you. You will have to 
talk louder.

A. (The Witness) Sure, that’s right.

By Mr. M oore:

Q. Now, tell the Court how that interfered with your 
ability to master the job of slitter operator? A. I say that 
just as soon as you sort of get started and know these, get 
acquainted with these different parts and things, you was 
off of there and go back to doing something else, and being 
the next three days, well, it makes a difference. Then you’ve 
got to start right back where you left from.

Q. You mean that you wouldn’t fully learn what you had 
been taught in just two or three days? A. Right.

Q. And you would lose it by going back to your old job? 
A. That’s right.

Q. Now, was the slitter that you operated in 1963, when 
you were getting your training, was it the same kind, the 
same size of slitter that you bid on in 1967? A. No, it is 
not the same one.

Q. Now, tell the Court how the one in ’63 differs between 
the one involved in 1967? A. Well, the one in ’63 was a 
small slitter. Other words, you had to take, you had some 
cut pieces of metal about, that you used through the knives. 
They call them, you know, spacers. In other words, you’ve 
got to knock them up and get them adjusted, first one way 
and another, to get a good, smooth operation; sometime 
have to bend the spacer with a hammer, take them out and 
bend them, and then put it back in there to make it operate 
like it should, but the one now, you don’t have that trouble 
because everything is already there. As you load the mantle 
there with the knives, you’ve got your spacers on there and

Samuel Culpepper—Plaintiff—Direct



112a

everything, which is rubber, which this knife don’t stick up 
no more than to cut the metal.

Q. Is the machine that you operated in ’63 larger or 
smaller than the one you bid on in ’67 ? A. Smaller.

Q. Was that the forty-eight inch machine? A. It is now.
Q. Now is the forty-eight inch machine? A. That’s 

right.
Q. In 1963, you were trying to learn how to operate a 

thirty-six inch machine, is that right? A. Eight.
Q. Was there a forty-eight inch slitter at the plant in 

1963, when you hid? A. Eight.
Q. Of the two machines, the thirty-six inch and the forty- 

eight inch, which is the easiest to operate? A. The forty- 
eight, the large one is the easiest to operate than the smaller.

Q. Now, when you say “ operate” , do you mean that it is 
easier to set up the larger machine than it is the smaller 
one? A. That’s right.

Q. Is the reason for that the smaller machine cuts metal 
at a finer tolerance than the larger one? A. That’s right.

Q. Have you ever had an opportunity to operate, or to 
work as a helper on the larger forty-eight inch machine? 
A. Sure haven’t, no.

Q. Now, does the company still have, at the plant in 
Atlanta, the thirty-six inch machines? A. They don’t.

Q. Do you know when it was taken out? A. I really 
don’t.

Q. Do you know how many slitter machines they have 
there at the present time? A. Just one.

Q. During the thirteen years you have been employed at 
the plant, have you ever known a Negro to work as a slitter 
operator? A. Never have.

Q. Have you ever known a Negro to operate, to work as 
an operator of a small slitter? A. Never have.

8 amuel Culpepper—Plaintiff—Direct



113a

Q. Have you ever known a Negro to operate as a slitter 
helper? A. Well, as a helper for White.

Q. When was that? A. That’s been sometime ago, I 
couldn’t actually tell you when it was, I mean, like one guy 
grumbles, and he helped this year.

Q. And when was that?

By the Court:

Q. He grumbled, you say? A. I mean to say he begin 
to talk about he want to help on the slitter some.

Q. Did you ask to help on it? A. Well, I, not, no, sir, I 
haven’t.

By Mr. Moore:

Q. What was the name of this man? A. Ruebin Turner. 
Q. Ruebin Turner? A. Right.

By the Court:

Q. Is this the best job in the shop, this slitter operator? 
Is this why everybody wants it? A. It’s the most pay.

Q. Well, that’s usually the best kind. A. Yes, sir.

By Mr. Moore:

Q. Now, was Mr. Turner a new employee or an old em­
ployee? A. Well, he was a new employee.

Q. And was he wfhat you call a Process Laborer? A. Oh, 
yes, he’s Process Laborer.

The Court: A  what?
Mr. Moore: A Process Laborer.
The Court: What is that?
Mr. Moore: It’s the guy that does heavy work 

around the plant.

Samuel Culpepper—Plaintiff—Direct



114a

The Court: Process Laborer?
Mr. Moore: Right.
Isn’t that what you call it, Mr. Pate?
Mr. Pate: Yes, sir.
Mr. Peek: He was under that contract. Now he’s 

called a Process Packer.
Mr. Moore: It’s hard work, whatever it is.
Is it fair for me to use the label “Process Laborer” ?
Mr. Pate: I think it is. It is a term that has been 

used under some contract.
As Mr. Peek pointed out, the terminology under 

the present agreement, I believe, is Process Packer, 
rather than Process Laborer, but the terms are used 
almost interchangeably, I think.

The Court: What is the significance of what this 
man’s category is?

Mr. Moore : The Process Laborer starts at a lower 
rate of pay than slitter operator, and at a lower rate 
of pay than decoder operator.

The Court: Well, I still don’t know what follows 
from there.

Mr. Moore: Well, you see, for a Process Laborer 
to work from time to time as a slitter operator, he 
doesn’t lose any pay.

The Court: Oh, because it’s higher? I see what 
you’re talking about.

Mr. Moore: But if the decoder operator does, he 
loses pay, I mean as a slitter helper, I mean, instead 
of operator.

By Mr. Moore-.

Q. Now, in 1963,—pardon me—in 1962, when you bid for 
the job, you bid for the job of slitter operator, is that right? 
A. That’s right.

Samuel Culpepper—Plaintiff—Direct



115a

Q. You were bidding for a full time position in the Fab­
ricating Department, then, as an operator of a slitter ma­
chine? A. That’s right.

Q. Now, in 1967 when you bid, you bid on the job of re­
lief slitter operator, is that correct? A. That’s right.

Q. Now, tell the Court what is the difference between the 
relief slitter operator job and the slitter operator job? 
A. Well, the difference in relief slitter operator, that just 
be someone that relieves the slitter operator, operates the 
slitter while the regular slitter operator is gone, or either 
the decoil, I mean the emboss machine, either one, when­
ever he’s sick, or goes on vacation, or whatsoever, he’s got 
some business to be out of town.

The Court: Well, was that the job posted, relief 
operator? If it had been a regular operator, he would 
have bid for that, too, wouldn’t he ?

By Mr. Moore:

Q. Would you have bid for the regular job?

The Court: In other words, that’s all that was put 
out to bid in ’67, was relief operator.

Mr. Moore: Right.
The Court: All right.

By Mr. Moore:

Q. Now, if you had been given, or assigned the job of 
relief slitter operator during the time that you were actu­
ally operating the slitter, you would have gotten seniority 
on that job, is that correct? A. That’s right.

Q. In other words, there are two kinds of seniority at 
the plant; there’s departmental job seniority, and plant­
wide seniority, is that correct? A. That’s right

Samuel Culpepper— Plaintiff—Direct



116a

The Court: Well, what is the point of job senior­
ity? In case of a lay-off, you hold onto the job by 
seniority.

Mr. Pate: Your Honor, I think the contract will 
show there is no such thing as job seniority. I don’t 
think that terminology is right. I think it is depart­
mental seniority and plant-wide seniority.

By Mr. Moore:

Q. You would have gotten seniority in your department 
in that particular job? A. That’s right.

The Court: Well, what is the value of it? Suppose 
you had ninety years of seniority in the department, 
what does it give you, some kind of badge or some­
thing?

Mr. Moore: Well, it gives you a badge if you’re 
transferring to another department. If you, say 
you’re transferring to the Paint Line, it would give 
you a badge, or if you were transferring to Shipping 
and Receiving, it would give you a preference, be­
cause then they would have to select from the senior 
most qualified employee.

The Court: Well, that’s overall, though, isn’t it?
Mr. Pate: Your Honor, I think the record shows 

this man was in that department already, so there 
is no question of changing departments. He was 
getting that seniority already.

The Court: That’s what I thought, that everybody 
on that list is in the same department, and that’s 
the seniority list within that department, and it 
wouldn’t make any difference what job you were in

Samuel Culpepper—Plaintiff—Direct



117a

the department, you would still move up on that 
list, wouldn’t you?

Mr. Pate: He has the plant-wide list, that’s the 
one that we put into evidence.

There is a departmental seniority and a plant-wide 
seniority.

The Court: All right. What is it worth? This is 
what I ’m asking. He is not being denied any depart­
mental seniority,-—

Mr. Pate: No, sir.
The Court: —from what you all say.
Mr. Pate: That’s right.
The Court: Has never, and is not now?
Mr. Moore: Well, we will deny that.
The Court: All rig'ht. Tell me why? This is wdiat 

I’m trying to find out.
Mr. Moore: He’s being denied the benefit of his 

departmental seniority.
The Court: In not getting the job, I understand 

that.
Mr. Moore: Right.
The Court: But he is not losing any seniority 

that is of any value whatsoever, now?
Mr. Moore: No, he’s not losing it.
The Court: Okay.

By Mr. Moore:

Q. Mr. Culpepper, you would be gaining experience if 
you were relief operator, would you not? A. True.

The Court: Experience for what?
Mr. Moore: Experience on the slitter.
The Court: All right. For what purpose?

Samuel Culpepper—Plaintiff—Direct



118a

Mr. Moore: I f the job became vacant.
The Court: Oh, you mean if the full time job came, 

then he would be in position to bid it ; sure.
Mr. Moore: I don’t know whether he would have 

to bid if he were, if there were a vacancy.
The Court: How’s that?
Mr. Moore: I ’m not sure he would have to bid if 

there were a vacancy and he was the relief operator.
The Court: Well, I don’t know enough about the 

contract to answer that. I assumed they were all 
bids.

By Mr. Moore:

Q. Now, in ’63, when you had a brief period as an oper­
ator of the thirty-six inch slitter, do you have any personal 
knowledge as to whether any of the work that you turned 
out was turned back, or labeled defective? A. No, it 
wasn’t.

Samuel Culpepper—Plaintiff—Direct

The Court: Is it your position that he did qualify 
in ’63, or that he wasn’t given an opportunity to 
qualify in ’67?

I understood a minute ago that your position was 
that this was an entirely different machine, it was 
easier to operate, and that there is no showing 
whether he’s qualified or unqualified to operate the 
forty-eight inch slitter in 1967. Isn’t that what you 
were trying to prove a minute ago?

Mr. Moore: I think that, Your Honor, that he’s 
prima facie qualified.

The Court: Well, what I ’m asking* you now, is 
your position on the fact that he, by virtue of his 
experience in ’63, became qualified?



119a

Mr. Moore: Your Honor, I think as against any 
other employee, he did.

The Court: In 1963?
Mr. Moore: Bight.
The Court: All right. Then, what about ’67 ? If 

it’s a different machine, if he’s qualified on the other 
one that wouldn’t do any good, would it?

Mr. Moore: Your Honor, I think it would be 
some basis to infer that he could handle the job.

The Court: Well, it just appeared to me that you 
were going both ways at once, and I just want to 
find out which was your position, is all.

Mr. Moore: Your Honor, I guess we have to accept 
the position of the defendants. They claim that no 
matter how much seniority you are, that, prior ex­
perience, you are not qualified.

The Court: Who said that?
Mr. Moore: I guess that must be their position; 

they didn’t hire him.
The Court: Well, that’s just your guess; there’s 

no evidence of it yet.
Do you have an answer to the question I asked 

you? What I’m trying to find out is: Are you at­
tempting to prove that the man is qualified by virtue 
of his experience in ’63 with the thirty-six inch cutter, 
or do you say nobody knows whether he’s qualified on 
the forty-eight inch cutter in ’67 ?

Now, that’s a pretty easy question, I think.
Mr. Moore: Your Honor, I have to take the posi­

tion of the defendants in the case.
The Court: Well, don’t give me your argument as 

to what their position is. I’m asking you: Do you 
attack, factually, the figures given when the tests

Samuel Culpepper—Plaintiff—-Direct



120a

Colloquy

were given him, that his production didn’t measure 
up in ’63 or not?

Mr. Moore: Well,—
The Court: Do you attack it as untrue?
Mr. Moore: Your Honor, we say those figures 

didn’t disqualify him for the job in ’67.
The Court: All right. So you say by virtue of 

his experience in ’63 that he’s qualified? Is this 
your position?

Mr. Moore: If he had no experience in ’63, I would 
say he’s qualified.

The Court: Really?
Mr. Moore: Right.
The Court: Am I qualified? I never have operated 

a forty-eight inch slitter, either.
Mr. Moore: But you don’t have seniority.
The Court: Well, seniority doesn’t qualify any­

body to do anything, does it?
Mr. Moore: Well, seniority gives you—
The Court: A right to try.
Mr. Moore: That’s right.
The Court: Okay.
Mr. Moore: And the superior right to try.
The Court: Sure.
Mr. Moore: But, I mean, I couldn’t take you as 

an example, because you’re not in the Fabricating 
Department.

The Court: Well, I don’t see the difference.
You still haven’t answered my question, but I ’ll 

just have to let it go, I guess.
Mr. Moore: All right.
The Court: Really, the guts of your case is that 

he wasn’t given a trial period in March 28, 1967, as 
a slitter operator.



121a

Samuel Culpepper—Plaintiff—Cross 

Mr. Moore: We proved that.
The Court: I say, but that is the guts of your 

case.
Mr. Moore: And we have proved it.
The Court: Well,—
Mr. Moore: All right.
You may examine, if you like.

Cross-Examination by Mr. Pate:

Q. Mr. Culpepper, I believe you started to work about 
May, 1955, at this particular Reynolds Plant, is that right? 
A. That’s right.

Q. That’s when you first went to work for this company, 
even though it was known by another name then, is that 
right? A. That’s right.

Q. And after you went to work there, it later became 
known as Reynolds Aluminum Supply Company, did it 
not? A. That’s right.

Q. And then sometime after that, it became part of 
Reynolds Metals Company? A. That’s right.

Q. And you have worked at that same plant since May 
of 1955? A. Sure.

Q. Now, when you went to work there you started in 
the Receiving Department! A. That’s right.

Q. Is that correct?
You were a laborer in the Receiving Department? A. 

That’s right.
Q. And you stayed on that job about nine months? A. 

That’s right, something like that.
Q. And then where did you go ? A. Fabrication.
Q. You went in the Fabrication Department? A. That’s 

right.
Q. And you have been in that department since that 

time? A. That’s right.



122a

Q. What job did you first go on in Fabrication? A. 
Well, on the target press.

The Reporter: On the what ?
The Witness: Target press.

By Mr. Pate:

Q. Went on the target press? A. That’s right.
Q. ^ ie toggle press, is that correct? A. Yes, sir, that’s 

right.
Q. And were you a machine operator at that time? A. 

Well, I was, when I first went in as a helper.
Q. I see.
And when did yon become a machine operator? A. I 

couldn’t tell you. It was recently after I first went over 
there I became a machine operator.

Q. Soon after you went into the department? A. That’s 
right.

Q. And what machines have you operated? A. Well, 
just what’s there. I operated them all in the Fabrication, 
excusing the slitter.

Q. Now, when did your classification next change? A. 
Beg your pardon ?

Q. When did your classification change from machine 
operator ? A. It still hasn’t.

Q. You still have the same classification? A. I changed 
from a machine to toggle press to the docoiler, that’s a 
machine operator still.

Q. That is still a machine operator? A .  That’s right.
Q. But it pays a higher rate? A. That is true.
Q. And you have been on the decoiler for three years 

or more? A. Something like that, I guess.

Samuel Culpepper—Plaintiff—Cross



123a

The Court: Now, we’re talking about—
Mr. Pate: Now.
The Court: Which would be somewhat less than 

two years in March of ’67?

By Mr. Pate :

Q. Do you mean you have been on the decoiler three 
years up to the present time? A. I mean that I have 
been on it ever since that I changed from operating at 
the toggle presses, and first one thing and another, the 
shearer. I works from one machine to the other in the 
Fabrication.

Q. And the decoiler is just one of the machines that 
you operate? A. That is one of them, that’s right.

The Court: Let me ask this question.

By the Court:

Q. You testified before that a decoiler operator makes 
fifteen cents more an hour than the other machine opera­
tors except slitter? A. True.

Q. When you’re classified as a decoiler operator, when 
you operate one of these other machines, do you get de­
coiler pay or do you get the other pay? A. I get decoiler 
pay.

Q. You get decoiler pay,— A. That’s right.
Q. —regardless? A. That’s right.
Q. I f you’re sweeping floors, you get decoiler pay? A. 

Bight.

Samuel Culpepper—Plaintiff— Cross

The Court: Okay.



124a

Samuel Culpepper—Plaintiff—Cross 

By Mr. Pate-.

Q. Now, the slitter machine is also in the Fabricating 
Department! A. That’s right.

Q. And yon have testified, I believe, that some other 
people help on the slitter machine, is that correct! A. 
Sure, always has a helper.

Q. That’s been true since you’ve been working in the 
department, has it! A. They always use a helper.

Q. xlnd this helper is a person who makes a lower rate 
than you make, is he not! A. That’s right.

Q. As a matter of fact, they use one or another of a 
group of people that are known either as Process Laborers 
or Process Packers, is that correct! A. That’s right.

Q. Now, you testified about an offer that was made in 
an effort to settle your grievance in 1967! A. That’s 
right.

Q. In which it was suggested that you go on a job at 
a lower rate of pay, and receive some training! A. That’s 
right.

Q. You remember that! A. That’s right.
Q. Now, was it not suggested that you go to the job of 

Process Packer, or Process Laborer, and get the rate that 
goes with that job so that you could work on this machine 
from time to time! A. That was giving me ninety-day 
trial on the, on the slitter, with a cut rate of pay, which 
would be about twenty-five cents from the, an hour with 
me.

Q. Well, if you had taken that, then you would have 
received the same rate as is received by other employees 
who help on the slitter, would you not! A. That’s right.

Q. And you were not willing, at that time, to become a 
Process Packer or Process Laborer, or slitter’s helper,



125a

Samuel Culpepper—Plaintiff— Cross

whatever the name is, if it involved a lower rate of pay? 
A. That’s right.

Q. Now, you testified that you bid on this slitter opera­
tor’s job on several different occasions, starting in 1962, 
I believe? A. That’s right.

Q. And I believe you said that you bid on it every time 
it was posted for bid, except one time when it was for 
night wmrk? A. That’s right.

Q. Do you remember that the time that it was posted, 
when it involved night work, was in December, 1964! A. 
I really don’t know.

Q. You don’t know? A. Sure don’t.
Q. Well, let’s see how many times we’re talking about.
You bid on it unsuccessfully in 1962, did you not? A. 

That’s right.
Q. One time in 1962? A. That’s right.
Q. Then in 1963, you bid on it again and were given a 

trial period, is that correct? A. One time.
Q. And then in March of 1967, you bid on it again, is 

that right? A. Filed a grievance on it, that’s right.
Q. And you filed a grievance ? A. Umm humm.
Q. And that is the time that the job was filled with Ar­

thur Collins, is that right? A. That’s right.
Q. Now, aren’t those the only times that you have bid 

for the job of slitter operator? A. No, that’s not right.
Q. How many other times have you bid for it? A. I 

can’t definitely say, but when Bennie Sells went on there, 
I bid for it.

Q. All right. Now let’s see, Bennie Sells, didn’t he go 
on it—was that 1962 or 1963? A. I don’t definitely remem­
ber, two or three, I ’ll say that.

Q. Was that after you had your trial period? A. That’s 
right.



126a

Q. And didn’t qualify? A. That’s right.
Q. Bennie Sells went on it then? A. That’s right.
Q. Isn’t that correct? A. That is true.
Q. All right.
Now, what other times have you bid for it? A. When 

Randier—I can’t think of the guy’s name—but it was Ran­
dall, or something like that, Randell, I think.

Q. Randell? A. He had been away and then come back, 
and there was an opening. I bidded for that and didn’t 
get it.

Q. Was that posted, and bids were signed! A. That 
was posted.

Q. Was this before 1962, or after? A. This was before 
—I definitely couldn’t say.

Q. You don’t know whether that was the time that you 
did bid, in 1962, and did not get the job, and filed a 
grievance? A. Well, that wasn't the time, I don’t think.

Q. You don’t think it was the time? A. Not then.
Q. All right.
Now, aren’t you talking' about the time when Charles 

Randall, who had been on that job, left? A. Well, he had 
been on the job, that’s right. He have left and come back, 
and like that.

Q. And was that not in September, 1962? A. I really 
don’t know.

Q. And was that not the time about which you have al­
ready testified, when you bid unsuccessfully for the job in 
1962? A. I definitely don’t know. In ’62 I did bid on the 
job.

Q. Now, you bid on it in 1962; you bid on it in 1963; 
and you bid on it in 1967. You have testified about all three 
of those.

Now, are you sure there was some other time that you 
bid on that job? A. I ’m quite sure.

Samuel Culpepper—Plaintiff— Cross



127a

Q. How many more times? A. I don’t, I definitely don’t 
know. Every time there was a sign on the board, I bidded 
on it.

Q. Do you have any way of identifying any of those 
other times you bid on it? A. No more than, as I spoke 
while ago, about Bennie Sells and Randall.

Q. You know one was when Randall left, and you know 
one was when Bennie Sells went on the job, is that right? 
A. That’s right.

Q. And one was when Arthur Collins went on the job? 
A. That was the last one.

Q. And that was the last one.
Now, can you identify any other times that you bid on 

it, by telling us who got the job, or who left the job, or 
any other information that would identify the occasion? 
A. That’s just what I said, when Bennie Sells, when they 
put Bennie Sells on.

Q. All right. Bennie Sells, that’s one of them. And you 
have told us about Randall, and you have told us about 
Collins.

Now, if there were any other times that you bid for it, 
can you tell us anything about the person who got the job, 
or the person who left it to create the vacancy? A. Even 
when Ennis went on the job, 1 bidded on it.

Q. All right. Now, when did Ennis go on the job? A. 
That was in, something like 1960, I think, because I went 
on vacation later, like the second week in July. When I 
come back, the job was covered.

Q. This was m 1960? A. I think it’s something like that, 
when Ennis got the job.

Q. Now, Mr. Ennis has been on that job at all times 
since then, on a slitter machine, with the exception of a 
short period when he was away from the company for sev­
eral months, is that right? A. That is true.

Samuel Culpepper—Plaintiff— Cross



128a

Q. And back in 1962 and 1963, I believe you said there 
were two slitter machines? A. That’s right.

Q. There was the thirty-six inch one, and the forty-eight, 
inch one. A. That’s right.

Q. After that time, was one of these machines moved? 
A. That’s right.

Q. And when was that? A. I couldn’t definitely tell you 
when it was moved out.

Q. Would you remember whether it was about March, 
1964? A. I couldn’t exactly say; it was about, something 
like that, I guess.

Q. It was not very long after you had your trial period? 
A. That’s right.

Q. On one of them? A. That is true.
Q. And which one did you have your trial period on? 

A. On the little one.
Q. The thirty-six inch one? A. That’s right.
Q. Is that the one that’s known as a Torrington machine? 

A. Beg your pardon?
Q. Is that known by the name Torrington? Do you know 

whether it has that name? A. I really don’t, never been 
mentioned, nothing but slitter, in my presence.

Q. I see. Which one was moved out? A. The small one.
Q. Which one had Mr. Ennis been working on before 

your trial period? A. He had worked on both of them.
Q. And he worked on one of them while you were having 

your trial period on the other one, is that right? A. He 
worked on the larger one while I had my trial period.

Q. And did Mr. Ennis continue as a slitter operator 
after your trial period? A. Sure.

Q. And when they reduced it to one machine, Mr. Ennis 
continued on that machine, is that right? A. That is true.

Q. Now, have you ever operated the larger machine? 
A. Never had a chance.

Samuel Culpepper—Plaintiff— Cross



129a

Q. Well then, you don’t know, from your own experience, 
whether the large one is harder or easier to operate than 
the small one, do you? A. I wouldn’t be definite, but I 
can look at things that’s happening", and that would be my 
opinion, it’s easier to operate than the other one, less 
trouble.

Q. Now, when you refer to thirty-six inches and forty- 
eight inches, do those figures mean the width of the strips 
of metal that those machines will cut? A. That’s right.

Q. So a thirty-six inch machine cuts a strip as wide 
as thirty-six inches? A. Not altogether.

Q. Isn’t that approximately what it means? A. That’s 
about what it means.

Q. But isn’t it a fact that they never, at this plant they 
never cut any strips wider than thirty-six inches? A. 
Well, mostly cut forty-eight down to thirty-six, or some­
thing like that.

Q. Isn’t the thirty-six inch the widest strip that can be 
painted on the Paint Line? A. That’s true.

Q. Now, Mr. Leering is the one who worked with you 
when you had your trial period? A. That is true.

Q. Now, he had been a warehouse foreman for the com­
pany, had he not? A. That is true.

Q. And he had come back into the plant to a job in the 
bargaining unit, had he not? A. That’s right.

Q. And was he working then as a helper on this machine ? 
A. Well, as a helper, packer, first one thing, just first one 
thing and another.

Q. Nowr, Mr. Deering had had his seniority stopped 
when he was out of the unit, and had come back in the unit 
to a job lower than slitter operator, had he not? A. That 
is true.

Q. But he knew how to operate the machine? A. That 
is true.

8 amuel Culpepper—Plaintiff— Cross



180a

Q. And lie was helping yon on it! A. That is true.
Q. Now, you had trouble learning how to set up this 

machine, didn’t you? A. That was their complaint.
Q. That was their complaint? A. That’s right.

Mr. Pate: I ’m going to ask that this diagram, 
that purports to be a drawing of a piece of ma­
chinery, be marked as Defendant’s Exhibit 1 for 
identification.

The Clerk: For identification Defendant’s Ex­
hibit 1, diagram by Wayne Equipment Corporation.

(Whereupon the above paper was marked for 
identification only as Defendant’s Exhibit 
# 1.)

Mr. Moore: May I see that?

By Mr. Pate:

Q. Mr. Culpepper, I want to show you Defendant’s Ex­
hibit 1, and see if you recognize this as a drawing of a 
slitter machine of the type of one of the machines that 
the company has had in operation? A. Yes, sir.

Q. Can you look at that and tell? A. That’s true.
Q. Now, this is actually the larger machine rather than 

the smaller machine, I believe. Can you tell that by looking 
at it? A. I can’t tell that by looking at it.

Q. The main difference would be in the width of the 
knives on the machine, isn’t that right? A. That’s right, 
the thickness of them.

Q. The thickness of them. But with that exception, this 
would be an accurate drawing of either type of machine, 
would it not? A. Well, that would be the mantle, that’s 
right.

Samuel Culpepper—Plaintiff— Cross



131a,

Q. I see. Now, can yon tell us, when you go to set up 
a machine of that kind to handle a particular order, cutting 
metal to particular specifications, just what you have to do 
to set it up? A. Well, you have to, if this is, you’ve got a, 
something you turn, and this comes off, like that. Then 
you’ve got to knock the, this off there.

Q. You’re pointing to, is this a shaft here? A. That’s 
right. You have to knock those, you know, loosen those 
nuts up there, and then you take everything off and then 
set it up like you want to set it, providing if, you know 
what I mean, that, this is another one, the one on the top 
one, one on the bottom. Your difficulty is making them 
come out even, the distance between here and here.

Q. All right. A. That’s what you want.
Q. Now, can you show us the knives on there? A. There’s 

the knife on there, on the top one, right there, and right 
there, and right there. And this is the knife on the bottom, 
there and there.

Q. You have to set those knives to cut the metal to 
the width that you want it, is that correct? A. That’s right.

Q. All right. Now,—

Mr. Pate: I would like to have marked as De­
fendant’s Exhibit 2 for identification, this document, 
two pages, that is entilted “Lot Identification and 
Scrap Analysis Tag” .

The Clerk. Lot Identification and Scrap Analysis 
Tag, Defendant’s Exhibit #2.

(Whereupon the above paper was marked for 
identification only as Defendant’s Exhibit 
# 2.)

The Court: Suppose we take five minutes while 
he’s analyzing that scrap.

Samuel Culpepper—Plaintiff—Cross



132a

(Whereupon recess was called at 11:53 A. M., 
EST.)

Samuel Culpepper—Plaintiff— Cross

A fter R ecess

The Court: All right, Mr. Pate.
Gentlemen, I plan to go ’til 12:45, and then we’ll 

recess until 2 :00.
We’re not moving very fast; I presume this is the 

longest witness?

By Mr. Pate-.

Q. Mr. Culpepper, I will show you Defendant’s Exhibit 
2, and ask you if that’s the kind of paper that would come 
to you to give you the directions and specifications for set­
ting up that slitter machine to cut a particular lot of metal ? 
A. That’s right.

Q. You recognize this as a paper of that kind, don’t you, 
as one of those records? A. Yes, sir,, that’s right, decoder.

Q. Now, can you look at that exhibit and show us, tell us 
what figure on there shows what width the strips are to be 
cut to? A. That’s right.

Q. All right. A. Well, you mean what it’s supposed to be 
slit into?

Q. Yes. A. Well, this has got to be slit into, that is 
thirteen and one quarter, painted, thirteen and one quarter.

Q. Now, you are looking at the figure that says, Paint, 
thirteen and a quarter inches? A . Right.

Q. Now, you don’t think that that is, that specifies the 
width that it’s to be cut into? A. It’s supposed to be slit at 
3.145.

Q. All right. Where it says slit to 3.145 inches? A. 
That’s right.



133a

Q. And that’s what you would have to set the machine for, 
isn’t it? A. That’s right.

Q, All right. Now, how would you go about setting this 
slitter machine to cut strips?

Mr. Moore: Your Honor, that is immaterial, how 
the witness would go about setting the machine.

The Court: Well, this relates back to the question 
I asked you a while ago.

Mr. Moore: Your Honor, they don’t, there’s no 
contention that they gave him a test, that he failed.

The Court: Well, as I understood from the ex­
hibit you put in evidence, they kept certain records 
on his job performance at the time he had the trial in 
’63.

Mr. Moore: Your Honor, there’s no evidence they 
gave him a test at the time he—

The Court: What kind of test ?
Mr. Moore : —bid.
A test like this.
The Court: Well, that’s what I asked you a while 

ago: Were you contending that he was qualified, as 
a matter of fact, based on his experience in ’63, or 
not?

Mr. Moore: Your Honor, I don’t think that the 
question has to be answered. The fact of the matter 
is that he wasn’t given a trial period.

The Court: In 1963 he was.
Mr. Moore: In ’67 he wasn’t given a trial period.
The Court: Well, that’s beside the point.
Mr. Moore: Well, Your Honor, he doesn’t—
The Court: That’s why I asked you a minute ago 

what your position is now.

Samuel Culpepper—Plaintiff— Cross



134 a

Mr. Moore: Tour Honor, you don’t become per­
manently disqualified regardless of what happened. 

The Court: I know that.
Mr. Moore: You have the opportunity to bid each 

time.
The Court: Well, can you answer the question? 

Do you contend that he is now qualified to run a 
slitter?

Mr. Moore: Your Honor, we contend that he’s 
qualified.

The Court: All right.
Objection overruled.
Mr. Moore: Your Honor, we contend this test is 

irrelevant and immaterial, because they didn’t give 
him a test.

The Court: Objection overruled.
All right, Mr. Pate.

By Mr. Pate:

Q. Can you answer that question? A. Can you tell me 
what that is?

Q. Can you tell us what you would do to set the slitter 
machine up to cut a strip of the width of 3.145 inches ? A. 
You would have to space your knife to three inches and 
.145.

Q. All right. That’s the distance between the knives? 
A. That’s right.

Q. And which knives would that apply to? A. That 
would apply to this knife like that, from there to here.

Q. You’re pointing to the lower set of knives, is that 
right? A. That’s right.

Q. Not the upper set? A. Which these, this is not set 
exactly like it should be, this drawing is not.

Samuel Culpepper—Plaintiff— Cross



135a

Samuel Culpepper—Plaintiff—Cross 

By the Court:

Q. Well, the question is: Is your spacing between the 
upper knives or the lower knives? A. It’s between the two 
knives. They come together like that; that do the cutting.

Q. Well, can you point there where you are talking about? 
A. Right here, Judge, Your Honor. This is a knife on the 
top mantle. That’s a knife on that, which is a round ring, 
and this is the space between the knives.

Q. Now, what point? Can you take that pencil there and 
show me what point you’re talking about? A. It’s between 
right there, from there to right there.

Q. Well, can you make a little mark where you are talk­
ing about? A. There where your metal go through.

Q. In other words, where the two knives come together? 
A. Yes, sir, that is right. They are supposed to cut right 
between there.

Q. All right. Then what is your testimony about, on that 
setting you’re talking about, what would the distance be be­
tween those two points? A. Well, the distance between 
there, I mean all that depends, see, this just a drawing.

Q. I know, but if you do that slit 3.145— A. That will 
be three inches and 145., .145.

Q. Where ? Between those two points ? A. That’s right.

The Court: Okay.

By Mr. Pate :

Q. Now, you’ve marked these two points out about the 
place where the two knives are closest to each other, have 
you not? A. Meet together, that’s where they do the cut­
ting at, right between there.



136a

Q. And is that where you would try to measure, between 
those two points? A. Well, I wouldn’t try to measure. The 
way you set it up is the way you’re going to measure it.

Q. All right. Well, how do you set it up? That’s what 
I would like to know. A. Well, you takes everything off 
there, start with your two knives, whatever shim you need 
behind here depends on what material you’re going to cut, 
whether it’s 024, or 019, or 032, whatsoever, where you use 
the shim between the knives, as to give you that distance.

Q. All right. A. Even.
Q. Where do you put the shims? A. Behind, right be­

hind here. See, that’s the knife. You put your shim behind 
there. Right there you’ve got a shim. That is going up to 
the, next to the, what you might call the beam, or whatso­
ever.

Q. All right. Now you refer to shims. A. That’s right.
Q. Do you also have something you call a spacer? A. 

Well, that would be rubber between here on this, this larger 
machine, spacer.

Q. Well, wouldn’t you have to put spacers and shims 
together which would add up to the proper width? A. 
That’s what gets your point.

Q. All right. A. You’ve got some three inches, some 
two inches, whatsoever.

Q. You have some spacers that are one inch, some two 
inches, and some four inches, don’t you? A. That’s right.

Q. Then you have shims that are somewhat smaller than 
that, is that right ? A. Barely can see them. I mean, say, 
like thickness.

Q. All right. Now, what spacers and shims would you 
put together to get 3.145 inches of width of metal? A. 
All depend on what you was going to cut this metal out 
of. If you was going to cut it out of, if it was eighteen

Samuel Culpepper—Plaintiff— Cross



137a

inches, thirty-six inches, thirty-four inches, or whatever 
you’re going to cut it out of.

Q. Doesn’t that paper show what it is to be cut out of?

The Reporter: What is the exhibit number?
Mr. Pate: I’m referring to Defendant’s Exhibit 

2 for identification.

A. (The Witness) Well, let’s see. The gauge, the size, but 
that’s what it’s supposed to be cut down to. Is that what 
you’re speaking of? That don’t, I don’t see where it say 
what size car that’s coming from, that is, what it is cut 
after you—

Q. Well, does the gauge have anything to do with it? 
A. Well, that’s the size of it, that’s the thickness of it, 
but that’s not the width of this.

Q. All right.
Well, now, does the width of three and a hundred and 

forty-five thousandths inches, does that depend on the kind 
of metal you’re cutting it from, or is that an absolute 
figure? A . That is what you’re cutting it out of. If it’s 
019, or 36, if it’s eighteen inches wide, the whole material, 
when you set up the machine you set it up to cut you three 
inches, five inches, five-sixteenths, whatever you want to 
cut, five inches, or whatever.

Q. Well, how could you tell what spacers and shims 
to put together to get a hundred and one hundred forty- 
five thousandths inches? A. Well, you’ve got a, you’ve 
got a copy setting right there on the desk, there, that 
tell you what ever one of them, and you already know 
your inches and everything like that, and so whatever they 
want to cut to, all you got to do, look on that copy and 
check that out.

Samuel Culpepper—Plaintiff— Cross



138a

Q. Well, you know, to start with, that you would have 
to have spacers that added up to three inches, wouldn’t 
you? A. That’s right.

Q. You would have to use spacers that added up to 
three inches? A. That’s right.

Q. If you didn’t have a three-inch spacer, you would 
have to use a two and a one? A. That’s right.

Q. Now, do you know what you would have to do to get 
the correct shims? A. That depends on the size of the, 
the thickness of the metal, that’s what shim you use, if 
it’s 019, 024, 032, 051.

Q. Well, isn’t it true that the thickness of the metal 
determines the distance by which you set off one set of 
knives in order to keep it from coming in contact with 
the other set? Isn’t that right? A. That’s right.

Q. That’s what you’re talking about? A. That’s right.
Q. But one set, you would actually set 3.145 inches 

apart, wouldn’t you? A. Right.
Q. All right, sir. Let’s take that set. Let’s take the set 

that you set to the exact measurement. You would have 
to use spacers that added up to three inches? A. That’s 
right.

Q. Now then, you would have to also put some shims 
in there to make up the fraction of an inch, wouldn’t you? 
A. That’s right.

Q. And do you know in what kind of fractions those 
shims come? A. Not exactly; one sixteenth, and that’s 
about the smallest. You mean the spacer what you put 
on with the knife, right? That comes to one-sixteenth, 
three-sixteenths, quarter of an inch, stuff like that.

Q. Well, would it be accurate to say this: That you had 
there spacers in these sizes, four inch, two inch, one inch, 
one-half inch, one-fourth inch,— A. Right.

Samuel Culpepper—Plaintiff— Cross



139a

Q. —one-eighth, inch? A. You could have.
Q. One-sixteenth? A. That’s right.
Q. One-thirty-second, and one-sixty-fourth? A. I don’t 

remember a sixty-fourth.
Q. All right. Let’s forget the sixty-fourth, then. You 

don’t know whether they had that one or not? A. I don’t 
think so. One-sixteenth is the least that I remember.

Q. Then they had shims that were in, starting as small 
as a thousandth of an inch? A. That’s right.

Q. Then one and a half thousandths, then two, three, 
four, five, ten and thirty thousandths, isn’t that right? 
A. Something like that, I disremember, you would have to, 
something like that.

Q. Well, could you tell us how you would go about 
figuring which ones of those you put together to make a 
width of three and one hundred forty-five thousandths 
inches? A. Which one of the shims you put together?

Q. Yes. You’ve got spacers now that, we start off with 
spacers that total three inches, and you’ve got one hundred 
forty-five thousandths of an inch to make up with spacers 
or shims one, or both. Can you tell us how you go about 
doing that? A. All you have to do is, as I said, look on 
the pad and it’s already, it’s already there.

Q. What does the pad show? A. How many, how many, 
wlierther it’s you know, how many thousandths, whatsoever.

Q. Could you take these spacers and shims and show 
us now what you put together to make a hundred and 
forty-five thousandths of an inch? A. You don’t have the 
pad here. That’s the way you, that’s the way they tell, 
by the pad.

Q. I see. You couldn’t do it from these figures here, 
could you, showing the spacers and the shims that I just 
read you? A. Well, just how, I could not. However, as 
far as this, you could.

Samuel Culpepper—Plaintiff— Cross



140a

Q. What is that? A. See, that’s two inch and one inch.
Q. Yon get the two and one inch, that’s the three inch? 

A. You want three inch, and then you want, you want 
one, .145, didn’t you!

Q. Yes. A. Well, you just look at the pad, that’s all, 
and that tells you just as easy as anything.

Q. Well, isn’t that what you had the most trouble with 
when you were working on that machine? A. I don’t 
think so. After you do that one time, it comes a little 
more and more to you.

Q. You have to use some arithmetic, don’t you? A. 
That’s right, if it’s necessary.

Q. You have to convert fractions from common frac­
tions into decimal fractions,— A. That’s right.

Q. —and that kind of thing, don’t you? A. That’s right.
Q. Now, you wurked on this machine in 1963, as you 

have testified, for a period of about twenty days? A. 
That’s right, of and on.

Q. And then after grievance, and some discussion of 
that, you went back to it for ten more days? A. That’s 
right.

Q. Well now, during the twenty-day period in 1963, you 
worked on that machine whenever it was in operation, did 
you not? A. That’s true.

Q. And when it was not in operation, you went on to 
other jobs? A. That is true.

Q. And you were told then, that you did not qualify, 
and went back to your other job, former job, did you not? 
A. That’s right.

Q. And at the end of the ten day additional period, 
when you went back to your other job you didn’t even file 
a grievance then, did you? A. I don’t remember.

Samuel Culpepper— Plaintiff— Cross



141a

Q. It was after that time, then, that you obtained the 
job of decoiler operator? A. That’s right.

Q. And the next time after this occasion in 1963, when 
you had your two trial periods on the job, the next time 
that you applied for that job was in March of 1967, was it 
not? A. I wouldn’t think so.

Q. You think there was another time in between? A. 
From ’63 ’til ’67?

Q. Yes. A. I do.
Q. Well, tell us when it was, and what you know about 

it. A. Well, I couldn’t definitely state what date and 
what month, and all that, but I have to sign when Bennie, 
every time there was an opening, I signed it. Can you 
tell me when Bennie Sells was on there?

Q. Well, I believe we, I believe we went over that pretty 
fully about Bennie Sells, and we talked about Collins, and 
we taked about Randall.

Now, if you can tell us what created the opening on any 
other occasion when you bid for it, I ’d like to know. A. 
Well, Douglas, when he left, when he left the plant, Douglas.

Q. Who? A. Douglas.
Q. Douglas? Do you have any idea when that was? 

A. I really don’t.
Q. Is it after you had your trial period in 1963? A. It 

was before.
Q. Before that? I see. A. Before.
Q. Well, other than the filing of this grievance in 1967, 

have you, since March 28, 1967, or the date when Collins 
was put on this job, tried to obtain any training on this 
job from the company? Have you taken that up in any 
way? A. Well, as a grievance.

Q. Just as a grievance? A. That’s right.

Samuel Culpepper—Plaintiff— Cross



142a

Q. And before March. 20, 1967, when you bid for this 
job last, had you made any effort to get training on this 
job other than bidding for it, as you have testified? A. 
Well, I hadn’t made no effort, because you didn’t, you 
didn’t g*et no training on the job. You go up as a, helper. 
They put you on there as a helper.

Q. That is the only way anybody has been getting train­
ing on that job? A. As a helper?

Q. Yes. A. Well, there’s a bid. They, you know,—
Q. Trial period? A. That’s right.
Q. Other than that, the only time anybody gets train­

ing on that job is when they are working as a helper, isn’t 
it? A. I would mostly say that they get on there as a 
helper, and they is being trained all the same. They don’t 
have no rights. When the bid come up, they can just take 
their twenty days.

Q. But you haven’t made any effort to get on that job 
as a helper? A. I have been a helper on that.

Q. But that was a long time ago? A. That is true.
Q. Since you have become a, well, since you were tried 

on that job in 1963, you haven’t made any effort to become 
a helper on that job, have you? A. I haven’t signed no 
cut rate to get on the job.

Q. Yes. A. Which was—
Q. I believe you said that the slitter operator was the 

highest paid job in the department? A. Highest paid.
Q. Actually, the Paint Line pays more than that, doesn’t 

it? A. That’s not in the Fabrication.
Q. That’s not in the Fabrication Department, but there 

are jobs in the unit, contract unit that pay higher rates, 
isn’t that right? A. That is true.

Q. As a matter of fact, the Receiving Clerk gets a higher 
rate, too, doesn’t he? A. That is true.

Samuel Culpepper—Plaintiff— Cross



143a

The Court: What did you say? The Receiving 
Clerk gets higher rate?

Mr. Pate: Gets a higher rate.
The Court: I thought that was what he started 

off at?
Mr. Pate: I think he was a Laborer in the Re­

ceiving Department.
The Court: At the outset?
Mr. Pate: Yes, sir.

By the Court:

Q. Do I understand your testimony, Mr. Culpepper, cor­
rectly, that when you became a decoiler operator you didn’t 
have any trial period? A. That’s right.

Q. That’s because you already knew how to operate? 
A. That’s right.

Q. In other words, in your job as a regular machine 
operator, you had helped other people on the decoiler, and 
just learned how over a period of time, how to operate it, 
is that right? A. Well, I hadn’t helped anybody on the 
decoiler, I just look at the decoiler, see somebody operate 
it, but I ’m not helping them.

Q. Yes. A. So I decoil, I could decoiler myself.
Q. And you don’t recall bidding? A. Beg your pardon? 

Oh, no, sir, I don’t recall.

Mr. Pate: Your Honor, I will offer in evidence 
Defendant’s Exhibits #1  and 2 for identification.

The Court: All right.
Mr. Moore: We renew our objections to # 1  and 

2, and make the additional objection with respect to 
# 2, that it is a sheet that apparently was compiled 
in November, 1968, after this litigation had been 
started.

Samuel Culpepper—Plaintiff— Cross



144a

The Court: Well, it’s only used for illustrative 
purposes, to illustrate his testimony, and both ex­
hibits, as far as that goes, and that is to demon­
strate a knowledge of the machine and how it’s 
operated.

So those objections are overruled, and they are 
admitted in evidence.

(Whereupon Defendant’s Exhibits # 1  and 2 
were admitted into evidence.)

Mr. Pate: I have no other questions.
Mr. Moore: I have a few questions.

Redirect Examination by Mr. M oore:

Q. Mr. Culpepper, what is your present rate of pay? 
A. It’s two fifty-two, I believe.

Q. Tow fifty-two an hour? A. That’s right.
Q. And that was in March of 1967, if it’s two fifty-two 

an hour, is that correct? A. Correct.
Q. And today, now, it’s two sixty-two an hour? A. I 

don’t know—I believe so.
Q. And what was the pay for a relief slitter operator? 

A. That was fifteen cents more on the hour than I get.
Q. Was it fifteen cents more an hour in March of 1967? 

A. Correct.
Q. When you bid on the job? A. Eight.
Q. Do you know how much more an hour it is now, from 

your present rate of pay? A. Same thing.
Q. It is still fifteen cents, whatever your present rate 

of pay is? A. Eight.

The Court: So it would be two seventy-five, or, 
I mean it’s two seventy-seven an hour?

Samuel Culpepper—Plaintiff—Redirect



145 a

Q. How many days a week do you work? A. Five, 
sometimes six.

Q. How often do you work six days a week? A. Well, 
just depends; when they’re behind, sort of short-handed, 
when they’re going to get out, to cut, or whatsoever.

Q. Do you work, say, four weeks out of the year six 
days a week, or how do you work six days a week? A. 
Oh, probably, might be—out of a year?

Q. Yes. A. Oh, probably it will be about, I couldn’t 
definitely tell you that because I actually don’t know. 
Whenever the company is behind, that’s when we makes 
the overtime, to get the material and what-not out, is all 
of it, whatsoever.

Q. And you work five days a week? A. Five days a 
week.

Q. And what are your hours of work? A. Beg pardon?
Q. What are your hours of work? A. Eight hours; 

sometimes we make ten hours.
Q. What is your gross pay before deductions for a 

five hour week—five day week! A. Five day week? About 
ninety, I mean about ninety-three, something like that.

Q. Is that before or after deductions? A. Well, after 
deductions, it’s about eighty-one.

The Court: Well, wouldn’t it be mathematical? 
Mr. Moore: Yes, sir.
The Court: Forty hours times—
The Witness: That’s true.
The Court: —two six two?

Samuel Culpepper— Plaintiff—Redirect

Mr. M oore: W e’re g'oing to put it in, Your Honor.

By Mr. M oore:



146a

Q. I want to ask you something else that Mr. Pate 
brought up.

Mr. Pate referred to cutting of forty-eight inch material. 
Do you remember that testimony? And you testified that 
they gave you forty-eight inch material to cut down, do 
you remember that? A. Down, that’s right.

Q. Could you tell the Court what is the difference be­
tween cutting down and cutting the thirty-six inch ma­
terial, on the thirty-six inch machine you were talking 
about in your earlier testimony? A. Well, if you’ve got 
the machine set up to thirty-six, when you start the metal 
through the knives it cuts it down to thirty-six, even 
though it’s over thirty-six inches to start with, even if it 
is, you know, it can be three-eighths, or whatsoever, over 
thirty-six, thirty-six and three-eights on up to whatever, 
you know.

By the Court:

Q. But you couldn’t do that with a thirty-six inch ma­
chine? A. That’s right.

Q. Only with the forty-eight? A. That is true.
Q. In other words, if you had a sheet of metal four 

feet wide, it would go in this forty-eight inch machine? 
A. That’s right.

Q. And just cut off a foot, and leave you the thirty-six 
inch that you would work on? A. That is true.

Q. And it could be cut into different widths, according 
to the setting? A. That is true.

Q. What do you all make out of all this? A. Well, I 
couldn’t tell you what all they make, it’s trailer homes, 
mobile homes.

Samuel Culpepper—Plaintiff—Redirect

By Mr. M oore:



147a

Q. In other words, it is contract jobs, I guess? A. Yes, 
sir.

Q. To furnish siding to other manufacturers, and this 
kind of thing? A. Yes, sir.

Q. Like they talk about on the TY all the time. A. Yes, 
sir.

Q. On the Reynolds Metals program?

By Mr. Moore:

Q. Now, Mr. Culpepper, I want to ask you about the 
pad that you referred to in your examination by Mr. Pate. 
Remember you testified there’s a pad on the machine that 
shows the width, I believe, of the shims and knives? Is 
that correct? A. Yes, sir.

Q. Describe this pad. Where is it on the machine? A. 
It goes on the desk. The pad is nothing but giving you, 
actually, the thousandths, and whatsoever, that you want 
to set up by, whatever be on the order, it’s on that pad, 
you can find it on the pad.

Q. And the pad would give you instructions as to what 
combination of shims and width that you would need to 
fill a particular order, is that correct? A. That is true.

Q. Does this pad convert common fractions into decimal 
fractions ? A. That is true.

Q. Shows these. Does it show the conversion of the 
fractions? A. That is true.

By the Court:

Q. It’s kind of a chart, I guess, isn’t it? A. That is 
true.

Samuel Culpepper—Plaintiff—Redirect



148a

Q. In 1963, when you had your trial period, was both 
the thirty-six inch and the forty-six inch machine in 
operation? A. True.

Q. In 1963 were you actually told that you were not 
qualified for the machine, or was it that you were just not 
given the job? A. Beg your pardon?

Q. In 1963, were you actually told that you were not 
qualified for the position of slitter, or was it that you 
were not given the job? A. Well, it was that I wasn’t 
qualified for it.

Q. Now,— A. And—
Q. Pardon me. A. And to take the other ten days. 

You take the other ten days and qualified, either I dis­
qualified you now. That was the purpose of me taking the 
other ten days.

Q. You take the other ten days, or he would disqualify 
you on the spot? A. Here and now.

Q. And were you told, now, in what way, or in what 
respect you were disqualified in 1963?

The Court: Excuse me.
Isn’t all of that in that report, one of your ex­

hibits?
Mr. Moore: Well, it doesn’t bear on the ques­

tion of disqualification.
The Court: All right. Well, who told him? Let’s 

find out, then.
Mr. Moore: All right.

By Mr. Moore:

Q. Who told you that you were disqualified? A. Mr. 
Peek.

Samuel Culpepper—Plaintiff—Redirect

By Mr. M oore:



149a

Q. And did he tell you this in writing, or did he just 
speak to you like I ’m talking to you now? A. Well, in 
writing, one. As far as this, you take the other ten days 
to qualify, don’t I ’ll disqualify you here and now, that 
was right across the table.

Q. And then after you took the ten day period, he wrote 
you something, is that right? A. Didn’t qualify.

Q. He told you that you didn’t qualify? A. That’s right.
Q. Now, did he tell you what you lacked in qualification? 

A. That was—-what I liken to qualify?
Q. Yes. A. He didn’t tell me that.
Q. Did he tell you that you didn’t qualify because you 

couldn’t convert common fractions into decimal fractions? 
A. He didn’t tell me that.

Q. Were you told that you didn’t qualify because you 
couldn’t put together the right combination of shims and 
knives? A. I wasn’t told that.

Q. And you testified on direct examination, I believe, 
that you were not told that any of your work was unsatis­
factory, is that correct? A. That is true.

Q. Just a couple of more questions about 1963, Mr. Cul­
pepper.

Can you tell us whether or not this thirty-six inch ma­
chine is slower or faster than the forty-eight inch machine? 
A. Slower.

Q. You said slower, didn’t you? A. That’s right.
Q. Now, this decoder that you speak about, can you de­

scribe that machine to the Judge? The decoder, can you 
tell him what it looks like, and how you operate it? A. 
Well, it’s just a machine with arms out like that (indicat­
ing). You’ve got to set what length you want to cut of 
the material, and it’s a coil, you know, big round coil, what­
soever, and you thread up this machine, it comes through

Samuel Culpepper—Plaintiff—Redirect



150a

to you, and you’ve got to have this set right. When you cut 
it, it comes, you know, be exactly what you want to cut it, 
how many inches, and whatsoever.

Q. On this decoder machine that you work on now, do 
you cut materials into different widths? A. True.

Q. Can you tell the Court what kind of widths, the length 
of widths? A. Well, for shortage, it runs anywhere from 
twenty-one inches to a hundred and eighty inches.

By the Court:

Q. That’s in lengths? A. That’s in lengths.
Q. All right. How about in width, that’s what he’s ask­

ing you? A. That’s thirty-six inches wide.
Q. Thirty-six inches wide. It all comes through the same 

width? A. That’s right.
Q. And you cut it off a certain length width? A. That’s 

correct.

By Mr. Moore:

Q. Do you have set up the machines for the various 
lengths that you have to cut? A. True.

Q. Are you given instructions, such as, such as is shown 
in Defendant’s Exhibit #2? A. That’s your order. When 
they bring this out, they have on here what they want cut, 
how many pieces, and whatsoever.

Q. Do you receive the same kind of order for your de­
coder that is shown in this Exhibit 2? A. Same thing, 
same thing.

Q. Do you have occasion to deal in fractions and thou­
sandths of inches on your decoder machine? A. Well, some, 
yes, most time.

Q. Most time? A. Yes, sometimes.

Samuel Culpepper—Plaintiff—Redirect



151a

Q. How frequently do you deal in fractions and thou­
sandths of inches on the decoder? A. Well, not, not on 
every order.

Q. Could you say how frequently? A. I would say you 
got some orders just actually plain come to quarters, 
eighths, like that, made, you know, seven foot and so much, 
something like that, halves, whatsoever.

By the Court:

Q. You mean like twenty-one and a half inches? A. No, 
just plain; twenty-one and a half inches, that would be dif­
ferent, you know, different than that. Eighteen inches, 
stuff like that. That’s the shortest.

Q. Well, seventy-two and three-eighths inches, you might 
have a piece that long, is what you are telling me? A. That 
is true, and you may have it up to better than that, twelve 
feet, better than that.

By Mr. Moore:

Q. Now, in order to get the settings for these cuttings, 
do you have a pad or a chart that you use? A. Nothing 
but a tape.

Q. Just your tape? A. Plain tape.
Q. Plain measure tape? A. That’s right.
Q. I ’d like to clear up one thing, Mr. Culpepper.
Now, with Defendant’s Exhibit D-2, do you get the same 

type of order sheet, or is it a different one? A. It is the 
same one.

Q. The very same thing? A. Yes, sir.

By the Court:

Q. All right. Where is your cutting on there for the 
decoder? A. On here?

Samuel Culpepper—Plaintiff—Redirect



152a

Q, Umm huirmi. A. All right. When you get this out, 
it will probably tell you right here, you know, arid then, 
most times the decoder roof, they make a circle around 
here.

Q. When they give it to you? A. That’s right. They do 
that in the office, and they make a circle around what is 
going to be cut here, and they may have it right here, tight.

Q. Well, is there decoder instruction on that exhibit any- 
wdiere ?

Samuel Culpepper—Plaintiff—Redirect

Mr. Moore: Look on the page.

A. (The Witness) No more than your output, your weights 
and different like that.

Q. I ’m talking about for your machine that you now 
operate? A. Oh.

Q. If I give you that piece of paper, does it tell you 
what to do? A. This don’t.

Q. It’s a piece of paper, it’s the same form but it has 
different writing on it? A. That’s like this one, the same 
form but on, other words, whatever they want, that’s what 
they type out on there, and they circle it.

Q. Circle it? A. Maybe more than one, maybe seven 
orders on this, you know, it’s typed on there, and whatever 
they want you to run, what roof you want or place, some­
thing like that, they circle that, what they want you to do 
first.

By Mr. Moore:

Q. Does the same order that goes to the decoder also 
go to the slitter? A. Eight.

Q. And they indicate what the decoder is to do by a 
circle, or some other indication? A. Well, that is what



153a

they, that is on roofs. Now, otherwise, they don’t make no 
circle, but just shim, and that is for cutting material.

Q. When you say roofs, you mean roofing material? 
A. That’s right, roofing for mobile homes.

Q. Motor homes?

The Court: Mobile homes.

A. (The Witness) Mobile homes.

The Court: They’re going to take over the coun­
try with mobile homes, and, incidentally, lose a lot 
of taxes that could support programs like the E. E. 
0. C.

Mr. Moore: Plenty of room for that.
That is all.

Recross-Examination by Mr. Pate:
Q. This tape that you use is not graduated in thousandths 

of an inch, is it? A. Well, no, it’s not. At least, there’s 
something on there, you can see it, sixty-four.

Mr. Pate: No other questions.
The Court: All right.
You may go down, Mr. Culpepper.
(Whereupon the witness was excused from the 

stand.)
The Court: All right, Gentlemen, we’ll take our 

recess until 2:00 o’clock.
I hope the other witnesses won’t be this long.
Mr. Pate: I don’t think so.
(Whereupon recess was called at 12:25 P. M., 

EST.)

Samuel Culpepper—Plaintiff—Redirect



154a

William Jackson Ennis-—for Plaintiff—Direct 

A fteb  R ecess

Mr. Moore: Shall we go ahead, Your Honor?
The Court: Right.
Mr. Moore: The plaintiff calls Mr. William Ennis, 

please. He’s out in the hall.
The Clerk: Will you raise your hand, please?
You do solemnly swear that the evidence you shall 

give in the issue joined between Samuel Culpepper 
and the Reynolds Metals Company, shall be the truth, 
the whole truth and nothing but the truth, so help 
you God?

Mr. Ennis: Yes, sir.
The Clerk: All right, sir.
Be seated over here.

Mb. W il l ia m  J ackson  E n n is , ca lled  as a w itness in  b e ­
h a lf o f  the p la in tiff, a fte r  h av in g  first been  du ly  sw orn , 
testified  as f o l l o w s :

Direct Examination by Mr. Moore:

Q. All right. Mr. Ennis, would you state your full name, 
please? A. William Jackson Ennis.

Q. And where do you live, Mr. Ennis? A. 3387 Fielder 
Circle, Decatur, Georgia.

Q. Are you employed at the Reynolds Metals Com­
pany? A. Yes, sir.

Q. When did you go to work there? A. I believe it was 
February, 1959.

Q. And have you worked there continually since then? 
A. I ’ve been fired once, but I ’ve worked there, yes, sir.

Q. You are presently employed with the company? A. 
Yes, sir.



155a

Q. Was your first employment in the Fabricating De­
partment? A. Yes, sir.

Q. And was that on the slitter machine? A. No, sir.
Q. What was yonr first job? A. I worked on a lock 

seam tubing for approximately, about twenty something 
days.

Q. And then you went into the slitter? A. Direct to 
the slitter.

Q. Did you bid on the slitter job? A. When I first went 
on it? No, sir.

Q. How did you get the first, the first employment as 
slitter back in ’59? A. Mr. Byron Foulks used to work 
there. He come back to lock seam tube, and he was stand­
ing there, I don’t know if he was timing or what he was 
doing, or what, but he had a little old clock, and he asked 
me if I ever worked on the slitter, and I told him yes.

By the Court:

Q. You had worked on the slitter? A. Yes, sir.

By Mr. Moore:

Q. Was this at Reynolds, or at some other company? 
A. This was at another company. I have worked on a wire 
slitter.

Q. And what company was that? A . Dart Wire Corpo­
ration.

Q. Was that here in Georgia? A. Well, I don’t know if 
they still operate. They closed up at that time. I don’t 
know if they still operate here or not; I don’t believe they 
do.

Q. But at the time you worked there, they were? A. 
Yes, sir.

William Jackson Ennis—for Plaintiff—Direct



156a

Q. And you worked on the slitter since then, continu­
ally, except for the period that you were away from the 
company? A. Well, the twenty something days that I 
worked on the lock seam tube for Dart Wire, it’s been 
approximately fourteen years I actually worked on slitter.

Q. And you were working on the slitter in 1962 and ’63, 
were you not? A. ’62 and ’63? Yes, sir.

Q. Did you work on the forty-eight inch slitter or on 
the thirty-six inch slitter? A. I don’t know what date, 
what year that I went to the forty-eight inch slitter from 
the little slitter. I don’t even know what year it was, but 
I did go from the small slitter to the large slitter.

Q. Is it fair to say that you’ve had experience with both 
the little slitter, the thirty-six inch slitter and the forty- 
eight inch slitter? A. As of now I have, but as of before, 
I had no experience with the forty-eight inch slitter.

Q. You had experience back in ’62 and ’63 with the 
forty-eight inch slitter, didn’t you? A. I don’t know what 
year I went to this, to the large slitter, forty-eight inch 
slitter. I don’t even know what year they moved the little 
one out, to tell you the truth, but they moved it out, and 
I went direct from the little slitter to the big slitter.

By the Court:

Q. When they moved it out? A. Yes, sir.

By Mr. Moore:

Q. Do you know the difference between the two? A. 
Yes, sir. There’s a lot of difference between the two 
now. At this time, when they moved me, I knowed no dif­
ference. I knowed they both done the same thing, they slit, 
but at the time they moved me, I had never worked on a

William Jackson Ennis—for Plaintiff—Direct



William Jackson Ennis—for Plaintiff—Direct

large slitter, and I didn’t know, and so it’s a lot different, 
lot different, whatsoever.

Q. Now, tell us, Mr. Ennis, which of the two slitters is 
the most difficult to set up and operate, the little one or 
the big one? A. The big one is much easier. The little 
slitter, you start out, you had an eighth inch knife, quarter 
inch knife, three-quarter inch knife, and a half inch knife, 
and you had forty size knives, and then your part was a 
lot different. You had a sixteenth inch parts, eighth inch 
parts, three-sixteenths parts, three-quarter inch parts. Now, 
this you don’t have on a large slitter. You have only one 
size knife, and you start from a, well, thirty-second, sixty- 
fourth up to an inch. You don’t have, say, a three-sixteenth 
or three-quarter, or something, that you have to add to­
gether and then break apart. You don’t have this on a big 
slitter.

Q. So it would be your opinion, based upon your experi­
ence, that the big slitter is much easier to operate? A. 
Oh, it’s much, much easier. It’s more complicated on the 
little slitter.

Well, we worked with what they call fingers. We had to 
set fingers up and guide it. On the big slitter you had rub­
ber rollers. You just slide them on there and put your 
knives in, and that’s it.

Q. Now, do you know how long it will take you to set 
up the little slitter ? A. The little slitter ?

Q. Yes, sir. A. It takes quite a while to set the little 
slitter up. It’s a much harder than the large one, because 
you have, like I said, fingers to set up, and you have to 
adjust them and you have to run it.

You may work on a little slitter anywhere from two 
hours, two and a half hours, and after you get to learn it, 
then you may break yourself down to a smaller time on it,



158a

but it was a, let’s say it was a more out of date, it was way 
out of date.

Q. The little slitter? A. Yes. This is a modern slitter 
that I’m working on now, compared to them others, just 
like driving a T-model to a new Ford.

Q. Was that true in ’63 and ’62? A. That’s right.
Q. The big slitter was like driving the T-model—pardon 

—the little slitter, that is—strike that.
The little slitter was like driving a T-model as compared 

to the big slitter? Is that true? A. It would be as right 
now. If you had the two, you could see it was way out of 
date.

Q. And was it true in ’62 and ’63? A. Yes, sir.

The Court: Well, some folks say the new Ford 
is not as good as the T-model, but I get the point.

By Mr. Moore:

Q. Now, how long does it take you to—strike that.
I want to ask this: When you say “fingers” ,, what are 

you talking about? A. Well, like I told you, the big slit­
ter, forty-eight inch slitter, it’s got rubber rollers that you 
put on your spacers, and this guides the material when it 
is going through, and it levels it.

Now, on the little slitter, we didn’t have no rubber rollers, 
and you put your spaces on it, and you had about two 
inches with the material going through there,, and you had 
to adjust these fingers for the material to go through there. 
Now, if you didn’t have the fingers on there, the material 
would just go up and down where you put the knives, and 
you had to have something to guide it as it goes through.

Q. And the fingers will guide it? A. Yes, sir, that will 
keep the material from marking the knives.

William Jackson Ennis—for Plaintiff—Direct



159a

Q. Were these fingers made of rubber, or some other 
fabric? Were they made of steel, or some other— A. Well, 
they was made of steel, and was covered here a couple of 
time, but usually we would have to put a fell on them, and 
you would have to work sometime to keef) it, to get them 
adjusted with the knives.

Q. Now, from ’63 to ’67 up to the present time, are you 
operating or using the same large slitter that you were 
using in ’63? A. Well, you mentioned the year ’63. Now, 
I don’t know,—you presume that I know what year I did 
go over there. All I know is I went over there direct to 
the, as soon as the little slitter was moved I went direct 
to the big slitter, and I am operating t ever since then.

Q. The same machine? A. The same machine, yes, sir.
Q. Tell us about the big machine, and how long it takes 

you to set it up? A. The big machine? Let’s say you was 
setting a thirty-six inch setup. The order came out, and 
say they wanted a thirty-six inch setup. Well now, you 
make your direct set of thirty-six inches, that’s a steel 
spacer, four inches. Then you have, I believe a diameter, 
eight inch rubber, that you slide over there, and you’ve got 
thirty-six inches.

Now, to the bottom of the setup, it’s very simple. This 
is why I say it could be learned very easy. All you do is 
knock off one inch plus one sixty-fourth, and then you 
have, your setup is made. It can be made in, a thirty-inch 
setup can be made in fifteen minutes. It’s according to how 
far you have to tear down. Now, if you don’t have to tear 
all the way down, well, you can just do it in just a matter 
of ten or fifteen seconds, but if you have to tear all the way 
down, then you may involve into maybe an hour and a half.

Q. And the amount that you have to tear down depends 
upon the production order that you get? A. It depends

William Jackson Ennis—for Plaintiff—Direct



160a

on the order that you get on, and one you come off. Say, 
let’s say I was on a twenty-five inch setup, and they come 
out, say, with a twenty-eight inch setup. Well, all I would 
have to do is add three inches, and I wouldn’t even have 
to knock nothing off the bottom, I would already be set up. 
So, all I ’d have to do would be to add three inches on the 
bottom and three on the top, and that would be the setup 
plus putting your rubbers on, because you would already 
be done made your production, to cut back for your knives 
and shims.

Q. Give us an example when you have to really do a lot 
of stripping down, that it would be complicated. A. Well, 
about the longest setup takes about two and a half hours. 
Let’s say if you come out with a setup, lock seam tubing, 
I believe, is two point one five, I believe, I done forgot, I 
don’t right off know what the setup is, but it’s where you 
have to add shims on the top and shims on the bottom, but 
you have a chart to go by.

Q. And the chart shows you how to proceed to put the 
shims together so as to come up with the correct procedure? 
A. Well, you have a chart.

By tine Court:

Q. This is when you get into thousandths, is what you’re 
telling me? A. Well, me, I use the chart all the time, but 
I don’t have to. I could do it just, well, I wouldn’t even 
have to, most of these setups I wouldn’t have to use on the 
setup.

Let’s say right here, now, here’s one right here, setup 
point, that’s fifteen sixty-fourths, point two three four. 
Now what if the setup come out, other words, we’ll say, 
two point three five, no, three six—

Q. Umm hum. A. Well, see, you don’t have one—

William Jackson Ennis—for Plaintiff—Direct



161a

Q. Umm hmm. A. —without adding on it. So you would 
have to add one thousand shims to that, that would make 
your direct setup on these.

Q. Yes. A. Now, we have a large one of these. Now, 
this is mostly what I go by. Now I don’t have to use these. 
I ’ve learned enough that I can just about od it in my hear 
now, but I do, yet, on all these setups I make. All these 
setups have been handed down that they have to be checked, 
every setup I make, I get Mr. Harry Anderson to check.

Q. Who is he? A. He is a superintendent, that works 
there, and foreman, I think he’s superintendent-working 
foreman, is what his position is.

By Mr. Moore:
Q. Is there any patricular reason you have Mr. Ander­

son check that? A. Yes, sir.
Q. What is that? A. Mr. Peek has handed these orders 

down to him, that every setup we make be checked, and 
he does check every setup I make.

Q. Now, Mr. Ennis, could you tell us what work a helper 
performs to a slitter operator? A. Well, I tell most help­
ers that, actually, a lot of guys, it’s, let me say, Colored 
and White, there’s several Colored I’ve learned the ma­
chine, there’s several Whites I ’ve learned the machine. Now, 
I don’t have to tell them anything when they come back 
up there. Like I’ve got a guy up there helping me now, 
he won’t be up there just today, so the only thing I’ve 
learned him is the fundamentals, how to learn the triggers, 
just the safety part of the machine. I won’t learn him 
the machine because I would actually be wasting my time 
trying to learn him. Like I always tell him, if he comes 
up there and stays a week and then I’ll learn him the ma­
chine, but like I got the guy what’s helping me right now,

William Jackson Ennis—for Plaintiff—Direct



162 a

I say the only thing I ’m going to learn you is the safety 
parts of the machine, where I help you and you help me.

By the Court:

Q. What does he do? What is a helper supposed to do? 
A. Well, a helper, I don’t think really it is designated what 
they are supposed to do. I think actually, we’re supposed 
to work together, whatever we do, besides making the set­
up. They usually help me with that, make the setup, some 
of them do. Now, some of them don’t. Some of them help 
me make a setup. As I say, if a man come up there stub­
born and don’t care nothing about it, well, he won’t, but 
if that man comes up there and wants to learn the machine, 
that’s the first thing he’s going to do, step in and start 
helping me in what I’m doing, and then that’s what we do. 
But now, like this guy today, he come up there today, he 
helps take the scrap off, he helps me then make the setup. 
Yes, I did, I had to tear down, I had a mistake in the 
setup, and helped me to go to the setup and hand me the 
parts to put them back on.

Q. In other words, like you’d say, “Hand me a quarter 
inch?” A. Yes, and usually I don’t have to tell them but 
one time. It’s usually very simple, what I have to take out 
and what I put in.

By Mr. Moore:

Q, And the relief slitter operator is the guy that fills 
in for you when you are sick or on vaction? A. Sir, we 
don’t have a relief slitter operator.

Q. You don’t? A. I’ve been on that job quite a long 
while, as you know, and when a, say a man leaves, like, 
not the man they got now that went to the paint line, but

William Jackson Ennis—for Plaintiff—Direct



163a

when a man leaves, they go a long time. I’ve worked on 
that job down there sick, where I have nobody to help me, 
even if I stay out, to do the job.

Now, it’s a man there had learned the machine. He 
learned it in 1967, about two months before I got fired, 
he did learn the machine because I taught it to him.

Q. Was that Mr. Collins?

By the Court:

Q. Who is this? A. Mr. Arthur Collins.

By Mr. Moore:

Q. And when did you teach him the machine? A. About 
two months, or approximately, I ’m just guessing, two to 
three months before I got fired. It was a relief, he had 
went up, I believe, for my vacation that I didn’t get at that 
time, because I got fired and I didn’t take my vacation. 
I believe that’s what it was for, for him to take it when I 
did. My vacation was supposed to come up in August, 
and they fired me in July.

Q. And how long did it take you to teach Mr. Collins 
the machine? A. Mr. Collins had worked up there as a 
helper, and I already had showed him enough where it 
would be very simple. The only thing I had to actually 
show him, just the shims in back of the knives. I usually 
show that to them last, in the back of the knives. In the 
very back of the knives you have a shim that’s supposed to 
be percentage mark of your material, and I show that to 
them last, and that’s about the only thing I really have to 
learn him, because he had already learned and worked with 
me enough that I showed him what to do.

William Jackson Ennis—for Plaintiff—Direct



164a

Q. How long had he worked with you as a helper? A. 
Well, sir, that would be hard to say.

Q. Just approximately. A. Because, see, the way they 
work—

Q. Over what period of time? A month, six months, year, 
two years? A. No, he hadn’t been up there that long. See, 
they work on an overtime basis. They come up there and 
work to divide overtime. They come up there and work 
on that. He has worked on that. He was, I would say at 
that time, a more steadier helper. He helped me more than 
anybody at that time.

Q. Well, over what period of time? Six months? A. Let 
me think just a minute. I don’t believe that he had.

Q. I ’m talking about prior to your training period, when 
you showed him everything else. A. Prior?

Q. Yes. A. Well, see, that would be hard to say, be­
cause, see, he may come over there and work maybe two 
months, and they would have a cutback on the paint line, 
and then they would take him off and put the seniority 
man up there, but as far as the steady learning everytime, 
I doubt if he had that long, because, see, I can’t say that 
long.

Q. Well, how long? A. Well, I can’t say he had six 
months, because I don’t really know.

Q. Well, over what period of time did he, off and on, 
not steady, help you? A. I would say then that he prob­
ably did have over a year or year and half at that time.

Q. He has been exposed to the thing for about a year— 
A. Yes, sir.

Q. —or year and half? A. Yes, sir, off and on, layoffs 
and cutbacks, and things like that.

William Jackson Ennis—for Plaintiff—Direct

B y the Court:



165a

Q. Now, you remember when the bid went up in March 
of 1967 for the relief slitter operator, don’t you? A. Very 
well, sir.

Q. Now, the training that you gave Mr. Collins, that 
you have just referred to in your testimony, about the last 
shims and all, that happened after he had been selected 
to fill the bid, did it? A. Yes.

Q. As a matter of fact, before you actually started 
giving him this training, he had been promoted to the job 
of relief slitter operator, isn’t that right? A. We knew, 
he knew and I did, too, that my vacation was coming up, 
and we knew that it was going to have to be a man on, 
and we knew the bid was going up, yes. Me and him knew 
that it would be going up, because I had my vacation 
coming.

Q. But I ’m saying that the period, when you gave him 
the training which you just testified about, where you 
showed him the real complicated aspects of the machine, 
the shims, rear shims and all, he had already been pro­
moted at that point, hadn’t he? A. I would say, to me, 
he would, yes, but now, actually, I don’t think that the 
bid, I don’t think when the bid went up, Mr. Sam put in 
a grievance afterwards, I believe in March, when he put 
the grievance in.

By the Court:

Q. Well, the question right now is: When Collins got 
the bid, however he got it, you were training him, was he 
already classified as a relief slitter and drawing the pay, 
or was it after your training period? A. You mean, you 
mean was he drawing money before for the job, before 
that he got the training period?

William Jackson Ennis—for Plaintiff— Direct

By Mr. M oore:



166a

Q. No, during it? A. No, no, sir. He was drawing 
regular process pay then.

By Mr. Moore:

Q. When did he—do you know when he began to draw 
pay as relief slitter? A. As relief slitter? Yes, in March. 
I got it wrote down, when the grievance went in. I know, 
I think it was March 16.

By the Court:

Q. Maybe May, huh? A. I don’t think so.
Q. Well, the testimony is the bid didn’t go up ’til March 

20, so it would have to be sometime after that, wouldn’t 
it? A. I don’t know, I ain’t for sure on that, when he 
actually started operating. In March is when the bid went 
up.

Q. Bight. A. Wait just a minute, I may have it wrote 
down.

Q. And March 28, according to the testimony, is when 
he started the training program? A. The reason I got 
this, I was the Steward at the time.

Q. Yes. A. And I put the grievance in.
This bid went in March 20, this grievance did.
Q. Excuse me. Isn’t that April 4th up on top there? 

A. Oh, yes, yes, there’s the date this went in. But this 
was denied the rights on March 20.

Q. Bight, which is when the bid went up. A. Umm 
humm.

Q. All right. Now, sometime between the time the bid 
went up and that grievance, is when you trained Collins, 
wasn’t it? A. Yes, sir.

William Jackson Ennis—for Plaintiff—Direct



167 a

Q. Did you complete the training during that period of 
time? A. Yes, sir.

Q. All right. Did you make any report to Mr. Anderson 
about Mr. Collins’ training? A. No, sir.

Q. In other words, you never reported to Mr. Anderson 
that Mr. Collins was qualified for the job, is that correct? 
A. I reported to no one. They ain’t never asked me, any­
how, if he did or didn’t.

Mr. Moore: Your Honor, that wasn’t responsive 
to the question, but there is no motion to strike it as 
not being responsive, so I won’t ask him the next 
question that I was going to ask him, and let his 
answer stand.

By Mr. Moore:

Q. Now, sometime in the summer of 1967 you wrote a 
letter to Mr. Culpepper, is that correct? A. Yes, sir.

Q. I show you a photocopy of what purports to be that 
letter, and ask you if you recognize it as being the letter 
that you wrote to Mr. Culpepper? A. Yes, sir. I can’t 
read all of this writing, I can’t make some of it out, but 
this was brought up. I was on the Negotiating Committee 
of the contract, and this was brought up, too, identical 
right here.

Q. You were on the Negotiating Committee for the 
Union contract with the company? A. Yes, sir.

Q. And that is what refreshes your memory with respect 
to writing that letter? A. Refreshes my memory writing 
that letter, not only this, but I deny the rights of the job, 
the answer come back from Mr. M. L. Peek that it would

William Jackson Ennis—for Plaintiff—Direct

B y Mr. M oore:



168a

be discussed, negotiated at the contract. I have the answer 
in my pocket for that.

The Court: Well, this is meaningless to me, so 
far.

Mr. Moore: We have to clear it up.

By Mr. M oore:

Q. Now, do you recall meeting* Mr. Culpepper before 
work one morning at the plant, and giving him the original 
of that letter? A. Yes, sir.

Q. Was it in an envelope, or just in a piece of folded 
paper? A. 1 believe it was in an envelope. Now I don’t 
really know, I ’ve done forgot, I don’t know if it was in a 
folded piece of paper or in an envelope, or not, I don’t 
really know that.

Q. But you are positive, aren’t you, that you gave that 
letter to Mr. Culpepper? A. Yes, sir.

Q. Did you ever have occasion to discuss the giving of 
the letter to Mr. Culpepper with anyone from Manage­
ment? A. You mean anyone beside him?

Q. Yes. A. No, sir.
Q. You say that it came up in negotiations for the Union 

contract, in your testimony, remember that? A. Come up 
in negotiations about Samuel, yes.

Q. When did that come up? A. Mr. Peek brought it 
up about a, to go up on a machine for a ninety day period.

You see, this, it was to, to go up on a machine and work 
as process labor for ninety days, and then if he learned in 
that ninety days, then he would become a slitter operator, 
and they brought the letter out for Mr. Sam to sign. I 
don’t know if he signed, I don’t know that,—

William Jackson Ennis—for Plaintiff—Direct



169a

Mr. Moore: May I have the exhibit?

A. (The Witness continuing)—and I don’t know if he 
took the job, after he signed it, he would or wouldn’t. I 
know he didn’t come up there to learn, but I know it was 
discussed up there on the contract.

After the contract, we was talking’, we had a recess and 
meeting, and it was discussed.

By the Court:

Q. Well, in July of last year were you in the process 
of negotiating a new contract when you gave this letter 
to Mr. Culpepper and talked to him? A. I think the letter 
was give to Mr. Culpepper before the contract. I ’m pretty 
sure it was.

By Mr. Moore:

Q. Mr. Ennis, let me show you Plaintiff’s Exhibit #7, 
and ask you whether or not this is the document that you’re 
talking about, where Mr. Culpepper was offered a ninety 
day trial period? A. Yes, sir, this is it.

Q. And it’s dated May 5, 1967, is that right? A. Yes, 
sir.

Q. Now, you gave the letter to Mr. Culpepper after 
May 5, 1967, is that corerct? A. This letter here was 
given to Mr. Culpepper by Mr. Harry Anderson.

Q. This is Plaintiff’s Exhibit #7, right here; it was 
given—

By the Court:

Q. He’s talking about that note you gave in the wash­
room that morning. Was that after? A. In the washroom? 
I don’t know where I actually gave it to him.

William Jackson Ennis—for Plaintiff—Direct



170a

Q. Well, wherever it was. Well? A. It was give to 
him before this.

Q. Well, we’re asking you about this, right now. A. 
Well, I ’m pretty sure that this letter had a date on it, 
I mean, didn’t it?

Q. No. A. I mean, I don’t have it here.
Q. Well, what caused you to give the letter to him?

The Court: I guess that’s where we’re headed, 
isn’t it?

Mr. Moore: Yes, sir.

A. (The Witness) Well, we’ve had a, several grievances. 
We had a grievance on it from there, and after we dis­
cussed it on the grievances, this is when I give the letter 
to Samuel Culpepper.

By the Court-.

Q. In other words, that May 5th business over there, 
when he was made this offer, “We” discussed it. Now who 
is that? A. Stewards.

Q. All right. A. Let’s see, one of the Stewards is fired, 
and one of the Stewards is still there.

Q. Then the three of you all? A. Well, one of them 
was a temporary Steward, one of them was.

Q. Well, I don’t know what his title was. The three of 
you all discussed it? A. Yes, sir.

Q. And on account of the discussions, then you decided 
you would tell Culpepper something about it, is that right? 
A. Well, I felt that he was getting mistreated on it.

Q. Well,— A. Yes, sir.
Q. I ’m just trying to find out how it came about. A. I 

felt that he was getting mistreated. This is for the reason

William JacJcson Ennis—for Plaintiff—Direct



171a

I give him the letter. Not only this, in the ten years there’s 
several other things that come up, that I know he was 
getting mistreated, and this is for the reason of giving 
him the letter of the thing.

Q. Well, what did you tell him? A. At the time I give 
him the letter? I told him I was afraid I was going to get 
fired, so I was going to give him this letter and tell him 
that I could learn him the machine.

Q. Well, were you and these other two Stewards dis­
cussing the fact that the offer, that came out in May, 
you didn’t think was right? This ninety day deal? A. 
No, no, we were discussing, we wasn’t discussing this, we 
were discussing the decision of it, decision of it. See, I 
got the hand down what Mr. Peek—Mr. Peek come back 
with the hand down, I got it, and we were discussing the 
hand down.

Q. All right, sir. A. Actually, I don’t think they knew 
about me writing this letter.

Q. Well, I don’t care whether they knew or not, I ’m 
just trying to find out why you wrnote the letter. A. In 
the ninety day period they knew, they did know about 
the ninety day period because this was discussed up there.

Q. Sure, because they made that offer. A. Yes, sir.
Q. All right. And you and other Stewards didn’t think 

that was a fair offer for his grievance, is this right? A. 
Well, I can’t answer for them.

Q. Well, you didn’t? A. Naturally, I didn’t.
Q. All right. So you go to Culpepper and say, “I don’t 

think you got a fair deal and— A. This is not—
Q. —I can teach you on the machine” ? A. This is not 

for the reason I give Mr. Samuel Culpepper the letter, 
but this would tie into it, yes, sir.

Q. Well, what was the reason you gave it to him? A. 
Well, the reason I give Samuel Culpepper this letter,

William Jackson Ennis—for Plaintiff—Direct



172 a

when we were being, when I went to the big slitter from 
the little slitter, I signed paint line bids to get off the 
slitter.

Q. Umm humm. A. Mr. M. L. Peek knowed about it, 
and I then talked to him, and he said that I ’ll stay on the 
slitter where Pm at. And this is, I ’ve been pressured more 
or less to stay on the slitter, definitely from Mr. M. L. 
Peek, and this is the reason come up about the letter.

Q. Well, I don’t see what that has to do with Mr. Cul­
pepper. We can’t try your case. A. That’s right.

Q. We’ll have to do that some other time. A. Well, 
you asked me the reason I give him the letter.

Q. Yes. A. Is on account I couldn’t get off the machine. 
Q. What you were hoping was that you could get off the 

machine and— A. See, I signed a paint line bid to get 
on the paint line, and they erased my name off the bid, and 
I talked to Mr. Peek about it, and I still couldn’t get over 
there.

Q. Well, fortunately that’s an N. L. R. B. matter, and 
not a Federal Court matter. A. Yes, sir.

By Mr. Moore:

Q. Now, Mr. Ennis, Mr. Peek wanted to keep you on 
the slitter machine because he didn’t want a Negro to get 
that job, isn’t it? A. That’s correct.

Mr. Pate: I object to that.
The Court: Certainly.

By Mr. M oore:

Q. Mr. Ennis, will you state whether or not you have 
any personal knowledge as to whether or not Mr. Peek

William Jackson Ennis—for Plaintiff—Direct



173 a

wanted yon to remain on the slitter machine to prevent 
a Negro from getting the job? A. Yes, sir.

Mr. Pate: I object to the question.
The Court: He may state what Mr. Peek told 

him and nothing else.
Mr. Moore: Well, Your Honor, I asked him for 

his personal knowledge as to—
The Court: Well, knowledge can be—I think all 

this is true, from up in the air and all. Now, if he 
can attribute a direct statement to Mr. Peek, it is 
admissible and has value; if not, it doesn’t.

That would be a conclusion on his part.

By the Court:

Q. What did Mr. Peek tell you about it? A. In ten 
years I can’t definitely put no dates, put no time when 
things that happened, but I can state that Mr. M. L. Peek 
has come up to me, not only once but several times, saying 
that, Damn, the machine will be moved out if I didn’t 
quiet down and stay on it, and wasn’t no Damn nigger 
going on it. Now these is his words.

Q. This is what Mr. Peek has told you? A. Mr. M. L. 
Peek has told me these, but now dates, I can’t, don’t re­
member.

By Mr. Moore:

Q. Is it because of Mr. Peek’s word to you that you 
wrote Mr. Culpepper the letter? A. Yes, sir.

Q. And were you willing to and able to teach Mr. Cul­
pepper the job? A. I would like to explain that, if I 
could.

William Jackson Ennis—for Plaintiff—Direct



174a

Q. Go ahead. A. I have nothing against alearning Sam 
the job, but I have my feeling's. Now, here’s the way I feel. 
I f he comes up there and works with me, then I learn him 
the job, but now, I feel, myself, if he comes on a trial 
period, that I feel the superintendent should teach him, 
on account of he’s on the trial period, but say if he comes 
up to me today, just like this fellow did today, he’s a 
Colored fellow working with me now, I showed him all 
the fundamental parts, just for today, and if Sam were 
to come up there and work with me, then I ’ll show him 
the entire machine and how to do it and learn it, but now, 
when he’s on a trial period, I feel Mr. Anderson should 
be the man that learned it, because once before he was 
on a trial period and they did not help me to teach him. 
I was called into Mr. M. L. Peek’s office on account of 
this once before, and I did not teach him. It took William 
Peering to teach him, but I still feel at that time the 
superintendent should teach this man, even at that time, 
when they had another man teaching. Well, actually, I was 
a lot better qualified to learn this man than even William 
Peering.

Q. Now,—

William Jackson Ennis—for Plaintiff—Direct

The Court: I assume that what he’s saying is 
that, as a matter of fact, he could teach him, but 
he doesn’t want to be put on the spot about being 
the one to say whether he’s qualified or not.

Is this—
The Witness: Yes, sir.
The Court: —that he thinks that ought to be 

for a higher up.
The Witness: I tried to explain that to them, 

but—



175a

Mr, Moore: Tour Honor, I understood Ms testi­
mony to mean that he didn’t want to teach him 
during the twenty day trial period of the bid.

The Court: Right, because he didn’t want to be 
the one to say whether he was or was not qualified.

Isn’t that right!
The Witness: Yes, sir.
The Court: That he thinks it ought to be up to 

the superintendent to do that.
You all can put that in your next contract, I guess.

By Mr. Moore:

Q. Mr. Ennis, will you state whether or not you do not 
want to be the man who certifies that Mr. Culpepper is 
qualified, because you fear a reprisal against you at the 
plant!

William Jackson Ennis—for Plaintiff—Direct

Mr. Pate: I object.
The Court: You’re leading him just a little bit, 

Mr. Moore.
Mr. Moore : All right.

A. (The Witness) I ’ll state one reason on it that probably 
will answer the question, too.

Let’s say we’ve got several White people out there, and 
they don’t only, will pressure and ride me, I ’ve spent 
money, now this is me, I ’ve spent money and my automo­
bile, to have them pick my car up and take it and have 
water taken out of it, and tires cut in a car outside. This 
is one of my reasons right here, and these are known facts, 
too, can be proven.



176a

William, Jackson Ennis—for Plaintiff—Direct 

By Mr. Moore:

Q. You say “known facts” , do you mean they are known 
to Mr. Peek, the Manager? A. I ’ve talked to Mr. Peek, 
yes, sir.

Mr. Pate: I ’m going to move to strike that last 
answer; I don’t think it is material to the case in 
any way.

The Court: I don’t quite follow it yet. The ques­
tion was: Can you say why you don’t want to be 
the one to certify him, and he said because water 
had been taken out of his car, and his tires cut by 
other White workers.

A. (The Witness) Well, let me make one thing, let me 
kind of explain it.

You know, the other day when we was up here and you 
said come back December 4th? I got back to the building, 
and after I got back to the building one fellow come over 
to me and said, “Are you going to testify?” I said, “Well, 
that’s up to me.” He said, “I wouldn’t testify for no 
nigger,” he said, “ I’d testify for the company.”

Now, there’s one more little thing. I ’ve got a letter 
in my pocket right now, was sent to me with a box. Mr. 
Peek witnessed it, has seen it. It said, “Take this soap, 
take this soap, go in the bathroom and wash you know 
what, and so on, in this.” That’s why I don’t want to 
learn this man.

But one of the reasons is because the other people out 
there would take it on me, take it out on me.

By Mr. Moore:

Q. Has Mr. Peek offered to protect you? A. Sir?



177a

William Jackson Ennis—for Plaintiff—Direct 

Mr. Moore: Strike that.

By Mr. Moore:

Q. Has Mr. Peek offered to protect you if you would 
learn Mr. Culpepper this job? A. None whatsoever. I 
give this letter to him right here.

Q. Let’s see the letter. A. I give this letter to him 
right here, and he told me exactly who wrote the letter. 

Did I had it to you out there in the hall?
This is the letter I give to Mr. Peek, with the box 

settin’ on my machine.

Mr. Moore: May we have this marked, Your 
Honor?

A. (The Witness) Right there.

The Clerk: For identification Plaintiff’s Exhibit 
#13, letter directed to Ennis, undated.

The Court: Unsigned, I presume.
The Clerk: Undated and unsigned, yes, sir.

(Whereupon the above paper was marked for 
identification only as Plaintiff’s Exhibit #13.)

A. (The Witness) I took that letter direct to Mr. Peek 
when it wms give to me.

Mr. Pate: Let me see it.
The Court: Before I forget about it, if anything 

is said to you about testifying in this case, I want 
you to let me know.

The Witness: Sir, I ’ve got bills at the house— 
The Court: I can’t get into your bills.



178a

The Witness: I ’m ashowing the proof, I don’t, 
I mean, I have even had the foreman to come out 
there, and I fell, my car, my truck fell as I was 
putting the jack under it, where these men have 
done this.

The Court: What I’m telling you, if anybody 
makes any threats to you on account of your testify­
ing in this case, I want you to let me know.

The Witness : Yes, sir.
Mr. Moore: Your Honor, for a matter off the 

record, is it likely that we will be going tomorrow?
The Court: I hope not, but the way you’re going, 

it looks like we are.
Mr. Moore: Because I have a witness—
The Court: Well, let’s move, let’s don’t count 

on anybody in the morning.
Mr. Moore: I was going to say that he has a 

prior engagement, and I wonder if we could excuse 
him.

The Court: Let’s use him now.
Mr. Moore: Well, I will go ahead and complete 

the direct examination of this witness.

By Mr. M oore:

Q. I show you Plaintiff’s Exhibit 13, and ask you to 
tell the Court when you were given that letter and where 
you were at the time. A. I was at my job, on my job at 
Reynolds Metals Company.

Q. And who gave you the letter? A. This letter was 
settin’ on my machine when I come back off of my break.

Q. And do you remember the date and the month? A. 
No, sir. They got 1968. I didn’t, at that time, they keep

William Jackson Ennis—for Plaintiff—Direct



179a

me so shook up on that machine there, I don’t even remem­
ber the dates.

Q. Was this after—

By the Court:

Q. Did they not give you letters on the paint line? A. I 
don’t know that. They told me they was going to walk 
out and strike as soon as I come on the paint line and 
signed the bid. I didn’t even get on the paint line. My 
name has been rubbed off, and Mr. Peek knows about it.

By Mr. Moore:

Q. Was this after you came to court in November of 
this year, in this case? A. When I got this letter? I ’m 
pretty sure it was, sir.

Q. What did you do with the letter? A This letter?
Q. Eight. A. At the time this happened, I took it direct 

to Mr. Peek, and there was a bunch of them in the office 
and, I took the box first, and I tore it open and give to 
Mr. Peek right there, and he just laughed, and then a few 
minutes later I went out, I had dropped the letter off the 
box, and then I turned around after I got the letter, 
that’s when I got mad, I turned around and took it back, 
went back to Mr. Peek’s office, and he told me, he said, 
“See that name right there?” He said, “ That’s the man 
that wrote it.”

Q. Did he tell you whose name it was? A. It says “M” . 
There’s Mayfield. He said—we have a guy out there by the 
name of Mayfield, two brothers, and he said, “That’s the 
man who wrote it,” and I said, “Yes, I believe it is, too.” 

Q. Did he say anything else? A. No, he didn’t say any­
thing. I walked out.

William Jackson Ennis—for Plaintiff—Direct



180a

Q. Did he offer to give you any protection? A. No, 
sir.

William Jackson Ennis—for Plaintiff—Direct

The Court: Does he owe him protection?
Mr. Moore: I think so, Your Honor.
At this time, Your Honor, we move to put into 

evidence Plaintiff’s Exhibit 13, the letter to Mr. 
Ennis.

Mr. Pate: Your Honor, we object, purely because 
it’s irrelevant and immaterial to the case. I don’t 
see anything in that letter that ties into this case 
in any way.

The Court: Objection sustained.
Mr. Moore : All right.
We would like to make it a part of the record, 

Your Honor.

By Mr. Moore:

Q. Now, in this letter that you wrote Mr. Culpepper, 
and you gave to him back earlier before this case was 
filed, you offered to train him for the job, that correct? 
A. I told Mr. Sam, wrhen I give him this letter—

Mr. Pate: I object to any statement, Ms testi­
fying to any statement in the letter.

The Court: Well, if he told him, he can testify.
Mr. Pate: He asked him what he said in the 

letter, and I didn’t know whether that’s his testi­
mony.

The Court: He said, “Did you tell him in the 
letter you would train him,” and he says yes, he 
did.



181a

A. (The Witness) I told Mr. Sam the day I give him 
this letter, I said, “I ’m afraid to learn yon the job. I ’ll 
learn you the job, but I’m afraid to learn you the job, 
that’s the reason I ’m giving you this letter.”

That’s the words I told him.

Mr. Moore: Your Honor, at this time we offer 
the letter to be admitted into evidence.

A. (The Witness continuing) I don’t know if I told him 
I would get fired, I don’t know if I did. He—you can ask 
him, but I did told him I was afraid to learn him the job. 
Now, I don’t know about getting fired; you can ask Mr. 
Culpepper. I done forget.

By Mr. Moore:

Q. All right. Will you state whether or not you were 
afraid of Mr. Peek, the Manager!

Mr. Pate: I object to that question.
The Court: We’re getting pretty far afield here.
This witness, I presume, is offered to show that 

he could train Mr. Culpepper, that the machine 
is comparatively simple compared to its predeces­
sor, the Model T slitter, and that he feels that he 
could be trained very easily, and therefore qualify 
as a slitter operator.

Now, what else is the value of this witness!
Mr. Moore: Your Honor, it seems it shows a 

prevalence of discrimination at the plant against 
Negro or Black workers.

The Court: Well, is the President of Lockheed 
responsible if some Ku Kluxers work at Lockheed 
and make some threats against other workers?

William Jackson Ennis—for Plaintiff—Direct



182a

Mr. Moore: I think if he knows about it, he is.
The Court: I don’t know any law about that. I 

mean, there’s sorry folks everywhere, let’s face it, 
and I don’t know that this Court, or anybody else 
can make those folks good,

Mr. Moore: Your Honor, I’m not talking about 
the Ku Kluxers, I ’m talking about Management’s 
responsibility.

The Court: Well, wdiat is their responsibility in­
sofar as it relates to a charge of discrimination and 
promotion against Culpepper.

Mr. Moore: Your Honor, well, they have an ob­
ligation-—

The Court: The language that he attributes to 
Mr. Peek is competent evidence, that it shows on 
the part of Management an attempt to discriminate 
against a Negro applicant for a slitter operator. 
Now, what these Mayfield brothers, or the James 
brothers, or somebody else does, I can’t see.

Mr. Moore: I wasn’t going into the Mayfield 
brothers. I asked him directly about Mr. Peek.

The Court: Well, all he said is that he was afraid 
he would get fired. This is a conclusion on his 
part. It is something in his mental process.

By Mr. Moore:

Q. Can you state whether or not Mr. Peek has threatened 
you with discharge? A. Yes, sir.

The Court: For what?

By Mr. Moore:

Q. And when?

William Jackson Ennis—for Plaintiff—Direct



183 a

William Jackson Ennis—for Plaintiff—Direct 

The Court: For what?
Mr. Moore: I ’m going to get to that. I ’m trying 

to find out when.

A. (The Witness) Now, the dates, these dates have all 
been back sometime ago, for learning Mr. Sam here the 
job.

By the Court:

Q. All right. What did he say? A. Mr. Peek had come 
up to me, Mr. Peek, now this is mostly Saturday work, 
and when Mr. Peek, was what I would feel now would 
probably be “high” , because I smelled it, and he would 
come up to me several times, and I ’ve asked him about 
getting off the machine. “You’re not getting off the d-a-m 
machine.”

Q. All right. Did he say he was going to fire you if 
you trained Mr. Culpepper? A. He has stated I would 
be fired if I trained Mr. Samuel Culpepper.

Q. Okay.
Are you happy in the job out there? A. Sir, I ’ve got 

a wife and three kids. I go out there to go to work. I 
don’t mind telling you, because I go out there to work 
for my wife and kids, and no, I don’t like the way that 
they have, I don’t go job hunting around, I ’ve been out 
there ten years almost, and I like my job I do, and I go 
out there and do eight hours, and I go out there and do 
good work, I don’t go out there and do bad work, and I 
don’t fool around when I go out there.

By Mr. Moore:

Q. Mr. Ennis, have you had occasion to observe Mr. 
Culpepper working at the plant? A. No, sir. Mr. Cul­



184a

pepper worked across from me at this slitter, and I worked 
on one slitter and he worked on the other.

You mean as far as going out and show him how, and 
watching him?

Q. Have you seen him as a worker at the plant? A. 
I have seen him working across from the machine, yes, 
sir.

Q. Is it your opinion, as an operator of the slitter for 
more than ten years, that Mr. Culpepper could learn the 
operation of the slitter within twenty days? A. I feel 
Mr. Culpepper was not getting a fair trial, sir.

Q. Do you feel that he could learn the slitter within 
twenty days? A. I can not only, I can learn him the fun­
damental parts of the learning the machine, enough ability 
in just a week or two. If he wants to learn the machine 
now, I can learn him just in a little while, but he’s got 
to want to do it.

Q. Is it your opinion that he could learn within twenty 
days? A. I could learn Mr. Samuel Culpepper—

Q, Is it your opinion that he could learn? A. Well, I 
don’t know his ability, I don’t know what he could do. I 
think he could, and I might be wrong by thinking he 
could, but I believe he could. I have worked with him ten 
years, and he seemed to get along, well, he seems to be, 
he’s on the job.

Q. Now, Mr. Ennis, do you know’ of anyone presently 
employed at the Reynolds plant, who is better qualified to 
train Mr. Culpepper to the job as relief slitter operator 
than you, yourself? A. Well, then you’re going back to 
see, just like you asked me, I feel if Sammy comes up and 
works with me, then I fell like I should learn him, but if 
it’s on the trial period, it’s getting right back to the same 
question. When you ask me getting on the trial period,

William Jackson Ennis—for Plaintiff—Direct



185a

I feel the superintendent should learn him. Now, actually 
I don’t feel he’s better qualified than I am, because I work 
there every day, I know it, I know all the parts, what 
trouble comes up. As far as him being better qualified, no, 
but I feel that he should learn him on the trial period.

Q. Let me ask you the same question another way.
Is it your opinion that you are the best man at the plant 
to teach Mr. Culpepper how to operate the slitter? A. 
At working with me, yes, sir.

Q. Thank you, sir.

Mr. Moore: You may examine.

Cross-Examination by Mr. Pate:

Q. Mr. Ennis, you recall a few days ago that I came 
out to the plant and talked with you a few minutes about 
this case? A. Very well, sir.

Q. And you recall that you told me then that you had 
written this letter that you’ve testified about today? A. 
I recall when I first walked in Mr. Peek’s office, I told 
you I had death in my family, and I told you that I did 
not feel like even talking about this thing, but if you 
would lightly go into it, I didn’t really want to, but I was 
leaving it up to your judgment, and then I did talk to you 
about it, yes, sir, but after that I got nervous and I had 
to go to the doctor, sir.

Q. We did talk for a few minutes about the matter? A. 
Yes, sir, we did, sir.

Q. You told me then that you had written this letter, 
about which you testified? A. You asked me, you asked 
me, yes, sir, I did.

Q. And you confirmed that you had written it? A. I 
told you that had written a letter, yes, sir, I did.

William Jackson Ennis—for Plaintiff— Cross



186a

Q. And didn’t I ask you if either Mr. Peek, or anybody 
connected with Company Management, had ever given you 
the idea, or made any statement to you that you would 
be discharged, or that there would be any other reprisal 
in connection with training Mr. Culpepper on this job, 
and didn’t you tell me that, no, neither Mr. Peek nor 
anybody else with Management had ever done that? A. 
No, sir, I did not. Here’s the words I told you, sir.

I told you that Mr. Harry has never said such words to 
me. I told you, but the words, “ Nigger, nigger, nigger,” 
has been said several times by Mr. Peek and others.

Now, I did not answer your question that you actually 
asked me, and then after that, I went direct and called 
Mr. Moore’s secretary, and told her, and I talked to the 
doctor, and I was very shook up that day because my 
sister’s husband had passed away, and we was close friends.

Q. Well, as I understand you, then, you say that you 
did not answer my question on that subject; is that right? 
A. I told you then, just as I told you then, I told you 
that Mr. Harry has not said nothing to me whatsoever. 
I said, “But Mr. Peek has said ‘Nigger, nigger, nigger’, 
several different ways, direct to me.”

This is what I told you.
Q. You’re saying that you told me that— A. I told 

that in this office.
Q. —on this occasion? A. I told you that in Mr. Marion 

Peek’s office.
Q. Who else was there? A. Mr. Marion Peek was in 

there, and you and Mr. Harry Anderson, and I believe 
that was all.

Q. Hid you tell us then that Mr. Peek had ever threatened 
you with discharge if you trained Mr. Culpepper— A. I 
don’t, believe—

William Jackson Ennis—for Plaintiff— Cross



187a

Q. —on some position like that? A. I don’t believe you 
asked me the question. If you did, I don’t remember an­
swering it, because I was very nervous. I went to the 
doctor when I left there, and I didn’t really want to go in 
there in the first place.

Q. When did Mr. Peek make a statement like that to 
you? A. Sir? What statement, sir?

The Court: That he would fire you if you trained 
Mr. Culpepper to be a slitter operator?

A. (The Witness) Sir, this statement was made just, some, 
not too long after I worked there, and that has not only 
been made once, but this has been made several different 
times, on the big slitter and also the little slitter.

You see, Samuel has tried to get on both slitters. He 
tried to get on the little slitter, and he’s also tried to 
get on the big slitter, and this has been made—I don’t 
know the date.

Q. You don’t have any idea what the date was? A. I 
can bring you up-to-date on this here thing, as far as 
dates. I have a statement in my pocket where I have been 
to the doctor on dates, and I suffer from a loss of memory, 
and I been to the doctor, Mr. Peek very well knows this, 
too, and Mr. Peek has also even stated to me as stupid 
and nutty and crazy, and I can’t even remember them 
dates when it happened. This was even during the time 
that he knows, but I don’t remember the dates. He has 
said to me several times on these things. I have negotia­
tion of the contract by Mr. Peek, that made the statement 
that I was nuts, crazy and stupid.

I also went to a doctor and paid—

Mr. Pate: I have nothing further.

William Jackson Ennis—for Plaintiff— Cross



188a

A. (The Witness continuing)—over here in a mental in­
stitution that I was not insane, and nothing wrong with 
me whatsoever. He did tell me that, for me to stay clear 
of Mr. Peek, work on my job and try to stay clear of him. 
He did tell me that.

Mr. Pate: I didn’t understand all the witness’ 
statement.

By Mr. Pate:

Q. Who made that statement to you? A. What state­
ment, sir?

Q. You were just saying that somebody told you to stay 
away from Mr. Peek.

The Court: He said a doctor in a mental insti­
tution.

A. (The Witness) I got that at the doctor institute that 
I went to during this time that Mr. Peek—I claimed he 
got me upriled, but I don’t know what the doctor would 
say, sir, but I went to the doctor for quite a while, and 
he, even went to him after I went back to work, and I 
got a letter in my pocket, I believe it’s, I know it’s in my 
pocket there, it’s not one thing wrong with me.

Mr. Pate: I have no other questions.
The Court: All right.
Anything else from this witness?
Mr. Moore: No, sir.
The Court: All right. You may go down, Mr. 

Ennis.
The Witness: Yes, sir.

William Jackson Ennis—for Plaintiff— Cross



189a

Leave this or take it?
The Court: Leave that at Mr. Moore’s desk.

(Whereupon the witness was excused from the 
stand.)

Mr. Moore: Your Honor, we move the admission 
of Plaintiff’s Exhibit 13.

The Court: I have already repelled it.
Mr. Moore: You excluded it?
The Court: The letter?
Mr. Moore: Yes, sir.
The Court: Yes, you have offered it once before 

and I excluded it. There’s no proof who it came from, 
or anything else.

Mr. Moore: I wrould like to make it a part of the 
excluded evidence.

The Court: How’s that?
Mr. Moore: We would like to make it a part of 

the record, as the excluded evidence.
The Court: Well, as I understood, you -were go­

ing to photostat it and put that in as a part of the 
record, and this is perfectly all right, if he doesn’t 
want to leave without it.

The Witness: Well, it don’t make no difference 
with me. As far as I’m concerned, you can put it in 
the trash can.

The Court: I ’ll try to take care of it.
Get Mr. Mercer to go around there and Xerox it, 

and you can give it to him.
Mr. Moore: Mr. James Culpepper.
The Clerk: Mr. Culpepper, raise your right hand, 

sir.
You do solemnly swear the evidence you shall give 

in the issue joined between Samuel Culpepper and

William Jackson Ennis—for Plaintiff— Cross



190a

Reynolds Metals Company, shall be the truth, the 
whole truth and nothing but the truth, so help you 
God?

Mr. Culpepper: I do.
The Clerk: Thank you, sir.
Please be seated over there.

James Thomas Culpepper—for Plaintiff—Direct

M e . J a m e s  T h o m a s  C u l p e p p e b , ca lled  as a w itness in 
b e h a lf o f  the p la in tiff, a fte r  h av in g  first been  d u ly  sw orn, 
testified  as fo llo w s :

Direct Examination by Mr. Moore:

Q. Would you state your name, please, Mr. Culpepper? 
A. James Thomas Culpepper.

Q. And where do you live? A. 251 Anniston Avenue, 
Apartment B4, Northwest, Atlanta, Georgia.

Q. Are you employed at the Reynolds Metals Company? 
A. I am.

Q. How long have you been so employed? A. Thirteen 
years, practically thirteen and a half years.

Q. Can you tell the Court the day on which you started 
your employment? A. The 17th day of March, 1955.

Q. And in what job were you first employed? A. Well, 
I was employed as a laborer when I first start work there.

Q. And did you later get a job as a paint line operator? 
A. I did.

Q. And when was that? A. I can’t recall the exact year, 
but it was in ’58 or ’59. I don’t know exact what year, I’m 
not too for sure.

Q. Were you one of the first Negroes hired on the paint 
line? A. I was.



191a

James Thomas Culpepper-—for Plaintiff—Direct 

By the Court:

Q- Excuse me. Are you any relation to Sammy ? A. Yes, 
cousin.

Q. Cousin? You all go to work there about the same time, 
I guess? A. About two months difference.

Q. You started two months earlier? A. Yes, sir.

By Mr. M oore:

Q. And you are presently employed in the paint line, 
is that correct? A. That’s right.

Q. Are you one of the first Negroes employed at the 
plant? A. Talking about at Reynolds?

Q. Right. A. No, they had some before.
Q. I show you Plaintiff’s Exhibit #11, which is a paint 

—which is the plantwide seniority— A. Umm humm.
Q. —as of September 20, 1968, is that correct?

The Court: We’ll assume that is what it is.

A. (The Witness) Yes, sir, that’s what it is.
Q. Now, of the first eighteen employees listed on the 

Seniority Roster, can you tell us whom of those are mem­
bers of the Negro race?

Mr. Pate: I object; that information—

A. (The Witness) Sixteen.

Mr. Pate: —is on the exhibit itself.

A. (The Witness) Sixteen of them.

By Mr. Moore:

Q. Sixteen? A. They have two Whites.



192a

James Thomas Culpepper—for Plaintiff—Direct

By the Court-.

Q. Where are you on the list? A. I’m fourth.
Q. Fourth? A. That’s right.

Mr. Moore: Would you mark this as #14?
The Clerk: For identification Plaintiff’s Exhibit 

#14, Seniority Poster, Alloys-Atlanta, Plantwide 
Seniority as of March 31, ’67.

Mr. Moore: And there are three attachments. 
The Clerk: With three attachments: Number one 

being Seniority Roster, Alloys-Atlanta, Paint Line 
as of March 31, ’67.

The second attachment is Seniority Roster, Al­
loys-Atlanta, Fabrication as of March 31, ’67.

The third attachment is Seniority Roster, Alloys- 
Atlanta, Shipping and Receiving as of March 31, ’67.

(Whereupon the above papers were marked for 
identification only as Plaintiff’s Exhibit #14.)

By Mr. Moore:

Q. Mr. Culpepper, I show you Plaintiff’s Exhibit #14, 
which is Plantwide Seniority; do you recognize it as being 
such? A. Plantwide Seniority?

Q. Yes. A. I do.
Q. Would you turn to the second page, which is the 

seniority for the Paint Line! A. Umm humm.
Q. Do you see it as being the Paint Line Seniority? A. 

Yes, sir.
Q. Could you give us the identity of the first five per­

sons, racially, on that list?

Mr. Pate: Let me see.



193 a

James Thomas Culpepper—for Plaintiff—Direct 

A. (The Witness) You mean—

The Court: Yes, the first five names, are they 
White or Negro?

A. (The Witness) White.

By Mr. Moore-.

Q. Do you see your name on the seniority list for the 
Paint Line? A. Umm humm.

Q, Where is it listed? A. Seventh person.
Q. Do you see the name of Mr. Jimmy McLain? A. Umm 

humm.
Q. Now, Mr. Culpepper, if you know, how do you recon­

cile the difference between the greater plantwide seniority 
of Negro workers and the seniority of Negro workers in 
Paint Line Department?

Mr. Pate: I object to that.

A. (The Witness) Well, I—

Mr. Pate: Just a minute, I ’m objecting to that 
question.

I don’t think the witness’ opinion on a subject like 
that is material to the case.

The Court: Well, I don’t think his opinion is, but 
if he knows why he is listed seventh, I assume it’s 
going to be he is seventh in that department, but 
that’s an assumption on my part, and it would have 
to he in the record.

A. (The Witness) Well, as you know, the first eighteen 
people, I made a slight error, because we had one who de­
ceased, who passed, King Thompson, fifteen Negroes.



194a

For so many years, the plant, Reynolds Metals Com­
pany, a Negro was not allowed to work in this department 
until sometime later, we broke this racial barrier from—

Mr. Pate: I move to strike that statement, that 
a Negro was not allowed to work in the department.

The Court: Well, let’s assume he wasn’t in 1959. 
There was no federal right in 1959. Now we will 
have to get some dates down before it would be 
significant.

Mr. Pate: I don’t believe it’s been shown by any 
foundation that he was in a position to know whether 
or not a Negro would be allowed to work in that 
department.

The Court: I am sure that is correct.
The Witness: I f you will allow me, I will finish 

the statement.
The Court: Well, let’s don’t go too far afield. 

Let’s relate it back to the date of the Act.
Since the date of the Act, can you demonstrate 

anything on these lists, or slightly before that?
Mr. Moore: Yes, sir. I don’t think it will take 

but just a second or two.

By Mr. Moore:

Q. Do you know of your own personal knowledge when 
Negroes first got into the Paint Line! A. Well, as I said 
before, some years later, in 1958 or ’59; I don’t know ex­
actly what year.

Q. And do you know how many Negroes first got into 
the Paint Line? A. Three.

James Thomas Culpepper—for Plaintiff—Direct



195a

Q. Now, since 1962, do you know whether or not Negroes 
had had difficulties, have faced discrimination in getting 
jobs in the Paint Line?

Mr. Pate: I object to that.
The Court: Certainly.
Mr. Moore: Your Honor please, I think it is rele­

vant. They go back to ’62.
The Court: It is a conclusion on this man’s part. 

The ultimate issue is just what you are asking, and 
it would he a conclusion on his part as to whether 
they had difficulty or suffered discrimination. That 
is what your case is about.

By Mr. Moore:

Q. Do you know of the activities—
The Court: Suppose they brought ten witnesses 

up to say that they didn’t suffer any.

By Mr. Moore:
Q. Do you have any knowledge of any acts of discrimi­

nation against Negroes in getting into the Paint Line?

The Court: Just ask him what happened, and 
just don’t label it, and then we won’t have any prob­
lem.

By Mr. Moore:

Q. Can you tell us what happened, then, with respect to 
Negroes getting jobs in the Paint Line since 1962? A. Since 
1962? Well, now, I will, I think since 1962 it hasn’t been 
what you call a real problem getting over there, but be­

James Thomas Culpepper—for Plaintiff—Direct



196a

fore, in 1959, before we came over, and then we did have 
a problem, but after 1962 it was not a great problem.

Q. Do you know of your own personal knowledge the 
number of Negroes, if any, who have been employed in the 
Paint Line since 1962? A. Well, it’s been quite a few. 
It’s been several who have went back, been over there and 
transferred back.

By the Court:

Q. Back to where? A. Back to the Fabrication Depart­
ment, since, I guess it was 19— since I960; I don’t know 
about 1962.

By Mr. Moore:

Q. Do you know whether or not they transferred back 
to jobs that paid more or paid less? A. Jobs that paid 
less.

Q. Do you have any personal knowledge as to the reason 
they transferred back?

Mr. Pate: Now, I object to that, now.
The Court: Certainly.
Mr. Moore: Your Honor, I think he would be com­

petent to testify, if he has personal knowledge as to 
why they transferred.

The Court: Really?
Mr. Moore: Yes, sir.
The Court: Do you have personal knowledge about 

why I transferred from the State Court to Federal 
Court?

Mr. Moore: I may not have, but—
The Court: It would be hearsay as to these peo­

ple. That is the reason for the objection.

James Thomas Culpepper-—for Plaintiff—Direct



197a

Mr. Moore: Your Honor, one, we haven’t found 
out whether he has it; and, secondly, we haven’t 
found out the circumstances.

The Court: Well, if he has it, it would have to 
be what the fellow told him, and that makes it hear­
say.

Mr. Moore: That may not—

By the Court:

Q. Well, did Mr. Peek, or anybody from Management tell 
you why they transferred back! A. No.

The Court: Okay.
Mr. Moore: All right.

By Mr. Moore:

Q. You don’t know, then, is that right? A. No, other 
than what he said, hearsay, get it clear.

The Court: You see, TV is helping us a lot with 
this hearsay business.

By Mr. Moore:

Q. Now, I ask you to look at the Seniority Poster with 
respect to the Shipping and Receiving Department. A. 
Umm humm.

Q. And of the first five persons listed on that roster, 
give us the number who are Negro. A. The first five per­
sons? Two.

Q. Who are they? A. Mr. Robert Alford, and Mr. Frank 
Logan.

Q. And a White person has seniority in that department, 
is that right? A. Frank Pittman, yes.

James Thomas Culpepper■—for Plaintiff—Direct



198a

Q. And the shipping clerk, that is the highest paid job 
at the plant, isn’t it? A. Right.

Q. Mr. Culpepper, since 19— July 2nd, 1965, have you 
had any conversations with Mr. Peek, the Manager? A. 
Well, we had any number of conversations since 1965. We 
have had many, I should say.

Q. Have you had conversations with him since that time, 
in which he has referred to members of the Negro race in a 
derogatory manner? A. Not direct; indirect he might have, 
but not direct.

Q. Not in your presence? A. No. I should say that, yes.

The Court: What do you mean by “derogatory” ?
Mr. Moore: Well, calling them “niggers” , and 

cussing them, and things of that sort.
The Court: Well, you knew we are getting the 

same problem we had with these ordinances, we have 
got to have some standard. Now this question and 
answer is meaningless to me unless I know what you 
mean.

Mr. Moore: Well, Your Honor, if he had said he 
had some, I would have asked him what they were, 
and then the Court could determine whether they 
would be derogatory or not. But he’s testified he 
didn’t have any, so I guess it’s moot with respect 
to this witness.

That’s all.

Cross-Examination by Mr. Pate:

Q. You are on leave of absence at the present time, 
aren’t you? A. I am.

Q. Is that in connection with some Union office or em­
ployment? A. That’s right.

James Thomas Culpepper—for Plaintiff— Cross



199a

Q. So you are not actually working at the plant any at 
the present time? A. Not since July, no.

Mr. Pate: I have no other questions.
The Court: I have a question.

By the Court:

Q. You have gone over these lists and mentioned that 
usually the man at the top was White? A. Umm humm.

Q. Do you know whether he was in those departments 
prior to 1965? A. You talking about the man at the top 
of these?

Q. Umm humm. A. No, some of these people, no.
Q. Let’s get to your Paint Line Department.
Well, I presume all of them were there before 1958? A. 

No, yes, sure, all of them were there before 1958.
Q. Yes. A. But some of these people come in after I 

did, you know.
Q. I realize that he came into the plant after you,— A. 

Eight.
Q. —but they have been in that department since before 

you? A. That’s right.
Q. That is the reason you are seventh there, and fourth 

on the other list? A. That’s right.
Q. Now, in those other departments, like this man 

Pittman that you mentioned,— A. Umm humm.
Q. Was he in that department prior to 1965? A. Prior 

to 1965? Well, we, I think he started in that department 
when he started work there in 1964, and he worked ship­
ping clerk, he was the receiving clerk and worked as the 
shipping clerk.

Q. You mean he first came to the plant in 1964? A. No, 
he started some, about three months after I did.

James Thomas Culpepper—for Plaintiff— Cross



200a

Q. Well, you started in 1955? A. ’54, I’m talking about
’54.

Q. All right. So he’s been out there fourteen or fifteen 
year, is what I ’m talking about. A. Yes, sir, some four 
months after I started.

Q. Yes. A. Pardon me, I was saying ’60, I mean ’50.
Q, Yes, right.

The Court: I have no further questions.
Mr. Moore: You may be excused.

(Whereupon the witness was excused from the 
stand.)

Mr. Moore: The plaintiff calls for purposes of 
cross-examination Mr. Marion Peek.

The Court: All right.
The Clerk: Will you raise your right hand, please, 

sir?
You do solemnly swear that the evidence you shall 

give in the issue joined between Samuel Culpepper 
and the Reynolds Metals Company, shall be the truth, 
the whole truth and nothing but the truth, so help 
you God?

Mr. Peek: I do.

Marion L. Peek—for Defendant— Cross

M b . M arion  L. P e e k , ca lled  b y  the p la in tiff f o r  the p u r ­
p ose  o f  cross-exam in ation , a fte r  h av in g  first been d u ly  
sworn, testified  as f o l lo w s :

Cross-Examination by Mr. M oore:

Q. Would you state your name, please? A. Marion L. 
Peek.



201a

Q. Where do you live, Mr. Peek? A. 3191 Wood Valley 
Eoad, Northwest, Atlanta, Georgia.

Q. How long have you lived in Atlanta? A. Thirteen 
years.

Q. How long have you been connected with the Reynolds 
Metals Company?

The Court: Or its predecessor?

A. (The Witness) Thirty-one years.
Q. How long have you been connected with the opera­

tion conducted in Atlanta? A. Since 1955, when the plant 
opened up.

Q. Did it open up under the name of Reynolds Metals? 
A. It opened up under the name of Southern Steel and 
Roofing Company.

Q. And when did it change over to Reynolds Metals 
Company? A. I think 1957 it became Reynolds Aluminum 
Supply Company, and in October of 1961 it became Reyn­
olds Metals Company.

Q. And you— A. All being subsidiary companies.
Q. Then you are the Plant Manager at 1530 Ellsworth 

Drive? A. That is right.
Q. Is there a particular name or plant number for this 

location? A. Its office name is the Alloys-Atlanta Color- 
weld Plant. It has been referred to as Atlanta Plant 20 
for accounting purposes.

Q. Could you describe the products, and what actually 
goes on at this plant? A. Well, basically we paid alumi­
num, that is the biggest part of the activity; and taking 
coils as we get them from our mill in Alabama, and run 
them through the process where they are cleaned, and roll 
coated with enamel, and then baked and recoiled, and then

Marion L. Peek—for Defendant— Cross



202a

further process such as staining, breakforming in other 
departments.

Q. Do you prepare products for sale to distributors and 
to the public, or do you prepare products for conveyance 
to other plants? A. The majority of it is shipped di­
rectly to customers. Some of it is shipped inter-company, 
or inter-plant.

Q. In other words, you fill orders that are placed by 
customers, special orders.

Now who is your immediate supervisor? A. At the pres­
ent time, Mr. Lloyd Johnson is my immediate supervisor. 
That only took place November 1st. Prior to that, it was 
a Mr. Donald Hipp.

Q. And where is he located? A. Mr. Hipp was recently 
transferred to the Richmond Executive Offices of Reynolds 
Metals Company, and Mr. Johnson is now in his place at 
Listerhill, Alabama.

Q. And prior to that, he was at Listerhill, is that cor­
rect? A. Right.

Q. Now, what is the connection between Listerhill and 
the Atlanta Plant? A. Well, Listerhill is the basic alu­
minum producing plant, and I operate as a department of 
that plant.

Q. And you are the highest official in the Atlanta Plant, 
is that correct? A. At my location, yes.

Q. “ Colorweld” is a trademark of painted aluminum, is 
that correct? A. Yes, sir.

Q. And that is a registered trademark by Reynolds? 
A. That’s right.

Q. Now, with reference to the plant out there, how many 
departments do you have? A. There are three depart­
ments, being the Paint Line, the Fabrication, and Ship­
ping and Receiving.

Marion L. Peek—for Defendant— Cross



203a

Q. Are these what we might call the production, hourly 
rate departments? A. I don’t understand your question.

Q. Are these three departments that you have just men­
tioned, are these the departments in which the workers are 
paid on an hourly basis ? A. That is correct.

Q. Do you have other employees at the plant who are 
paid on a salary basis ? A. I do, yes.

Q. Are they what you would call clerical and other ad­
ministrative personnel? A. And production supervisors.

Q. Are you familiar with a slitter operator machine? A. 
Yes.

Q. Could you tell the Court what that is? A. It is a 
machine that takes a coil of a wider width and cuts it into 
any number of narrower widths on a continuous basis.

Q. And back in ’62 and ’63, you had two such machines 
at the plant, is that correct? A. That is correct.

Q. And a thirty-six inch machine and a forty-eight inch 
machine? A. That is correct.

Q. When did you take out the thirty-six inch machine? 
A. March of 1964.

Q. Was there any production reason for taking it out? 
A. It was needed elsewhere in the company.

Q. Did you hear the testimony of Mr. Ennis with re­
spect to the differences between the small machine and the 
large machine? A. I did.

Q. Is his testimony substantially correct? A. That’s 
rather hard to say; it was a little disjointed in my, as I 
heard it.

Q. I mean with respect to the differences between the 
two machines.

Marion L. Peek—for Defendant—Cross

The Court: If I may-



204a

Q. I assume what he is meaning, is that it’s a little more 
modern, and requires a little less hand work and a little 
less figuring mathematcially to get your right spacing? A. 
No, sir, I can’t say that. I will say that as far as setting 
it up, it is probably, the thirty-six inch line was a little 
more intricate than the present forty-eight inch machine, 
but as far as the arithmetic or handling of numbers and 
decimals and fractions, it is the same on either one of them.

Q. So that would be the only difference that you would 
make between what he said and what you would say about 
it, it would be different in that fractions and decimals are 
on both machines, is that correct? A. That is common to 
both of them. Another, this thing of stripper fingers that 
he spoke of, versus the rubber strippers, as we call them, 
the doughnuts that slip over the spaces, that is the prin­
cipal difference in the two machines.

Q. And what are the steps in operating the machine? 
A. Well, as far as the operator is concerned, first is to 
remove the setup that he has finished with, and then buy 
the lot card, which was placed in exhibit, to determine what 
the next setup will be. Then set up the arbors, the top and 
bottom arbors for the number of cuts called for, and then 
to locate the coil that was designated for this lot card, put 
it on the payoff mantle, feed it through the machine, en­
gage it or wrap it onto the rewind, and then start the 
electrical part of the machine and run the coil.

Q. And in 1967 you had one such machine at the Atlanta 
A. That’s correct.

Q. And that was a forty-eight inch machine ? A. That 
is correct.

Q. And it was operated by Mr. William Ennis ? A. Part 
of the time.

Marion L. Peek—for Defendant— Cross

By the Court:



205a

Q. Except when he was being relieved by some other 
operator, is that correct? A. Except for the time in ’67 
when he was off on a disciplinary layoff, approximately 
six months.

Q. Was that after March 20, 1967, that he was laid off? 
A. Yes.

Q. Was he laid off until July of 1967? A. He was.
Q. And he remained off from the job until sometime—- 

A. Early this year.
Q. What are the duties of the relief slitter operator? A. 

To cover for the slitter operator when he is ill, or off on 
personal business, or on vacation.

Q. You would call him a substitute slitter operator, 
would you not? A. We call him a relief slitter operator. 
He is relieving a man who is not there.

Q. Is there a helper regularly assigned to work and as­
sist along with the slitter operator? A. Yes, there is.

Q. Who is that person? A. By name or by job classi­
fication ?

Q. By name, first. A. There have been several.
Q. All right. Let’s ask about in March of 1967; who was 

the person? A. There were several in March of 19— in the 
month of March ’67, or the year ’67?

Q. Month of March, 1967. A. On which, on the big ma­
chine? I can’t answer that, I don’t have the information.

Q. You don’t have any knowledge or information that it 
was Mr. Collins, do you, Arthur Collins? A. Let me see.

The Witness: (To the Court) May I refer to my 
notes?

The Court: Yes, if you can look while I’m talk­
ing.

Does a relief slitter operator make the pay at 
times he’s not relieving, if that makes any sense?

Marion L. Peek—for Defendant— Cross



206a

Mr. Moore: We were going to ask that question.
Mr. Edney: I don’t know the answer, Your Honor.

Mr. Peek can answer that.

A. (The Witness) I don’t have that information as to 
whether Mr. Collins was the helper during March of ’67.

By Mr. Moore:

Q. You have no information in your records, and you 
have no independent recollection that Mr. Collins was a 
relief slitter helper in March, 1967, is that correct! A. 
A relief slitter helper! We haven’t talked about a “relief” .

Q. Or a slitter helper in March of 1967. A. He could 
or could not have been. I know he has been a slitter helper 
on several occasions prior to his taking the job in July 
of ’67.

Q. Now, you assigned what they call “process laborers” 
to work as slitter helpers, is that correct! A. That’s cor­
rect.

Q. And what does a process laborer do! What is his 
regular job! A. Almost any and everything in the plant. 
It’s the lowest wage classification we have except for the 
thirty-day probationary period for new hires.

Q. Now', when a process laborer is assigned to help on 
the slitter, he’s paid at the rate of a process laborer, is 
that correct! A. That’s correct.

Q. Now, when a relief slitter works as a slitter, at what 
rate is he paid! Is he paid at the slitter rate,, or at his 
regular rate! A. At the slitter rate.

Marion L. Peek—for Defendant— Cross



207a

Marion L. Peek—for Defendant—Cross 

By the Court:

Q. All right. When he is not working on the slitter, 
what is he paid at! A. He is paid at the job classification 
he is performing.

Q. Like a machine operator, that would be fifteen cents— 
A. Yes.

Q. —an hour less? A. You’re quite right.

By Mr. Moore:

Q. Now, there is no particular way of choosing1 a slitter 
helper, is there? A. None, no.

Q. In fact, we have an agreement with the Local Union 
that we will attempt to rotate men around, as the result 
of some of the previous testimony in Mr. Culpepper’s case.

Q. Who is assigned as a slitter helper is a matter of 
discretion with the foreman and supervisor, isn’t that 
correct? A. That’s correct.

By the Court:

Q. Prior to March of 1967, did you have a job classifica­
tion as a relief slitter operator? A. We have never had 
that classification by contract. We did put up a job bid 
which called for a relief slitter operator purely to cover 
for vacations.

At a time previous, we also put up a bid for a relief 
lift truck driver, and got challenged on the terminology 
by the Union, so—

Q. Well,— A. Since then, we are not using “tempo­
rary” or “relief” in regard to any job classification. We 
are calling' them as they are designated in the appendix 
of the current contract.



208a

Q. Well, what you’re telling me is that there was such 
a job prior to March of 1967. A. It is a matter of seman­
tics, really.

Q. But it was called something else! A. It was called 
a slitter operator instead of a relief slitter operator. We 
had a man in the plant who had qualified for and did this 
function.

Q. When others were on vacation, or sick, or something 
like that?

How many total slitters did you have in March of ’64? 
A. March of ’64?

Q. I mean ’67. A. One.
Q. Just the forty-eight? A. Just the forty-eight.
Q. Who operates that now! A. Mr. Ennis.
Q. Is Mr. Collins the current relief slitter operator? 

A. He is the only man presently qualified, but he is now 
on the Paint Line, and he is on a shift of the Paint Line, 
and he is on a shift of—the Paint Line wage and the slitter 
operator wage are identical except for, on the paint line 
we run multiple shifts, we’re running around the clock, 
and he’s on the third shift which carries a shift differential, 
therefore the wage is higher.

Q. Who is the present relief slitter operator now? A. 
It would be him, be Arthur Collins.

Q. Well, does this mean if Mr. Ennis takes a vacation, 
that you’re going to take Mr. Collins and reduce his pay 
and put him back as a slitter operator? A. No, sir. I 
don’t know that we could force him to take a reduction 
in pay.

Q. Well, I don’t either, that’s why I ’m asking. A. Since 
he is the only qualified man, if he didn’t want to go, the 
route we have to go now is to post the job again and

Marion L. Peek—for Defendant— Cross



209a

then go through the process of whoever does sign it, to 
choose him by seniority and qualifications.

Q. I gather that this would be the effect of it, that if 
Mr. Ennis wasn’t able to work for some reason, that Mr. 
Collins would, from his present shift in the Paint De­
partment, have to take a cut in order to be the relief slitter 
operator? A. That is correct, from his present shift.

Q. Right. A. Now, had he been on the day shift, it 
would have been the same.

Q. Be the same rate.

By Mr. Moore:

Q. Now, Mr. Peek, you have approximately sixty-five 
workers at the Atlanta Plant, is that right? A. I think 
it is more like fifty at the present time.

Q. And of those fifty, about eighteen or sixteen of 
them are Negroes, is that correct? A. I introduced that 
in, it was asked for in the subpoena and I think it is in 
evidence now, this Seniority List of 9-30-68. I just counted 
them a few minutes ago and came up with twenty-five 
Negro and twenty-five White.

Q. Now, in March of 1967 you posted a bid on a job of 
relief slitter operator, is that correct? A. That’s correct.

Q. Did you do it yourself? Did you actually post it 
yourself, or did you have someone do it? A. I had some­
one do it.

Q. Do you know who that person was? A. It was 
probably Mr. N. E. Wahlstrom, who retired in August of 
1967, and was the Plant Superintendent at the time. I 
say that because I seem to recognize this handwriting 
down here.

Q. As that of Mr. Wahlstrom? A. As that of Mr. 
Wahlstrom.

Marion L. Peek—for Defendant— Cross



210 a

Q. Now, if it were not Mr. Wahlstrom, it would have 
been Mr. Harry Anderson, who is currently—

The Court: Whoever the superintendent was.

A. (The Witness) That is right.

By Mr. Moore:

Q. And you didn’t personally take it down yourself? A. 
No.

Q. Was it brought to your attention, the bid itself? 
A. Yes, it’s brought to me to make the determination of 
who we shall award the job to.

Q. And are you the only person at the plant who can 
determine who will get the job? A. If I am there, I am 
usually the one who does it; if I am not there, naturally 
my next in command has that authority.

Q. Now, in this instance, you were the person who made 
the determination, is this correct? A. In this particular 
case, yes.

Q. And on the 28th of March, 1967, you issued a notice 
that Mr. Collins had gotten the job? A. That is correct.

Q. And on the next day, on the 29th, did Mr. Collins 
go on the job for training? A. There’s no way for me to 
tell. He went on very shortly after that.

Q. Do you know? A. I don’t know the exact date he 
went on.

Q. Was it before April 4th, 1967? A. I don’t have that 
information.

Q. You don’t know whether or not he went on the job 
before Mr. Culpepper filed a grievance or not, do you? 
A. I assume that he did, because that’s the reason he filed 
the grievance, knowing that someone else had been selected

Marion L. Peek—for Defendant— Cross



211a

instead of himself. He either knew it from the fact that 
he was on the machine, or knew it from this posting, and 
I think the posting and the assignment of the job were 
the same day. In other words, March 29 or 30 is the day 
that Collins went on the job.

Q. Now, there are no tests that are given to an em­
ployee who bid on the job of relief slitter operator, are 
there? A. No tests as such, no.

Q. There just aren’t any tests period, isn’t that right? 
A. That’s right.

Q. Now, the criteria for assignment to the job is quali­
fication and seniority, is that correct? A. That’s correct,

Q. And you understood that to be the qualification for 
the job in March, 1967, did you? A. I did.

Q. You knew, as a matter of fact, that Mr. Culpepper 
here was the senior-most employee, didn’t you? A. Of 
those who signed to bid, yes.

Q. And you proceeded to award the job to Mr. Collins, 
is that correct? A. That is correct.

Q. You didn’t make any investigation of his background, 
work experience as a slitter operator or relief slitter op­
erator prior to awarding him the job, did you? A. I 
knew that he had been the process laborer that had helped 
on the machine for a considerable time, therefore was 
familiar with it, and therefore entitled to the qualifying 
twenty-day period, and I likewise knew that Sam Cul­
pepper had previously been given thirty days, and in our 
opinion did not qualify then, so it followed that he wasn’t 
qualified now, and we selected someone else.

Q. You didn’t have any specific information of exactly 
when Mr. Collins had worked on this machine, did you? 
A. I didn’t at that time, no. I don’t now, without re­
searching it.

Marion L. Peek—for Defendant— Cross



212a

Q. And you didn’t research it back in March, 1967, be­
fore yon awarded him the job, did you? A. No, not other 
than knowing1 that he had been there.

Q. This was your— A. I am in the plant every day, 
and the machine is the first thing you see when you walk 
in the plant, and I knew that Collins had been there. The 
dates, no, I can’t tell you what they are, nor how many 
days.

Q. And that was all you knew about Mr. Collins, is 
that he had been there helping as a process laborer with 
the slitter machine, is that correct? A. Yes, that’s cor­
rect.

Q. In other words, you didn’t know anything about how 
well he was able to perform as a helper or not, did you? 
A. I knew that he was satisfactory as a helper. I didn’t 
know whether he could run the machine until I tested him 
on his twenty-day qualifying period. Now, that twenty- 
day qualifying period, by the way, is the length of time 
by which you can disqualify a man. You can qualify him 
the first day. If he performs the work, or shows the ability 
to do the job, you don’t have to wait twenty days to say 
he’s qualified.

By the Court:

Q. Where did this twenty-day figure come from? A. 
Comes out of our Union contract.

Q. In other words, that was a matter negotiated, that 
if a fellow gets a chance, he has got to have at least a 
twenty-day chance before he’s disqualified? A. That is 
correct.

Q. I am sure it’s in there who says he’s qualified or 
disqualified under the terms of the contract. A. Are you 
asking me, sir?

Marion L. Peek—for Defendant— Cross



213a

Q. Yes, hopefully somebody can tell me. A. The super­
visor, I would—

Q. Well, I mean—

The Court: Does the contract say who says who 
is qualified!

Mr. Pate: Your Honor, I don’t recall the exact 
words of the contract, but, normally, it would be 
Management who would say, but these decisions are 
subject to the grievance procedure which result in 
arbitration.

The Court: Yes.
Mr. Moore: It doesn’t give any definition, Your 

Honor, or what is meant by “ qualified” .

By Mr. Moore-.

Q. You didn’t have any personal knowledge, you didn’t 
go out and investigate to see whether or not Mr. Collins 
was a satisfactory helper on the slitter, did you! A. I 
don’t know how you would rate a satisfactory helper on 
the machine, because, as I said before, that is the lowest 
wage rate we have, and we use a great number of people 
on it, and it’s really a matter of handing the operator what 
he asks for.

Q. In other words, you didn’t know whether or not Mr. 
Collins was any more qualified than the other man who 
bid on the slitter, other than Mr. Culpepper, did you! A. 
The third man that bid!

Q. Right. A. No, I didn’t know that. I did know that 
he was senior to him, though.

Q. You knew Mr. Collins was senior to Mr. Nance! 
A. Right.

Marion L. Peek—for Defendant— Cross



214a

Q. But you didn’t know whether or not Mr. Collins was 
better qualified than Mr. Nance, did you? A. No.

Q. Now, did Mr. Collins complete his twenty-day trial 
before you promoted him to the job, or did you promote 
him before he started on his twenty-day trial? A. Well, 
he is, in effect, promoted the day he goes on it, because 
he is paid that rate. I think that’s the only measure you 
can make of promotion. He got the slitter rate the day 
he went on for the training.

Q. In other words, the first day he went on the slitter, 
he got the slitter rate? A. Right.

Q. And that was the day you promoted him to relief 
slitter operator? A. Right, for a training period.

Q. Now, you don’t know when he completed the training- 
period, do you? A. No, sir, I do not.

Q. You never investigated to see when he completed 
the training period, did you? A. I did not personally, no.

Q. Did you have anyone investigate? A. I have to as­
sume the supervisor did. The fact that he was there twenty 
days later and was operating the machine satisfactorily 
indicated to me that he had qualified, otherwise they 
would have brought it to my attention, to repost it, or 
follow the terms of the contract to select he next man who 
posted the bid, who accepted the bid.

Q. Okay. But the fact of the matter is that you didn’t 
investigated from the supervisor— A. No, no reason for 
me to investigate.

Q. —if the man was qualified for the job. A. No, sir, 
I didn’t.

Q. In fact of the matter, you don’t even know now that 
the man is qualified, do you? A. Yes, I do. He’s operated 
it for six months.

Marion L. Peek—for Defendant— Cross



215a

Q. And that was when Mr. Ennis, was away? A. Eight.
Q. Prior to the time Mr. Ennis left in July of 1967, 

you didn’t have any personal knowledge of whether he 
was qualified? A. He operated it while Mr. Ennis was 
on vacation, I have to assume he was qualified.

Q. But that was after Mr. Collins—pardon me—Mr. 
Culpepper had filed his grievance, isn’t that correct?

The Court: After May of ’67, is what he’s asking.
Mr. Moore: Right.

A. (The Witness) Yes, I’m sure that Mr. Ennis’ vaca­
tion was after May of ’67. That would have been the 
time Mr. Collins operated it, while he was on vacation.

Q. As a matter of fact, up until the time you made the 
offer on May 5, 1967, to resolve the grievance, you didn’t 
actually know that Mr. Collins was qualified, did you? A. 
I can only answer that by saying that from the day in 
late May, March 29, or 30th of March, when Collins was 
put on there as a result of the job bid, that at some point 
under twenty days he was considered qualified by his 
supervisor. As to my personal knowledge, no, I would 
not have known that, and I don’t know it now.

Q. Well, under the contract you would have the re­
sponsibility, would you not, to determine whether or not 
the person you had selected was actually qualified by the 
end of the twenty-day period, wouldn’t you? A. The super­
visor would, not me personally.

Q. You are the Plant Manager? You are in charge, 
aren’t you? A. That’s correct.

Q. You selected the man, didn’t you? A. I did.
Q. And the reason that a determination would have to 

be made as to whether or not the man was actually quali-

Marion L. Peek—for Defendant—Cross



216a

tied, if he were not qualified, then you would have to 
consider somebody else who bid, is that correct? A. That 
is correct, and that is probably the only time I would 
know about it. The fact that he stayed there beyond 
twenty days automatically indicated to me he had been 
qualified by the supervisor.

The Court: Excuse me.

By the Court:

Q. When you use this term “supervisor” , who is that? 
A. By name, Mr. Harry Anderson.

Q. Other words, what would amount to the Plant Super­
intendent? A. Plant Superintendent or General Fore­
man, is his title.

The Court: Yes.

By Mr. Moore:

Q. Mr. Peek, did you promulgate any standard by which 
you would determine whether or not Mr. Collins qualified 
for the job? A. No, I did not. The results of the job 
that he did would be the criteria of judgment.

Q. In other words, you-— A. The acceptable material 
coming off the machine that would pass inspection to be 
shipped to the customer indicates that it was a satis­
factory job.

Q. In the short of the matter, you promulgated no such 
standard? A. Not personally, no.

Q. And you directed no one to promulgate such stan­
dards? A. Not any standard as such, no, but as an ac­
ceptable level of material,—

Marion L. Peek—for Defendant—Cross



217a

Q. Did you promulgate— A. —product.
Q. —any rules by which, the work that Mr. Collins per­

formed during the qualifying period would be separated 
from the work performed by Mr. Ennis, so as to determine 
whether or not Mr. Collins’ work was satisfactory? A. 
No.

Q. So you don’t know whether or not the work that was 
turned out during the period of the trial was actually the 
work of Mr. Ennis or the work of Mr. Collins, do you? 
A. I have to say it is the work of Mr. Collins, because 
the instructor is supposed to let the man undergoing the 
qualifying period do the work, and correct him where and 
when necessary. He doesn’t let him just wander on and 
produce scrap, which is what it amounts to if it doesn’t 
meet the specifications.

Q. Then the test of whether or not the work was ac­
ceptable wouldn’t be a fair one, would it? A. You will 
have to say that again, I ’m sorry.

Q. Your test for the qualification of the job is whether 
or not the work meets inspection, whether it was accept­
able, and I ’m asking you, that wouldn’t be a fair test, 
would it? A. I would say it would be a fair test if it 
was merchandise the customer kept and didn’t return to 
us; it was what he ordered.

Q. In other words, that would be a fair test of the man 
who was assigned to the job’s ability to perform the job? 
A. That’s correct, if he did the setups himself without 
requiring an unusual amount of help or, from the in­
structor, or having to tear a setup down two or three 
times in order to get it right. The fact that he did it 
right the first time and acceptable material resulted, I 
would say is the test of whether he did the job or not 
properly—

Marion L. Peek—for Defendant— Cross



218 a

Q. Even though he had— A. —or qualified.
Q. Strike that.
And you make no allowance for the assistance of the 

instructor— A. Certainly, that’s what he is there for.
Q. —in producing acceptable work during the qualified' 

period? A. Yes, I make allowance for it. I would per­
sonally, and I’m sure my supervisors do.

Q. But you have no personal knowledge that he did? 
A. No, I do not.

Q. And you didn’t give him any instructions that he 
do that, did you? A. To the supervisor?

Q. Yes. A. No, they know their jobs.
Q. And as of this very moment, you don’t know whether 

that was done, do you? A. No, sir.
Q. The notice of a bid was posted on March 20, 1967, 

that was awarded to Mr. Collins on March 28, 1967, that is 
correct, is it? A. If those are the two exhibits you just 
showed me, it is correct.

Q. Now, did Mr. Collins start on his twenty-day period 
immediately upon your posting the notice that he had 
been— A. You have asked me the question previously,—

The Court: You’ve already asked him that,

A. (The Witness continuing) —and I answered to the best 
of my ability. I thought it was probably the same day or 
the day after.

By Mr. Moore:

Q. You know Mr. Collins was given twenty consecutive 
days of training, don’t you? A. I don’t know that for a 
fact, but I assume that is so.

Q. You reasonably believe— A. I reasonably believe—

Marion L. Peek—for Defendant— Cross



219a

Q. —that is the way it happened. A. —that is the way 
it was.

Q. And the reason is, that is the way the training is 
supposed to be conducted, isn’t it? A. Normally, yes.

Q. It is not supposed to be conducted the way it was 
conducted with Mr. Culpepper? A. I don’t agree that the 
way Mr. Culpepper said is correct.

Q. Just a minute, please.

Mr. Moore: I move to strike that—

A. (The Witness) All right, I can’t answer your other 
question then.

Mr. Moore: —as not being responsive.
The Court: All right.
Ask your question again.

By Mr. Moore:

Q. The training is not supposed to be conducted in the 
way it was conducted when Mr. Culpepper was put on the 
machine in 1963?

The Court: This assumes something. That is why 
he says he can’t answer it. It is assuming that he 
only worked three days a week, as he testifies, and 
he says he don’t agree with that assumption, see?

Mr. Moore: Well, in any event, whether he agrees 
with the assumption—

By Mr. Moore:
Q. Now, the training is not supposed to be conducted 

in that fashion. A. The normal way would be to have it

Marion L. Peek—for Defendant— Cross



220a

a consecutive number of days, and consecutive weeks, yes, 
would be the preferred way, and I think the normal way 
to do it.

Q. As a matter of fact, your records show that the train­
ing that was given Mr. Culpepper was given on an irregu­
lar pattern, doesn’t it? A. How irregular?

Mr. Moore: May we have the exhibits?
The Clerk: Which ones?
Mr. Moore: It has three sheets.

A. (The Witness) It’s two, I’ve got the memorandum right 
here,—

Marion L. Peek—for Defendant— Cross

The Court: This?

A. (The Witness continuing) —from which it was made.

The Court: It just shows a spread of dates.

A. (The Witness) 5-14 to 6-10, you mean?
Q. Right. A. A  period of sixteen and ten, twenty-six 

days less Saturdays and Sundays,—
Q. Umm humm. A. —which could be six days, leaving 

twenty days being consecutive.
Q. It could be, but you don’t have any information that 

it was, do you? A. Yes, I have information that it was.
Q. Where is it?

The Witness: Mr. Pate, may I—you want to in­
troduce that other evidence, or, that summary that 
we just—

Mr. Pate: That is in the back, isn’t it?
The Witness: Yes, I think so.



221a

The Court: I think while he’s getting that, we’ll 
take about five minutes here.

(Whereupon recess was called at 3 :55 P. M., EST.)
A f t e r  R e ce ss

Marion L. Peek—for Defendant— Cross

By Mr. Moore:

Q. Mr. Peek, I believe when we had the recess that you 
were going to get together some documents— A. Yes.

Q. —that would show Mr. Culpepper’s performance in 
1963, is that correct! A. That’s correct.

Q. May I see that! A. Now, you will notice—if I may 
explain it to you—these are the dates starting on the 24th, 
the date that is in this exhibit, the 14tin through June 10th. 
You will see there are twenty working days, five, ten, fif­
teen, twenty working days, with Saturdays and Sundays 
excluded. They did not work on those days. And those are 
the number of hours that show on his labor distribution 
sheet, which is the way—the record that shows what job, 
what man was on, when, so this is Mr. Culpepper’s on the 
thirty-six inch slitter, with Mr. Peering as his instructor 
for a total of one hundred sixty hours, which is twenty, 
eight-hour days, and as you can see, they are consecutive 
with very few exceptions. I think 5-14-63 was a Tuesday, 
if I am not mistaken, so that would be Tuesday, Wednes­
day, Thursday, Friday and Saturday. The 19th was Sun­
day. The 20th was another Monday, Monday, Tuesday, 
Wednesday, Thursday, Friday, was a five-day week. The 
25th and 26th. That is one day that he probably worked 
somewhere else, the, either the 25th, no, it would be the 
Monday, which would have been the 27th, but again on 
Tuesday, 28th, 29th, 30th, 31st, four more consecutive days, 
Saturday and Sunday being June 1st and 2nd. Then he was



222&,

on there Monday, June 4th, 5th, 6th, 7th, skipped three 
days to the 10th. So out of the twenty days, there were 
probably no more than three days, two days consecutively 
that he was somewhere else, and no more than one day 
in the whole period of a week where he was somewhere 
else.

The next one is the backup data on the comparison oper­
ator, but the bottom are the days on the second trial, I mean 
the second ten days. As you see there, that was the 12th, 
15th, 16th, and then it did jump to the 30th, 31st. This may 
be what he was referring to, because the days on and off 
in the ten-day period do seem to have greater gaps in 
them.

Q. You made this up back in 1963? A. No, this was 
compiled from records that were made in 1963, what are 
known as the Production Summaries.

Q. This was made for purposes of this lawsuit, right? 
A. Right.

Q. And it was made after I took your deposition about 
two weeks ago, isn’t that right? A. No, it was made before.

Q. You didn’t have it at the deposition? A. No, sir, I 
didn’t bring it up at the deposition.

Q. But in any event, you didn’t have any data by which 
you compared Mr. Collins’ qualifications for the job against 
Mr. Culpepper’s qualifications when you gave the job to 
Mr. Collins on the 28th of March, 1967, did you? A. No, 
sir, other than knowing he had been a helper, and knowing 
that Mr. Culpepper had never been a helper, and had dis­
qualified on a training period.

Q. And you didn’t take in the fact that Mr. Collins 
worked on a thirty-six inch machine rather than on a 
forty-eight inch machine, is that correct? A. Mr. Collins

Marion L. Peek—for Defendant— Cross



223a

worked on the forty-eight inch machine, not the thirty-six 
inch machine.

Q. Pardon me. You didn’t take in consideration the fact 
Mr. Culpepper worked on the thirty-six inch machine 
rather than the forty-eight inch machine, did you? A. In 
the case of Collins in ’67?

Q. No, I’m talking about Mr. Culpepper.

The Court: Is there a—-

A. (The Witness) Judging Collins?
Q. No, when you judged Mr. Culpepper, you didn’t take 

in consideration the difference between the thirty-six inch 
machine and the forty-eight inch machine, did you? A. 
Yes, I stated that in Page 2 of this exhibit, this paragraph. 

Q. You made this up after he filed grievance, right?

The Court: That is in ’63, this exhibit he has in 
his hand.

A. (The Witness) August 21, ’63, yes, this was made up.
Q. That is not what I am asking you. A. I am not un­

derstanding your question, I’m sorry.
Q. I am asking you about 1967. Then the fact of the 

matter is that you didn’t compare the data that you had 
on Mr. Culpepper against any data that you had on Mr. 
Collins, did you? A. No, I did not.

Q. As a matter of fact, the function of selecting someone 
and determining who is qualified for the twenty-day trial 
period is a subjective matter, isn’t it? A. Yes.

Q. That is, it is left up to the discretion of the super­
visor or you, yourself, to make the choice? A. That is

Marion L. Peek—for Defendant—Cross



224a

correct, based on, as I say, the terms of the contract, or 
the interpretation of the terms of the contract.

Q. The fact of the matter, you didn’t do anything in 
March of 1967 to determine whether or not Mr. Collins was 
better qualified than Mr. Culpepper, did you? A. No, I did 
nothing. We acted on past history, the fact that he had 
worked on the machine as the helper, and Mr. Culpepper, 
in fact, had been disqualified as not being able to do the 
work previously, therefore he wasn’t considered for that 
reason.

Q. But Mr. Culpepper had only been disqualified on the 
thirty-six inch machine, hadn’t he? A. That is correct.

Q. As a matter of fact, he never got an opportunity to 
operate the forty-eight inch machine? A. Not to my knowl­
edge, no.

Q. He hasn’t, had an opportunity this year to operate 
the machine, has he? A. No, sir, he hasn’t.

Q. And it is true, isn’t it, that the only time Mr. Collins 
had worked as a helper was for a brief period back in 
1963, isn’t that right?

The Court: Mr. Collins?
Mr. Moore: Right.

A. (The Witness) No, Mr. Collins worked more recently 
than that as, yes, Collins worked with Ennis back in 1963 as 
the helper, yes.

Q. And Mr. Ennis was the comparison operator in 1963, 
wasn’t he? A. He was, yes.

Q. When he was being helped by Mr. Collins, right? A. 
Yes.

Q. Do what you did in 1963 to disqualify Mr. Culpepper, 
you compared him against the best man in the plant per­

Marion L. Peek—for Defendant— Cross



225a

forming that job, didn’t yon? A. No, sir, I did not. Mr. 
Deering- was the one who taught Mr. Ennis how to operate 
the machine.

Q. But you compared Mr. Culpepper’s output against 
Mr. Ennis’ output, didn’t you? A. I had to, because they 
were the only concurrent comparisons I could make.

Q, And it is your opinion that it is fair to measure this 
man against a man who had had four years experience? 
A. I figured it was fair, or, as I say, it was fair with Mr. 
Deering being his trainer, the man that was instructing 
him, who had previously instructed Mr. Ennis, who was 
the comparison operator. We felt Mr. Deering was a com­
petent slitter operator.

Q. And using a different and slower machine, is that 
right? A. Using a different machine, and a somewhat 
slower machine; the difference in the speed of the two, 
the old thirty-six inch was a constant speed machine. It 
ran at one speed. It was either running at a given speed, 
or it was stopped. The other machine varies in speed. It 
starts off slow, and the longer you run it, the bigger the 
coil gets on the rewinder, the faster it goes, due to the 
buildup of the 0. D. of the coil. It is a different type of 
machine, but I calculate that the average speed of both of 
them was about the same, and the product mix was about 
the same, in that no wider than thirty-six inch material 
went on either one of them.

Q. And to make it clear, this data that you have here 
pertaining to Mr. Culpepper back in 1963, you never took 
this data out back in March of 1967 and compared it against 
the performance of Mr. Collins— A. No, sir.

Q. —to determine the qualification of Mr. Culpepper? 
A. No. It was prepared prior to my writing him the letter 
telling him why he wasn’t put on there, knowing that it

Marion L. Peek—for D efendant-Cross



226a

would probably go, that the resulting grievance would be 
filed, and that it would possibly go to arbitration. It was 
merely a matter of compiling information to back up the 
decision we made not to put him on there.

Q. It is true, isn’t it, that you made no allowance for 
the possibility that Mr. Culpepper was able to improve 
his performance after four years! A. No, no such provi­
sions were made, no. There was no information to sub­
stantiate that. It wasn’t asked.

Q. Just one question, Mr. Peek.
Do your records show how many setups Mr. Ennis made 

in ’63?

Marion L. Peek—for Defendant— Cross

The Court: It’s on there, Plaintiff’s Exhibit 1.

A. (The Witness) Twenty-eight, this same exhibit here.

The Court: During the same period, it has the 
number.

A. (The Witness) One of them, both of them made thirty- 
eight during the four periods. That is, the twenty-day and 
the ten-day period hind were for a total of thirty-eight 
setups.

By Mr. Moore:

Q. Mr. Peek, was there any comparison yardstick used 
on Mr. Collins in ’67? A. No, sir.

Q. I think your answer was “no” , is that right? A. No. 
Q. I want to go into a little different matter now, Mr. 

Peek.
Back on May 5, 1967, you sent Mr. Culpepper a com­

munique, proposing to resolve his grievance, is that right? 
A. That’s correct.



227a

Q. Now, and provision Number One, you indicate that 
you would assign him to another job for the period of 
ninety days at an appropriate rate, so he could be trained 
as a slitter operator, is that right? A. That’s correct.

Q. Now, that’s the first time since you have been at the 
plant that you have ever required an employee to accept 
a ninety-day training period, is that right? A. I didn’t 
require him then to, I made him the offer and the settle­
ment of the grievance procedure.

Q. This is the first time you have ever offered an em­
ployee, in the thirteen years that you have been at the 
plant, ninety days training on a slitter, or any other ma­
chine, that correct? A. That’s right, there’s no provisions 
for it in the Union contract.

Q. And under the terms of the proposed settlement there, 
Mr. Culpepper would have had to take a reduced rate, 
right? A. He would have, yes.

Q. How much would the reduction have been? A. Twenty- 
five cents an hour.

Q. And even accepting the ninety-day period and the 
reduced rate, it is true, isn’t it, that Mr. Culpepper was 
not assured of advancement, promotion to the job of relief 
slitter, is that right? A. No, he wasn’t assured. He would 
then be given the opportunity to bid the notice again, and 
we agreed to avoid it and give him another twenty-day 
period to see if the ninety days had enabled him to over­
come the difficulties that he had previously.

Q. That is, if there were ever another vacancy, that 
right? A. That is what the exhibit stipulates.

Q. But you never told Mr. Culpepper that you would 
open the job up again for bidding, if he accepted the 
ninety-day offer. A. I had no way to know that it would 
open up unless the present employees were fired, died, 
quit, or what-have-you.

Marion L. Peek—for Defendant— Cross



228a

Q. Well, you can qualify more than one worker as a 
relief slitter operator, couldn’t you? A. Yes, I could.

Q. You never even considered that aspect, did you? 
-—Strike that.

You never even considered that as a way of resolving 
the grievance?

Mr. Pate: Your Honor, Pm going—

By Mr. Moore:

Q. That is, to qualify the second worker.

The Court: To preserve your point, certainly.
Mr. Pate: As to what he considered.

By Mr. Moore:

Q. You never considered that as a method of resolving 
the grievance, to open it up for another twenty-day period 
to qualify another worker as a relief operator? A. I am 
not with you.

Mr. Pate: Your Honor, I have a further objection 
beyond the one to preserve my position on the offer 
of compromise.

I object to the materiality of the evidence he has 
asked for. The question of whether he considered 
something, I don’t think his subjective consideration 
of that possible resolution of the matter makes any 
difference at all. It’s a question of what was done.

The Court: Well, he’s really asking him, I sup­
pose, his thought processes.

Probably, Mr. Moore, it would be limited to wheth­
er you did offer another slitter operator a job or not.

Marion L. Peek—-for Defendant— Cross



229a

Mr. Moore: Yes, Your Honor.
The Court: And I assume the answer is “no” .

By Mr. Moore:

Q. Is that— A. Yes, it would be no.
Q. Then, it is true, isn’t it, Mr. Peek, that you have 

never offered a White person such condition as a condition 
precedent to training and bidding for a vacancy at the 
plant? A. To my knowledge, the situation never presented 
itself in any instance except Mr. Sam Culpepper’s.

Q. It is true that you have never offered a White person 
that type of arrangement. A. That is correct.

Q. And during the time that you have been at the plant, 
a Negro has never worked as a slitter operator, is that 
not correct? A. That’s correct, to the best of my knowl­
edge.

Q. And during the time that you worked for the plant, 
a Negro has never been employed as a relief slitter oper­
ator, isn’t that correct? A. That is correct.

Q. The slitter operator is the highest paid job in the 
Fabricating Department, isn’t it? A. That is correct.

Q. Now, all of the senior-most employees in the Fabri­
cating Department are Negroes, aren’t they? A. Again, 
the exhibit shows that.

Q. I show it to you.

Mr. Pate: I object to the question, because that 
is a matter of record on the exhibit.

The Court: Well, if he knows.

By Mr. Moore:

Q. I show you Plaintiff’s Exhibit #11. A. This doesn’t, 
well, it doesn’t show the departments on this one.

Marion L. Peek—for Defendant— Cross



230a

Q. Okay. A. You have another exhibit which is over 
a year and a half old, the one March 31, ’67, of the Fab­
ricating Department. Of course, that’s changed consider­
ably from then to now.

Q. And as of 1967, in March? A. And your question 
was what?

Q. The Negroes were the senior-most employees, that 
right? A. The one I am looking at, the senior-most em­
ployee in the Fabricating Department is a Negro, the sec­
ond, third, fourth, fifth, sixth, seventh, eighth, ninth, the 
first nine are Negroes in the Fabricating Department in 
seniority.

Q. I believe you are a Plans for Progress Employer, is 
that right? A. That is correct.

The Court: A  what?

By Mr. Moore:

Q. And when did you become a Plans for Progress 
Employer? A. I don’t have that information. I think 
there is a gentleman in the room who can answer that.

Q. That was before July 2nd, 1965, wasn’t it?

The Court: What was that?

A. (The Witness) I don’t know.

The Court: What are we talking about?
Mr. Moore: We’re talking about the fact that 

their government contracts are assigned to Plans 
for Progress.

The Court: Does it have any probative value in 
this case?

Marion L. Peek—for Defendant— Cross



231a

Mr. Moore: Yes, sir.
The Court: Well, what is it? That’s what I want 

to know, because I don’t know what all this is about. 
That’s the reason I’m asking.

Mr. Moore: The Plans for Progress is the plans 
that employers have submitted to the President, 
indicating they would not discriminate on the basis 
of race, creed, color, nationality, and, I think, sex.

The Court: All right. And they have. Now, what 
follows ?

Mr. Moore: Well, I’m indicating that I think 
the testimony bears out they are plans for progress 
employers.

A. (The Witness) I ’m sure we are, I ’m certain we are.

By Mr. Moore:

Q. And this pre-dated the effective date of the Act,
July 2, 1965?

The Court: All right. And what value does that 
have, legally? That’s what I’m asking.

Mr. Moore: It bears on the question of whether 
or not the injunction should issue.

The Court: I don’t follow you.
Mr. Moore: As to whether or not the discrimina­

tion is persistent.
The Court: Persistent?
Mr. Moore: Persistent and intentional at the plant.
The Court: Well, I don’t follow you, legally.

Marion L. Peek—for Defendant— Cross



232a

Marion L. Peek—for Defendant—Cross 

By Mr. Moore:

Q. Mr. Peek, under the contract, Union contract, isn’t 
it true that the condition that you imposed upon Mr. 
Culpepper is illegal? A. No, I don’t consider it is illegal.

Q. Don’t the contract provide that when the employee 
has seniority, and he is placed on another job, that you 
have to pay him at the same rate? A. It has a provision 
in it that when you put him on a higher rated job within 
a shift, he gets the higher rate of pay—

Q. And is the— A. —for the rest of the day, by the 
way. If you put him on a lower rated job, his rate is not 
reduced.

Q. If the plaintiff went on as a slitter, relief slitter op­
erator, during a period of training under the contract 
wouldn’t he be entitled to be paid at the higher rate? A. 
Not if he was reassigned to that job classification. If we 
had put him over there any time during the shift to help 
the operator, he would have gotten his decoiler rate of 
pay. But let me remind you, this offer was made in ac­
cordance with the Union contract, with Mr. Richard Holmes, 
International Representative, present and agreeing to it.

Q. But Mr. Culpepper didn’t agree to it. A. No, Mr. 
Culpepper didn’t.

Q. And Mr Holmes, is he a Negro or White man? A. 
He was a White man.

Q. Mr. Peek, do you know what provision of the con­
tract that is, the one we have just talked about? A. Of 
the change in rate of pay?

Q. Right. A. In Article XVI, Temporary Transfers, 
second paragraph.

Q. On page 10 of the— A. Of that exhibit.



233a

Marion L. Peek—for Defendant—Cross 

Q. Exhibit #12?
Do you know what job Mr, Collins was performing in 

March, 1967, when he signed the bid!

The Court: Process.

A. (The Witness) Process operator, or laborer, what­
ever it was called at that time.

Mr. Moore: No other questions.
The Court: Do you wish to examine him at this 

time, or reserve the right—
Mr. Pate: We would rather reserve the right to 

recall him.
The Court: All right.
You may go down, Mr. Peek.
(Whereupon the witness was excused from the 

stand.)
The Court: Call your next witness.
Mr. Moore: Mr. McLain, Jimmy McLain.
Come around and be sworn, please.
The Clerk: Mr. McLain, raise your right hand, 

please.
You do solemnly swear that the evidence you shall 

give in the issue joined between Samuel Culpepper 
and Reynolds Metals Company, shall be the truth, 
the whole truth and nothing but the truth, so help 
you God?

Mr. McLain: I do.
The Clerk: Have a seat right over here.



234a

M e . J ames M cL a in , called as a witness in behalf of the 
plaintiff, after having first been duly sworn, testified as 
follows:
Direct Examination by Mr. Moore:

Q. Would you state your name, please? A. My name 
is James A. McLain.

Q. Where do you live, Mr. McLain? A. I live at 2079 
Delano Drive, Northeast.

Q. Is that in the City of Atlanta? A. That is in the 
City of Atlanta.

Q. And how old are you, Mr. McLain? A. I am thirty- 
eight years old.

Q. Were you employed at the Reynolds Metals Com­
pany? A. Yes, I am.

Q. How long have you been employed there? A. Since 
April 28, 1955.

Q. And what job do you presently hold? A. I am a 
machine operator.

Q. And how long have you held the job of machine 
operator? A. Since 1959.

Q. What is the rate of pay for the position of machine 
operator? A. Rate of pay for machine operator is two 
dollars and forty-seven cents, I believe.

The Court: Excuse me.

By the Court:

Q. Just so we can get this straightened out, why is it 
two forty-seven? It is fifteen cents less than a decoiler. 
A. Yes.

Q. So that makes it, it’s two sixty-two as against two 
forty-seven.

James McLain—for Plaintiff—Direct



235a

James McLain—for Plaintiff—Direct 

The Court: Okay.

By Mr. Moore:

Q. Now, in your job as a machine operator, are you re­
quired to read blueprints and drawings? A. Yes.
Q. Do you know whether or not the job of machine opera­

tor is a more complicated one than slitter operator? A. 
To a degree, it is.

Q. And as to what extent is that? A. Well, we have 
to, on a machine we have to change our dies more fre­
quently than the slitter operator. Where the slitter opera­
tor might set up a run and run all day, we might have to 
change three or four times a day, may pull the dies out, 
change the dies, or move from one machine to the other.

Q. Do you know the reason why your job is rated at a 
lower rate than that of slitter operator?

Mr. Pate: I object to that, he couldn’t possibly 
have that information; it would necessarily be hear­
say, if he does. He’s talking about what is in 
somebody else’s mind, and these things are governed 
by the contract between the company and the Union.

The Court: I was going to say maybe if you all 
would cut the wage rate on this slitter machine, we 
wouldn’t have any problem, if it’s not as hard as 
what they’re already doing,

Mr. Moore: We don’t know what he knows, Your 
Honor, and we’re asking.

The Court: Well, let’s hear the basis for it, and 
it is subject to you objection, Mr. Pate.

By Mr. Moore:

Q. Do you know the reason why the pay for the machine 
operator is lower than that of the slitter operator? A.



236a

Well, during the time when the Union first came into the 
plant, the slitter operator and decoder operator was op- 
perated by Whites, and the machine operators were Negro, 
and the price was then different.

Q. The price was different at that time, before the 
Union came in? A. Pardon?

Q. Before the Union came in, was the price different? 
A. Before the Union came in, the price was different.

Mr. Pate: Your Honor, I move to strike that 
answer that he gave,—

The Court: Bight.
Mr. Pate: —subject to objection.

By Mr. Moore:

Q. And the price has remained different? A. Yes, sir.

The Court: This is in 1956 we’re talking about 
now.

Mr. Moore: ’59.

By the Court-.

Q. That would be the Union’s fault, wouldn’t it? A. 
Would it be the Union’s fault, sir?

Q. Yes. A. Well, I wouldn’t say it was the Union’s 
fault altogether, because the company may have, the 
Union might have presented something to the company 
and the company disagreed with them.

Q. Well, I mean, isn’t it the Union’s job to take care 
of these pay things so that they are fair? If they got 
there and took over, and it was an unfair one, then it is 
their job to make it fair ; isn’t that one of the reasons you

James McLain—for Plaintiff—Direct



237a

have a Union? A. That is true, but then there’s com­
pany, the Union has to—can go no farther than the com­
pany, they sit down and agree to it.

By Mr. Moore:

Q. And you remained as a machine operator? A. Yes.
Q. Are there other Negroes employed as machine opera­

tors? A. Yes.
Q. Do you know how many? A. Four, I think, four or 

five.
Q. Do you know where you are listed on the Seniority 

Roster plantwide? A. Plantwide I am the fifth man, I 
believe.

Q. Do you have occasions to be employed in the Paint 
Line operation? A. Yes, sir.

Q. Now, what is the pay differential between the Paint 
Line job and the job of machine operator? A. The Paint 
Line dayshift, it’s two sixty-nine or two seventy-one, some­
thing like that.

Q. Do you know you seniority in the Paint Line Depart­
ment? A. Well, in the Paint Line I am about twenty- 
fourth, twenty-third, twenty-fourth.

Q. From the bottom? A. From the bottom.
Q. From the top, you mean? A. Yes. Well, from the 

top on down.
Q. Do you know the reason why you are so far down 

in the Paint Line Department? A. Well, the company 
uses departmental seniority, and in 1959 the Paint Line 
was desegregated, and if you want I should clarify that, 
up until that time the foreman on the Paint Line was 
going into the plant picking out the White guys who he 
wanted to work on the Paint Line, and he excluded Ne­

James McLain—for Plaintiff—Direct



238a

groes, so during our, the contract negotiations, it was 
brought up to the Committee to desegregate the Paint 
Line, and at that time it was some issue made of it, and 
I had a talk with the Business Agent at that time to file 
a charge against the company for discrimination.

Q. Was this back in 1959? A. That’s right.
Q. Did you participate in the negotiations, yourself? 

A. Yes.
Q. And was there anyone present representing the com­

pany? A. Well, at the time, in 1959 negotiations, there 
was Mr. Ben Davis was handling it, I believe.

Q. For the company? A. Yes.
Q. Was he a lawyer, or manager, or what? A. I don’t 

know. I assume that he’s Personnel Manager; I don’t know 
that he’s a lawyer.

Q. And when did these negotiations take place? A. In 
May of ’59.

Q. And was that at the plant here in Atlanta? A. Some 
meetings was at the plant, and some was at the office 
down on Peachtree.

Q. What time? When did the negotiations start and 
when did they stop, in terms of dates?

The Court: Does it make any difference?
Mr. Moore: I think so, Your Honor. It will 

only take a second.

A. (The Witness) When the negotiations start? The 7th 
of May was the deadline for the contract, and usually the 
negotiation would start anywhere from sixty to thirty days 
prior to that.

Q. Was the Paint Line jobs desegregated as the result 
of the negotiations in May, 1959? A. Yes.

James McLain—for Plaintiff—Direct



239a

Q. And did yoii get a job as Paint Line operator at 
that time? A. Yes.

Q. And how frequently are you able to work in the 
Paint Line Department? A. Well, when the production 
picks up for the Paint Line, then they add on one or two 
more shifts.

Q. Then you have been able to work in the Paint Line 
from time to time since 1959 up to the present, is that 
correct? A. Yes. Well, not altogether, because the ones, 
we had a case where, in my earlier part of the Paint Line, 
when I was working on the Paint Line earlier, I asked to 
be relieved from the Paint Line because of certain pres­
sure that was exerted on me as a, well, they, I was sup­
posed to be the “smart guy” , and it was putting a mental 
strain on me, so I asked to be relieved from the Paint 
Line and went back to the Fabrication, and at this time 
there was an affidavit drawed up, stating that I would 
relinquish my seniority rights from the Paint Line.

Now the affidavit, I was almost forced into, other words, 
I had no alternative but to sign this.

Q. And when was that? A. This was in, in the sum­
mer of 1959.

Mr. Pate: Your Honor, I move to strike this 
answer as entirely irrelevant and immaterial.

The Court: Yes, sir.
Mr. Pate: And it is so vague that, I think it is 

meaningless in relation to the issues here.
The Court: Well, the vagueness doesn’t concern 

me, but what happened in 1959 I can’t see has any­
thing to do with this case. I presume if you went 
back to 1950, it would be all White, the plant. So 
that doesn’t mean today that that’s proof that they 
have discriminated since this Act went into effect.

James McLain—for Plaintiff—Direct



240a

Mr. Moore: Let me just ask—
The Court: There’s no evidence that anybody’s 

seniority has been bumped on account of race since 
the Act went into effect, or reasonably preceding 
that, none that I have heard yet.

Mr. Moore: Let me ask this.

By Mr. Moore:

Q. In July, after July 2nd, 1965, have you worked in 
the Paint Line Department? A. Yes.

Q. When did you work there? A. As I say, as the 
production picked up, they’d add more shifts?

Q. Have there been vacancies in the Paint Line Depart­
ment since July 2nd, 1965? A. No.

The Court: Pull time, I think he means.

Q. Yes. A. No, not that I can recall.
Q. Do you know whether or not any Negro workers 

have been assigned to the Paint Line as full time workers 
since July 2nd, 1965? A. No.

Q. You don’t know anything about that? A. No, sir.
Q. Now, have you made a charge of discrimination 

against your employer? A. Yes.
Q. With the Equal Employment Opportunity Commis­

sion? A. Yes.
Q. Has it been resolved? A. No, not yet.

James McLain—for Plaintiff—Direct

Mr. Moore: You may examine.



241a.

Cross Examination by Mr. Pate:

Q. You are working on the Paint Line now? A. Yes, 
sir.

James McLain—for Plaintiff— Cross

Mr. Pate: I have no other questions.
The Court: You may go down.
(Whereupon the witness was excused from the 

stand.)

The Court: All right. Call your next witness.
Mr. Moore: Your Honor, at this time we would 

like to offer into evidence all of plaintiff’s exhibits, 
#1 , throught #14.

We also would like to offer two additional ex­
hibits which we don’t have at this time, and those 
would be the wage rates for March, 1967, and the 
wage rate, concurrent wage rates.

Mr. Peek: You have them for March, ’67, in that 
contract, the appendix that is attached to it.

Mr. Moore: I don’t think it is actually attached 
to it.

The Court: I think I have already ruled on each 
of your exhibits except this last seniority list that 
is broken down into four pages.

The Clerk: #14.
Mr. Pate: We have no objection to that last one. 

I was having to look back because he went over—
The Court: Well, I was, too, because I have al­

ready ruled on them, and those rulings will stand, 
and I will admit #14.

(Whereupon Plaintiff’s Exhibit #14 was ad­
mitted into evidence.)



242a

Colloquy

Mr. Moore: Your Honor, we have the wage rates 
through May 8, 1966. We would like to get the wage 
rates in for the present time, I don’t think there is 
any dispute about what they are.

The Court: No.
Mr. Peek: Through ’67? They are effective ’66,
Mr. Moore: Effective ’66 through May, 1967.
The Court: Well, as I understand it, he is saying 

that is it. Those were in effect in March of ’67.
Mr. Peek: Right.
Mr. Edney: Your Honor, so that it is clear, those 

wage rates were in effect in March of ’67.
The Court: They have since been raised.
Mr. Edney: Mr. Moore says he wants something 

about the present wage rates. They have been 
changed. Those aren’t the present wage rates.

The Court: Isn’t it a dime an hour in the jobs 
we’re talking about?

Mr. Edney: Something of—
Mr. Pate: I might say this—
Mr. Edney: Something of that order.
Mr. Pate: There is an exhibit to Mr. Peek’s depo­

sition,—
Mr. Moore: I have it here.
Mr. Pate: —that has those in it.
The Court: All right.
Then you have no objection to it?
Mr. Pate: No.
The Court. All right.
Mark them as 15 and admit them, Mr. Clark.
Mr. Moore: 15 is the wage rates through—
The Court: Current.



243a

Mr. Moore: Current and through 1969.
(Whereupon the above paper was marked for 

identification and admitted into evidence as 
Plaintiff’s Exhibit #15.)

Mr. Moore: Plaintiff rests.
The Court: All right.
Do you have a short witness?
Mr. Pate: I think I do.
The Court: All right.
Mr. Pate: Mr. Peering. I hope he’s still with us. 
The Clerk: Raise your right hand, Mr. Deering. 
You do solemnly swear that the evidence you shall 

give in the issue joined between Samuel Culpepper 
and the Reynolds Metals Company shall be the truth, 
the whole truth and nothing but the truth, so help 
you God?

Mr. Deering: As far as I know, yes, sir.
The Court: All right.
Please be seated.

William A. Deering—for Defendant—Direct

Me. W illiam  A. P eering , called as a witness in behalf 
of the defendant, after having first been duly sworn, testi­
fied as follows:
Direct Examination by Mr. Pate:

Q. Will you give us your name and address? A. Wil­
liam A. Deering, Route 1, Lithia Springs, Georgia.

Q. Where are you employed, Mr. Deering? A. Square 
D Electric Company.

Q. Were you formerly employed by Reynolds Metals 
Company? A. Yes, sir.



244a

Q, When did you leave the employ of Reynolds? A. 
November, past two years, I believe it was.

Q. How long did you work for that company, or some 
of its affiliates? A. Approximately ten years.

Q. Where did you work? A. Well, I worked in the ware­
house, in the Fabrication, worked about two and a half 
years as foreman in the, warehouse foreman.

Q. Tell us when that period was. A. What, the fore­
man?

Q. Yes. A. I don’t remember the dates. It was May. 

By the Court:

Q. Well, in relation to the time you left the company, 
that would be— A. About five year, no, about, yes, about 
five year before I left the company, something like that.

Q. Did you leave the Bargaining Unit to take that super­
visor job? A. Yes, sir.

Q. And then did you later go back into a job in the 
unit covered by a Union contract? A. Yes, sir.

Q. And did you lose your seniority in the process? A. 
Yes, sir.

Q. What job did you go back to? A. Process labor.
Q. Did you have anything to do with the training or 

instruction of Mr. Samuel Culpepper on the job of slitter 
operator in 1963? A. I don’t know the year, but I was, 
yes, sir.

Q. Do you remember that he had a period, a qualifying- 
period on that job? A. Yes, sir.

Q. And about how long was that? A. Well, he had a, 
according to the contract he had a twenty-day qualifying 
period, and at the end of the twenty days they extended it 
ten more days.

William A. Beering—for Defendant—Direct



245a

Q. And did you undertake to train Mm on that job dur­
ing that time? A. Yes, sir.

Q. Both periods, the twenty-day period and then ten-day 
period? A. Yes, sir.

Q. Had you previously been a slitter operator? A. Yes, 
sir.

Q. How long had you done that job? A. Approximately 
two and a half years.

Q. Did you have anything to do earlier with the training 
of Mr. Ennis? A. Yes, sir.

Q. Did you try to teach this job to Mr. Culpepper? A. 
Taught him everything I could, that I knew; I tried to, I 
mean.

Q. Well, at any time during that period of twenty days, 
or the subsequent period of ten days, did you stop trying 
to teach him anything? A. No, sir, I didn’t.

Q. Well, what wTas your experience with him during that 
period? A. I don’t quite understand the question.

By the Court:

Q. Well, was it, did it work out or not? Could you train 
him or not? That’s what he’s asking? A. Could I make 
a statement on my own here?

Q. Sure, that’s what your’re up here for. A. Including 
inyself, it would be almost impossible to train a man in 
twenty days, providing he has never worked around the 
machine before. That’s the way I understand it.

The way the most of the employees that operate the 
machine learn to operate would work on the machine as a 
slitter helper. That’s the way I got my experience, and 
the way I learned to operate the machine, as a slitter 
helper.

William A. Deering—for Defendant—Direct



246a

William A. Deering—for Defendant—Direct 

By Mr. Pate:

Q. Then, do you know whether or not Mr. Culpepper had 
worked as a slitter helper before that time! A. No, sir, 
I don’t know that he ever did.

Q. Then, during the course of that period of thirty days, 
did he learn the job of slitter operator! A. I don’t think 
that’s a fair question.

By the Court:

Q. Well, I know it’s a difficult one. I presume from your 
previous answer to the effect that nobody could learn it in 
that time, that you don’t feel this man learned it any more 
than anybody else could. A. Well, I’d say it’s hard to say 
whether he would learn it or not. I never did, he never 
did set up and show me that he would learn it. I ’ll say 
it that way.

Q. That’s all he’s asking.

By Mr. Pate:

Q. Well, let me ask you one other thing. Did you make 
a report about his performance, either to Mr. Anderson or 
to Mr. Peek, or somebody! A. Nothing only verbal, they 
just come out and asked me.

Q. And to whom did you report verbally! A. Well, I 
talked to Mr. Anderson. He would just come out and I 
would answer his question, and Mr. Peek, at the end of 
the thirty days, he come out and asked me, and I told 
him that I didn’t want to make any decision on whether 
he could qualify or not, that wTas Management’s decision, 
that it wasn’t my decision, and I would rather not git 
involved in whether he qualified or not.



247a

William. A. Deering—for Defendant—Cross 

By the Court:

Q. And yon did, anyway, didn’t you? A. Looks like it, 
yes, sir.

Mr. Pate: I have no other questions.

Cross Examination by Mr. Moore:

Q. Mr. Deering, had you worked on the thirty-six inch 
slitter—strike that.

Has your experience been on a thirty-six inch slitter or 
on the forty-eight inch slitter? A. I have worked on both.

Q. Did you have more experience on the forty-eight inch 
— A. No, sir.

Q. —than the thirty-six? A. No, sir, the thirty-six is 
the one I operated most of the time.

Q. Mr. Deering, it is your opinion, as an operator of 
both slitters, that it is impossible to train someone in 
thirty days, is that right? A. That’s the way I understand 
it. I don’t believe a man, if he just run orders, I mean 
just run setup machine, tear it down, and reset it back, 
he might possibly be able to learn it, but runnings orders 
and trying to keep up with the customer orders, I don’t 
think the man can learn it and keep up with the customers 
orders in thirty days.

Q. In other words, your opinion is that a man should 
have a period of training where he is not actually running 
orders, is that right? A. I didn’t say that. I said a man 
should be, work on the machine, around the machine to 
get acquainted with the machine before he had to, before 
he had the trial period.

By the Court:

Q. In this helper category? A. That’s the way that all 
the fellows that’s operated it since I been knowing Reynolds



248a

Metals, that got to be operators, by working on the ma­
chine as a helper.

By Mr. Moore:

Q. Was Mr. Ennis a helper? A. Yes, sir.
Q. And you were a helper? A. I was a helper before 

I went to operating, yes, sir.
Q. How many other people did you teach, if any, during 

the time you were there? A. Mr. Ennis is the only one 
that really has operated, that worked under me when I was 
operating.

Q. And Mr. Ennis had had previous experience at another 
plant, is that right? A. He told me he had; I don’t know 
for sure about that, now.

Q. Mr. Ennis is the only person— A. All I got is his 
word for that.

Q. Mr. Ennis is the only person you taught during the 
time? A. Yes, he’s the only operator that’s ever worked 
with me on the machine.

Q. Had you had any prior teaching or instructing ex­
perience at all? A. Not except only in the Army.

Q. I mean with respect to the machine? A. No, sir.
Q. You hadn’t tried to teach anybody else other than 

Mr. Ennis. A. No, sir.
Q. Mr. Ennis, would the teaching that you gave Mr. 

Culpepper be equivalent to working on a machine for a 
period of time as a helper? A. I don’t, I didn’t understand 
the question.

Q. I just asked you, if the instruction you gave Mr. Cul­
pepper would be equivalent to working around the machine 
for the period of time as a helper? A. Would it be—

Q. Let me put it another way, I think I see where our 
problem is. A. All right.

William A. Deering—for Defendant—Cross



249a

Q. Would the training that you gave Mr. Culpepper, 
back in ’63, be about the same thing as working around 
the machine for a period of time as a helper? A. I still 
don’t quite catch the question. I can’t understand—

By the Court:
Q. I think this is what he is asking you. The thirty days 

special training that you gave Mr. Culpepper, would that 
put him in position that, say you were, from having been 
a helper, when you went on your training program?

The Court: Is that—
Mr. Moore : That’s right.

A. (The Witness) I doubt it very much.

By the Court:

Q. All right. How long does it take to get in shape to 
be trained? This is— A. I don’t know, I couldn’t tell you, 
because I worked, I don’t remember how long I worked as 
a helper, and I know after thirty days I wouldn’t have 
been able to set up and operate myself, because I don’t, I 
don’t know what would be equivalent to the amount of 
time required—

Q. Of course, I realize it’s going to vary with the per­
son— A. Yes.

Q. —and— A. —vary with the instructor, some people 
are more intelligent than myself. I understand that.

By Mr. Moore:

Q. Now, during this time that you were helping, that 
you were training Mr. Culpepper, he was actually running

William A. Beering—for Defendant—•Cross



250a

the machine, is that right? A. He was drawing pay for 
running the machine.

Q. Was he on the machine? A. Yes, he was on the 
machine with me.

Q. And were you working on the machine, also? A. Yes, 
sir, I was with him every day.

Q. And who was actually operating the machine, you 
or Mr. Culpepper? A. Well, we both did; I ’ll put it that 
way.

Q. Was he acting more as your helper than as the oper­
ator of the machine at that time? A. I don’t know.

Q. Well, was he actually, he wasn’t actually the oper­
ator of the machine, was he? A. He was helping set up, 
just like I would be helping him if I was his helper.

Q. Other words, Mr. Culpepper, he wasn’t setting up on 
the machine, and you would give him instructions and tell 
him, say, “ Go ahead, Sam, and operate it,” right? A. 
Yes, I told him, I gave him a chance to, I mean, to set up 
and show his figures on his paper, what to set up and all, 
and then if he made a mistake I ’d tell him about, yes.

Q. You would help him correct it? A. Yes.
Q. And things of that sort?

By the Court:

Q. All right. Prior to the time you asked him to make 
a setup, did you try to teach him how to make a setup? 
A. Everything that I learned while I was working on it, 
yes, sir.

Q. Then an order would come through there with a setup 
on it, and you would say, “ Okay, set it up,” to Culpepper? 
A. “Figure it out yourself.”

Q. Then he would do what he thought was best, and 
then you would check it, is that right? A. I would go

William A. Deering—for Defendant— Cross



251a

along with him until he made an error, then I would stop 
and have him recheck.

Q. Eight.

By Mr. Moore:
Q. And Mr. Culpepper was able to set up, from time to 

time during this period, without making a mistake? A. 
I didn’t say that.

Q. I ’m asking it, then. A. Huh?
Q. I ’m asking you that, then. A. Well, it’s like I said 

earlier, he never did prove to me that he could set it up 
and operate it by hisself.

Q. Did you ever leave him alone on the machine? A. 
Not but just a few minutes at a time, to go to the rest 
room, or something like that.

Q. Would he be there operating it while you were gone? 
A. The machine was running.

Q. Would he be in charge of it? A. He would be there, 
yes, be running when I left.

Q. Be running when you came back? A. Be running 
when I came back.

Q. Let me ask you this, Mr. Deering. Could you get 
enough experience in ninety days as a helper to qualify 
to operate the machine? A. That’s a hard question. I 
don’t, really I don’t know. Like I said earlier, there’s 
people that is more intelligent than myself. I don’t know 
whether he could learn it in ninety days or not.

Q. You just don’t have any knowledge of that? A. I 
don’t know whether he could learn it in ninety days of not, 
no, sir.

Q. All right. Did you get any special instructions back 
in ’63 as to what you were to teach Mr. Culpper to do? 
A. They told me to teach him everything that I possibly 
could.

William A. Deering—for Defendant— Cross



252a

Q. And those are all the instructions you got? A. And 
they gave him a booklet on the machine, how it functioned, 
the operation of it, how to set up, the spacers that was on 
it. The Superintendent gave him that, I didn’t. They told 
me to teach him all that I could possible teach him about 
the machine.

Mr. Moore: That is all.

Redirect Examination by Mr. Pate:

Q. Who gave you that instruction? A. Mr. Wahlstrom 
and Mr. Harry Anderson is the ones that told me that. 
Mr. Wahlstrom, I understand is no longer with the com­
pany.

William A. Deering—for Defendant—Redirect

Mr. Pate: I have no other questions.
The Court: All right.
You may go down, Mr. Deering.
I presume he would like to be excused.
Mr. Deering: Yes, I would like to.
The Court: To get back to Square D.
Mr. Deering: I have been here all day, and I’m 

about give out.
Mr. Pate: I presume it’s all right for him to be 

excused?
Mr. Moore: Certainly.
The Court: Gentlemen, can you give me any esti­

mate about tomorrow? The only reason I ask, I 
have a matter scheduled at 2 :00 o’clock, and there 
are some people down here from the Administrative 
Office that want to see me in the morning, and 1 
want to give them some idea, if I can.

I know you can’t gauge cross-examination, but how



253a

many more witnesses are there? That might help 
me.

Mr. Pate: I think four.
The Court: You think they are long or short? 
Mr. Pate: We will recall Mr. Peek. I would 

imagine his testimony will take some time. I think 
the rest of them will be short.

The Court: All right. How about 9:15? Can 
everybody make it at that time?

Mr. Pate: Yes, sir.
Mr. Moore: Yes, sir.
The Court: All right, until 9:15.

(Whereupon court was recessed until 9:15 A. M., 
EST.)

William A. Leering—for Defendant—Redirect

T hursday M orning— D ecember 5, 1968

The Court: All right, Gentlemen, let the trial 
proceed.

Mr. Pate: We’ll call Mr. Collins.
The Clerk: Raise your right hand, please, sir.
You do solemnly swear that the evidence you shall 

give in the issue joined between Samuel Culpepper 
and the Reynolds Metals Company shall be the truth, 
the whole truth and nothing but the truth, so help 
you God?

Mr. Collins: I certainly do.
The Clerk: Thank you, sir.
Have a seat over here, please, sir.



254a

M e . A rth u r  W illiam  C ollins , ca lled  as a w itness in 
beh a lf o f  the defendant, a fte r  h av in g  first been du ly  sw orn, 
testified  as fo l lo w s :

Direct Examination by Mr. Pate:

Q. Give us your name and address, please. A. Arthur 
William Collins, 6638 King William Drive, Morrow, 
Georgia.

Q. Are you employed at Reynolds Metals Company? A. 
I am, sir.

Q. How long have you worked at this plant here? A. 
Since 1959, January.

Q. What is your present job? A. Well, I ’m a Paint 
Line operator at the time.

Q. Have you previously been a slitter operator? A. I 
have, sir.

Q. When did you hold that job? A. Well, on various 
occasions I ’ve operated the machine. I think 1967 I op­
erated it quite a lengthy time.

Q. Before you went on that job in 1967, had you worked 
on it as a helper, or in some other capacities? A. As a 
helper, yes, sir, for several years.

Q. Now, I want to show you Plaintiff’s Exhibit 1, copy 
of Plaintiff’s Exhibit 1 and ask you if you recognize that 
notice? A. I sure do. It’s a bid for a slitter operator. 
I was posted on the bulletin board by the time clock, to 
be signed for any employee that wanted to try out for 
the slitter.

Q. Now, this name, A. W. Collins here, is that your 
signature? A. That’s my signature, yes, sir.

Q. When did you sign that to bid? A. Well, I signed 
it, oh, about five minutes before it was to be taken off the 
bulletin board.

Arthur William Collins—for Defendant—Direct



255a

Mr. Pate: I erroneously called this Plaintiff’s 
Exhibit 1. It is Plaintiff’s Exhibit 2.

By Mr. Pate :

Q. About how long- before it went off the bulletin board? 
A. About five minutes, I ’d say five minutes. I deliberately 
waited until I saw Mr. Wahlstrom, he was the Plant 
Manager, or Assistant Manager, or something, coming out 
to take the bid down off the bulletin board. It was dated, 
and the time that it was put up, and I knew it was to be 
taken down at the certain time, and I waited until I sawr 
him coming out of the office to go get it, and I went forth 
and signed it right before he got there.

Q. Did you have any reason for waiting until that time? 
A. Well, you can call it personal reasons, is, I done it 
deliberately, yes, sir.

Q. What was your reason? A. Well, there’s other men 
in the plant with seniority over me that they hadn’t signed 
the bid, and I figured that if I signed it early that some­
body else might want to take a crack at the job and keep 
me away from it, so I waited, and as long as I knew I 
was the next senior man in line for the bid, I waited until 
it was nearly time to come down, and then I went and 
signed it.

Q. Have you ever operated the decoder machine? A. 
No, sir, I haven’t.

Q. Have you seen it in operation? A. I have, yes, sir.
Q. Are you familiar with it? A. Well, just passing 

acquaintance, if you might put it that way.
Q. Can you tell us how it compares with the slitter 

machine? Do you know that? A. Well, the comparison 
between decoiler and slitter is tremendous, you might say. 
I’ll put it to you this way, I believe that I could walk in 
there today and operate the decoiler.

Arthur William Collins—for Defendant—Direct



256a

Mr. Moore: We would move to strike that, Your 
Honor. What the witness believes wouldn’t be, 
would be incompetent.

The Court: Well, the same opinion was elicited 
from the witnesses yesterday, about whether the 
machine could be operated or not. The use of the 
word “believe” doesn’t change it from being ad­
missible.

A. (The Witness continuing) Well, I feel that I could 
walk in there today, and I have never operated it, and I 
feel that I could operate the machine, and I don’t think 
you can walk in there and operate the decoder, not never 
worked on it, or operated it before.

Q. Which machine were you referring to at the last 
there? Were you talking about the decoder or the slitter? 
A. The slitter, sir.

Q. Did you subsequently have any conversation with 
Mr. Culpepper, Mr. Samuel Culpepper about the slitter 
machine, or his being trained on that job? A. Well, I ap­
proached Mr. Culpepper at one time.

Q. Tell us when this was. A. Well, it was right after 
I qualified for the slitter job, arunning the slitter. I under­
stood, or I heard through the grapevine in the plant that 
they had offered him a letter to sign saying that he could 
work as a helper up there and learn the machine and 
git the next crack, or the next bid that came open, he 
would git a chance to qualify. So I went to him to see 
what kind of truth was in the letter. I told him that I 
understood there was such a letter, and he said yes, that 
they was trying to git him to sign his rights away, or 
something, and I said, “Well, why don’t you come on up 
there as a helper and learn the machine? I ’ll teach you

Arthur William Collins—for Defendant—Direct



257a

everything I know about the machine and help you qualify, 
if you ever git a chance.”

Q. What did he say? A. Well, he didn’t really go into 
conversation about it, kindly laughed and shook his head, 
and I went on about my business.

Mr. Pate: I have no other questions.

Cross-Examination by Mr. Moore:

Q. Mr. Collins, in March of 1967, what was your job 
at the plant? A. I was a slitter helper.

Q. You were a slitter helper in— A. A process laborer 
helping the slitter operator, I was just helping on the 
slitter.

Q. In 1967 you were not on the Paint Line? A. I had 
been on the Paint Line on various occasions, yes, sir. 
When the bid was signed for the Paint Line, I signed for 
the Paint Line.

Q. In 1967, in March, were you working on the Paint 
Line? A. In March? No, no.

Q. Well, be clear; what was your actual job at the 
time this bid went up? A. I was slitter helper.

Q. You were slitter helper? A. That’s right, working 
with Mr. William Ennis. He was the operator, and I was 
the helper.

Q. Now, you weren’t the regular helper, were you? A. 
I certainly was.

Mr. Moore: Just one second, Your Honor.

By Mr. Moore:

Q. Do you know Mr. Willie Dobbs? A. Yes, I know 
Willie Dobbs.

Arthur William Collins—for Defendant—Cross



258a

Q. Mr. Willie Dobbs was a helper wasn’t he? A. He’s 
been a helper off and on, yes, but I think it was after I 
was the helper.

Q. Yon think that, right. A. Well, I don’t, I don’t have 
any way of proving, but I think the company could prove 
it, if they are so mind to bring* their daily reports with 
my clock number on it. Now, the clock numbers are on 
the reports, showing the job you are on.

Q. And you know for a fact that Mr. Willie Dobbs did 
work as a slitter helper, don’t you? A. He has worked 
as a slitter helper, he has worked as a slitter helper, yes, 
sir.

Q. He worked as a slitter helper in 1967, didn’t he? 
A. I don’t know the dates. I think it was previous of my 
being a helper that he worked as a helper.

Q. And was that before 1967, or afterwards? A. I, 
well, now, like I say, I was, I had helped from 1964 up 
to 1967 as a helper. I do not recall the date Mr. Willie 
Dobbs came to work there, or when he started helping.

Q. But you know Mr. Willie Dobbs helped— A. I 
know—•

Q. —considerably? A. I know at the time the bid—
Q. Let me ask the question. A. I ’m sorry, sir.
Q. You know Mr. Willie Dobbs worked as a slitter helper? 

A. I do know he has been slitter helper at times.
Q. You know Mr. Robert Amis? A. I certainly do.
Q. And Mr. Robert Amis worked as a slitter helper? A. 

He has been a slitter helper at times.
Q. He worked as a slitter helper in 1967, didn’t he? A. 

When?
Q. In 1967. A. I don’t know what dates he worked as 

a helper precisely, I can’t give you the dates, no, sir.

Arthur William Collins—for Defendant— Cross



259a

Q. And that was because you didn’t work as a slitter 
helper regularly, isn’t that right? A. May I explain?

Q. Would you answer the question, and then you can 
explain. A. I didn’t work regularly because bids came 
up to work on the Paint Line on various occasions, and 
I signed the bid to work on the Paint Line, and I would 
go to the Paint Line and worked for several weeks, or 
months, or so forth, and then when I would be cut on 
the Paint Line, I would come back to the slitter as a slitter 
helper.

Q. You would come back as a process laborer? A. 
That’s right, helping on the slitter, wmrking on the slitter.

Q. And from time to time you might be assigned to 
work on the slitter, isn’t that right? A. Every time that 
I came back from the Paint Line, 1 went to the slitter, 
and whoever was on the slitter as a helper wrent back into 
Fabrication, Mr. Willie Dobbs or Mr. Robert Amis, as 
you named. They all, didn’t anybody want to work up 
there, and I was the only man that could wrork up there 
with Mr. Ennis and get any cooperation, and get along 
with him.

Q. Now, you say in Fabrication; the slitter is in Fabrica­
tion, isn’t it? A. The machine is in Fabrication, true, but 
it’s considered out there a different code sheet. The com­
pany keeps the records on the job, and the jobs that the 
operator works through the machine, they are kept sepa­
rate, and Mr. Wahlstrom at that time was keeping our 
time and our production and everything, while Mr. Harwell 
kept all the fabrication production in the back.

Q. It was in the Fabrication Department? A. The whole 
department is called Fabrication, true.

Q. Do you know Mr. Thomas Dale? A. I certainly do.

Arthur William Collins—for Defendant— Cross



260a

Q. Mr. Thomas Dale worked as a slitter helper! A. He 
certainly has, before and after I have been.

Q. So, it isn’t true that you were the only person who 
was assigned to work as a slitter helper, isn’t that right! 
A. No, I ’m not the only person that’s ever helped on the 
machine, no, I make no claims to those statements.

Q. And you were chosen to work as a slitter helper by 
the supervisor, weren’t you? A. You are assigned to the 
job, true, by the supervisor.

Q. Who is your supervisor! A. Mr. Harwell.
Q. Mr. who? A. Mr. M. D. Harwell, the Foreman, or 

Supervisor, you might call it. He was my immediate 
supervisor.

Q. Mr. Collins, isn’t it a fact that you only worked on 
the slitter in March-—pardon—in June and July of 1963 
with Mr. Ennis? Isn’t that a fact? A. ’63?

Q. Eight. A. I worked, I would say steady for several 
months in ’63, when I came back to the plant as a plant 
employee. That was prior to my, I mean my salary, 
I had a salary job at one time, and this was after that, 
whenever my job as timekeeper terminated. I left the 
plant, and when I came back I worked as a slitter helper 
with Mr. Ennis. In fact, he helped me get back to work 
in the plant.

Q. You worked on the slitter in ’63 when Mr. Culpepper 
was getting a trial on the little slitter, is that right? A. 
While he was getting a trial?

Q. Yes, sir, on the little slitter. A. No, I wasn’t on 
the slitter when he was getting a trial, no, sir.

Q. You weren’t the helper in ’63? A. Not while Mr. 
Culpepper was getting his trial as slitter operator, no.

Arthur William Collins—for Defendant— Cross



261a

Q. Now, prior to March 20, 1967, you had never worked 
as the actual operator of the slitter machine, had you? 
A. I had not, no, sir,

Q. The only thing you did was work around the machine 
with Mr. Ennis, is that correct! A. That’s true, yes.

Q. Now, the wage scale for relief slitter operator and 
for Paint Line Department is the same, isn’t it? A. It 
is, yes, it is.

Q. If you worked steady in the Paint Department, you 
would make more money than you would make working as 
a process laborer, wouldn’t you? A. For forty hours, yes.

Q. And when you bid on the job in 1967, you were only 
bidding to be a relief operator, isn’t that right? A. That 
was what the bid read, that is true.

Q. You had already acquired some seniority in the 
Paint Line Department, where the pay was the same, 
hadn’t you? A. I certainly had.

Q. There was no great economic benefit, money benefit 
to you to bid on the job as relief slitter operator? A. 
Forty cents a hour, yes, sir.

Q. But I mean, as compared against the Paint Line, 
the job you already had, there was no benefit, was it? 
A. Compared to the Paint Line seniority, the way you 
word it,—word it again.

Q. I say, compared to the seniority that you had ac­
quired in the Paint Line Department, and the wage that 
you were making in that department, there was no benefit 
to you to bid on a relief slitter operator job, was it? A. 
I wasn’t in the Paint Line Department at the time I bid 
on the slitter relief job. I was a process laborer in the 
Fabrication Department.

Q. But the fact of the matter is that you were working 
relief, more or less, in the Paint Department, when there

Arthur William Collins—for Defendant—Cross



262a

would be overtime, or there would be heavy orders, weren’t 
you! A. Whenever they needed to run an extra line, or 
relieve a vacation on the Paint Line, I got to go to the 
Paint Line, true. In the meantime, I stayed in the Fabrica­
tion.

Q. And the job you would perform on the slitter would 
be a relief job, wouldn’t it? A. True.

Q. So the fact of the matter is that you were bidding 
for two relief jobs, weren’t you? A. Well, when you are 
in one department you don’t know when you are going 
to the other department, so naturally you are going to 
bid on the highest paying job in that department.

Q. But the fact of the matter— A. To better myself.
Q. The fact of the matter, you still would have been in 

relief position, wouldn’t you? A. At the time being, when 
the man was gone, yes.

Q. You would only work on the slitter when Mr.— A. 
Ennis.

Q. Mr. Ennis was away? A. Sick or vacation, or what­
ever.

Q. Now, isn’t it a fact that Mr. Wahlstrom told you to 
bid on the relief slitter? A. Mr. Wahlstrom has never, 
the first time, come to me and asked me to bid on any­
thing.

The Court: Who is this we’re talking about? Mr. 
who?

Mr. Moore: Mr. Wahlstrom.

By Mr. Moore:

Q. Isn’t he Assistant, Mr. Wahlstrom?

The Court: Is he the one that left in August—
The Witness: Yes.

Arthur William Collins—for Defendant— Cross



263a

The Court: —or September?
The Witness: Yes, he was Assistant to Mr. Peek.

Arthur William Collins—for Defendant—Cross

By Mr. Moore:

Q. Now, isn’t it a fact, Mr. Collins, that Mr. Peek told 
you to bid on the relief slitter? A. It is not a fact. Mr. 
Peek has never approached me to bid on any job. In fact, 
at the time I bid on the job, Mr. Peek was in favor of Mr. 
Culpepper having the job.

Q. You know that? A. I know that to be a fact, be­
cause I went in and told Mr. Peek that I felt he was dis­
criminating against me if he did not give me that job.

Q. Why was he discriminating against you? A. Be­
cause Mr. Culpepper had already had a chance at that 
job once before, and gave a extra ten days at that job. 
The contract calls for twenty days. The gave him thirty 
days. The contract says if the employee does not qualify, 
the senior employee does not qualify, the next man signing 
the bid would be given an opportunity to qualify. At that 
time that he failed to qualify, they did not give me my 
opportunity to qualify, and I signed the bid with Mr. Cul­
pepper that time, so when the bid came open again I felt 
I was entitled to the next chance to qualify.

Q. All right. Was that conversation with Mr. Peek be­
fore— A. That—

Q. —or after the notice was taken down? A. That was 
after the notice was taken down, and I went to the Union 
men and told them that I wanted Mr. Peek to know that 
I felt that I would be discriminated against if I did not 
get that job.

Q. Because you are a White man and Mr. Culpepper— 
A. No.

Q. —is a Black man, isn’t that right? A. No, no, in­
deed. I do not feel that way. I feel the job, he had been



264a

given an equal opportunity, that I was entitled to an op­
portunity.

Q. Well, Mr. Collins, how many times had this job been 
posted before 1967? A. Once.

Q. Did you bid on it then? A. I certainly did.
Q. Did you bid on it in December, 1964? A. In ’64, 

right around in that vicinity, that’s right.
Q. Did you bid on it? A. I bid on it, yes, sir, indeed.
Q. Did you get it? A. No, sir, Mr. Culpepper got it.
Q. Mr. Culpepper got it? A. Yes, sir.
Q. You mean to tell this Court Mr. Culpepper got the 

job?

The Court: We all know he didn’t.
Mr. Moore: Well,—all right.

A. (The Witness) Maybe the dates are wrong, but I ’m 
talking about the time that he signed.

Q. Let me make it clear, then. In April, 1962, the job 
was put up for bid, wasn’t it? A. Well, I ’m not sure of 
the dates, now. I don’t have all these papers with dates, 
like you have, in front of me.

Q. All right. I’ll give you a paper so you can have it 
in front of you. A. I know that was—

The Court: Couldn’t we shorten it by the—

By the Court:

Q. You have said you bid on it at the time Mr. Culpepper 
got his trial? A. That is true, yes, sir.

Q. All right. According to the other testimony, this was 
in 1963 that the actual trial took place. A. All right. At 
that date—

Arthur William Collins—for Defendant— Cross



265a

Q. In the spring and summer of 1963. A. Whatever 
date it was.

Q. Now, there is evidence that a night job was posted 
in December of ’64.

The Court: Am I quoting the dates right!
Mr. Moore: That’s right.

By the Court:

Q. Did you bid on it? A. At that time,—if the attorney 
and the judge will inquire about it—Mr. Douglas Deering 
had seniority on me, and he was filling in as the operator 
in Mr. Ennis’ place whenever he wasn’t in, or out, or which­
ever one. At that time, I think he taken the day job, or 
vice-versa,—which one was it?-—one way or the other, they 
couldn’t get together and they didn’t, I wouldn’t have had 
a chance, so I didn’t sign it.

By Mr. Moore:

Q. You didn’t—

By the Court:
Q. Other words, December of ’64, when it was the night 

slitter operator? A. Whichever date it was, yes, I ’m not 
sure.

Q. You figured that Deering and Ennis had it sewed up— 
A. That’s right.

Q. —for both shifts? A. That’s right.
Q. So you didn’t even bid for it? A. No, I wouldn’t 

have had seniority on either man.

Arthur William Collins—for Defendant—Cross



266a

Arthur William Collins—for Defendant—Cross 

By Mr. Moore:

Q. Well, Mr. Ennis and Mr. Deering wouldn’t be reliev­
ing each other, would they, if they were on different shifts ?

The Court: Excuse me. I don’t believe the De­
cember one was a relief operator, it was a—

The Witness: It was for another shift.
The Court: It was a regular operator.
Mr. Moore: All right.

By Mr. Moore:

Q. For another shift? A. Yes.
Q. How many shifts are there? A. There’s only one on 

the slitter, unless an emergency arises and they should 
make two. Now, that would be the only way that the two 
has ever been.

The Court: Well, now I ’m confused. I thought 
the December, ’64, was for a night slitter operator.

Mr, Moore: That was my understanding, Your 
Honor.

The Witness: I think Mr. Peek will have to ex­
plain that better than myself.

By the Court:

Q. Did they run two shifts for a while back there? A. 
Really, I’m not, I can’t remember. I remember the bid, I 
remember the time, and there was some confusion about 
who was going to work the night shift, and who was going 
to work the day shift, and I think Mr. Ennis did work the 
night shift and Mr. Deering worked the day shift, if I am 
not mistaken.



267a

Q. Well, there were two shifts then? A . At that time.
Q. Are there now? A. No, sir.
Q. Just one shift? A. That is true. That is what I am 

trying to say, there was only just occasional that this came 
up, and that is the only time that it’s came up that I know 
of. Other words, there’s never more than one shift except 
that one particular time.

By Mr. Moore:

Q. And were they bidding to fill the shift vacancy,— A. 
No.

Q. —or to fill a relief slitter position? A. It was for 
the shifts, it was not for a vacancy, because at that time 
they had two slitter operators, Ennis and Leering.

Q. And they had two slitters at that time, didn’t they? 
A. I think they did, or at least, it was right after they 
done away with the old slitter.

Q. Now, in 1962, when you bid—you say you bid on the 
job, is that right? A. In ’62? Let’s see—’62? I believe I 
was timekeeping in ’62.

Q. You were timekeeping in ’62? A. Yes. I couldn’t 
bid on any job. I was on salary, I believe, in ’62. Other 
words, I was four years in salary, ’59, ’60, ’61 and ’62.

Q. Then you weren’t denied an opportunity to bid on the 
job in ’62, were you? A. Which one?

Q. On the slitter, relief slitter operator, or slitter oper­
ator, rather, in 1962? A. Let me get my days straight, 
now, because it’s been a lot of time since ’62. It’s eight 
years, and my memory is not that long.

In November of ’61 or ’62, I will have to count it up, in 
’62 I was—

I  was timekeeper, wasn’t I, Mr. Peek, or do you have 
that record?

Arthur William Collins—for Defendant— Cross



268a

Q. Well, let me—-

Mr. Peek: Am I supposed to answer that?
The Court: No.

By Mr. Moore:

Q. Let me ask you this. If the records show that you 
were a timekeeper in ’62, would it be your testimony that 
you were ineligible to bid for— A. If I was timekeeper 
in ’62, I was not eligible to sign any bid.

Q. So you then were not discriminated against in 1962, 
when the job was posted, were you? A. If I signed the 
bid, sir, it was after I was back in the plant, which I was 
eligible to sign the bid. I could not sign a bid if I wasn’t 
eligible.

Q. So, in 1962, if you were a timekeeper, and the job was 
posted and you were ineligible to bid upon it, you were 
not discriminated against? A. If I was ineligible—

Q. Just a minute. You were not discriminated against 
by them giving Mr. Culpepper a chance, were you? A. If 
I was ineligible to sign the bid, I did not sign the bid. I f  
I was eligible, I signed the bid, and naturally I was not 
discriminated. He’s a senior man at that time, and he 
was entitled to the chance to qualify ahead of me. I signed 
the bid with him, and in case he disqualified, that I would 
be the next man in line.

Q. I ’m just talking about ’62. A. Well, I’m talking about 
the time that he taken it for the qualification. In ’62, if 
that was the time he taken, tried out for the slitter, then 
that is when it was. If it wasn’t the time that he tried out 
for the slitter, then I wasn’t eligible.

Q. Your testimony, then, is that you were eligible to 
try out for the slitter whenever— A. I ’m, my testimony

Arthur William Collins—for Defendant— Cross



269a

is that the first bid that he signed, that he was gave to try 
out for the slitter, and I signed the same bid with him. 
That’s the testimony I’m testifying to.

Q. Well, in ’62, when— A. I was eligible for that bid 
that I signed.

Q. Whenever you signed the bid in 1962, Mr. Culpepper 
had more seniority than you, didn’t he!

Mr. Pate: I object to the question, because it is 
premised on the assumption that the witness signed 
a bid in 1962, and the witness’ testimony shows other­
wise.

The Court: Well, can’t we get to the bottom of 
it?

According to Mr. Culpepper’s records, the bid 
that he got the test on was put up in the fall of ’62, 
but the test didn’t come until the spring of ’63.

Mr. Moore: Right.
The Court: Now,—
The Witness: Well, now then—
The Court: Now, was there any other one in ’62?
Mr. Pate: Tour Honor, that was a different bid.
The Witness: That was a different bid.
Mr. Pate: That was a different notice.
The Witness: That is why I was contending that 

I was on salary in ’62.
The Court: Well, then, Mr. Culpepper’s testimony 

is not clear, because I wrote it down.
Mr. Moore: That’s what Mr. Culpepper testified 

to. If there is some other evidence, then I think the 
defendants are in position to bring it out, as to when.

The Court: Well, let me see that Exhibit # 1, 
maybe it tells.

Arthur William Collins—for Defendant— Cross



270a

Mr. Pate: If it’s not—
The Court: I gather that the essence of his tes­

timony is that the time that the test was given, that 
he also posted, or bid, bid the thing.

The Witness: Signed the bid.
The Court: If there was a time in ’62, then he 

did not.
The Witness: That’s what I ’m trying to say.
The Court: Isn’t this the essence of what he said?
Mr. Moore: Your Honor, my understanding of the 

testimony is that Mr. Culpepper grieved the failure 
to give him the job in ’62, and they then, in settle­
ment of the grievance, allowed him to take a trial 
period in 1963.

The Court: All right. Well, according to this, 
the grievance signed by Culpepper was, and endorsed 
by James Culpepper, was alleging September 29, 
’62, which must have been the date of the award, 
or the date of the posting, one. Then these attached 
documents all begin on March 1st, ’63, and his test 
occurred in May and June of ’63.

Now, whether there was another, it could have 
been that it was posted after he didn’t qualify. I 
don’t know.

Mr. Pate: Your Honor, there was a posting in ’63, 
a different posting which we’re prepared to show, 
before Mr. Culpepper was given his trial. Now the 
understanding on that ’62 grievance was that he 
would be given a trial when it was posted again.

The Court: Oh, I see.
Mr. Pate: And it was posted again, and he was 

given a trial then. But that was a separate posting.

Arthur William Collins—for Defendant— Cross



271a

The Court: All right. So that must have been 
in early ’63, in February or March of ’63.

Mr. Pate: As a matter of fact, it was April 22, 
1963.

The Witness: And in ’63 I signed that bid, Pm 
pretty sure that’s the one I was referring to. I know 
in ’62 I was timekeeper, and I was not eligible to 
sign a bid.

The Court: Now I assume, then, from his testi­
mony, he did not bid it on September 29 or October 
1st of ’62, but he did in ’63, on April 22?

Mr. Moore: All right. We don’t quarrel with that. 
The facts speak for themselves.

By Mr. Moore:

Q. Mr. Collins, prior to April 22, 1963, did you have 
any experience as a slitter helper? A. No, sir.

Q. Did you bid on the position of slitter helper, or slitter 
operator in April of 1963? A. I certainly did, yes, sir.

Q. Did you get a trial period? A. No, sir.
Q. You deny categorically- that you worked with Mr. 

Ennis during 1963 on the big slitter? A. I didn’t under­
stand that question.

Q. All right, let me put it this way.
Are you saying that you did not work with Mr. Ennis 

on the big slitter in 1963? A. I did work with Mr. Ennis 
in ’63. You said prior to ’63 did I have any experience on 
the slitter, and I said no, sir.

Q. Eight. A. In 1963, when I came back in the plant 
as a plant employee, other than a salary employee, I went 
direct to work with Mr. Ennis on the slitter, as a slitter 
helper.

Q. And was that in response to a bid by you? A. No,

Arthur William Collins—for Defendant—Cross



272a

there’s no bid for a slitter heper. I was assigned to the 
job with him, and I worked with him until this bid came 
up, and I signed the bid then.

The Witness: I felt that I was qualified, Your 
Honor, for the job at that time, but I knew the senior­
ity Mr. Culpepper had gave him first opportunity, 
but I signed it in case he disqualified, and when he 
disqualified, then they did not give me an oppor­
tunity to qualify.

By the Court:

Q. Who got it that time? A. He got the chance to qual­
ify-

Q. I know, but after? A. He failed, and after he failed 
there was no more, there was no more opening.

Q. Okay. A. And they never, at least, the company got 
by without ever giving me a chance at it, without, they 
didn’t work anybody on the job other than Mr. Ennis. Other 
words, his vacation was over, and they did’t need a man 
any longer, after he tried his qualifications, so then that’s 
why I felt that I was entitled to the next chance, because 
he had an extra ten days above what the contract called 
for. The contract called for twenty days. They gave him 
his twenty days and then added ten more days to the trial 
period, which gave him a full thirty days, where they would 
have only gave me a twenty-day trial period.

By Mr. Moore:

Q. Now, wasn’t it at this time that they took out the 
small slitter machine, when the bid was posted in April 
22, 1963? A. I can’t swear to any date about the machine 
being taken out. As I said, I was rotated off and on from

Arthur William Collins—for Defendant— Cross



273a

the slitter machine to the Paint Line, and sometime during 
the time in between, the machine was taken out. Pm not 
sure to the date. I didn’t make it my business to find out.

Q. Do you remember when Mr. Culpepper finished his 
trial? A. I was not working in the plant at the time, I 
think I was on the Paint Line while he was trying out. 
After the bid for the job was posted and I signed the bid, 
and later on the bid came for the Paint Line and I went 
to the Paint Line, or something happened, I didn’t git to 
know what the whole outcome was.

Q. Do you remember Mr. Culpepper finished his trial 
period? A. Well, I know that when he finished it, sure, 
and as soon as I found out that he disqualified, I was wait­
ing for them to give me my chance at it.

Q. Was that in July, 1963? A. I ’m not sure to the dates, 
no, sir.

Q. Do you know whether or not the small slitter was 
taken out after Mr. Culpepper was given the ten-day trial 
period? A. Immediately after, or any length of time after, 
or what? How are you putting the question?

Q. Well, was it immediately after? A. No, it wasn’t 
immediately after. It was, I don’t know exactly how long 
it was, but it wasn’t the day he finished, or the next day 
or the day after that. I ’m not sure to howT many days or 
months.

Q. Was it a month later? A. I’m not sure, I’m not sure. 
I ’m not sure whether it was even a year later, I ’m not sure.

Q. You are not sure whether it was in ’63 or ’64, are 
you? A. I’m not sure, no, sir. Other words, I don’t keep 
records on the company machinery.

Q. But it is your testimony that a bid was posted April 
22, 1963, and you bid on it? A. I did.

Q. All right. Did anyone else bid on the job? A. Mr. 
Culpepper.

Arthur William Collins—for Defendant— Cross



274a

Q. That was in April, 1963? A. That’s right.
Q. But at that time you had had no prior experience 

with the slitter? A. Other than helper experience.
Q. Now, it is your testimony that after Mr. Culpepper 

was given a trial period of some thirty days altogether, 
that there were no more openings on the job, is that cor­
rect? A. They never did come to me and tell me I ’d get 
my chance; I don’t know what happened.

Q. And you never went to them and asked them for a 
chance, did you? A. No.

Q. Now, you mentioned some conversation that took place 
between you and Mr. Culpepper in 1967; you remember 
that testimony? A. You mean, you’re referring to the 
letter that he got ?

Q. No, I mean the time that you had conversation with 
him, after he had gotten the letter, is that right! A. Yes, 
after I qualified for the job, after the job was given to me 
and I qualified it, and I heard that there was a letter in 
existence that he had been offered a chance to come up and 
be a helper on the machine and learn the machine, and that 
the next opening, or the next bid that was posted, he would 
definitely get another trial at it if he would sign that letter. 
That’s all I could git from just the grapevine. So I ap­
proached him in, over, he was arunning the decoder and 
I was running the slitter, and his machine was right back- 
to-back to mine, and I was, he was putting a coil on, or I 
was putting a coil on, anyway we were both at the back of 
the machine together, and I walked over and asked him 
was there anything to this letter that I had heard about, 
and he said yes, that they were trying to git him to sign 
his rights away, and I said wTell, I thought, the way 1 heard 
it, and he just about gave me word for word what I had 
heard, and I said, “I think it’s a good chance, and I ’ll help

Arthur William Collins—for Defendant— Cross



275a

teach you everything I know. I’ll help you learn, I ’ll guar­
antee that I ’ll learn you the machine if you’ll come up there 
and work as a helper.”

Q. As a helper? A. Yes, sir.
Q. You would only learn him the machine as a helper? 

A. I would learn him to operate and run the machine if he 
would work as a helper up there with me on the machine.

Q. And this was during the time that Mr. Ennis was 
away? A. He had been terminated at that time, yes.

Q. And you were working on the machine at that time? 
A. That’s right.

Q. But you are very positive that this conversation be­
tween you and Mr. Culpepper occurred after he had re­
ceived some communication from the company that he could 
have a ninety-day trial period? A. It was after I had 
heard that he had such a letter being offered him, yes. I 
was more or less just trying to see how much truth was 
in the letter.

Q. Now, Mr. Collins, you were never told when you qual­
ified for the job, you were only told that your bid had been 
accepted, is that right? A. Well, on the second or third 
day that, after the bid had been awarded me, after the letter 
had been posted that I had got the bid, I went, and Mr. 
Ennis was teaching me, or, you know, I had picked up 
enough, but he was supposed to be teaching me on a twenty- 
day trial period, and on the second day he says, “Well, 
I’m pretty sure you can run the machine, and I ’m going 
on the Negotiating Contract, and I ’m going to turn the 
machine over to you.” So I says, “Well, if you go on and 
leave the machine for me to run tomorrow,” I said, “that 
automatically would qualify me if I run it all day tomor­
row, and from then on I’ll be qualified, I won’t have to 
finish the twenty-day trial period.” So it was just, from

Arthur William Collins—for Defendant—Cross



276a

then on I run the machine while he was gone. Then when 
his vacation came and he left on vacation, I run the ma­
chine, or whatever, when he was terminated.

Q. Now then, you consider being qualified being able to 
run the machine one full day by yourself? A. I consider 
any man who can make up one complete setup, or any or 
all the settings that’s put on the machine, a qualified man. 
If he can make the machine run, and make the material 
come out satisfactory to the customer, and get accurate 
production or a decent production, I would consider him an 
operator, yes.

Q. Right. Now, Mr. Collins, how many setups did you 
do before you were turned loose on the machine by your­
self? A. Well, as far as turned loose on the machine by 
myself, like I said, in a couple or three days, but I made 
every setup that was put out to make. Now, I can’t give 
you a continuous count, I didn’t keep up with the orders, 
but I think the company could produce the amount of 
orders that was run in the first three or four days.

Q. You don’t make a different setup for each and every 
order? A. Oh, yes, indeed, just about every order; some 
orders may be the same, but very seldom.

Q. But you don’t have any independent recollection 
whether the orders during this time that you were put on 
the machine were the same or not, do you? A. You mean 
all in one day, or week, or so forth—

Q. During this— A. —being the same order?
Q. —first three days you were on the machine? A. No, 

I know they wasn’t the same. There’s no way, you never 
run over three or four hours at the time on the same order, 
at the most. You complete it in a day’s time, at the most.

Q. Mr. Collins, you weren’t given any test to make any 
analysis before you were allowed to qualify for the ma­

Arthur William Collins—for Defendant— Cross



277a

chine, as shown in Defendant’s Exhibit D-2 there, were 
you? A. You’re asking—what are you calling a test? The 
setup ?

Q. You weren’t given that sheet and tested on it, to see 
if you understood it before you were given the bid, were 
you? A. Well, no, sir. I taken for granted that when the 
order come out there, I knew what I was doing.

Q. In other words when you were given the bid—strike 
that.

Before Mr. Peek posted the notice that you were given 
the bid, he didn’t give you a test on analyzing a sheet like 
that, did he? A. No. I had worked on the machine off 
and on, like I said, and I knew what the order, this is an 
order here, this is what the order looks like. In fact, this 
is a copy of the order.

Q. All right. A. And you look down here and you see 
what you’re supposed to be making, right here, what the 
cut is supposed to be, and I had worked on the machine 
enough to know hnw to read the order, so why should I 
have to have a test?

Q. And you didn’t have one, either, did you? A. No.
Q. I show you Defendant’s Exhibit D-l, which is sup­

posed to be a drawing similar to the machine. A. Yes, 
this is a drawing of the knives.

Q. All right. Now, you weren’t given a test on that be­
fore the bid was, your bid was accepted, were you? A. No.

The Court: Can wre stipulate there was no formal 
test?

Mr. Pate: We so stipulate, and will, yes; for any­
body.

Arthur William Collins—for Defendant— Cross



278a

Arthur William Collins—for Defendant—Cross 

By Mr. Moore:

Q. Mr. Collins, what combination of pieces would yon put 
together to make eight hundred sixty-four thousandths? 
A. Eight hundred sixty-four thousandths? Now then, 
you’re trying to git me from memory, which I can’t do. 
Now, we’ve got a chart on the machine which is exposed, 
and it was, and it has been there for years. That gives 
you your thousandths, and how to break them, down and 
everything. This chart has been there ever since I have 
been in the plant. In fact, when the E. 0. A. lady was 
out investigating this deal, she asked about this chart and 
I showed it to her, and she just wanted to know then if 
that chart was taken down during Mr. Culpepper’s trial, 
or if it was, stayed there, or what. To my knowledge, it 
has been there in this one position ever since I ’ve been 
in the plant, since ’59. This chart, you just, rather than 
try to remember these fractions and the breakdowns and 
all this, you go to your chart and you get your breakdown 
from the chart.

Q. The fact of the matter, you couldn’t give it to us here 
today in court, could you? A. Just from memory, no, I 
couldn’t.

Q. Thank you, sir.

Mr. Pate: No other questions.
The Court: You may go down, Mr. Collins.
The Witness: Thank you.

(Whereupon the witness was excused from the 
stand.)

Mr. Pate: Call Mr. Anderson.
The Court: Just come around, Mr. Anderson.
Swear him, Mr. Clerk.



279a

The Clerk: Raise your right hand, please, sir.
You do solemnly swear that the evidence you shall 

give in the issue joined between Samuel Culpepper 
and the Reynolds Metals Company, shall be the 
truth, the whole truth, and nothing but the truth, 
so help you G-od?

Mr. Anderson: Yes, sir.
The Clerk: Have a seat, please, sir.

W. H. Anderson—for Defendant—Direct

M r . W . H. A nderson, called  as a  w itness in beh a lf o f  the 
defendants, a fter  h av in g  first been du ly  sw orn, testified  as 
fo l lo w s :

Direct Examination by Mr. Pate:

Q. Will you give us your name and your address? A. 
W. H. Anderson, 1385 Holly Lane, Northeast, Atlanta, 
Georgia.

Q. Where are you employed? A. Reynolds Metals Com­
pany.

Q. How long have you worked there? A. Going on 
thirty-seven years.

Q. You work at the Colorweld Plant? A. Yes, sir.
Q. How long have you been there? A. Since 1955, I 

believe, ’55 or ’6.
Q. What is your present job? A. General foreman.
Q. How long have you held that position? A. I’d say 

about twenty-five years. It’s only a guess, that or longer.
Q. Ever since the plant has been there, is that right, ox- 

before? A. Yes, sir.
Q. Do you know Mr. Samuel Culpepper? A. Yes, sir.
Q. Do you recall the occasion when he was tried out on 

the slitter, about 1963? A. Yes, sir.



280a

Q. You recall who worked with him and instructed him 
on that job? A. Yes, sir.

Q. Who was that? A. William Deering.
Q. Did you give Mr. Deering any instructions as to what 

he was to do? A. Yes, sir.
Q. What were your instructions to him? A. To give 

him all the knowledge that he could in helping him to be 
trained for the job.

Q. Will you tell us just what occurred, and what your 
experience with Mr. Culpepper on that job was? A. Well, 
he was, he worked there, if I recall, for about twenty days, 
and he was given the, all of the knowledge—

Mr. Moore: We object to that part, Your Honor, 
that he was given all the knowledge. This witness 
is not competent to testify to that.

The Court: Objection sustained.

(To the Witness) You may state that he worked 
there on the machine there with him, but you don’t 
know whether he got any knowledge or not, see? 
This is the—

A. (The Witness) The knowledge that he gave, that I can 
truthfully say, was that he was told how to make his setup, 
and to get his adjustments on his strippers, and to get the 
clearance between the knives, both vertical and horizontal, 
and to, how to get that with his proper shims and spacers. 
He was given that instruction, to my knowledge.

W. H. Anderson—for Defendant—Direct

Mr. Moore: Now, I ’m going to have to move to 
strike the witness’ testimony, unless he was present 
at the conversation, or there is some memorandum 
of that.



281a

W. H. Anderson—for Defendant—Direct 

By the Court:

Q. Were you present when these instructions wTere given 
him? A. I was there. I was the one that gave him, gave 
Deering the instructions.

Q. Pm talking about the instructions from Deering to 
Culpepper. A. Not at all times, no, sir.

Q. Well, were you there some of the time or not? A. 
Yes, sir, I was there part of the time. In fact, I was there 
quite a bit, and I inspected all of the material, or a ma­
jority of the material that, after the setups was made 
and a part of it run. Then I can also witness that William 
Deering had to go back and readjust his machine in order 
to eliminate knife marks, and stripper marks and wavy 
edges, and excessive bur, which—

By Mr. Pate:

Q. Did you observe those conditions yourself? A. I 
observed those conditons myself, yes, sir.

Q. All right. Well then, tell us, during the thirty days, 
the twenty-day period and the ten-day period, did Mr. Cul­
pepper learn the job and the way to set up the machine 
to avoid those conditons? A. He was never able to set 
the machine up and give us acceptable product where the 
customer would accept the material, having a minimum bur 
on the edge of the material which could be caused from 
improper setting of the knives, both horizontal and verti­
cal, or the setting of the stripper blades, the strippers 
themselves.

Q. Mr. Anderson, are you familiar with the decoder ma­
chine? A. Very much so, yes, sir.

Q. Will you compare it for us with the slitter machine, 
as to any difficulty or complication in the setting* up and 
operation of the two? A. The decoder machine is very



282a

simple. It’s a matter of setting the gauge, loosening a nut 
on a bolt, and sliding the gauge down to a gauge, or a ruler, 
we’ll call it, down to the set length that he’s, that he at- 
attempts to shear, and it’s necessary for that operator 
to be able to put the coil on the scales and read the scales, 
record that, record the weight, and after he has finished 
the order then put the coil back on the scales and weight 
it, and then he subtracts what he has left from what he 
started with and records that that he used, has used on 
the order.

Q. You mean the difference in those two figures after 
he makes his subtraction would show what he has used? 
A. Yes, sir.

Q. Now, can you tell us to what extent it is necessary to 
use arithmetic or mathematics in the operation and setting 
up of the slitter machine? A. Yes, sir. The setting up of 
the slitter machine, it would be necessary for him to be 
able to start with a given figure, or size, which is in deci­
mals, such as five point six o three, which is six hundred 
and three thousandths, and he would have to know the 
gauge of the material, which is on the order. It will be 
necessary for him to be able to figure the proper clearance 
between those knives, in order—

Q. When you say clearance between those knives, you 
mean the knives- on opposite sides, to keep them from hit­
ting each other? Is that what you’re talking about? A. 
That’s right.

Q. All right, sir. Go ahead. A. And he will have to be 
able to figure his percentages of his thickness of the metal 
to come up with the proper clearance between the knives, 
so therefore he would be, it’s necessary for him to be able 
to figure his decimals and get his proper clearance, both 
vertical and horizontal.

W. H. Anderson—for Defendant—Direct



283a

Q. Now you gave us an example, the number three, I 
mean, five and six hundred three thousands as a decimal 
fraction, six hundred three thousandths? A. Yes, sir.

Q. What does that figure show the man who’s setting up 
the slitter machine? What does that figure measure? A. 
That shows him that that’s the size of the material the 
customer has ordered.

Q. What does that mean, in terms of the distance be­
tween some of the knives on the machine? A. That means 
that in between those knives, that he will have to get 
proper spacers and shims, which we have available from 
one thousandths—well, I can call the thickness out, if it’s 
necessary.

Q. All right. A. One thousandth is the minimum, one 
and a half thousandths, two thousandths, three thousandths, 
five thousandths, ten thousandths, twenty thousandths and 
thirty thousandths.

Now, those spacers, I mean those shims are available, 
and they are used, and it is necessary to use that size 
shims or spacers to come up with the right and proper 
clearance between the knives, to keep the knives from rub­
bing each other, and to keep them from being too far apart. 
If one thousandth is left out, or if the operator should use 
a two thousandths instead of a one thousandths, or two 
thousandths instead of one and a half thousandth, well, 
then that will give you too much clearance, or not enough 
clearance, and either case would cause an excessive bur.

Q. Well, is it a fact that if you have the number five 
and six hundred three thousandths inches, that the blades 
on one side,—or is it one arbor, is that term a correct term 
of this machine?—would be that far apart, is that correct? 
A. I’m not sure that I—

Q. Well, that was a confusing question. A. Yes.

W. H. Anderson—for Defendant—Direct



284a

Q. But what I want, what I ’d like to know is, are the 
blades on the two sides the same distance apart, or are 
they different distances apart? A. On the two different 
arbors, there’s a difference. We’re talking, in fact, in my 
mind I’m speaking of the most simple one to place and 
to figure the amount of, and the number of shims that 
would be necessary to set those two knives six point five o 
three, I believe I said—•

Q. Five point six o three. A. Or five point six o three. 
That would be the simple one to set. Well, then there’s 
two knives on the top arbor, and then there’s two under­
neath it, on the bottom arbor. Now, that’s the one that 
requires some special knowledge in order to get the bottom 
knife, give the bottom knives the proper clearance from 
your top knives. That’s where it wil be necessary to figure 
the percentages of your thickness of metal to come up with 
the, with your clearance.

Q. Does the amount of the clearance vary with the thick­
ness of the metal? A. Yes, sir.

Q. Is there a particular formula or method of figuring 
that? A. Yes, sir, there is.

Q. What is that? Can you tell us? A. F rom eight to 
ten per cent of the thickness of metal, that’s your clear­
ance between your knives; that’s your horizontal clearance.

Q. There’s been some testimony about a chart having 
to do with fractions, that is on the machine; do you know 
what that is? A. Yes, sir. There’s a decimal chart that 
is placed on the wall by the machine, or inside of the cup­
board door, where the supplies are kept, but there is a 
decimal chart by the machine.

Q. And what kind of information does it give? A. Well, 
it only gives you the, it gives you the information to change 
the fractions to decimals. For instance, one sixteenth of 
an inch will equal point o six two five.

W. If. Anderson—for Defendant—Direct



2'85a

Q. I see. Gives the common fractions and corresponding 
decimal fraction! A. Yes, sir.

Mr. Pate: I have no other questions.

Cross-Examination by Mr. Moore:

Q. Mr. Anderson, what shift was Mr. Collins working- 
in November—pardon me—in March of 1967! A. I ’m not 
sure.

Q. You don’t know to which shift he was assigned! A. 
No, I don’t have those records before me, and I couldn’t 
truthfully say. I could probably guess, but I ’m not sure.

Q. You wouldn’t be able to say that he was working the 
day shift, would you!

Mr. Pate: Your Honor, I ’m going to object to 
this question because he’s outside the scope of the 
direct examination. This witness hasn’t testified 
on this subject at all.

The Court: I believe you’re right. I don’t see 
the value of it.

I presume it’s preliminary to the bid in March 
of ’63, which he did testify about. He doesn’t know, 
said he doesn’t.

Mr. Moore: I ’m only asking about 1967.
The Court: I mean ’67.
Mr. Moore: Which shift Mr. Collins was on.
The Court: He said he didn’t know.
The Witness: I’m not sure.

By Mr. Moore:

Q. You’re not sure? You’re not sure. Did you have 
any conversation with Mr. Collins about signing this bid? 
A. I don’t recall any. I would have no reason to.

W. II. Anderson— for Defendant— Cross



286a

Q. I didn’t ask you that. I asked if you had any con­
versation. A. Well, I ’ll say no.

Q. Do you say “no” because you don’t recall it, or be­
cause you did not have any! A. If I had had any con­
versation with him, I believe I would have recalled it, but 
I had no reason to, and I will have to say that I, that I 
didn’t.

Q. Did you see the bid before it was taken down! A. I 
don’t remember.

Q. Do you know whether you took the bid down, or 
someone else took the bid down! A. That’s another thing 
I don’t remember.

Q. Do you know who customarily takes the bids down 
at the plant? A. Well, if a bid was put up, if I was given 
a bid to put on the board, I would probably be the one to 
take it down because I would know the time that I put it 
up, and we usually leave them up, I believe, twenty-four 
hours, I believe it is.

Q. I ask you to look at Plaintiff’s Exhibit #2, and see 
if that’s your writing at the bottom indicating the time 
the bid was posted? A. Down at the bottom? Where is 
that?

The Court: The figure down at the bottom, see, 
where it says 3:30 P. M. there.

A. (The Witness) I wouldn’t think so, no, sir.

By Mr. Moore:

Q. That is not your writing? A. No, I wouldn’t, I 
wouldn’t swear it’s not, but I don’t, I would say that it is 
not. Let’s see, that’s—

W. H. Anderson—for Defendant— Cross



287a

The Court: I thought the previous testimony 
was that Mr. Wahlstrom put up the bid and took 
it down.

A. (The Witness) That looks like Mr. Wahlstrom’s writ­
ing, but I don’t know, I don’t think it’s mine.

Q. You are positive it is not yours! A. Well, it’s put­
ting me kind of—

The Court: Does it make any difference whether 
Mr. Anderson or Mr. Wahlstrom put it up and took 
it down!

A. (The Witness) I don’t think it is. I don’t know.

By Mr. Moore:
Q. Now, Mr. Anderson, the thirty-six inch slitter ma­

chine was the most intricate slitter equipment you had 
at the plant, wasn’t it! A. Not necessarily.

Q. It isn’t! Well, between the forty-eight inch and the 
thirty-six inch, the thirty-six inch slitter was more intri­
cate, wasn’t it! A. I wouldn’t say that.

Q. You wouldn’t say that! A. No.
Q. You would disagree with Mr. Peek, then!

Mr. Pate: I object to that.
The Court: You can’t ask one witness about the 

value of somebody else’s testimony.

A. (The Witness) I—

The Court: You don’t have to answer that ques­
tion; I’ve ruled.

W. H. Anderson—for Defendant— Cross



288a

W. II. Anderson—for Defendant—Cross 

By Mr. Moore -.

Q. Now, the testimony that you gave here about the way 
the slitter functions has to do with the forty-eight inch 
machine, doesn’t it, the present machine! A. Pardon?

Q. The testimony you have just given here in court has 
to do with the forty-eight inch machine, doesn’t it? A. It 
has to do—

The Court: About the knives, and how you fix 
it; this is what he’s asking you.

A. (The Witness) Well, it would be both the, the same, 
both would be figured the same way, the thirty-six and 
forty-eight.

By Mr. Moore:

Q. But you had in mind when you testified the forty- 
eight inch machine, the machine you have at the plant 
now, didn’t you? A. Not particularly, both of them, be­
cause they’re both figured the same thing.

Q. You were present at the plant back in 1963 when 
Mr. Culpepper was given the trial? A. I was.

Q. And you were the foreman at that time? A. I was 
General Foreman, yes.

Q. When Mr. Culpepper was given a trial, he was given 
a trial as an actual operator of the machine, wasn’t he? 
A. Given a trial to be an operator, to learn to be, operate 
the slitter, yes, sir.

Q. And the training was for him to go on to the slitter 
and actually operate it, wasn’t it? A. Right, so far as I 
know. I believe there was a bid up for the job at that 
time, if I recall right.



289a

Q. And the training was that of the actual operator of 
the machine? A. The training was for, or given by an 
operator.

Q. Well, the actual training that he was to receive dur­
ing that period was the training that wmuld be given the 
operator of the machine, is that right? A. That’s right.

Q. Now, Mr. Deering only actually gave Mr. Culpepper 
instructions for about six days, isn’t that right? A. How 
many days?

Q. About six days. A. Twenty days, if I remember 
right, the first time.

Q. But during the first twenty-day period, Mr. Deering 
was actually with Mr. Culpepper for about six days, isn’t 
that right? A. He was with him twenty days, if I remem­
ber right. Now, I ’m not, I believe that’s correct, twenty 
days.

Q. And during the twenty-day period, were you holding 
Mr. Culpepper accountable for a high standard of produc­
tion? A. No. No, sir, I don’t think that would be fair, 
to hold him accountable for that, because he was in a 
period of learning the machine, and after he, after he 
learned the machine, I mean, after he exerted every effort 
in setting it up and he was given an opportunity, after 
being instructed, too, and given experience to see what he 
could do with it.

Q. What allowance did you make for the fact that he 
was inexperienced? A. The same allowance that was al­
lowed everybody; we give them all the help we can.

Q. But you measured him by whether or not the product 
was acceptable to your customers, didn’t you? A. In the 
final, in the final judgment, and the decision that was, I 
guess I will have to say that was true, because had he 
been able to have set it up proper, where he could have

W. H. Anderson—for Defendant— Cross



290a

gotten an acceptable product, why he would have been on, 
why he would have gotten the job.

Q. That is your surmise, is that right! A. There’s no 
question in my mind about him getting it, because I know 
the company well enough, and I know myself well enough 
that he would have definitely got it.

Q. Now,— A. Although I don’t have the record in front 
of me, I don’t believe that there is anyone else that had 
seniority on him, because that’s the way he was chosen to 
try the job out.

Q. Now, during the period that Mr. Culpepper was on 
the machine in 1963, you didn’t have any refusal of orders 
that he had run through the slitter, isn’t that right? A. 
Pardon ?

Q. I say during the period that Mr. Culpepper was on 
the machine in 1963, you didn’t have any refusal of orders 
from customers while he was running the machine, did 
you? A. We didn’t allow the material to go out until ad­
justment was made, until the material was made acceptable 
by the, by his instructor, along with myself. Now I cannot 
answer that, as to whether we had any returns on that or 
not, because I don’t, there again, we have had returns for 
some reason or other, and I couldn’t truthfully answer 
that.

Q. And you have returns now, with Mr. Ennis, don’t 
you? A. I don’t recall any at the time. I wouldn’t, couldn’t 
answer that one.

Q. Isn’t it a matter of policy that every order that’s 
cut is checked by you? A. Every setup that is made, why 
I use verniers to, to check the width of the material, yes.

Q. And to make corrections, is that correct? A. Well, 
if there should be any correction to be made, definitely.

Q. Yes, when there are corrections, you order them to 
be made, isn’t that right? A. If there is any to be made.

W. II. Anderson—for Defendant— Cross



291a

Q. Well, that’s— A. I use the vernier, as I said, and 
we have no problem to any, I don’t recall any problems 
we have, because we have a good—

Q. But your purpose in checking and using the vernier 
is because you expect errors to be made, and you want to 
correct them before you turn the material out! A. That 
is to eliminate them from being made, that is our practice. 
It is our practice.

Q. That is the customary day-to-day business practice? 
A. Bight.

Q. And is that the practice you pursued when Mr. Cul­
pepper was on the machine? A. Bight.

Q. And the practice you pursued then was no different 
from the practice you pursue now, is that right? A. No 
different.

Q. As a matter of fact, it’s customary for the material 
to come out with some variances from the specifications, 
isn’t it? A. No.

Q. Now, that is before you check it with your instru­
ment?

The Court: I keep getting back to this question: 
Do you contend that he did qualify in 1963? Other­
wise, I don’t see the relevancy of this at all.

Mr. Moore: Your Honor, we don’t think that we 
have to go back and be shackled with what happened 
before the actual Civil Bights Act.

The Court: Well, they aren’t, either.
Mr. Moore: Yes, sir.
The Court: This is the point.
Mr. Moore: But they are the ones—
The Court: But whether he qualified or not in 

’63, only has relevance as to whether he was, they 
were justified in not giving him a test in ’67. That’s 
the only relevancy it has to the case, as I see it.

W. H. Anderson—for Defendant—Cross



292a

Colloquy

Mr. Moore: Your Honor, I think that the real 
approach is whether or not he disqualified in ’63 
for an opportunity four years later in ’67. I think 
that’s the real test.

The Court: Well, all of this about the test, I 
don’t see what it proves.

Mr. Moore: Your Honor, well, the defendants 
seem to be insisting on a showing that the material 
had certain irregularities when it was first run 
through, and we, I just want to show that the ma­
terials are subject to correction.

The Court: I ’m not talking about just this one 
question, but we’ve spent two or three hours on 
this ’63 test.

Mr. Moore: Your Honor, the problem with the 
’63 is that if the ’63 test is not relevant at all, then 
there would be no question whether or not, of Cul­
pepper’s right to go on the machine in ’67.

The Court: Well, is this your position? I’ve been 
asking you for two days.

Mr. Moore: Your Honor, may we have just one 
second?

The Court: Well, we’ve got to finish, you all. 
Two men came down here from Washington last 
night, and they’re waiting. I’ve got a hearing at 
2 :00 o’clock that they’re bringing a man all the way 
from Reidsville for, and we’re just piddling around 
here. I tried a patent case in two days last week. 
Looks like we’re going to spend as much time on 
this as we did the patent ease.

Mr. Moore: Your Honor, I ’m not prepared to 
answer the question because I would like to evaluate 
further the evidence in the case.



293a

The Court: All right. I mean, you see the reason 
for my inquiry?

Now, I think your best case, and frankly, I don’t 
see why this couldn’t be conciliated, your best case 
is that he didn’t get the trial. There’s no proof 
that he’s qualified. Conversely, there is no proof 
he’s not qualified except the ’63 test. Now why, as 
a matter of conciliation, the E. E. 0. C. couldn’t 
have arranged some procedure for him to get a trial 
period, I don’t understand. That’s what they’re sup­
posed to do. Somebody must have gotten obstinate 
in the conciliation proceeding, but I ’m not concerned 
with that because it’s a de novo thing. I don’t know 
whether he would qualify now, if he had the trial 
period, see, and nobody else does.

By Mr. Moore:

Q. Mr. Anderson, are you the person who assigns helpers 
to the slitter operator? A. Not all, not at all times, but 
I am familiar with it.

Q. Are you or are you not the person who assigns the 
helpers? A. Sometimes.

Q. Have you assigned helpers during the year 1967? 
A. Let me make this statement.

By the Court:

Q. You’re bound to have, if you’re running the shop. 
You told some of the procses laborers where to work at 
times, didn’t you? Some on the Paint Line, and some on 
the slitter machine? A. I ’m sure, I ’m sure that I did, but 
what I was fixing to say, before Mr. Wahlstrom retired, 
there’s a possibility that maybe he had, he had handled 
that, but, because he did handle a lot of it at different 
times, and I, along with myself, but I say yes, I did, I have.

W. II. Anderson—for Defendant—Cross



294a

W. H. Anderson—for Defendant—Cross 

By Mr. Moore:

Q. When did Mr. Wahlstrom retire.

The Court: August of 1967.

By Mr. Moore:

Q. And you have assigned slitter helpers since then, 
since August of 1967? A. Either Mr. Harwell or myself, 
which is a foreman, or between the two of us.

Mr. Moore: That’s all.
Mr. Pate: No other questions.
The Court: You may go down, Mr. Anderson.
Mr. Anderson: Thank you.
(Whereupon the witness was excused from the 

stand.)
Mr. Pate: Call Mr. Barker.
The Clerk: Mr. Barker, hold up your right hand, 

please, sir.
You do solemnly swear that the evidence you 

shall give in the issue joined between Samuel Cul­
pepper and the Reynolds Metals Company shall be 
the truth, the whole truth and nothing but the truth, 
so help you God?

Mr. Barker: I do.
The Clerk: Thank you, sir.
Please be seated over here, please.



295a

M e . J am es H. B abkeb , ca lled  as a  w itness in  b eh a lf o f  
the defendant, a fte r  h av in g  first been  duly sw orn , testi­
fied as fo l lo w s :

Direct Examination by Mr. Pate:

Q. Will you give us your name and address? A. James 
H. Barker, I live at 815 East Ponce de Leon Avenue, in 
Decatur.

Q. Are you employed by Reynolds Metals Company? 
A. Yes.

Q. How long have you been employed by this company, 
or its affiliates or predecessors? A. Approximately eight 
years, be eight years in April of ’69.

Q. Do you work at the Colorweld Plant? A. Yes, sir.
Q. How long have you been there? A. The whole time.
Q. What is your position? A. Pm presently the Office 

Manager and Scheduling Supervisor.
Q. How long have you held this job? A. About two 

years, I think.
Q. Do you have custody of any of the records of the 

company? A. What type records? If you’re referring to 
production records, yes, we do keep a copy.

Q. You keep a copy of the production records? A.
Right.

Q. Would that include the records of production on the 
slitter machines? A. Yes, it would.

Q. Did you prepare some information from those rec­
ords at the request of Mr. Peek? A. Yes, sir, I did.

Q. When did you prepare the summary of that informa­
tion? A. That particular summary that you are holding 
there was prepared yesterday morning, but it was a recap 
of the previous summary that had been made for some 
other legal hearing, prior.

James Ii. Barker—for Defendant—Direct



296a

Q. Was that in connection with this Culpepper matter— 
A. Yes, it was.

Q. —earlier? Is there anything on the one that you 
prepared yesterday that’s different from the one that you 
prepared earlier? A. No.

Q. Did you make any additions to it, or anything? A. 
Well, I did, too. I had to put two, three more days in it 
to bring the twenty days up on the previous analysis I 
had made, I had been able to find the summary for the 
14th, 15th and 16th of May of 1963.

Mr. Pate: I’m going to ask that this record be 
marked as Defendant’s Exhibit 3 for identification.

The Clerk: Marked for identification Defendant’s 
Exhibit 3, Schedule A, thirty-six inch slitter, S. 
Culpepper.

(Whereupon the above paper was marked for 
identification only as Defendant’s Exhibit #3.)

By Mr. Pate:

Q. Mr. Barker, I ’ll hand you Defendant’s Exhibit 3 for 
identification, and ask you if that’s the paper that you have 
just testified about that was prepared yesterday? A. Yes, 
sir, it is.

Q. Well now, would you tell us what the information 
represents in each of the columns on this paper? A. The 
first column is entitled “Date” , is the date of the pro­
duction.

The next column is entitled “Helper” , and was the 
man that was helping the slitter operator, in this case Mr. 
Culpepper.

“Pounds Output” column represents the pounds of out­
put of production on that date.

James II. Barker—for Defendant—Direct



297a

The “Hours Expended” column is the man hours that 
were expended to gain this production on that date.

The “Number of Setups Made” is the number of setups 
that was made on that date.

Q. Now, what about on the continuing sheet? Are the 
columns the same? A. This is the same, yes.

Mr. Moore: I beg to differ with you there. Page, 
the second page is not the same. In this schedule 
B is for the forty-eight inch machine.

A. (The Witness) Well, the information columns for that 
slitter is the same as the information in the columns for 
the thirty-six inch slitter.

Mr. Pate: I’ll offer in evidence Defendant’s Ex­
hibit 3.

Mr. Moore: Objection, Your Honor.
They haven’t produced the original records from 

which these were made, or the summary.
The Court: I was going to say, this is the rule. 

They are supposed to be available.
In a non-jury hearing, I’ll direct that they make 

them available to you, at such time as you desire.
Mr. Pate: We have those records. They were in 

the hearing room all day yesterday, and I’m not 
sure they’re here today.

The Court: Well, if they are present here in 
court, then the summary is admissible.

Mr. Moore: All right.
(Whereupon Defendant’s Exhibit # 3  was ad­

mitted into evidence.)

James II. Barker—for Defendant—-Direct



298a

James II. Barker—for Defendant—Direct 

By Mr. Pate :

Q. Mr. Barker, do you have those records with you to­
day? A. No, I don’t. I thought I gave them to Mr. Peek 
yesterday.

Mr. Peek: They were in the case that he had, and 
I left that at the office this morning.

The Court: Well, at any rate, it’s admitted sub­
ject to your producing them—

Mr. Pate: We’ll produce them, we have them.
The Court: -—on the request of Plaintiff’s counsel.
Mr. Moore: We request it, Your Honor.
The Court: Well, you might let the witness go 

back and get them, Mr. Peek, and just bring them 
over here and we’ll get it over with, when he gets 
through.

Mr. Peek: I can make a phone call and have some­
one bring them to the Court, if it will save time.

The Court: Whichever is easier for you. I mean, 
I don’t have to be here when they come in, just so 
they get up here.

By Mr. Pate:

Q. Mr. Barker, were you present at a conference some­
time in the summer of last—of this year, when an effort 
was made to conciliate this dispute with a repi’esentative 
of the E. E. 0. C.? A. Yes, I was.

The Court: I don’t know what you’re going to 
ask him, but normally speaking, what happened in 
the conciliation is not admissible in this trial. It’s a 
de novo investigation.

Mr. Pate: Well, if I may, Your Honor, I will offer 
to prove that in connection with the conciliation at



299a

this conference about which he was to testify, in 
August, 1968, that the company made an offer to 
take Samuel Culpepper, give him a ninety-day train­
ing period without reduction in pay, and that that 
offer was not accepted.

The Court: Well, I don’t think it has any pro­
bative value in these proceedings, as I understand 
the law.

Mr. Pate: And we—
The Court: Though I don’t understand why he 

didn’t take it.
Mr. Pate: We intend to prove, and I just make 

this offer at the same time, from the deposition of 
Mr. Culpepper, at Page 20, that the offer was com­
municated to him and that he knew about it.

I have no other questions of this witness.
The Court: All right. Any questions from Mr. 

Barker?

Cross Examination by Mr. Moore:

Mr. Barker, I want to clear up one thing here. Mr. Pate 
asked you if the same thing was on the second page as 
on the first page. I noticed that on the first page, when 
Mr. Culpepper is listed underneath thirty-six inch slitter,— 
A. Umm humm.

Q. —opposite the column where it says “Date” , you have 
“Helper” . A. Yes.

Q. You only have Mr. Deering’s name and Mr. Petty’s 
name, is that right? A. Eight.

Q. And on the second page, where you have Mr. Ennis 
on the forty-eight inch slitter, you have the name “Oper­
ator and Helper” . A. Yes. Well, at the time that I began 
preparing this, I thought there were two operators work­

James II. Barker—for Defendant— Cross



300a

ing on the slitter within that period of time, so it was, the 
column, was headed np so that I could place the second 
operator’s name, but it so happened there wasn’t another 
one.

Q. Is that on the first one, there was no— A. No, no, 
this was strictly for Mr. Culpepper’s training period, so 
he would have been the only operator that we were inter­
ested in.

Q. You only listed one operator? A. Well, this is the 
helper, yes. Culpepper was the operator, Mr. Culpepper.

Q. And Mr. Deering was the helper? A. With the ex­
ception of these two days that Mr. Petty was the helper.

Q. And on the other, you list “Operator and Helper” ? 
A. Right.

Q. Can you tell us when they took the thirty-six inch 
machine out? A. No, I sure can’t.

The Court: Hasn’t Mr. Peek already testified that, 
and you all agreed when it was? At some point in 
his testimony he gave the date, and you all estab­
lished that.

Mr. Pate: March 6, 1964.
The Court: All right.
Mr. Moore: I don’t have any other questions of 

this witness.
Mr. Pate: No other questions.
The Court: You may go down, Mr. Barker.

(Whereupon the witness was excused from the 
stand.)

Mr. Pate: We will recall Mr. Peek.
The Court: All right, sir.
Before he begins his testimony, I ’m not interested 

in either one of you going over what he testified yes­

James E. Barker—for Defendant— Cross



301a

terday. I don’t know of any rule of law that says 
I have to, that once he’s testified, he’s testified.

Mr. Pate: All right, sir. I wil try to avoid that, 
Your Honor.

The Court: Well, I know it’s not always abso­
lutely possible.

Marion L. Peek—for Defendant—Direct

M e . M abion L. P e e k , called as a witness in behalf of the 
defendant, having previously been sworn, testified as fol­
lows :

Direct Examination by Mr. Pate:

Q. You are Mr. Marion L. Peek, who previously testified 
in this case? A. I am.

Q. Is that right? A. That is right.

The Court: May I ask a couple of questions before 
I forget them?

Mr. Pate: Yes.
The Court: I do this all the time in these non-jury 

things, and I apologize to counsel.

By the Court:

Q. Is there a trial period for a decoder operator? A. 
Yes, sir.

Q. Did Culpepper have a trial period for a decoder op­
erator before he was put on the job? A. That I cannot 
answer, sir. I can only say that the contract provides 
for a trial period in any promotion or transfer situation.

Q. Well, I gather from what he stated on yesterday, 
that between the 1963 test on the slitter and 1967, that 
he was advanced to the job of decoder operator. I can’t 
find out whether that job was bid, whether there was a



302a

trial period, or anything else. A. Sir, I think he was the 
decoiler operator at the time he was given the trial in ’63. 
I think he aspired or got to the decoiler operator job 
sometime in 1960, if my memory serves me correctly.

Q. Well, I was under the impression that it was since 
1963 that he had gone up to decoiler operator from regu­
lar machine operator. A. That is correct, sir. I have a 
date here. 1-19-60 was the date he was originally, no, it’s, 
it goes back further than that, 5-6-57 was the original date 
that he was promoted to a machine operator.

Q. All right. A. From—
Q. All right. When did he go from machine operator 

to decoiler operator? When did you all start paying him 
fifteen cents? A. Sometime after January 19, 1960, and 
my records did not divulge that, I tihnk it was prior to 
the ’63—

Q. Well, then my impression was that this— A. —trial.
Q. —this raise in pay occurred since ’63 is wrong. He 

had the top pay, other than slitter operator, in the Fabri­
cation Department prior to the ’63 trial? A. That is cor­
rect.

Q. All right. What did, did Collins go straight from a 
process laborer wage rate to his trial? A. He went to a 
slitter operator’s rate during his trial from the process 
rate.

Q. All right. During the trial do you draw slitter’s pay 
rate? A. Right.

The Court: Okay.

By Mr. Pate :

Q. Mr. Peek, will you tell us why Samuel Culpepper was 
not selected for the slitter operator’s job in 1967? A. Yes, 
sir. Because he had previously been given a trial period

Marion L. Peek—for Defendant—Direct



303a

of twenty days and then ten additional days after grieving, 
and in the judgment of his supervisors he had not quali­
fied, therefore we considered him disqualified at the time 
of the ’67 bidding.

Q. Was his race a factor in that decision? A. Definitely 
not.

Q. Can you tell us, since his trial period in 1963, how 
many times there has been a posting for bids for a slitter 
operator’s job, or relief slitter operator’s job? A. I have 
some notes on that, if I may—the best of my recollection, 
there was only one in 1964, the occasion of having to put 
a second shift on the slitter for a short period of time. I 
think the period of time was approximately one week.

Q. Is that the occasion to which reference has been made 
as being in December, 1964? A. Yes.

Q. And is that the only time since Mr. Culpepper’s trial 
period in 1963, other than the one in March of 1967, about 
which there has been testimony? A. It is, the best of my 
recollection it is.

Q. Do you know—

The Court: Let me ask another question.

By the Court:

Q. Has Mr. Culpepper ever bid a Paint Line job? A. 
Not to my knowledge. I think he would have gotten a trial 
there had he done so, because he had the seniority to get 
one, because presently some of the junior men in the plant 
are over there.

Q. Well, don’t the Paint Line workers make the same as 
slitter operator? A. They do on the first shift, yes, sir. 
Second shift and third shifts, which is the four to eight 
and eight to twelve shift, the differential, I think, is eight 
and twelve cents, respectively.

Marion L. Peek—for Defendant—Direct



304a

Q. But the basic wage for the Paint Line regular worker 
is the same as a regular slitter operator? A. Correct, yes, 
sir.

Q. Do you have a number of Negroes in the Paint Line? 
A. Yes, sir. Probably the majority of them are.

Q. Well, I couldn’t remember from the other Culpepper’s 
testimony yesterday.

Mr. Moore: It’s in evidence, Your Honor.
The Court: Well, some of those didn’t have race 

specified and some did; some of those things you 
all prepared.

Mr. Moore: Number 11 gives the race and the 
department which they were in.

The Court: Yes, fine.
Mr. Pate: Shall I go ahead?
The Court: Yes, sir.

By Mr. Pate:

Q. Mr. Peek, you know Mr. Ennis, who testified in this 
case? A. Yes.

Q. Did you ever state to Mr. Ennis, in words or in 
substance, that you would close down this job of slitter 
operator before you would place a Negro on it? A. I 
did no, no such thing, no, sir.

Q. Did you make a statement like that to Mr. Ennis at 
any time? A. No, sir.

Q. Or did you make such a statement to someone else 
in the hearing or presence of Mr. Ennis? A. No, sir, I 
did not.

Q. Did you ever tell Mr. Ennis that he would be re­
quired, or would have to stay on the job of slitter opera­

Marion L. Peek—for Defendant—Direct



305a

tor! A. Have to stay on it? When? I don’t understand 
the question.

Q. In some conversation with Mr. Ennis about the slitter 
operator’s job, did yon tell him that he was going to have 
to remain on that job? A. No, sir, I can’t tell him that. 
He has the opportunity to bid any job that comes up in 
the plant.

Q. Mr. Peek, what employees are used to help on the 
slitter machine, from time to time? A. The process packer, 
as they are presently called; they were previously called 
process laborers.

Q. Is the decoder operator ever assigned to work on 
the slitter machine as a helper? A. Not to my knowl­
edge. However, if he were, his rate would not be reduced. 
This is on a temporary transfer aspect of the contract 
only.

Q. Would that be a part of the normal duties of a de­
coder operator? A. No, sir.

Q. Is it a part of the normal duties of a process packer 
or process laborer? A. Yes, sir, that’s the one that fills 
the job the majority of the time.

Q. After this occasion in 1963 when Mr. Culpepper was 
tried on the slitter job, did you write a memorandum of 
some kind to some officials or superior representatives of 
the company, and company management about it? A. 
Yes, sir. I wrote a memorandum to Mr. A. H. Lindstrom, 
who was then the Manager of our personnel at the Alloys 
Plant, and Mr. Hill, who is my immediate superior in 
this area of responsibility, that is, labor relations.

Q. Is that a memorandum to which you made reference 
in your examination by Mr. Moore? A. Yes, sir.

The Court: It’s part of this #1 , isn’t it?
Mr. Pate: Is it part of #1?

Marion L. Peek—for Defendant—Direct



306a

The Court: Yes.
Mr. Pate: That is correct, it’s already in evi­

dence. I won’t ask him about that.
I’ll ask that this copy of a letter dated March 1, 

1963, to Mr. E. G. Bartlett, purporting to he from 
M. L. Peek, be marked as Defendant’s Exhibit 4 
for identification.

The Clerk: Defendant’s Exhibit 4 is so marked.
(Whereupon the above paper was marked for 

identification only as Defendant’s Exhibit
# 4 . )

Mr. Pate : And that this paper that purports to 
be a Notice of Jobs Bulletined, dated April 22, 1963, 
be marked as Defendant’s Exhibit 5 for identifica­
tion.

The Court: Excuse me. I think you marked one 
letter also as part of P-1.

The Witness: Yes, sir, that is the letter.
The Court: Just wouldn’t be any need to dupli­

cate it, is all. Now, the posting of it in April—•
Mr. Pate: That is correct.
The Court: The posting in April of ’63, so far as 

I know, is not in the record.
Mr. Pate: Well, I will not need to identify De­

fendant’s Exhibit 4, but since the other paper is 
already identified as Defendant’s Exhibit 5, I will 
go ahead and use that number, if I may.

The Court: Sure.

By Mr. Pate:

Q. Mr. Peek, I ’ll hand you Defendant’s Exhibit 5 for 
identification, and ask you if you are familiar with that

Marion L. Peek—for Defendant—Direct



307a

paper, if you know what it is? A. Yes, sir, I do. It is a 
job bulletined for the purpose of filling a vacancy in the 
Fabrication Department for a slitter operator.

Q. And was this bulletin posted about the time shown 
on it? A. Yres, sir. That is not the original, I cannot 
locate the original. It was evidently in the files of Mr. 
N. E. Wahlstrom, who signed it, who was Assistant Plant 
Superintendent, and normally, I would have signed it had 
I been in the plant. For some reason I wasn’t there, and 
the original is probably in his files.

Q. Can you tell us whether or not this is the posting of 
that job on the basis of which Mr. Culpepper was selected 
and given a trial period? A. Yes, sir, it is.

Mr. Pate: I will offer in evidence Defendant’s 
Exhibit 5.

Mr. Moore: Your Honor, I think that for the 
purpose of admissibility, that he has qualified it 
reasonably sufficient. However, it is defective in 
one very critical area, that is, it doesn’t show the 
names of the person who signed the bid, and I 
think that would be a critical element.

The Court: Well, I assume he’s offering it simply 
to prove it was posted in April of ’63, and we don’t 
really have any dispute about it.

Mr. Pate: No other questions.

Cross Examination by Mr. Moore-.

Q. Mr. Peek, just several questions.
With respect to Defendant’s Exhibit 5, the posting of 

the notice on April, in April ’63, do you have any records 
to show the names of the persons who actually bid on 
that job? A. No, sir, but to the best of my belief Arthur 
Collins, Bennie Sells, and Samuel Culpepper signed it.

Marion L. Peek—for Defendant— Cross



308a

Q. Signed the bid at that time? A. Yes, sir.
Q. Who actually got the job at that time? A. Mr. 

Bennie Sells.
Q. He was awarded the job? A. Yes, sir. I have a 

copy of a memorandum in my file, the same as this, it’s 
not the original, that states on September 28, 1962, the 
vacancy in the Fabricating Department has been filled by 
Mr. Bennie Sells.

Q. As a slitter operator? A. This is the twentieth,— 
I’m sorry—now, this is the September 28th award, of 
1962. I’m confused, because it, we’re talking about the 
April ’63 bid?

Q. Right. A. The one that was just put in evidence?
Q. Right.

By the Court:

Q. Do your records show that Collins bid the 1962 job? 
A. Yes, sir, the best of my remembrance.

By Mr. Moore:

Q. Mr. Peek, do your records show in what department 
Mr. Collins was employed at the time he bid in 1962? A. 
In 1962?

Q. Yes, sir. A. No, sir, I don’t have that record with 
me.

Q. With respect to the April bid, do you have any records 
to show the persons who made that bid? A. No, sir, I 
don’t.

By the Court:

Q. Who got the job in April of ’63? Well, it would 
have been actually up in August, sometime, wouldn’t it? 
A. Oh, Mr. Sam Culpepper got the one in April of ’63.

Marion L. Peek—for Defendant— Cross



309a

Q. He got the trial, but who got the job! A. When he, 
as I remember, when he became disqualified, that machine 
didn’t operate for a period of time until it was transferred 
out.

Q. So the job, meanwhile, had vanished! Is this what 
you are telling! A. It vanished as of, from that time up, 
definitely, ’til March, when the machine was transferred, 
but I don’t have the records to show just how long it con­
tinued to produce after-—

Q. Then it wasn’t rebid until you had this special shift 
in ’64! A. It wasn’t rebid until we had the occasion for 
the second shift in ’64, and then the next occasion was for 
the relief job when Mr. Ennis was going on the Negotiating 
Committee for the Union contract.

Q. ’67. Has it been bid since— A. No, sir.
Q. -—’67! A. No, sir.

By Mr. Moore:

Q. Mr. Peek, just a couple of other questions about the 
Paint Line.

The Paint Line workers work at night, don’t they! A. 
They work around the clock—

Q. It’s a— A. —at the present time.
Q. Was that true in 1967! A. I could not say, without 

going to the records.
Q. Is that the department in the plant where there’s 

more night work! A. Yes, sir. It’s the only department 
in the plant where there’s night work, as far as I can re­
member, except the one week or fiwo-week period in ’64, 
when we had the second shift on the slitter.

By the Court:
Q. Do your shifts rotate in the Paint Line! Are you 

on the day shift one— A. No, sir.

Marion L. Peek—for Defendant— Cross



310a

Q. —period of time? A. No, sir, we have a provision 
that when there’s a vacancy on the Paint Line, that em­
ployees wishing to change a shift can bid on a shift change, 
but normally,—

Q. Based on seniority? A. Based on seniority.
Q. And there is a little extra pay for the night shift— 

A. Correct, sir, yes.
Q. —from what yon say.
Normally speaking, I presume it is like textile mills and 

everything else, when you get on the Paint Line you 
usually have the worst shift, and you have to kind of work 
your way up to the day shift. Of course, some people 
prefer it at night because of their wives jobs. A. Well, 
ours are pretty well mixed up, some of the junior men 
are on the day shift, which would normally be the prefer­
able one.

By Mr. Moore:

Q. Mr. Peek, Defendants put into evidence as Defen­
dant’s Exhibit #3  a summary of the output and other 
things when Mr. Culpepper was tried out on the machine, 
do you remember that? A. Yes.

Q. Now, the summary, Defendant’s Exhibit D-3, doesn’t 
show the thickness of the material, does it? A. No, sir, 
it doesn’t. This, you will notice, if I may add, the numbers 
here coincide with the numbers on—

By the Court:

Q. On this report? A. On that report already put in 
evidence.

Q. To your superiors? A. On the bottom of that, yes. 
These numbers back those figures up.

Marion L. Peek—for Defendant— Cross



311a

Marion L. Peek—for Defendant—Cross 

By Mr. Moore-.

Q. But the thickness is a factor that influences the out­
put per man hour, isn’t it? A. Yes, sir.

Q. Mr. Peek, do you have any personal knowledge, or 
records to show the shift on which Mr. Collins worked in 
March, 1967? A. Yes, I have the records; I don’t have 
them with me.

Q. Could that information be made available to me as 
to Mr. Collins?

Mr. Pate: I don’t believe that is a proper ques­
tion for the witness.

The Court: What is the purpose of it? It’s come 
up two or three times.

Mr. Moore: Your Honor, I want to examine the 
records with the possibility of impeaching the testi­
mony of Mr. Collins, as to the shift on which he 
worked.

The Court: Well, what difference would it make?
Mr. Moore: It may make a difference as to whether 

or not he actually signed the bid or not.
The Court: Oh, you’re trying to establish whether 

he was there the afternoon the bid was taken down ?
Mr. Moore: Yes, sir.
The Court: Well, surely you can get that informa­

tion from your pay records.
Mr. Moore: He testified he signed it within the 

last five minutes, and we want to verify wdiether he 
was actually at the plant.

The Court: I don’t think there will be any trouble 
about getting those pay records.

Mr. Pate: We’ll check that, we’ll get that.



312a

Tlie Court: I gather from the testimony that 
there isn’t any shift except the day shift, except in 
the Paint Department. Do you follow me?

Mr. Moore: Yes, sir.
The Court: That everybody works in the daytime 

except the paint, and they work around the clock.
Mr. Moore: Mr. Collins was sort of floating

around, I don’t know whether the evidence is con­
clusive that he was working as a process laborer 
during that period, or whether he may have been 
on the Paint Line. It’s a little loose.

The Court: I don’t think he was on the Paint 
Line except as a helper,—

The Witness: No, sir, there’s only one—
The Court: —up until recently.
The Witness: There’s only one wage classifica­

tion in the Paint Line Department, and that is of 
a Paint Line operator.

By the Court:

Q. In other words, if you paint, you get that pay, what­
ever your previous status was? A. That’s correct.

By Mr. Moore:

Q. That’s one where you can transfer from Fabricating 
to the Paint Line at a higher rate, but you may be bumped 
back to the Fabricating Department? A. May I say, he 
could have been on the third shift on the Paint Line at 
that time and come in and bid, knowing the bid notice 
was up, and bid it. He has that right.

Q. He could have, but we would like to see the records.

The Court: Well, you can get that record for me, 
can’t you, Mr. Pate?

Marion L. Peek—for Defendant— Cross



313a

Mr. Pate: Yes, sir.
The Court: Okay.
Anything else from Mr. Peek!
Mr. Moore: No, sir.
The Court: AH right, sir.
You may go down, Mr. Peek.
(Whereupon the witness was excused from the 

stand.)
Mr. Pate: Defendant rests.
Mr. Moore: Has the defendant rested!
Mr. Pate: Yes.
The Court: Yes, he rested.
Mr. Moore: Your Honor, we would like to recall 

Mr. Culpepper for a short rebuttal.

Samuel Culpepper—Plaintiff—Rebuttal— Direct

Mb. S a m u e l , C u l p e p p e r , called in rebuttal, having pre­
viously been sworn, testified as follows:

Direct Examination by Mr. Moore:
Q. Mr. Culpepper, would you state whether or not at 

any time since this controversy has existed between you 
and the company, dating from 1967, that you have been 
offered the opportunity to train for a period of ninety 
days as a slitter, relief slitter operator at your present 
rate of pay! A. Only—

Q. Pardon!

The Reporter: What did you say!

A. (The Witness) Only I been offered to train for ninety 
days for a cut rate, with my pay to be cut.



314a

The Court: Well, we might; work this thing out.
Are you willing to let him train at ninety days at 

decoder rate of pay?
Mr. Pate: We’ll have to check on that. It was 

made, and this witness testified on deposition to 
knowing about it, and—

The Court: Well—
Mr. Pate: —it was turned down, so—
The Court: Well, it has no value in this case, but 

I ’m just interested any time I can get rid of a 
controversy.

Mr. Moore: Your Honor, it may have slight value. 
I ’ve got one other question about it.

By Mr. Moore:

Q. Was an offer ever made directly to you, Mr. Cul­
pepper, that you could have a period of training for ninety 
days at the regular rate?

The Court: What do you you mean “directly” ?
Mr. Moore: That is, that he was told by a mem­

ber of the company.
The Court: Well, what if he was told by the 

E. E. 0. C. person that the company told? Would 
that make any difference?

Mr. Moore: I don’t know, it may depend on how 
realistic one might think the offer is.

By the Court:

Q. I assume your answer is no? A. I didn’t understand.
Q. Well, did you ever? Did anybody ever tell you, for 

the company, that you could have ninety days training on 
the slitter at your decoder operator’s pay? A. No, sir.

Samuel Culpepper—Plaintiff—Rebuttal—Direct



315a

Samuel Culpepper—Plaintiff—Rebuttal—Direct 

By Mr. Moore-.

Q. Now, with respect to Mr. Deering, who testified yes­
terday, is it your testimony that Mr. Deering* only taught 
you for a period of six days? A. My testimony is that 
Mr. Deering seems to be, for six days he was interested 
in learning me something, that’s when I mean, and after 
then seems like it was just, you know.

Q. Seems—it’s your testimony that it was, he was dis­
interested after six days? A. That’s right.

Q. During the time that you were given the trial, did 
you exercise your utmost efforts to learn the job? A. 
Sure.

Q. Could you tell the Court your reasons for wanting 
the job of slitter operator? A. Because it’s more, fifteen 
cents more on the hour than I was getting, plus that amount 
runs up into months or weeks, or whatsoever.

Q. Did your working hours on that job have anything to 
do with your desire for it? A. Well, the day shift, that 
was one thing I liked about it.

By the Court:

Q. Well, you’ve always been on the day shift. A. True.
Q. You mean, as opposed to the Paint Line, that’s why 

you had rather be a slitter operator, because you are guar­
anteed a daytime, not guaranteed, but the chances were 
you would be in the daytime? A. Yes, sir.

Q. And the chances were, if you went on the Paint Line, 
you might have to work at night? A. Yes, sir.

Mr. Moore: All right, sir.
Then you may examine, sir.



316a

Cross-Examination by Mr. Pate:

Q. Mr. Culpepper, you knew that an oiler was made to 
you, and relayed to you from the company, that you could 
go on that job for ninety days without any reduction in 
pay and train for a slitter operator, didn’t you? A. No.

Q. You testified on deposition in this matter over in my 
office recently, didn’t you? You remember when they took 
your testimony over there? A. For a cut rate, that’s right.

Q. That was on the 22nd of November, you remember 
that? A. I remember.

Q. Now, I ’m looking at Page 19 of your deposition, and 
I want to ask you if we didn’t have this series of questions 
and answers, and I want you to listen to the questions and 
answers, if you will, and see if this right, all the way 
through. A. Okay.

Q. And didn’t the company actually say, when this offer 
of settlement was made, that they would let you roll back 
to a process laborer, and get that rate and get training 
on the machine for ninety days?”

Then answer: “Rolled to a slitter helper.”

Question: “Well, is that not a process laborer?” 
Answer: “Slitter helper?”
Question: “Yes.”
Answer: “That is about the same thing as process 

laborer.”
Question: “Involves the same pay rate?”
Answer: “I think so.”
Question: “And that is what the company offered 

to let you do, is that right?”
Answer: “That’s right.”
Question: “And did you accept that, or reject it, 

or what action did you take?”
Answer: “I didn’t sign it.”

Samuel Culpepper-—Plaintiff—Rebuttal—Cross



317a

Question: “You were not willing to do that?” 
Answer: “No,”

Now, you remember that line of questions and answers, 
don’t you? A. At a cut rate.

Q. At a cut rate? A. That’s right, at a cut rate.
Q. That’s right. A. Fifteen cents an hour?

By the Court:

Q. Yes, that’s what he was asking about. A. That’s 
right.

Mr. Pate: That’s right.

By Mr. Pate:
Q. Then, after skipping a question and answer here, a 

couple of questions and answers, on Page 20.

Question: “Did you know that the company sub­
sequently offered, at the time when there was an 
effort to reconciliate the matter with the E. E. 0. C., 
the company offered to let you train on this job 
without reduction in pay?”

Answer: “Sure.”
Question: “You knew that?”
Answer: “ Sure.”
Question: “And when did that take place?” 
Answer: “I disremember, along in ’67, taken place 

in ’67, something like that, I don’t remember whether 
it was June or July or what, but it was in the 
summer.”

Now, is that correct? Is that what you said?

Samuel Culpepper—Plaintiff—Rebuttal— Cross



318a

Mr. Moore: I think it speaks for itself, it is re­
corded testimony.

The Court: Well, this is a—
Mr. Moore: If he wants to know, if he wants to 

confirm it—
The Court: This is a technical way he has to ask 

him, “Did you make those answers?”  “Yes” , I as­
sume, is his answer.

A. (The Witness) The only thing I know about is the cut 
rate, only as I understood, that I would take this cut, plus, 
after that, still not know, guarantee, that I ’m going to get 
the slitter, after taking the cut for ninety days plus losing 
out, well, about a dollar a day on, you know, each day 
until the ninety days.

Q. You remember these questions that I read you, and 
making the answers that I read? A. Where does the cut 
rate show?

The Court: I assume his testimony is that he did 
make those answers, but that he doesn’t know about 
any offer except to take it at a cut rate.

Mr. Pate: I would like to say in my own behalf, 
that the word that I used was not ’’reconciliate” , it 
was “conciliate” .

The Court: It’s a pretty good word, I think.
Mr. Pate: I don’t know.
Well, Your Honor, I have already read that por­

tion of his deposition. I would like to offer that in 
evidence.

The Court: All right.
Anything else from Mr. Culpepper?
Mr. Moore: Nothing else, Your Honor.

Samuel Culpepper—Plaintiff—Rebuttal— Cross



319 a

Marion L. Peek—for Defendant—Cross

The Court: All right.
You may go down.
(Whereupon the witness was excused from the 

stand.)
Mr. Moore: If I may, I would like to call Mr. 

Peek hack for just two questions.
The Court: All right.
Mr. Moore: Mr. Peek, please.

M b . M arion L. P eek , ca lled  in rebuttal fo r  cross-exam i­
nation , h av in g  p rev iou sly  been sw orn , testified  as fo l lo w s :

Cross-Examination by Mr. Moore-.

Q. Mr. Peek, during the twelve years that Mr. Culpepper 
has been an employee at the Reynolds Plant, he has been 
a satisfactory worker, has he not! A. Yes, sir, he has.

Q. Thank you, sir.

The Witness: That all, sir!
The Court: Yes, sir.
(Whereupon the w itness w as excused  from the 

stand.)
Mr. Moore: Your Honor, we would rest at this 

time. I guess that will conclude it except for two 
matters:

One, Mr. Pate and I sort of got together and 
agreed that we could take photographs of the two 
machines. We would make those photographs for 
the Court, if it would be helpful in  evaluating the 
evidence.



320a

The Court: I don’t believe I could tell anything 
about how to operate one, from looking at the photo­
graph.

Mr. Moore: I was thinking—
The Court: This drawing is in evidence, and it 

gives me a schematic view of it, anyway.
As I say, I really think the question here is not 

whether Culpepper can operate it or not, hut whether 
he has wrongfully been denied what you might say 
is a second test.

Now, on the merits of your claim, I know we have 
several legal preliminaries, other than Mr. Ennis’ 
testimony.

What evidence is there that he, that race had any­
thing to do with this?

Mr. Moore: Well, the testimony is that they have 
never had a slitter operator in the plant.

The Court: Well, does that make out a case? They 
have never had a Negro president of the General 
Motors, but that wouldn’t prove that General Motors 
was discriminating, would it?

Mr. Moore: I would think so, I would think it 
would he unreasonable. I don’t see any reason why 
a Negro shouldn’t be.

The Court: Well, conversely, they’re paying peo­
ple at the wage rate that you’re talking about, it is 
not as though they took the highest wage things and 
there’s never been a Negro there. They have Ne­
groes who are making that same pay, and higher, I 
presume from this list.

Mr. Moore: That is—
The Court: In that particular job.

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321a

Mr. Moore: But, that’s in the Paint Department, 
which is a different department, where the work is 
generally unsatisfactory.

The Court: Well, is it your legal position that if 
you come into court and show that a Negro fails to 
get a job, and a Negro has never had it, that that 
proves that is discrimination by race?

Mr. Moore: That may not prove it alone, but that’s 
certainly some evidence to be taken with the other 
evidence to show that there’s been discrimination.

The Court: Well, if this were true, if you had 
an all White business in July of ’65, then all you 
would have to do to make out a case is have X num­
ber of workers, Negro, apply for Y number of jobs, 
who are all White, and if they didn’t get the jobs, 
you would say, “I have made out a case” . I think 
it takes more than this.

Now the perfect case for you to have had may 
have been in ’63, assuming that these rights occurred, 
when he wasn’t even give the chance, for no reason 
at all, see? Where he had seniority, but was not 
given the test, and was a Negro, then I think you’ve 
got some facts that mean something, but he was 
given a test in ’63.

Mr. Moore: Your Honor, the test in ’63, and the 
bid procedure in ’63 appeared to be sham. They gave 
him the test on—•

The Court: Well, this is my point. Suppose it is 
a sham? Does it make it a racial matter or a Union 
matter ?

Mr. Moore: Your Honor, I think that in this con­
text it is a racial matter.

The Court: Why? What evidence do you have?

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322a

Mr. Moore: Well, you have evidence: One, that 
a Negro hasn’t been employed in the plant.

The Court: Wait a minute, —
Mr. Moore: Not employed in the plant—
The Court: In ’55 they apparently hired a sub­

stantial number of Negroes. Every Negro witness 
that’s been on the stand went to work in ’55. In ’59—

Mr. Moore: Right.
The Court: —the plant was integrated in all de­

partments, according to your witnesses.
Mr. Moore: That’s right.
The Court: They now have fifty per cent of their 

labor force are Negroes, so there are no circum­
stances that indicate a pattern of discrimination in 
this facility.

Mr. Moore: I think that there is a pattern of dis­
crimination.

The Court: What?
Mr. Moore: And it’s proved.
The Court: What?
Mr. Moore: One, if you examine seniority struc­

ture in your plant, you find that despite the fact 
that Negroes have the overwhelming seniority plant­
wide, that Negroes don’t have, don’t hold the top 
jobs in the company.

The Court: But all this happened way back yon­
der. Your witness said that. I asked him about it. 
He said since ’62 they have gotten a fair break race- 
wise.

Mr. Moore: Your Honor, that may be so, in the 
opinion of that witness. It is certainly not so in—

The Court: What other evidence do I have? Cer­
tainly, if the White workers got in the top jobs prior 
to July of ’64, they couldn’t kick them out.

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323a

Mr. Moore: Well, I think—
The Court: Suppose a fellow got the top job in 

1962 and he was White ? In 1965 you wouldn’t throw 
the man out, because the company is not responsible 
in 1962.

Mr. Moore: It’s a different question whether 
you’re going to kick somebody out, or whether you’re 
going to recognize the pattern that is plainly visible.

The Court: Well, here is my point. If a pattern 
existed in 1959, that doesn’t make it a pattern to­
day. There is no way that could be done.

Mr. Moore: But that—
The Court: Otherwise, every business in the coun­

try would have to—
Mr. Moore: The vestige of the pattern is still 

there.
The Court: Well, what do they do?
Mr. Moore: Well, look, take for example, the 

Paint Line Department. That answers that.
The Court: It was integrated, according to your 

witness.
Mr. Moore: This is true.
The Court: Now, wait a minute. This was six 

years before the Act was passed.
Mr. Moore: Yes, sir, they integrated, but through 

the action of the workers and the Union, but look at 
the vestiges of the discriminatory pattern.

The Court: Well, this is my point. Vestiges, un­
less they are being presently affirmatively carried 
out, can’t be changed. You can’t erase the fact that 
there were more White workers. I assume this is 
true for every business in the country, practically, 
prior to 1965, and you can’t go in in 1965 and im-

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324a

Colloquy

mediately—suppose that they had forty-nine White 
workers and Culpepper was the only Negro worker 
prior to ’65? Then, right after the Act was passed, 
they would still have that, and there would be forty- 
nine other people in front of him. They aren’t re­
quired to come and kick those forty-nine out.

Mr. Moore: But that’s not the case in this plant. 
The fact of the matter is that out of the top eighteen 
men in the plant, senioritywide, the first fifteen are 
Black. Now, the Black man does not hold the top 
job in any plant, in any department.

The Court: Bight.
Mr. Moore: They’re not top in Fabrication.
The Court: Well, excuse me. There’s, five out of 

the top nine—out of the first ten in one department 
were Negroes, and the top man was a Negro.

Mr. Moore: Yes, sir, that—no, sir.
The Court: That’s what the other Culpepper testi­

fied.
Mr. Moore: In the Fabricating Department the 

top man is Ennis, jobwise. He has less seniority 
than, I think, Mr. Culpepper. In Shipping and Be- 
ceiving, Mr. Pittman—

The Court: Bight.
Mr. Moore: —is the top man.
The Court: Bight.
Mr. Moore: He has less seniority than, I think, 

fifteen other Negroes—
The Court: All right, who is the top man in the 

Paint Line?
Mr. Moore: —with the company.
In the Paint Line, the top man is Mr. Logan, I 

believe.



325a

The Court: Well, I have forgotten, hut he testi­
fied in one department that the top man was a Negro, 
and that nine out of the first ten were Negro.

Mr. Moore: Bight, and then you take—not in that 
department, that was overall.

Then you take Mr. McLain,—
The Court: All right. Excuse me just a minute.
I know the fact you are talking about, like the 

other Culpepper’s fourth companywide, and seventh 
in his department. Culpepper may be fifth company- 
wide and eighth in his department, but none of this 
has occurred, under any evidence, since 1962; none 
of it.

Mr. Moore: That’s why we treat it on the ap­
proach of being a vestige of a discriminatory pat­
tern.

The Court: Well, suppose that is a vestige? There 
is not a company in the United States that doesn’t 
have a vestige of it. Now, does that make out a 
case?

Mr. Moore: That is the precise reason why this 
statute wTas enacted, because the Congress knew that 
discrimination against Black people in employment 
was pervasive.

The Court: And it had to stop, and from that 
point on nobody can discriminate.

Mr. Moore: It can only stop if the vestiges are 
wiped out.

The Court: Well, I don’t see that the Court has 
an affirmative power to wipe out a vestige. I just 
don’t think this is in the law. In fact, the statute 
itself says that percentages and all of this stuff 
shall not be a grounds for changing.

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326a

Mr. Moore: Well, I ’m not saying that, that there 
should he an odd racial balance.

The Court: An imbalance? Well, that’s what 
you’re arguing, imbalance.

Mr. Moore: I ’m not arguing that, Your Honor. 
It’s the same thing, I think, in the school situation 
that the Fifth Circuit says you have to wipe out 
the vestiges—

The Court: Right.
Mr. Moore : —of discrimination.
The Court: But this one doesn’t say you have 

to wipe it out.
Mr. Moore: It’s not the statute.
The Court: It says from that point on, there shall 

be no discrimination. It wasn’t a pre-existing right.
Mr. Moore: Your Honor, I don’t know whether it 

was a pre-existing right, other than in terms of what 
the law is. I think the law is really very cloudy on 
that. I think there was a pre-existing right under 
Section 1981.

The Court: All right. Let’s assume your position 
is correct. What would I do to change? Do I order 
them to make James Culpepper fourth in the Paint 
Department?

Mr. Moore: No, sir. I think—
The Court: I don’t have any right to do that.
Mr. Moore: I think the fair thing to do is to or­

der them to give him a trial.
The Court: Well, apparently they offered to, and 

for some reason your man doesn’t want it. I think 
that is the most he can get, is a trial, but I have no 
proof yet that he was denied a trial because he’s a 
Negro. They denied a trial based on a previous test.

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327a

Colloquy

Mr. Moore: Your Honor,—
The Court: Whether that was good or bad, there 

is no proof that it was because he was a Negro.
Mr. Moore: Your Honor, I think the testimony 

of Mr. Ennis is very clear, that he was denied be­
cause he was a Negro.

The Court: All right. So I’ve got Ennis who 
says it was, and Peek who says it wasn’t.

Mr. Moore: Your Honor,—
The Court: Does that make out a ease?
Mr. Moore: Let’s be realistic, Your Honor.
The Court: Is that a preponderance of the case?
Mr. Moore: Let’s be realistic. How many White 

people are going to come into court and say, “ I 
discriminated” ?

The Court: Well, nobody’s going to admit it.
Mr. Moore: Right.
The Court: But you certainly should have some­

thing beside one swearer against another swearer. 
That doesn’t prove anything.

Mr. Moore: WTell, how frequently, Your Honor, 
are you going to have any White person who will 
come forward and give testimony in behalf of a 
Black person?

The Court: In my mind—let’s exclude the ’63 
test. If this thing were posted in ’67, and two 
White men and Culpepper bid it and Culpepper 
had seniority and was not given the test, I’d say 
you’ve made out a case, because there couldn’t be 
any reason other than his race that he wasn’t given 
a test, under those circumstances.

Mr. Moore: Your Honor, why was it necessary 
to disqualify him in ’67 on the basis of a ’63 test 
except for his race?



328a

Colloquy

The Court: Well, but what proof is there that 
it was for race? And what happened in ’63 is not 
under the Act, see? This is the whole point, this 
is the whole point.

Mr. Moore: Your Honor, it may not be under the 
Act, but it may still be racial.

The Court: Well, all I ’m saying is, meritwise I 
think you’ve got—

Mr. Moore: The fact of the matter—
The Court: —a pretty weak case insofar as race.
Now, I think it’s a Union matter. If I were a 

worker, I would demand—under the fact that I may 
not have been qualified five years ago, I would 
demand that I be given a second chance. This 
country is made up of people who have second 
chances. I imagine the Vice President of Reynolds 
Metals may have been passed over one time, but 
five years later he may have been considered quali­
fied to be Vice President, and the country is made up 
of people who have had second chances and thirds, 
and as a Union, as a working condition, I would de­
mand that if I were disqualified five years ago, 
that this didn’t forever bar me from taking a job. 
I may improve my skills through experience or 
education or anything else, but this doesn’t make it 
racial.

Mr. Moore: Your Honor,—
The Court: This is my point.
Mr. Moore: Well, I think that, I think that the 

Court has to see that it is racial, because what other 
reason did they have to go back past 1965?

The Court: Excuse me. Suppose Culpepper were 
White? Is there any, wouldn’t they have done the



329a

same thing? What showing have you got that they 
wouldn’t?

Mr. Moore: If they did it because Culpepper was 
White, Culpepper would have a cause under the 
Act.

The Court: How’s that?
Mr. Moore: If—
The Court: I say, if he were white, is there any 

proof that they wouldn’t have done exactly the same 
thing that they did here?

Mr. Moore: If he were White, he would have 
gotten the trial period, in my opinion.

The Court: Well, that’s your opinion, but I say, 
what evidence do you have?

Mr. Moore: The evidence in this case.
The Court: I think you’ve got a very, very weak 

case on your merits, very weak.
As I say, I think he ought to have a trial. This is 

just right, whether he’s White, Black, Yellow, Brown 
or what. He ought to have another chance, but this 
doesn’t make it racial. I’m not in the business of 
seeing that everybody gets second chances regard­
less, that’s one of the things that doesn’t seem to be 
on the federal judiciary.

Mr. Moore: Your Honor, how can you reconcile 
the Union contract that is in evidence with the treat­
ment of this man? When he grieved it, they offered 
him a compromise that’s contrary to the contract.

The Court: All right, so what? If I were the 
Union, I wouldn’t put up with that. That would be—

Mr. Moore: The Union is not involved.
The Court: That would be number one on my list.
Mr. Moore: Your Honor, in order to prove, to 

come out with the correct conclusion, the Court has

Colloquy



330a

to consider all the evidence and put it together for 
a significance.

The Court: Well, I understand that, and I’m not 
saying I have made up my mind about it, because I 
want to study it, but I don’t see anything here that’s 
proof that the denial of the second chance was due 
to race, and I think that’s the burden on you when 
you come into court.

Mr. Moore: Your Honor, I think that the Court 
should accept the testimony of Mr. Ennis and—

The Court: Why should I accept it over Mr. 
Peek?

Mr. Moore: Well, I think, one, you should accept 
it over Mr. Peek because, one, Mr. Ennis runs a 
greater risk in testifying in favor of Mr. Culpepper.

The Court: Well, you show me a case that says 
I have to accept it, and then we’ll be talking some 
law.

Mr. Moore: Your Honor,—
The Court: One of the things that you test on 

credibility is demeanor and manner on the stand, 
too, and this man admits he’s got all kinds of mental 
problems.

Mr. Moore: But that didn’t seem to affect his 
ability to testify.

The Court: Well, I don’t know,—
Mr. Moore: I mean, there was no—
The Court: —but certainly, his demeanor and 

manner on the stand is a proper subject for the 
trier of fact.

Mr. Moore: Your Honor, I would like to say in 
that connection that the defendants appear to be in 
better position to bring forth evidence of his mental

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331a

condition to impeach him. I believe his testimony 
was that he was going* to a doctor that was some­
how related to Mr. Peek.

The Court: I don’t know.
Mr. Moore: I think that was his testimony, and 

if he has such disability—
The Court: Well, what Pm saying is that his 

demeanor was very poor. It was very argumenta­
tive. He is obviously bitter at the company. He 
wanted to try every complaint he ever had except 
this one.

Mr. Moore: Your Honor, he still is employed 
there.

The Court: I know he is.
Mr. Moore: And he seems to be an expert worker 

there, and his bitterness with this company is be­
cause he is a White man who is trying to be fair.

The Court: I ’d put him in the Paint Line, and 
put Collins and Culpepper on the slitter machines 
if I was running the company, but I don’t have that 
right. I ’d get that fellowr out of the Fabrication 
Department, and he wants to go to the Paint Line, 
so I ’d let him go.

But these are beyond my control.
All right. Well, the Commission has said they 

would like to have Monday on this jury trial ques­
tion. If anybody has anything they would like to 
add on the jury trial, I would be pleased to have it. 
I have a multiple death case to try next week, and 
to be honest with you, it’s going to be about Christ­
mas before I get pen to paper, unless they happen 
to settle that case next week. So if you want to 
send anything in, if I get it before I write it up, 
I’ll read it.

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332a

Colloquy

Mr. Pate: You wouldn’t object to any citations 
or authorities on the other questions, as well, would 
you?

The Court: No.
Mr. Pate: Beyond the jury?
The Court: Anything you want to do, it’s up to 

you, and if I get it before I get through with it, I ’ll 
read it. I f I don’t, I won’t, except as a matter of 
interest.

I really think you are not far from settling this 
thing on the merits, if he could get a trial.

Mr. Moore: Your Honor, no one has ever offered 
to settle, to his counsel.

The Court: Well, for the reasons we have dis­
cussed before, I would like to go on and make these 
rulings, but after that’s done, I would be pleased if 
you all got your heads together and worked some­
thing out.

All right. Thank you very much, Gentlemen, for 
your cooperation.



333a

Stipulation

(Filed April 3, 1969)

It is stipulated that, in addition to the certified copy 
of docket entries, transcript of hearing, exhibits, deposi­
tions and this stipulation, the record on appeal shall in­
clude copies of only the following portions of the record:

Complaint;
Motion for Preliminary Injunction;
Answer;
Motion to Strike Defendant’s Demand for Trial by 

Jury;
Amendment to Complaint;
Order dated December 4, 1968, Allowing Amendment 

to Complaint;
Decision and Order dated December 27, 1968;
Order dated January 6, 1969, filed January 8, 1969; 
Plaintiff’s Motion to Amend or Alter an Order;
Order dated January 17, 1969, filed January 20, 1969, 

on plaintiff’s motion to alter order dated Decem­
ber 27, 1968;

Plaintiff’s Notice of Appeal.

It is agreed that the following orders, motions, briefs 
and other portions of the record may be omitted from the 
record on appeal:

Summons attached to complaint;
Order setting hearing, dated October 24, 1968; 
Plaintiff’s memorandum in support of motion for 

preliminary injunction;
Motion of Equal Employment Opportunity Commis­

sion to quash subpoena;



334a

Stipulation

Brief of Equal Employment Opportunity Commission; 
Motion of EEOC to file brief amicus curiae; 
Subpoena to W. A. Deering;
Defendant’s memorandum of authorities;
Plaintiff’s memorandum in support of his motion to 

amend or alter an order;
Order Extending Time for Transmitting Record and 

Transcript, dated March 6, 1969;
Order to Forward Copies, dated March 31, 1969, filed 

April 1, 1969.

Dated this 2nd day of April, 1969.



335a

Clerk’s Certificate

U nited  S tates oe A merica ,
N orthern  D istrict of G eorgia, ss. :

I, Claude L. Goza, Clerk of the United States District 
Court in and for the Northern District of Georgia, do 
hereby certify that the foregoing and attached 451* pages 
contain the record on appeal as stipulated by parties, being 
copies as authorized by the Court, except for depositions 
and exhibits, which are under separate certificates, in the 
matter of:

S am u el  Culpepper

vs.

R eynolds M etals Com pan y  

No. 12179 Civil  A ction , A tlanta  D ivision ,

as filed in the Clerk’s Office of the said District Court at 
Atlanta, Georgia.

In T estim on y  W hereof , I hereunto subscribe 
my name and affix the seal of the said District 
Court, at Atlanta, Georgia, this April 4, 1969.

Claude L. G oza

Clerk, United States District Court 
Northern District of Georgia

By: / s /  R u t h  M. S tillw ell  
Deputy Clerk

* Extra page due to 1(a) of transcript.



M EILEN PRESS IN C