Moody v. Albemarle Paper Company Appendix Vol. II

    In the

luttefc States (ftmtrt at Appeals
F or the F ourth Circuit 

No. 72-1267

J oseph P. M oody, et al., 

v.
Appellants,

A lbemarle Paper Company, et al.,
Appellees.

ON APPEAL FROM TH E  UNITED STATES DISTRICT COURT FOR THE 
EASTERN DISTRICT OF NORTH CAROLINA, W ILSON DIVISION

APPENDIX
(Volume II— Pages 429 to 870)

R obert B elton 
J. L eV onne Chambers

Chambers, Stein, Ferguson & 
Lanning

237 West Trade Street 
Charlotte, North Carolina 28202

T. T. Clayton
Clayton and Ballance 
Post Office Box 236 
Warrenton, North Carolina

Conrad 0 . Pearson
2031/2 East Chapel Hill Street 
Durham, North Carolina

Jack Greenberg 
W illiam L. R obinson 

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellantp



■ ■  l W ---------------------------------------------------------------------------------

I N D E X
Page

Relevant Docket Entries ................................ 1
Memorandum of Opinion and Order, filed

November 9, 1971 .................................... 8
Complaint filed August 25, 1966 . ...................... 48
Plaintiffs' Memorandum in Opposition to Motion for

Summary Judgment, filed November 22, 1966............ 55
Memorandum Opinion and Order, filed July 6, 1967 . . . . 57
Answer, Albemarle Paper Company (Virginia),

filed July 26, 1967.................................. 62
Answer, Local No. 425, filed July 28, 1967.............. 65
Plaintiffs' Pretrial Statement of the Case, Issues

and Contentions, filed November 17, 1969 . . . . . . . 68
Letter from Mr. Lowden to Judge Larkins, filed

June 12, 1970........................................ 69
Plaintiffs' Motion to Add or Join Parties Defendant,

filed June 25, 1967..................................
Motion to Appear Specially, Ethyl Corporation,

filed July 14, 1970.................................. 72
Affidavit in Opposition to Motion to Join Albermarle

Paper Company (Delaware), filed July 15, 1970........ 75
Motion to Dismiss, Albemarle Paper Company

(Virginia), filed August 20, 1970.................... 79
Memorandum in Support of Motion to Dismiss, Albemarle

Paper Company (Virginia), filed August 17, 1970. . . . 80
Opinion and Order on Motion to Add or Join, filed

September 29, 1970 .................................. 92
Amended Order, filed October 15, 1970 .................. 101
Answer, Albemarle Paper Company (Delaware) filed

December 3, 1970 .................................... 102
Answer, Hoerner Waldorf, filed December 3, 1970 ........ 107
Answer and Cross Claim, Ethyl Corporation, Filed

December 28, 1971. . ................................ 112

l



Memorandum of Conference (Judge DuPree) ................  118
Order on Supplemental Interrogatory, filed

May 28, 1971 .................... .................... 120
Plaintiffs' Statement on the Designation of the 

Class and Notice to the Class, filed June 1,
1 9 7 1 ................................................. 121

Letter Memorandum on Defining and Notifying Class
Members, filed June 1, 1971.......................... 126

Order on Supplemental Interrogatory and Designation
of the Class, filed June 15, 1971.................. » 129

Order on Communications with Class Members, filed
June 18, 1971........................................  131

Order on Notice to the Class, filed July 8, 1971........  134
Notice to Class Members (Exhibit A to Order of

July 8, 1971)........................................  137
Letter to Newspaper from Judge DuPree, filed

July 6, 1 9 7 1 ............ - ..........................  141
Memorandum re Black Employees to Receive Notice

(Judge DuPree) July 9, 1971.......................... 142
Motion for Leave of Counsel of Plaintiffs to Communicate

with Class Members, filed July 14, 1971..............  143
Motion for Classification, filed July 14, 1971..........  149
Motion for Severance and the Appointment of a

Master, filed July 14, 1971.......................... 153
Motion to Alter or Amend the Judgment Entered on

June 9, 1971, filed November 22, 1971................  155
Letter from Judge DuPree re Plaintiffs' Motion to

Alter or Amend, filed November 22, 1971..............  157
Notice of Appeal, filed December 7, 1971 ..............  158
Transcript of the Trial Proceedings, July 26, 1971 —

August 5, 1 9 7 1 ......................................  160
James Alfred Jones.......... .. 168
Etharia Jones . . . . . . .  ..........  183
Dr. Raymond Katzell..................  189
M. Lebby Boinist........ .............. 2 32
Philmore Taylor ......................  258
Mack Boone............ ’...............  281

- ii -

Page



David Harding........................  283
Johnny Easter . ....................... 2 96
Arnold B. Brown . . . . . . . . . . . .  302
James H. Palmer......................  317
John E. Bryan........................  322
Ernest Garner ........................  345
Willie Henry Mason.....................  352
Joe P. Moody..........................  363
Clarence H i g h ........................  421
Dr. Joseph Tiffin ..................  429,548
Edward C. Moore ....................  495,706
John E. Bryan, Jr.............  509,573,1286
Dr. Richard Barrett..................  52 0
Charles O'Connell................ .. . 835
David Mills..................  871
Warren Davis..........................  907

Transcript of Hearing, filed May 17, 1971 ................ 949
Transcript of Hearing, filed June 10, 1971.............. 1007
Transcript of Hearing, filed July 19, 1971.............. 1090
Exhibits

Plaintiffs' Exhibits
No. 32, Deposition of John E. Bryan.......... 1136
No. 36a Deposition of M. Lebby Boinist........ 1156
No. 37, Deposition of David Mills............ 1208
No. 41, Deposition of Arnold E. Brown........ 1267
No. 58, Deposition of Joe P. Moody............ 1332

Page

iii



No. 60, Deposition of Henry. Hill..............  1337
No. 61, Deposition of Arthur Mitchell........  1338
No. 62, Deposition of Dr. Raymond Katzell . . . 1343
Joint Unnumbered Exhibit......................  1443
No. 1, Charges filed with E E O C .............  1469
No. 4, Letter, Moody to Mills, February

5, 1966....................................  1476
No. 5, Affidavit of Moody, February 17,

1966 ......................................  1480
No. 6, Letter, Moody to Company,January 11, 1966 ..........................  1482
No. 14, 1965 Agreement (Section 10 -

Seniority) ......................  . . . . .  1484
No. 15, 1968 Agreement (Section 10 -

Seniority)................................  1489
No. 16, Memorandum from Herndon, November

4, 1965....................................  1495
No. 17, Memorandum from Running, March 9,

1965 ......................................  1496
No. 21, Wonderlic Test, A .................... 1499
No. 22, Wonderlic Test, B ...................  1502
No. 27B, EEOC Guidelines, Testing, 1970 . . . .  1505
No. 28, Memorandum from Herndon, January

4, 1966....................................  1509
No. 29, OFCC Guidelines on Testing............ 1510
No. 67, Grievance...............   1515
No. 68, Attachment to Moody Grievance........ 1516
No. 69, Resume of Dr. Barrett................  1517
No. 71, Standard for Educational and

Psychological Tests and Manuals............  1520

Page

- iv -



Defendant Albemarle's Exhibits
No. 2, Lists of Manuals......................  1559
No. 3, Validation Study......................  1565
No. 4, Negroes Hired or Transferredinto Skilled Job Classifications ..........  1573
No. 6, Employees Curtailed....................  1575
No. 7, Negro Employees on Payroll,

July 2, 1965 ..............................  1585
No. 8, Employees Frozen as of June 30,

1967 ......................................  1589
No. 11, Salaries, City of Roanoke

Rapids, 1961-1970   1591
No. 12, Firm Wage Rates......................  1592
No. 15, Per Capita Personal Income............  1593
No. 16, Wage, Roanoke Rapids Hospital ........  1594
No. 22, Resume of Dr. T i f f i n ................  1608
No. 24, Revised Data Examination..............  1619

Defendant Union's Exhibits
No. 1, Letter, Brown to Moody, January

20, 1971 ..................................  1533
No. 2, Letter, Company to Union, September

23, 1968 ..................................  1634
No. 5, Letter, Moody to Company..............  1635
No. 6, Letter, Moody to Company..............  1638
No. 8, Moody A g e n d a ..........................  1654
No. 9, Union Agenda . . . . .  ................  1656
No. 10, Arbitration Award....................  1664
No. 11, Letter, Moore to Moody, January

6, 1971....................................  1669
No. 12, Disciplinary Notice, January 13,

1971................   1670

Page

v



Page
No. 13, Letter, Moody to Davis,

January 18, 1 971...................... '• • 1671
No. 14, Letter, Davis to Moody,

January 21, 1971 .......................... 1672
No. 15, Letter, Moody to Brown,

January 23, 1971 .......................... 1673
No. 16, Letter, Irby to Davis,

January 28, 1971 .......................... 1674
No. 17, Letter, Irby to Moody,

January 28, 1971 .......................... 1675
No. 18, Notes of Davis........................  1676

vi



-429-

852.

(July 30, 1971 
9:00 A.M.)

DR. JOSEPH TIFFIN, having been first duly 
sworn to tell the truth, testified as follows: 

MR. BELTON: Your Honor, before we get in
the testimony of this witness, I'd like 
to note an objection; we would like to 
call the Court's attrd ion that some time 
ago the counsel for defendant notified us 
that they expected to use an expert on 
testing, they subsequently changed their 
minds and advised us that if they were 
to again consider the question of calling an 
expert on testing they would so notify us.

We did not know until recently 
that the defendant was planning to call 
an expert and we were so notified on July 
10 that the study of the testing program 
of Albemarle Paper Company would be made 

* available to us as soon as possible. That
report was not given us until July 19,



853.

approximately a week before the trial 
and we do not think that we have had 
adequate notice in order to have sufficient 
time to prepare rebuttal or a consideration 
of the proposed testimony. We would like 
to offer our objection at this time.

THE COURT: All right, I'll hear the
defendant on that.

MR. THOMPSON: Your Honor, we call attention
to the pre-trial order which we worked on 
I believe the 10th of July, the first wit­
ness listed is Dr. Joseph Tiffin.

THE COURT: What is the date of that order?
MR. THOMPSON: I believe the date of it,

I'm not sure it's dated, your Honor.
THE COURT: The date of the conference then.
MR. THOMPSON: The preliminary conference

was held on July 10th I believe in Roanoke 
Rapids, July 10, 1971. We gave then a list 
of our witnesses to them and Dr. Tiffin 
was the first name to appear on that list.

As far as the lateness of the



-431-

validation study, after four or five 
years litigation, the Duke Power case, 
your Honor, did not come down until 
March of 1971. I think this explains 
why the validation study was conducted 
after March 1971, and as soon as we 
received the report, we transmitted it to 
the plaintiffs and the date of the report 
itself, your Honor, is July 15, 16, 1971.

THE COURT: And when was that?
MR. THOMPSON: We gave it to them last

Monday at the pre-trial conference, a week 
ago.

THE COURT: You have had a chance to go over
the report?

MR. BELTON: Your Honor, we had a chance to
go over the report but it is in the area 
where we don't feel we have the expertise 
to make the kind of evaluation we think 
we ought to make and we should get outside 
assistance, professional assistance in 
evaluating the report. And this we have

854.



-432

855.

been trying to do; I would like to call 
the Court's attention that we have sitting 
with us at this time this morning Dr. 
Richard Barrett. Dr. Barrett testified 
in the Griggs v. Duke Power case and I was 
fortunate enough to get in contact with 
Dr. Barrett on yesterday when he agreed to 
come down and he came down late last night 
and he had about an hour or so to review
the report and in an effort to try to 
meet whatever evidence they may put on 
and under the circumstances, we invited 
Dr. Barrett to come down ad join us.

THE COURT: Well, this gentleman has been
here all week, hasn't he?

MR. THOMPSON: That is correct, your Honor
THE COURT: going to overrule your

objection and hear his testimony. And 
you will also, of course, be given an 
opportunity to put on Dr. Barrett and 
of course, to cross-examine Dr. Tiffin.



-433-

I would like the record clear, 
to show that July 19, 1971 was 
gave plaintiffs a copy of the

That was a week before the trial

That'.is correct.
That's a pretty short time.

On the other hand you've been five years 

in making the case.
MR. THOMPSON:
q Would you state your name, please?
A Joseph Tiffin.
q Where do you reside, Dr. Tiffin?
A West LaFayette, Indiana.
q What is your profession?
A Industrial psychologist.
q Tell us where you were educated, Dr. Tiffin.
A I took a bachelor's degree at South Dakota

in 1927, a master's at the University of 
Iowa in 1928 and Ph.D. at Iowa in 1930. 

q Have you ever taught industrial psychology?

856.

MR. THOMPSON:
your Honor, 
the time we 
report.

THE COURT:
began?

MR. THOMPSON:
THE COURT:



Yes, I have, sir.
Where did you teach that? 
purdue University.
And for what periods of time?
Since 1938 until the present, thirty-three

years.
Have you ever written any books in this 

field?
Yes, I have, sir.
Would you name those books, please?
I wrote an introductory text in psychology 
about 1939, I wrote the Industrial Psychology 
Text that came out in 1941, first edition, 
it is now in the fifth edition.
And have you ever done any consulting as 
well as academic?
Yes, I have, sir.
Could you briefly list some of the firms 
with which you have consulted?
A few of the firms with which I've had 
validating test study work include 
International Paper Company, the Meade



-435-

\

Corporation, the Marathon Paper Company, 
now part of American Can; Bethlehem Steel 
Company, Gulf State Paper Company, Longview 
Parker Company and the A. C. Nielson Company.

Q And have you been doing consulting work
in this field of industrial psychology 
ever since you have been with Purdue University?

A Yes, I have, sir.
Q Have you ever written any articles in addition

to your books?
A Yes, sir.
q And what are they?
A I've written a total of 141 articles,

and this including the five editions 
of the book, since and during my professional 

career.
MR. THOMPSON: I would like this marked as

Company Exhibit No. 22, for identification.
XDR. TIFFIN'S RESUME identified as Company 

Exhibit No. 22.)
Q Dr. Tiffin, would you identify Company

Exhibit No. 22?

858.



-436-

859.
A That is my vita, the story of my profes­

sional life.
q Was that prepared at my request?

A Yes, it was, sir.
q And does the information contained on Com­

pany Ehibit No. 22 accurately reflect your 
professional background?

A Yes, it does, sir.
MR. THOMPSON: Your Honor, I would like to

offer Company Exhibit No. 22 into evidence

as Company Exhibit No. 22.
(DR. TIFFIN'S RESUME, identified as Company 
Exhibit No. 22, received in evidence.)

MR. THOMPSON: I would like to point out to
r the Court that Exhibit 22 has been prepared

to eliminate some of the preliminaries 
of this particular witness; it is a very 
extensive background; and we can just get 
bight into the real issues in this case.

THE COURT: Very well.
MR. THOMPSON: At this time, your Honor,

like to ofer this witness as an expert in



-437

THE
MR.J
Q

A

Q
THE
MR.
Q

the field of industrial psychology and 
industrial testing and all of my sub­
sequent questions will be based upon 
the Court's declaring him to be a qualified 
expert.

COURT: All right.
BELTON: Just one question, if I may.

Dr. Tiffin, I was noticing from your vita 
sheet that you have quite a number of 
publications, do you know the date of 
your last publication?
Yes, sir. This is in two lists. The 
Purdue publications, through page nine, 
the last publication is No. 115, that 
was in 1971.
Thank you.

COURT: Very well, you may proceed.
THOMPSON:

Dr. Tiffin, are you familiar with the guide­
lines of the Equal Employment Opportunity 

Commission?

860.

A I am, sir.



-438-

Q

A
Q

A
Q

A

Q

A

Q
A

Q
A

Are you also familiar with the guidelines 
put out by the office of Federal Contract 
Employment?
Yes, sir.
Now, when did you first become associated 
with the Albemarle Paper Company?
I'd say about three months ago, roughly.
Would you- explain for what purpose you 
were retained?
To attempt to validate some personnel’tests 
being used by the company.
Dr. Tiffin, are there various methods of 
trying to validate tests?
Yes, there are, sir.
Would you explain the various methods?
Well, there are two basic methods, called 
the predictive method and the concurrent 

^method.
What is the predictive method?
The predictive method, you give a test to 
a whole group of people who are hired and 
then you hire them without regard to test

861.



-439-

score. And after they have been on the 
job for a long time you get some measure 
of job performance. Then you go back to 
correlate the score made at the time of 
hire; it's a long-winded method. It takes 

time, all kinds of time.
What is the concurrent method?
You go into the department at a given time, 
you get gradings and job performance of 
the employees in that department, then 
you ask them to come off to one side 
and you give them the test. And then you 
correlate the test score right then with 
success on the job. It's a much more 
rapid way to handle it.
Did you conduct a validation study at 
Albemarle Paper Company.
By the concurrent method.
What tests was Albemarle Paper Company 
using at this time?
Three tests, Wonderlic A, the Wonderlic B

862.

and the Beta.



-440-

863.

Q 1 Would you briefly tell us about the Beta 
test and what kind of test that is?

A The Beta test is a non-language culture-

fair test.
Q What is the origin of that test, Dr.

Tiffin?
A It came out during World War I.
Q For what purpose?
A To measure the mental ability of illiterates.
q Would you briefly tell us about the Wonder-

lie test, Dr. Tiffin?
A The Wonderlic was developed by E. F. Wonder-

lie based largely upon the Otis self- 
administered test of mental ability. There 
are five forms of that test. It is a very 
widely used test.

Q You say it's widely used, does that mean
in the industry it's used frequently?

A What's that again, sir?
$ You stated it is a widely used test, are

there many companies that use the Wonderlic?
A A great many, that's right.



-441-

Q When you proceed to conduct a validation
study for Albemarle, when you started 
this study, will you describe how you 
went about it, the mechanics of working 
out a concurrent validation study?

A Well, we looked over the various progres­
sion lines.

Q Do you have a copy of those lines of
progression with you?

A Yes, I do.
MR. THOMPSON: I would like to have this

.marked as Company Exhibit No. 3 for 
identification, the validation study. 
(VALIDATION STUDY identified as Company 
Exhibit No. 3.)

MR. THOMPSON:
Q Dr. Tiffin, do you have a copy of those

lines of progression before you?
A I do, sir.
Q And you also have a copy of your validation

study?
A Yes, sir, I do.

864.



-442-

MR.

MR.

THE

MR.

THE
MR.
Q

A
Q

A

THOMPSON: For the information of the
Court, your Honor, the lines of progres­
sion are attached to the joint exhibit 
and he's going to refer to both the lines 
of progression and the validation study. 

LOWDEN: Does the Court have a copy of the
lines of progression before it?

COURT: That is attached to the
stipulations of fact.

LOWDEN: I think you will find it easier
just to have this.

COURT: I will, and thank you very much.

THOMPSON:
Dr. Tiffin, I believe you stated that you 
used the concurrent method of validation?

Yes, sir.
Now, looking at the lines of progEssion, 
would you explain how you went about con­
ducting the validation study?
Well, we took small groups of people at 
about the same job level in the progression 
line and those men were then rated by

865.



-443-

their supervisor in overall job perform­
ance, the ratings being made on job 
performance only, not personality, not 
attitude, those things were avoided in 
making the rating; these tests are not 
supposed to measure a guy's attitude, 
they measure his background information 
and skill for the job. So we took 
these groups, the first ones I think were 
the caustic operators and the lye kiln 
operators, and they were rated by their 
supervisors; two ratings for each man, 
incidentally, average of two ratings as 
a measure of job performance.
You say two ratings, would that be Carey 
yersus Bob and Bob versus Jim?
No, there are two different raters, two 
different supervisors.
All right, go ahead and explain how you 

grouped the jobs.
Then the next group we took was the pulp 
mill department, recovery operator,

866.



-444-

first helper; those were considered to 
be jobs of about the same skill level.

Q Now, I notice, Dr. Tiffin, on Company
Exhibit 3, the validation study, you took 
some of these jobs from the top of the 
lines, would you explain why you did that?

A What's that again, sir?
q I notice in your study that some of the

jobs which you ran the study on were 
toward top of the line of progression, 
would you explain why you did that?

A Because those are the jobs to which these
men will go if they stay in the progression 
line long enough, and both the EEOC guide­
lines and the OFCC guidelines make a test 
not against entry jobs but against jobs 
above the entry level, assuming that within 
a reasonable period of time the men will 
move into these jobs.

q Now, did you have a meeting then with Mr.
Moore to decide how you were going to

867.

proceed?



/ -445-

A

Q

A

Q
A
Q
A
Q
A

Q
A

Q

A

Q

I did, sir.
And would you tell the Court what you told 
Mr. Moore to do in conducting these tests?
I asked him to spot a group of men in each 
of these progression lines and have them 
rated by their supervisors and send me 
those ratings.
Were those ratings sent to you?
They were, sir.
And where ”ere they sent?
At Perdue University.
Were test scores also sent to you?

Yes, sir.
Where were they sent?
Same place.
Do you kow, Dr. Tiffin, whether some of 
these people had to be tested for the 

first time?
I think a few of them had been, they 
were calling for overtime to help us test

the test.
Now, when you received the test scores

868.



V -446-

869.

A

Q

A
Q
A

Q

A
Q

A
Q

and the ratings at Purdue University, 
would you tell us what you did then?
I ran a correlation between the test scores 
of the men and the job performance rating 
for the men in each group.
And was this a mathematical formula that 

you used?
Yes, we used what's called P co-efficient. 
What is the P co-efficient?
It gives an index or measure of the re­
lationship between two variables, in this 
case the test score was one variable and 
job performance rating was the other 

variable.
Nov;, is company Exhibit No. 3 the written 
report that y o u  prepared after you had done 

this?
It is, sir.
Is this an accurate report based upon 
the information that you have?
Yes, it is, sir.
Now, I'd like you to look at page one of



-447-

870.
Company Exhibit No. 3. Does the Court have 

a copy?
THE COURT: Yes, I think so.
A I forgot to date it. July 16th is the

date. I had to write it in ink.
MR. THOMPSON:
Q July 16th is the date?
A Yes.
Q Do you have a copy of the report?
A The judge has it now.
Q Looking at page 1 of Company Exhibit No.

3, I notice you have certain asterisks 
there, one and two, would you explain 
what these asterisks mean?

A Well, when a correlation is computed
between two variables, it could happen by 
chance; if the correlation could occur 
by chance alone only one time in a hundred,
I have two asterisks; if five times in a 
hundred, one time in twenty, one asterisk, 
and one chance in twenty, it couldn't have 
occurred by chance alone.



-448-

871,

Q Proceeding to page 2 of your report,
looking at the column on the right, you 
have the letter "N" at the top of the page, 
would you explain what that column means?

A Page 2?
Q Page 2 of your report, looking at the top

of the page on the right hand side, the 
capital letter "N", what do those numbers 
underneath mean?

A I don't see that, sir..
THE COURT: The column heading on page

2, the first one following the job group.
A Yes, "N" means the number of employees

in the test.
MR. THOMPSON:
q That is the number of employees that were

in that sample?
A In that sample, yes.
Q Going to the next column, you have the

word "Beta."
A Yes.
q Does that stand for Beta test?



-449-

A

Q

A
Q
A
Q

A
Q

A

Q

A

That's correct.
And Wonderlic A and the next one is 
Wonderlic B?
Right.
There are ten groupings on page 2?
That's right.
Did you find a positive correlation for 
all the groupings or how many did you find? 
All but one, nine out of ten.
Which group did you not find a positive 
correlation?
The "B" paper mill , stockroom operator, 
stockroom first helper; none of the tests 
correlated significantly to test the 
people in those jobs. That's the only one 
that failed.
Now, going to page 3 of your report, Dr. 
Tiffin, you have a chart there, and the 
first one pertains to the Wonderlic A, I 
believe, job group number one, Test 
Wonderlic A?
That's right.

872.



Looking at the chart, going over to the 
left hand side, twenty-three or above and 
then on the right hand side it has 100, 
would you explain what that means in 
that chart?
Well, I followed the advice in the guide­
lines to present the result in statistical 
and also graphic form. These charts are 
the graphic form of the result. That is 
known as an expectancy chart. This chart 
shows that for men in the caustic operator 
and lye kiln operator, the man who has a 
score of 23 or above, 100 percent were 
superior; those scoring 21 to 22 - ninety- 
nine percent superior; those scoring only 
8 to 15, only one percent were superior. 
This is a graphic representation of what 
that correlation means.
Going to pages 4, 5, 6, and 7, you have 
similar charts?
That's right.
Would the explanation you just made apply



to those charts?

Exactly.
Dr. Tiffen, I would like for you to turn 
to page 8 of the validation study. I 
notice on page 8 of the study you say that 
you recommend a score of 103 on the Beta, 
would you explain that recommendation?
We look back now to page 4, the chart 
for recovery operator, first helper and 
we note that the score 106 or above,
106 to 109, 76 percent is superior. If the 
score is below 106 a smaller percent is 
superior. So it seemed reasonable in 
the light of that chart to say that 103 in 
the Beta is a very minimal score. Let's 
look at the middle third of that test. 
Those who scored 103 to 105, sixty percent 
is superior. And I felt that 103 was a 
very reasonable minimum score to require 
of that test, for that opaator.
All right. Dr. Tiffin, looking at page 
8 of your report again, I notice that you



-452-

recom m ended a minimum score of 17 on the 

Wonderlic A?
A Correct.
q Would you explain that recommendation,

please, to the Court.
A Well, if we glance here at the chart for

Wonderlie A, it's graphed out, we find that 
17 is about as far as you could reasonably 
go and still expect a reasonable number 
of superior people. That is an overall 
generalization of all the charts of the 

Wonderlie A.
q Dr. Tiffin, I notice that your summary

here on page 8 of your report says 
nothing about the Wonderlic B, would 
you explain why nothing is said about 
the Wonderlic B in your general summary?

A Because the Wonderlic A came through just a
little better on average than the Wonderlic 
B, it’s the same kind of test and I felt 
the Wonderlic A would be all you'd need.
We don't need the Wonderlic B.

875.



876.

-453-

Looking again, Dr. Tiffin, at page 2 
of your report, I notice you have the 
three tests, the Beta, the Wonderlic A 
and the Wonderlic B; I notice that not 
every test is validated for every job 

goup.
That's right.
Would you explain why that occurs?
Well, no test or no set of tests will 
validate for all jobs. In this ca$ we 
are very fortunate to find that one or 
more of these tests validated for nine 
of the ten job groups. But one group failed. 
Group 6, "B" paper mill, stockroom operator 
and stockroom first helper. No one of the 
tests validated for that group of jobs.
So there is no chart for that group.
Now, based upon your study, Dr. Tiffin, 
did you recommend that the company utilize 
these tests for its initial hiring?

I did, sir.
And why did you make that recommendation?



Because as the men are hired, in the labor 
pool or whatever it is, then they are finally 
put in a progression line, and if they 
make scores of 103 or better on the Beta 
test, and 17 or higher on the Wonderlic 
A, they can go to any of these progression 
lines and get along'pretty well, if they 
don't, they can't.
Dr. Tiffin, are you familiar with the 
standard for educational and psychological 

testing manual?
Yes, I am, sir.
And what is that manual, Dr. Tiffin?
That manual gives the details of how 
to go about validating tests and using 
tests, it is a very comprehensive document. 
Is that a classic in the industry, so to 
speak?
In the psychology profession, yes, it is.
Did your study which you conducted for 
Albemarle Paper Company, did you follow 
the principles set forth in that manual?



-455-

A

Q

A

MR.

THE

MR.
THE

A hundred percent, I did. I wouldn't dare 
not to, wouldn't want to.
Dr. Tiffin, with respect to the Wonderlic 
A and B and the Beta, I'd like to ask you 
one question and that is the origin of 
these tests themselves, in your profes­
sional opinion are they profesionally 
developed tests?
They are, sir.

BELTON: Objection, your Honor. No
foundation has been laid for that question.

COURT: The Act itself speaks in terms
of professionally developed tests, 
doesn't it?

BELTON: It does.
COURT: Now, if I am to make a

determination of whether or not these 
tests were professionally developed, what 
better source of information can I have 
than the evidence which you have already 
introduced to the effect that they 
were profesionally developed plus this

878.



879.

gentleman and perhaps Dr. Barrett.
MR. BELTON: I'm not saying, your Honor,

that Dr. Tiffin cannot competently testify 
about it, but I think a foundation for that 
question should be laid I think in terms 
of trying to get some appreciation of 
just what that means and I don t think 
there has been a proper foundation for that 

question.
THE COURT: 1'H  overrule it if for no other

reason than your Dr. Katzell has himself 
testified in response to questions on his 
deposition by these gentlemen that these 
were professionally developed tests.

MR. BELTON: After the foundation had been
laid, your Honor.

THE COURT: Yes, but the fact in issue I
suppose is whether or not they were profes­
sionally developed. I say I'll take your 
man's word for that. Go ahead.

MR. CHAMBERS: Your Honor, I think the Court
is aware that we have used the term



-457-

professionally developed in a different 
way. Mr. Lowden, in examination of 
the expert we used, used it one sense 
and he explained it; additionally, I don't 
know if the Court is ruling that this witness 
is competent to testify as to a conclusion of

law.
THE COURT: Well, I'm ruling that this witness

has been qualified as an expert and without 
any objection I will hear him on this.
Now, if there are some qualifications of 
the answer which he hasn't given yet but 
which I assume from the way the question 
was asked is going to be in the affirmative, 
that is, in his opinion they were profes­
sionally developed, you have ample opportunity 
to qualify him and question him and cross- 
examine him as to whether or not they met 
not just the one requisite which you spoke 
of in Dr. Katzell's but the other one, 
that is, whether or not they've been 
professionally developed as I recall in terms

880.



-458-

881.
of the use of the tests. You'll be able 
to do all that, by cross-examination.

MR. LOWDEN: Your Honor, I just want to
make inquiry; it is my understanding of 
the Rules that one lawyer at a time 
took a witness and not everybody got into 
it, a free-for-all, am I to understand 
that I can jump in when Mr. Thompson is 
examining the witness?

THE COURT: Well, we'll cross that one when
we get to it; ordinarily, the rule is 
that the lawyer who starts the witness 
continues. There has been some variation 
in this trial but no one raised any 
objection. Go ahead, Mr. Thompson.

MR. THOMPSON:
Q Dr. Tiffin, in your professional opinion

is the Beta a profesaonally developed test?
A Yes, sir.
Q Is the Wonderlic, A and B, a professionally

developed test?
A They are, sir.



459-

MR. THOMPSON: Your Honor, at this time,
I would like to offer Company Exhibit No.
3 for identifration which is the validation

882.

study of Dr. Tiffin into evidence as 
Company Exhibit No. 3.

MR. BELTON: We object, your Honor, until
we have opportunity to cross-examine 

the witness.
THE COURT: I will receive it at this time

and if you are able to modify or destroy 
it by way of cross-examination, of course,
that will be given effect, too. 
(VALIDATION STUDY, Defendant Company 
Exhibit No. 3, admitted in evidence.)

MR. THOMPSON:
q Dr. Tiffin, I believe you also stated you

were familiar with the EEOC guidelines?

A Yes, sir.
q Are these tests which we just mentioned

professionally developed in your profes­

sional opinion
OBJECTION:



-460

Q

A
Q

A
Q

A
Q

A
Q

A
Q

A
Q

883.

— within the meaning of those guidelines? 
OBJECTION: OVERRULED
Yes.
Dr. Tiffin, have you ever been through 
any paper mills?
Yes, I have, -ir.
Have you ever been through the mill at 
Roanoke Rapids?
Yes, sir.
And you have been through some other mills 

as well?
Many other paper mills.
Did you have occasion to go through the 
mill down at Roanoke Rapids within the 
last few months?
I have, sir.
Are you aware that one of the hiring re­
quirements at the mill for certain jobs 
is a high school education?
I am, sir.
And you are also aware I believe of what 
the hiring requirements are at other mills,



are you?
OBJECTION:
Yes, I am.
OVERRULED.
In your opinion is the standard of the 
high school education requirement a 
common one in this industry?
OBJECTION:
Quite common.
OVERRULED.
Dr. Tiffin, do you teach courses at Perdue

University?
Yes, I do.
Do you frequently have occasion to come m  

contact with students who have recently 

graduated from high school?

Yes.
Is there any way, Dr. Tiffin, is there any 
professional way to measure the readability 

of written material?
Yes, sir.
What method is there, Dr. Tiffin?



Dr. Rudolph Flesch some time ago developed 
what he called a readability index.
Who is Dr. Rudolph Flesch?
He is a professor of educational psychology 
at Columbia University.
What is a readability index?
A readability index,’ you can apply it to 
any written tests, you count the syllables 
per word and the words per test and you 
put those things in a formula and get 
a readability score for the test; that 
score varies for various kinds of tests.
To give you an example, 90 to 100 would 
be very readable. Comics material would 
be 90 to 100.
Comics material?
Comic books.
What book are you reading from, Dr. Tiffin? 
My text book. I quoted in here some 
material from Rudolph Flesch.
Proceed to explain that.
That's the end, the easy end of the scale.



-463-

886.

The hard end would be zero to 30.
Q What page are you reading from?
A Page 414. There are seven categories

of readability. Zero to 30 is the most 
difficult. Scientific journals would be 
in that category. Zero to 30 is most 
difficult, or very difficult. Thirty 
to 50 is difficult, academic journals 
come in here. And 50 to 60, fairly 
difficult, the magazines, like Harper's. 
Sixty to seventy are digests like the 
Reader's Digest. Seventy to eighty, 
fiction. Eighty to ninety are the pulp 
fictions and 90 to 100 are the comics. 
That covers the whole range from very 
hard to very easy.

THE COURT: Did you rate the Harvard Law
Review?

A That escaped my analysis.
MR. THOMPSON:
Q What is the formula that you use in

applying this index?



-464-

A Well, it's a little complicated so I'll
read it to you. These scores are equal 
to 206.835 minus .846 times the average 
word length in syllables minus 1.015 times 
the average sentence length in words.
That was developed by Rudolph Flesch.
Don't ask me why it's that way, that's 
the way he developed it.

Q When you were down at Roanoke Rapids at
the mill, did you see Mr. Moore down there?

A I did, sir.
Q And did he make available to you any publi­

cations or manuals?
A Yes, he did.
Q What generally did he make available to you?
A Manuals for the various linesof progression

that people have to read to do their work, 
their jobs.

Q Pardon?
A Manuals people have to read in the various

lines of progression.
Q Was this just a little package or —

887.



-465-

A A big package, awful big package, about
a jnile high.

Q Did you make any samples or studies of
that material?

A I took two samples, one from the caustic
soda operation and the other from the

Q What method did you use in picking those?
A I used the Flescher count method in

analyzing the material. The first, the 
caustic soda operation, this whole page,
I analized it and came out with the 
reading, the score of 44.6 which is 
difficult and requires high school and some 
college for comprehension. And the other 
one I picked was from the unloading car 
section, how to unload tanks of sulphuric 
acid and so on. And this passage had a 
Flesch count index of 26.6, the difficult 
end. These things are hard to read.
Requires at least a high school education 
to read and understand them.

Q IIow did you happen to select those particular

888.



-466-

ones?
A Just pulled them at random.
q Just pulled them at random?

A Yes.
MR. THOMPSON: Your Honor, at this time,_ I

would like to offer those two items into 
evidence as Company Exhibit No. 2, a part 
of those boxes that were introduced last 
night, these could not be located last

night.
the COURT: I will accept them as illus­

trative of the testimony of the witness.
(TWO CHARTS, identified as Defendant 
Company Exhibit No. 2, admitted in evidence.)

MR. THOMPSON: That is a part of Exhibit 2
which has previously ben introduced.

THE COURT: All right, you may proceed.

MR. THOMPSON:
q Now, Dr. Tiffin, with respect to this

Mr. Flesch's index, so to speak, is that 

a widely used index?
A Quite widely used, yes, sir.

889.



-467-

890.
Q Did Dr. Flesch write any publications?
A He wrote a little book called, "Why Johnny

Can't Read." He wrote that some time ago.
It was a best seller.

Q Why do you have Dr. Flesch's index, why do
you have such a thing?

A It measures the readability of material
the people are supposed to read. This is used 
by companies to apply this index to v/hat 
you write for people to read. And if he 
doesn't have a good index, re-write it in 
simpler language. That cannot always be 
done. Takes too long. But at least it 
lets you know where you're at. If an 
index was only, say, 25 or 30, you can't 
expect many people to read it and understand 
it. Just can't be done. It's beyond them.

Q In your professional opinion, Dr. Tiffin,
is there any practical method of validating 
a high school educational requirement?

A Not a practical method, no.
Q Why is there not a practical method?



-468-

891.

Well, to validate that requirement you'd 
have to hire, oh, several hundred employees 
with and without high school educations.
And put them all on the job. And then say 
a couple of years later or three years 
later go back and see which guys have 
done well and which haven't. That rs a 
theoretical way to do it. But it is 
completely impractical. Because you ve 
got jobs that you’re pretty sure the guys 
have to have a high school education to
do them and if you put non-high school 
guys on them you ruin the mill. Literally. 
That's a method that I propose to do in 
heaven, if Mr. God is willing.

MR. THOMPSON: No further questions.
the COURT: All right, cross-examine.
MR. BELTON: Your Honor, due to the circum­

stances we'd like to ask for a recess for

about ten minutes so 
with Dr. Barrett. 
(Brief recess)

that we can confer



-469-

MR.

Q

A
Q

A
Q
A
Q

A
Q

A
Q

892.

ON: CROSS-EXAMINATION
Dr. Tiffin, could we get the names of 
the persons who worked with you in the 
studies that have been identified as

Exhibit No. 3?
What is that again, sir?
The names of the persons who worked with you 
in the study identified as Exhibit No. 3, 

the validation study?
Mr. Moore.
Was he the only person?

Yes.
Would you tell us how long you spent at 
the plant when you visited the plant m  

Roanoke Rapids?
About a half day.
In preparing your study did you have written 

job descriptions?

No.
May I ask you, Dr. Tiffin, you have before 
you I think the lines of progression?

I do, sir.



-470-

893.
 ̂ Could you toll us how you got the descrip

tion of the work performed for the various 
jobs that you did do the study on?

k Well, we took the jobs more or less
adjacent in each progression line so that 
the skills were pretty similar, one to 
another. Put men on those jobs for the 
course of each study.

Q Turning to page 2 of the study, the ten
jobs that you have listed there —

A The ten groups of jobs.
q —  ten groups of jobs that you have listed

there, were the only jobs that you consid­
ered in your study, is that correct?

A That is correct.

Q I take it you took a tour of the plant

while you were there at Roanoke Rapids?

A Yes.

Q Dr. Tiffin, I think there is a term used

in your profession called criterion, 

is that correct?
A That's correct.



-471-

Q

A

Q
A

Q

A

Q

A
Q

Could you explain to the Court what that 
means?
That means measure of job performance. We 
avoid using the word where we can, but 
measure of job performance is more meaning­
ful .
Measure of job performance?
Measure of job performance, job success, 
job performance, how well is the man doing 
the job, that's the criterion.
Could you tell us what measures of job 
performance you used in your studies? 
Supervisory ratings of overall job 
performance. Excluding a man's attitude, 
just how well the guy can do the job 
when he's feeling right.
Did you talk to any supervisors while you 
were down there?
No, I didn't.
I think you referred to the fact that you 
had certain manuals used in various jobs,

894.

is that correct?



-472-

A

Q

A

Q
A
Q

A
Q

A

Q
A
Q

A

That is correct.
Now, could you tell us who selected those 

manuals for you?
Well, Mr. Moore gave me a great, big stack 
of the manuals. I just picked out a couple 

at random.
While you were there on the visit?
Yes, that's right.
Referring to page 2 of the study, Dr. Tiffin,
I note that you have eight people in the 
group, caustic operator, line kiln operator, 

That's right.
Do you know, Dr. Tiffin, whether or not 
that included all of the people who 
were employees in these two categories?
I don't know for sure but I think that probably 

was all of them.
About all?
Yes.
Would that be true for each of the groupings 

that you have on page 2?
Well, not necessarily. Because that is the

895.



-473-

896.

majority in each of those groups.
q Now, assuming that all in the group

were not included, who made the selection 
of the individuals from the particular 

groups?
A Mr. Moore.
q Do you know of your own information, Dr.

Tiffin, the basis on which Mr. Moore made his 
selection of these individuals to be tested?

A I didn't hear you, sir.
q Do you know of your own information the

basis of the standards used by Mr. Moore 
in the selection of these individuals m  

the various groups if all were not selected

to be tested?
A No, I don't know.
3?HE COURT: Do you know if any of those

selected had been previously tested?
I think a few of them had, your Honor.

THE COURT:
A Yes, sir.

You said that before?



-474-

MR. BELTON:
q Do you know who administered the tests

to the testees in the study?
A Mr. Moore, X assume, or one of his

employees.
q You don't know of your own personal

information who administered them?

A No.
q Did you discuss with Mr. Moore the

circumstances under which the tests should 
be administered?

A I said to follow the manual of the test.
The manual tells how to give a test, how 
long to allow, what equipment to have avail­
able, the manual of the test tells exactly 
how it is to be given. So that everybody 
gets exactly the same chance. I'm sure 
the tests were given under that standard 

of procedure.
MR. CHAMBERS: Move to strike that as an

conclusion.
THE COURT: Well, I don't see how I could

897.



-475-

consider it, he just says he's sure it 
was but he has no way of knowing.
Go ahead.

898.

MR. BELTON: All right, your Honor.
THE COURT: Wait a minute. Maybe

might have some way of knowing. Why do 
you say that?

A I'm just assuming that Mr. Moore would
follow the procedure in giving tests, 
part of his job.

THE COURT: Well, Mr. Moore is going to come
back on the stand. We'll find out about that.

MR. BELTON:
Q Dr. Tiffin, could you describe the precautions

taken to avoid contamination of the measure 
of performance by knowledge of the informa­
tion contained in the tests?

A I'm sorry.
Q I said will you tell the sLeps that were

taken to avoid contamination of the criterion 
or measure of job performance by knowledge 
of the job content, test content, I should



say?
Well, the rater had no idea about the 
test scores these men made. We never 
let a rater what a test score is when 
he rates him. If you believe in the 
test you rate him high, if not you rate 
him low. As a fundamental principle, 
never does a rater know a test score at 
all about the men they're rating on 
job performance. I'm sure the men didn't 
know the test scores.
Do you know of your own personal knowledge 
whether or not they knew these test scores? 
No, I didn't go and watch over somebody's 

shoulder.
Dr. Tiffin, did you have information on the 
various testees such as age, race, sex?

I did, sir.
Do you know how many black persons were 
included in the study?
I don't know. I know some, I don't
know how many.



Were you sent information, I take it you 
were sent information as to these kinds 
of things, the names of the persons, his 
age, his race, sex —
Not his race, no.
Were cut-off scores used by the company 
prior to your study?
(no answer)
j think you established a score of 
17 for the Wonderlic A, and 103 for the 
Beta, is that correct?
I recommend those.
Recommended those. Prior to your recommendation 
and prior to the time you recommended them 
were you aware they were using other scores, 
cut-off scores, for these tests?
I was not aware of that. I might say 
that they couldn't have been using very 
high scores because some of these guys 
tested very low, as low as 8 in the 
Wonderlic test, and as low as 95 in the 
Beta. They couldn't have been using very



high cut-off scores or they wouldn't have 
these low testing employees.
I think you said you established a cut­
off score, recommended a cut-off score 
of 103 on the Beta and a score of 17 on 
the Wonderlic A, is that correct?
That's correct.
Is it your understanding that employees 
or applicants if the company followed your 
recommendation, that they take both tests? 

Yes.
Dr. Tiffin, I note that in most of the job 
groupings that you have taken the highest 
job positions or the highest job positions 
included among the group, is that correct? 
Not the real highest, from the middle on up. 
Could we go through this listing, the 
seniority roster, please, I mean the 
lines of progression.
Yes, I have it here.
Now, in the pulp mill department, you have 
the caustic operator and the line kiln



-479-

operator, is that correct?
A That is correct. Eight employees.
Q Eight employees. Is it your testimony that

you used the same test scores for the 
digester operator position, that is not 
included in that job group?

A No.
MR. THOMPSON: I'm going to object to that

because I think, I don't understand the 
question and I think it's misleading.

THE COURT: All right, let's let him re-state
his question and see if you can underhand 
it and maybe you will withdraw your objection.

MR. BELTON:
q I note that you have the caustic operator

and the line kiln operator in the first 

group?
A Job group one.

And looking at the lines of progression, 
they have a category, the first branch of 
the line is digest operator at the top, 
just reading across the top of the page, Dr.

902.

Q



-480-

Tiffin, directing your attention to the 
top of the page, I'm asking you would you 
expect the company to use the same cut­
off score for that position?

A I would.
q The digester operator position, is that

correct?
A That's right.
q Let me ask you this question: would you

expect for all the lines of progression 
as shown on the lines of progression for 
the various departments, the various lines of 
progression in the various departments, 
to use the same cut-off scores?

A These were minimal cut-off scores for all

those lines.
Q For all those lines. That would include

the shiging room, department "A" mill?
A That's right. All the job groups on page

2 of my report. Except the one that the 
test didn't come through.

903.

THE COURT: Number six.



-481-

904.

A Number six, correct.
MR. THOMPSON: I'm going to have to object

to the question because I think that's 
an incorrect assumption. And'that is 
there are certain jobs here we were not 
testing for and that were not included in 
this report here and I think that the 
question assumed there was a test on 
everything on all lines of progression.

MR. BELTON: Your Honor, I'm just trying
to find out what the validation study 
report covers, since all jobs are not
covered I asked him whether or not he 
expected the cut-off score he recommended 
to be used for all lines of progression 
even though they were not covered by the 

report.
THE COURT: He has ansv/ered that question,

has he not?
MR. BELTON: I don’t think he has answered.
THE COURT: Did you answer that question?
A What was your question again, sir?



-482-

MR.
Q

A
Q

A

THE

A
THE
MR.
Q

A .

Q

BELTON:
Let me back up, Dr. Tiffin. You did not 
include all jobs in your report, is that 
correct? Or study all jobs in your report? 
That is correct.
The question I am putting to you now: do 
you expect the recommended cut-off scores 
to be used for all lines of progression in 
all departments?
No, only in those we studied, the nine 
job groups.

COURT: You actually studied ten groups
and you’re omitting one because it didn't 

work out?
That's right.

COURT: Go ahead.
BELTON:

Did you make a study, Dr. Tiffin, of the 
reliability of the measure of performance?
No, I didn't do that.
Dr. Tiffin, you indicated I believe that 
Mr. Moore made available to you certain

905.



manuals?
Yes, he did.
Did he then go through and sort of explain 
to you what manuals were used for what jobs 

Yes, he did.
Did he tell you what jobs these two 
manuals were used for?
Yes, he did.
On what basis did you determine, Dr.
Tiffin, did you determine that these two 
manuals were actually used by the persons 
in the job, was it based on your conver­
sation with Mr. Moore?
Yes, it was.
Returning to the validation study, Dr. 
Tiffin, I notice that you do have approx­
imately ten charts, is that correct?
Ten what?
You have ten charts.
Nine charts. Six is missing because the 
test didn't come through in job group six. 
You never make up a chart unless the test



-484-

908.

comes through. Except on the conference 

level.
I think you testified, Dr. Tiffin, that 
it's almost impossible to validate the 
requirement of high school education?
Not impossible but practically impossible. 
Very impractical, comdetely so.
If you were to attempt to validate it, 
the high schorl requirement, in what way 
would you do it?
I'm sorry, sir.
If you were to attempt to validate the 
high school requirement, how would you 

go about doing it?
I mentioned that awhile ago in the 
direct examination. The only way to do 
it would be to hire a whole bunch of men 
with and without high school educations. 
Put them all on their jobs, and wait, 
oh, six months, a year, maybe two or 
three years, and then get ratings of 
job performance, and if those without high



-485-

909.

school educations did not do as well as 
those with high school educations then 
you've got a validation of that department; 
that's the only way in the world to do it 
scientifically. But it's a long-winded, 
expensive, time-consuming proposition.
That's the way to do it, the only way. 
Realizing the difficulty of validating a 
high school education, do you have an 
opinion as to whether or not it should be 
used as a criteria for employment or 
promotion?
I do on the grounds of these tl ngs that 
the people must read. It's written in such 
a difficult way that you've got to have 
at least a high school education to under­
stand it. There is an indirect way to 
validate that requirement. Indirect but 
better than nothing. Not very precise.
These materials I first counted came out 
with very difficult reading indexes and 
you've got to have a high school education



-486

910.

to read the darn things.
Q The data that you got on the testees, you

did have an educational background, is 
that correct?

A No, I didn't have an educational background.
Didn't have it at all, didn't u.ie it, 
didn't have it. The test scores against job 
success, the correlations were.

Q Dr. Tiffin, do you know whether or not
there are some people at the plant that 
do not have high school educations?

A I do.
Q Dr. Tiffin, do you think the race of the

individual might affect a validation study 
of the testees?

A Race might affect it?
Q Yes.
A Only to the extent that men of a certain

race might not have had the background, 
educational background, but the test is 
not discriminatory by race at all. It 
discriminates against those who don't have



-487-

911.

the background to do the work, to take 

■the job.
When you say background, is it the ability 
to pass the test or the ability to do the

job?
The ability to pass the test in the valida­
tion instance, yes. But these studies 
show clearly that if you don't have 
these minimal scores you're not going to 
be able to do the job very well. That's 
not discrimination as I see it at all.

) I wasn't asking you about that, I was asking
you whether or not the ra.ce of the indivi­
dual might affect his performance on the 
job, given a situation where he doesn't 
do as well on a job say as a white compared

to a black?
& I can't answer that question, sir.
q Are you aware of the studies in the

profession that are attempting to research

this question?

A Yes.



-488

912.

Q Have you read any of these studies?
A Yes, a few.
Q Do you have an opinion as to the approach

that has been taken with respect 
to these studies as they try to focus in
on this question?

A Yes, I have an opinion. If a company is
using a test with no validation of that 
test, and there are some big companies 
that are doing that very thing, they've 
been courting trouble, but that's a mental 
test that minority groups score low on, 
but there's no validation of the test at 
all. But they're using this anyway. Now, 
that's out and out discriminatory. There 
is no relation to job success, but the 
black people score low on that test so 
using that test is discriminatory. And 
I'd be the last guy in the world to recommend 
that a company do a thing like that. It 
would be terrible. It's known as bad business.

THE COURT: And productive of lawsuits.
A That's right.



-489-

913.

MR. BELTON:
q Doctor, I am trying to understand your

answer to that, and correct if I'm wrong, 
you are saying that if a company uses a 
test that is not validated and that 
black persons do less well than whites

A Out and out discrimination.
Q No, I'm not asking about discrimination,

I'm talking about validity. Let me pose 
a hypothetical to you: if a company uses 
a test that is not validated and black persons 
do less well on the test than whites, yet 
they perform equally as well as whites on 
tin job, how could this affect the valid­
ity of the test, can you follow my 
question, Dr. Tiffin?

A Yes, I think I can. And there would be
no validity to the test. There is no 
correlation at all between job performance 
and test scores and you'd drop that test 
like a red hot potato.

Q Doctor, I believe you said you did not know



the race of the individuals in this group?

No.
Did you ask for this information 
about race?
No.
Is there any reason why you didn't ask 

for it?
I wanted to validate the tests, pure 
and simple, without regard to race, creed 

or color.
A moment ago, I was asking you about it, 
the hypothetical that I posed to you, 
would this be a pertinent consideration 
for validation?
I think it would not be, no.
You are aware that the profession recognizes 
that as a general rule, blacks do less 
well on written tests?
Yes, I am very much aware of it.
But it wouldn't make any difference in 

your studies?
(Witness shakes head negatively.)



-491

Q Your study did not include validation
of all the jobs, is that correct?

A That is correct.
MR. BELTON: Your Honor, we would like

to move to strike, referring to the 
Exhibit 3, the study, the last sentence 
on page 8 of the report.

THE COURT: I read that. I think it's
r

a conclusion. I won't consider it.
MR. BELTON: We move that it be stricken.
THEQDURT: I will not consider it.
MR. LOWDEN: Your Honor, could we have a

couple of minutes recess so that we could 
say goodbye to the doctor, if he may be 
released.

THE COURT: Yes, I know that Dr. Tiffin
has been here a long time but I'm wondering 
if there is going to be any testimony from 
the plaintiffs relative to some of this and 
whether or not I would want to ask him 
some questions myself in that connection.

915.

May I ask, do you gentlemen



-492-

intend to use Dr. Barrett as a witness?
MR. BELTON: That possibility exists, your

Honor. Dr. Barrett, as I said before, just 
got in last night and we were just 
discussing the matter. I would say right 
now that there is a.good possibility that 
we will call Dr. Barrett, in rebuttal.

MR. LOWDEN: We would have to object to that,
they had one of his associates in the case 
once before and at this late date to 
switch on us —

THE COURT: Well, he says that you didn t
even let him know about Dr. Tiffin until 
last Monday. You didn't give them his 
repott until then.

MR. LOWDEN: ' We didn't have it until then.
We gave it to them the day we got it, the 
day it came in the mail. 1

THE COUP.T: Yes, but the fact remains that
he didn't have but one week to get ready.

MR. LOWDEN: Well, I won't have but ten
minutes to get ready for him but that will 

be all right, sir.

916.



-493-

917.

THE COURT: Would there be any objection
to his testifying out of order now?

MR. BELTON: We need to discuss with Dr.
Barrett, really, we wouldn't be prepared 

to put him on today.
MR. LOWDEN: When would you be prepared to

put him on?
MR. BELTON: His schedule would permit

him to be available Tuesday of next week.
THE COURT: He's available right now.
MR. BELTON: We are not ready to put Dr.

Barrett on the stand, your Honor.
THE COURT: How long would it take you to

got ready? It just occurs to me that it 
would be well to get this phase of the 
case on both sides over with this morning 
if we could and that these gentlemen who 
obviously have other employments and 
personal commitments doubtless elsewhere 

could be released.
MR. BELTON: I understand that, your Honor,

and we would like to.



-494-

MR.

MR.

THE
MR.

LOWDEN: If your Honor please, of
coutse, it's their choice, but we 
offered to put Dr. Tiffin on a week 
ago and give them a week to study his 
testimony and they wouldn't agree to it. 
(COUNSEL CONFER WITH THE COURT AT THE BENCH)

THOMPSON: Your Honor, at this time we
will call Mr. Moore, limited to the issue 
of how he went about conducting the 
validation study at the plant. Then they, if 
they wish, can call Dr. Barrett.

COURT: All right, proceed.
THOMPSON: We call Mr. Moore.

918.



-495-

MR.

Q
A
Q

A
Q

A

Q
A
Q

A

Q

A

Q

A

EDWARD C. MOORE, JR., re-called, testified 

as follows:
THOMPSON: DIRECT EXAMINATION

Would you state your name, please.
Edward C. Moore, Jr.
Are you the same Mr. Moore who previously 
testified in this case?
I am.
Do you have a copy of Company Exhibit No.
3 before you, Mr. Moore?
No, I don't.
Mr. Moore, do you know Dr. Joseph Tiffin?

I do.
Did you work with him in conducting a 
validation study at your mill?
Yes, sir.
Approximately when did you first meet 
Dr. Tiffin, Mr. Moore?
It was either April or May.
Sir, did he explain to you the mechanics 
of conducting a validation study?
He did.

919.



-496-

920.

Would you briefly explain how you went 
about conducting the study?
We, in looking at the mill, were interested 
in validating the tests in the departments 
that we had considered skilled classi­
fications and had previously tested 
and as such we took a number of job 
classifications in groups both from the 
top of the progressions and the 
middle of the progressions in those depart­
ments, the jobs having like- responsibili­
ties or fitting into the other higher

\classification responsibilities.
Going to page 2 of Company Exhibit 3,
column one, under the letter "N", there
are eight people who participated in that
study, according to this report, now
would you tell the Court how these people
were selected in these job classifications?
These are the eight caustic operations%
in the lime kiln operators.
That's all you have?



-497-

921.

A That's right.
Q How about the next column going down?
A This is the same.
Q Did you make an effort to get every

employee who held these permanent jobs 
to participate in the validation study?

A Yes, we did.
Q You tried to get every one?
A Yes, to the point that we even tried

to accommodate them if it was inconvenient 
for them, to schedule them at other times 
to take the test if they had not taken 
the test previously.

Q Now, looking at all these various job
groups, to your recollection were there 
any employees who refused or declined to 
participate in the validation study?

A There were.
Q Do you recall the names of any of those

individuals?
A Mr. Ernest Garner, Mr. Joe H. Moody.
Q Do you recall the race of those individuals?



-498-

A
Q

A
Q

A

Q

A

Both Negro.
To your knowledge, Mr. Moore, were there 
any Negro incumbent employees in these 
groups who did participate?
There were.
Do you recall about how many Negroes par­
ticipated in the validation study?
I believe there were four additional ones,
I don’t know that I can give you all the

names.
Would you explain the method that you 
utilized in having the supervisor rate 
the employees who were involved in the study? 
We received some material from Dr. Tiffin 
which were little forms and you placed 
each employee's name on one side of the 
ticket and another employee's name on 
the opposite side of the ticket and each 
employee was rated against every other 
person within that group or classification.
We then brought the supervisors, I personally 
instructed them to take these tickets, one

922.



-499-

at a time, look "at them, determine which 
ones they felt irrespective of the job 
that they were actually doing, but in 
their respective jobs, did a better job 
than the person they were rating against, 
and to go through this process in its 
entirety in each of the classifications 
that they were concerned with.

Q Now, did the supervisors who actually did
the rating, have the test scores of the 
people in front of them at the time of 

this?
A They never saw the test scores.
q After you obtained the test scores and the

ratings did you transmit them to someone?

A Yes, sir.
q To whom did you send them?
A Dr. Tiffin.
Q I believe you testified that Ernest

Garner declined to participate in the 

study?
A Correct.

923.



-500-

Q Did he give you any reason for this?
A No, he didn't give any specific reason.
Q Did we compel any of the employees who

held the incumbent jobs in the jobs that 
were studied to participate, to take the 
test?

A No, sir.
Q Where were the actual tests administered,

Mr. Moore?
A In the personnel conference room at

Roanoke Rapids.
Q I believe you testified that another Negro

employee declined to participate in the 
validation study —

THE COURT: Joseph H. Moody, he said.
MR. THOMPSON: This individual's middle

initial was not "P"?
A That's right.
Q That's a different Moody than the plaintiff

in this case?
A That is a different Moody, I don't even know

if they are related.

924.



-501-

THE

MR.

MR.
Q

A
Q
A

Q

A
Q

COURT: The plaintiff in this case
was not working there in April of this 
year.

THOMPSON: That is the point I was trying
to clarify, your Honor. No further questions.

BELTON: CROSS-EXAMINATION
At the time that the tests were given
for the study, were the tests given to all the
testees at a time, at one time?

No.
Do you know how it was divided up?
Well, our facility was very restricted 
so we could only I think accommodate some­
thing in the neighborhood of around I think 
eighteen at the most at one time.
Now, were all three tests administered 

at one sitting?
They were.
Now, the testees, do you have some 
appreciation, Mr. Moore, of how long each 
of them had been in the respective job

925.



-502-

A
Q

A

Q

A

Q

A
Q
A

Q

A

Q

926.

such as caustic operatin, lime kiln operator, 
prior to the time the studies were taken 

underway?
No, we weren't concerned with seniority.
I said do you have any appreciation of 
that, apart from whether it was determinative

or not.
Well, I have appreciation that there were 
old employees and new employees if that's 
your question.
Do you know whether all the testees had 
a high school education?
I'm sure there were some who do not.
Now, did you see the test scores, Mr.

Moore?
Did I see them?
Yes.
Yes.
You say you didn't administer the tests, 

but who did?
One of my assistants, Mr. John Burgwyn.
Do you know whether he had administered



these tests before?
Yes, he has.
Would you have any idea as to how often? 
Mr. Burgwyn joined my staff I believe in 
1967, that was one of his primary 
responsibilities, was the employment of 
our employees in the mill and at that 
time we were giving these tests, so 
since 1967 through 1971 he has, upon 
many occasions, had the opportunity to 
administer these tests.
I believe you testified, Mr. Moore, 
that you tried to get each employee in 
each of the job categories to participate 
in the study and that some refused and 
I think you gave the names of these two 
blacks; do you know of the total number 
you tried to get both black and white, 
how many refused to participate in the 
validation study?
Those were the only two.
Only two blacks refused to participate?



That is correct.
Would you tell us, Mr. Moore, what 
standard you used for selecting the 
black participants in the study?
By the fact of the job that they were

working.
And that would be, if you recall, look
at page 2 of the report -
Yes.
Would you know what job that was?
GroupsNumber 2, Groups Number 3, Groups

}Number 4.
This for black employees now?
Yes, sir. Groups Number 6; no, that is 
incorrect; Number 7, Number 8.
Let me see if I can clarify this, Mr. Moore 
you said you did have approximately four 
blacks participating, right?
Well, when I look at these job classifi­
cations I think it may have been a little 
hgher, I don’t know. There were possibly 

more than four.



-505-

Q I think you testified that Mr. Burgwyn
administered the tests, is that correct?

A That's correct.
Q Do you know who scored the tests?
A I believe he did.
Q Now, in getting the supervisor's rating,

did you do this on an individual basis 
with each supervisor or did you do it as 
a group?

A No, we brought, for each department we
brought the supervisors in and we put 
one supervisor in one room and another 
supervisor in another room, in other words, 
we separated them. And I had a discussion 
with them prior to their doing this 
preferential rating. I wanted to make 
certain that this was entirely, as nearly 
as possible, an objective determination. 

q I think you also selected the material
identified in Exhibit 2 that you indicated 
you made available to Dr. Tiffin?

A Yes.

929.



-506

On what basis did you select these 
materials?
We just randomly went through it and 
Dr. Tiffin picked out some he thought —
I'm talking about how you did it in terms 
of getting them together for Dr. Tiffin 
to view.
I had a meeting with all of the department 
superintendents and assistant mill 
manager and explained to them what we 
were attempting to do here and what 
materials they had in their departments 
with respect to requirements that would 
pertain to this gathering of information 
and when they presented it to me they 
went through the information with me at 
that time.
You left them some discretion in terms 
of selection of the materials to present 
to you, is that correct?
Well, what I asked them to do was to provide me 
with as much as they possibly had.

930.



-507

931.

MR. BELTON: 
MR. THOMPSON: 
THE COURT:

this.

Thank you, Mr. Moore.
No further questions.
Let me just ask Mr. Moore 

Was there anything about the
furnishing of material or the results
of these tests or was there anything about 
the taking of the tests themselves or 
the obtaining the ratings from the super­
visors which to your knowledge was done 
with a design to prove correlation between 
test scores and the job performance of 

these people?
A No, sir, your Honor.
THE COURT: Was all of this testing done as

objectively as you could?

A Yes, sir.
MR. CHAMBERS: We object to the question.
THE COURT: All right, I'll strike that

answer then and sustain your objection to 
the question. I just wanted to know, 
that's what you're after, isn't it, to 
find out whether or not this thing was phony?



-508-

MR. CHAMBERS: Right, your Honor, we wanted
the facts and would ask the Court to draw 
its conclusion from that but not just 
simply put the question to him directly.

THE COURT: All right.
MR. CHAMBERS: Your Honor, we were anticipating

putting Dr. Barrett -on when we came back 

from lunch.
THE COURT: At 2 o'clock?
MR. CHAMBERS: Whenever we came back from lunch.
THE COURT: Well, if it will serve Dr.

Barrett's convenience, we will recess today 
at 12:30 and come back at 2.

MR. CHAMBERS: No, sir,no difference whether
it's 2 or 2:30. We were anticipating we
would go on with Mr. Bryan.

All right, let's proceed.

932.

THE COURT:



-509-

MR.

Q

A
Q

A

Q

A
Q
A

Q

A

JOHN E. BRYAN, JR., having been first duly 
sworn to tell the truth, testified as follows: 

LOWDEN: DIRECT EXAMINATION
Do you have with you a copy of the 
progression charts, line of progression charts

for 1 65 and 1968?
Yes, sir.
And do you have a copy of the 1963 agreement 
which is Plaintiff's Exhibit No. 13 and 
a copy of Plaintiff's Exhibit No. 15 which 
is the labor agreement dated September 23, 

1968?
I have the 1968 agreement; I do not have 

the 1953 agreement.
Would you state your name for the record, 

please.
John E. Bryan, Jr.
Where do you live, Mr. Bryan?
Bradley County, Tennessee.
Have you been employed by Albemarle Paper 
Company, a Virginia corporation?

Yes, sir.

933.



When were you employed by that company?
I first went to work with Albemarle as 
personnel manager of the Roanoke Rapids 
mill in June of 1963 and served in that 
capacity until the early fall of 1965 at whxch 
time I was promoted to director of industrial 
relations for the corporation at the 
Richmond, Virginia, headquarters. I remained 
in that capacity until June of 1969 at which 
time I left employment of Albemarle.
Would you tell the Court briefly what your 
educational background is?
I have a bachelor of arts, cum laude in 
psychology from Vanderbilt University and 
a master of arts in public administration 
from the University of North Carolina.
When did you get your master's degree?
In August 1950.
Since 1950 how have you been employed, 
from 1950 to 1963, June?
From the first of September 1950 up until 
present I have been employed in the field



-511-

of personnel administration, industrial 
relations. In several different industries. 
Including aircraft and missile industry, 
the chemical industry, paper industry and 
the appliance manufacturing industry.

Q ' During those twenty-one years have you
engaged in negotiations with various unions?

A Yes, sir, I have dealt with some ten or
twelve different international unions during 
that period of time. I engaged in many 
negotiations for labor contracts, supplements 
to contracts, amendments to contracts, 
and the day to day administration of 
labor relations.

Q Was this experience all in the South?
A No, sir, I have dealt with unions from

Rhode Island to California and Indiana 
to Alabama.

Q While you were employed by the Albemarle.
Paper Compmy, and when I say this I mean 
the Albemarle Paper Company of Virginia, 
prior to October 31, 1968, and Albemarle 
Paper Company of Delaware from November 1,

935.



1968 to June 1969, during that period of 
employment, did you engage in any nego­
tiations with the defendant labor union 
in this case?
Yes, sir, I participated in three contract 
negotiations with the United Papermakers 
and its local at Roanoke Rapids, con­
cerning the labor contract at Roanoke 
Rapids in 1963, 1965 and 1968. Plus 
some other negotiations with these unions 
pertaining to supplements to the agreement 
and amendments to the various agreements. 
Were you at any time in those three years 
the chief negotiator for Albemarle at 
Roanoke Rapids?
Yes, sir. In the 1965 negotiations and 
in the 1968 negotiations I was the chief 
negotiator and company spokesman.
Now, Mr. Bryan, I'm going to ask you to 
look at the contract between Albemarle 
Paper Manufacturing Company and United 
Papermakos and Paper Workers, AFL-CIO, 
Halifax Local No. 425, dated September



-513-

937.

23, 1963 - September 15, 1965, which is 
in evidence in this case as the Plaintiffs' 
Exhibit No. 13, and I'll ask you first, 
the Albemarle Paper Manufacturing Company 
is known in this suit as Albemarle Paper 
Company, is that correct?

A Yes, sir, the corporate nnme was changed
at some point in the 60's, dropping the 
word "manufacturing," that's the Virginia 
corporation.

Q I'll ask you to turn to Section 10 of
that agreement, and ask you to explain to 
the Court if you will, the operation of 
the seniority system at the Roanoke Rapids 
mill, beginning with Section 10.1.1.

A This first paragraph, 10.1.1 sets forth
the basic principle involved in the 
application of the seniority system as 
it applies to personnel promotions, reductions 
in force, lay-offs, personnel changes, 
and the essence of it is that when employ­
ees are to be promoted or demoted or laid 
off as the case might be that ability



-514-

938

will prevail, by that is meant qualifi­
cations, but when ability, all the 
factors that constitute ability are 
relatively equal, then seniority will 
be the determining factor as to who is 
moved from one job to another or who is 
laid off. And this seniority is applied 
within established lines of progression 
within a given department as shown on 
the line of progression chart, and is 
known as Appendix F. For example, I refer 
to Appendix F. in the "B" paper mill 
department, the paper machine line of 
progression, the top job being machine 
tender.

fact that the Appendix F. handed me 
relates to the September 18, 1965 agreement.

THE COURT: May I call attention to the

MR. LOWDEN: I meant for you to have them

both
THE COURT: I don't have the one for '63.

A Nor do I, your Honor, I have the '65 and '68



-515-

MR.
THE
A

THE
A

939.
LOWDEN: Can we use the '65 one?
COURT: Was it the same?

It was the same in '63 and in the case of 
the paper machine line of progression.

COURT: All right, go ahead.
By applying the seniority clause within
the line of progression this means that 
individuals having occupational job 
family group is known as a progression 
line and by family group I mean that the 
jobs have a relationship to each other.
They are similar jobs and the jobs are set
up in the line of progression with the
least difficult, the least responsible
job being at the bottom, progressing upwards
to the most responsible and most difficult
job at the top, with corresponding rates
of pay, increasing as we go from bottom
to top. Such that the second job in the
line of progression in the case of the
paper machine in the UB'.' paper mill, seventh hand
requires a knowledge of the work of spare



-516-

hand number 4; the 6th hand requires 
the knowledge and skill that is acquired 
working as a seventh hand and spare hand 
number 4, and so on up the line and it 
is a progressive sort of thing and this 
is the basis for the training system that 
is used in the paper industry and many 
other industries for that matter. People 
are trained by getting training and exper­
ience on the job in these various capacities.

Also, a line of progression 
composed oftentimes of jobs in which the 
people must work together as a team as is 
the case on the paper machine and the 
individuals that hold these various classi­
fications have certain functions to per­
form just as many members of a football 
team have certain functions to perform 
in executing a play and they all must 
operate together and each accomplish his 
job or the paper machine doesn't function 
properly. This is why the seniority clause

940.



-517-

sets forth that the provisions are applied 
within the established lines of progression.

MR. LOWDEN:
Q Let me digress there for a moment, is there

a labor market in Roanoke Rapids from 
which the Albemarle Paper Company may hire 
a trained machine tender if it needed one 
tomorrow?

A No, sir. The only place to obtain a
machine tender is from another paper mill 
and this is done when a new paper mill 
is built the personnel people go to other 
paper mills and obtain people in lower 
classifications such as back tender who 
has many years of training and experience 
to reach that position and offers them 
the opportunity to go to machine tender 
at a higher rate of pay, not that this 
new mill is going to pay any more than 
the old mill for a machine tender but the 
machine tender job pays more than the 
back tender. A back tender, for example

941.



-518-

9 42.

may see a machine tender ahead of hire 
who's got ten or fifteen more years before 
he reaches retirement age and this is a 
much better opportunity for him.

Q But you can't go out in Roanoke Rapids
and employ a machine tender right off 
the street?

A No, sir, and there would be no way of
getting him the training and experience 
that he needs other than on a paper machine 
itself and it cannot be done through class­
room instruction or anything of that type;

Q Is it necessary that the machine tender,
the top rated man there, is it necessary 
that he perform all the jobs in that line 
of progression?

A Yes, sir, it is. And he is responsible
for the operation of that machine and 
the functioning of that crew there. He 
has supervision above him but he is the 
top skilled employee and he needs to know 
what each person is doing and should be



-519-

doing on that machine and all the parts 
of, that machine is quite lengthy and 
covers some considerable area and he 
can't even see all the people at any one 

point.
THE COURT: Mr. Lowden, can you give me

some estimate now as to how much longer 
Mr. Bryan will be on direct examination?

MR. LOWDEN: I.would expect the rest of
today, your Honor. Between that and cross.

THE COURT: In view of that, let me inquire,
Mr. Belton, are you prepared now to go
ahead with Dr. Barrett?

MR. BELTON: We have discussed it and I
think we're ready, your Honor.

THE COURT: Well, if you're at a breaking
point I wonder if it wouldn't be well to
do that and then come back to him if he's 
going to be here all day.

Mr. Bryan, you may stand aside, 
and out of order we will allow the plain­
tiffs to call Dr. Richard Barrett.
(Witness excused)

943.



-520-

944.

DR. RICHARD BARRETT, having been first duly 
sworn to tell the truth, testified as follows:

MR. BELTON: DIRECT EXAMINATION
Q Would you state your name,please?
A Richard S. Barrett.
Q Where do you live, Dr. Barrett?
A 5 Riverview Place, Hastings-on-Hudson, New

York.
Q And what is your educational background?
A I have a bachelor of science in

administrative engineering from Cornell 
University, 1948; a master of arts in 
education from Syracuse University in 
1951; Ph.D. in industrial psychology 
from Western Reserve University in 1956.

Q Dr. Barrett, do you have an area of
specialty?

A My general area is applied psychology,
applied to industrial problems and lately 
to educational problems.

Q Could you give us some examples of the
kind of work you have been doing in your



-521-

945.

area of specialty?
I was an assistant and associate professor 
of psychology at New York University 
where I taught courses in selection 
for seven years from 1958 to 1965. At 
that time I consulted with industrial 
organizations on selection problems 
including Equitable Life Assurance Society, 
Standard Oil of New Jersey and Lever 
Brothers. Toward the end of that period, 
around 1965, I prepared a proposal for 
the Ford Foundation to study differential 
selection among different social and 
economic and ethnic backgrounds, received 
a grant and although I left the University 
I became an adjunct research professor 
and I supervised the conduct of the 
study that resulted in the book, "Testing 
and Fair Employment." And I have done 
some more work at other times, Air Force 
selection tests.
Would you just give us several firms



^46.

-522-

A

Q

A
Q
A

Q

A

MR.

that you have been retained by with 
respect to consulting on testing programs? 
Well, primarily, Lever Brothers, Equitable 
Life Assurance Society, Standard Oil 
of New Jersey.
Dr. Barrett, did you participate in the 
case of Griggs v. Duke Power Company?
Yes, I did. I testified for the plaintiff. 
Have you participated in similar cases?
Yes, I have.
Would you name a few of those cases for 
us, please?
Colbert v. H. K. Corporation,
Hart v. Buckeye,
U. S. v. Frazer,
U. S. v. H. K. Porter,
U. S. v. Jacksonville Terminal,
Chance v. Board of Examiners,
Castro v. Beecher, and 
Griggs v. Wilson Sinclair.

BELTON: What we'd like to do, we have
a list of the cases in which Dr. Barrett
has participated and rather than having 
him read the list, we could have the list



-523-

identified and show the defendant. 
the COURT: All right. They did the

same thing this morning.
MR. BELTON: We voild like to have this

identified as Plaintiffs' Exhibit No.

69.
(DR. BARRETT'S RESUME identified as 
Plaintiffs' Exhibit No. 69, admitted 

in evidence.)

947.

MR. BELTON:
q Dr. Barrett, would you identify this

document, please?
A Yes, it is my resume.
MR. BELTON: We would like to offer this

as Plaintiffs' Exhibit No. 69.

THE COURT: Very well.
MR. BELTON: We would like to identify

this document as Plaintiffs' Exhibit NO. 70 
(LIST OF CASES identified as Plaintiffs

Exhibit No. 70.)
MR. BELTON: We would like to offer Plaintiffs'

Exhibit No. 70 which is the list of cases



in which Dr. Barrett has participated 
either as a witness or on a consultation 

basis.
(LIST OF CASES, identified as Plaintiffs'
Ehibit No. 70, received in evidence.)

MR. BELTON: We would like to offer Dr.
Barrett as an expert in industrial 
psychology with special emphasis on testing.

MR. LOWDEN: We will accept that with the
remark that he didn't write the book though.

THE COURT: Well, he is one of four authors
of a book I'm looking at entitled "Testing 
and Fair Employment." Is that the book 
you're talking about?

MR. LOWDEN: No, sir, I'm talking about
the book that Dr. Tiffin wrote which is 
the basis for all of it. But we will 
accept him as an expert, your Honor.

THE COURT: All right, sir, and the Court will.

MR. BELTON:
q Dr. Barrett, I show you document that is

identified as Company Exhibit No. 3 and

-524-

948.



-525-

949.

ask you if you have had an opportunity 
to review that document.

A I have.
Q When did that document first come into

your hands?
A Last night.
Q Dr. Barrett, were you present this morning

when Dr. Joseph Tiffin was testifying 
as to the validation study conducted 
at the Albemarle Paper Company in Roanoke 
Rapids?

A Yes, I was.
Q Do you recall the testimony of Dr.

Tiffin that he had followed procedures 
outlined in a manual called "Standards 
for Educational and Psychological Tests?"

A Yes.
Q Let me show you this document.

(CONFERENCE BETWEEN COUNSEL)
Q I think I was asking you, Dr. Barrett,

whether or not you recall the testimony
of Dr. Tiffin?



-526-

950.

A Yes, I do.
Q And do you recall the complete testimony

of Dr. Tiffin, both on direct examination 
and cross-examination?

A Yes.
Q Now, based on that testimony, Dr. Barrett,

were the standards set forth in the 
manual which you are now looking at, 
that were not followed in the study 
identified as,Company Exhibit No. 3?

A Are you referring to the report itself?
Q The report itself and the testimony.
MR. LOWDEN: May we identify the document

he's looking at because we don't have 
a copy of it.

MR. BELTON: It is "Standards for Educational
and Psychological Tests and Manuals."

A Published by the American Psychological
Association, Washington, D. C.
The question is were the standards set 
forth in the document you're now looking 
at, were there standards set forth in that

Q



-527-

A

MR.

THE

MR.
Q

A

951.
document which were not followed either 
in the report identified as Exhibit 3 
or as further explained by Dr. Tiffin 
in his testimony?

Yes.
LOWDEN: OBJECTION. Your Honor, I

hate to do this but I would hope that 
hewould not lead this witness so that 
we may understand his testimony; not only 
that, I think his last question led him 
down three different ways and I'm objecting 
to it.

COURT: Well, on objection, I would
ask counsel, since he's his own witness, 
to ask direct examination type questions 
and not leading type.

BELTON:
Dr. Barrett, would you briefly describe 
the document you have before you?
This is a policy statement of the 
American Psychological Association. It 
contains a number of sections, among



-528-

the most pertinent is headed "Criterion 
Related Validity" of which the concur­
rent validity described by Dr. Tiffin 
is an example. The book has in it 
several brief statements, some of which 
are listed as being essential for a 
test manual, some of which are listed 
as being very desirable; some of the 
more essential ones are printed in 
bold-face type, their importance not to 
be overlooked.

Q Would you briefly outline what some of
those principles are?

A For instance, C—4 says that all measures
of criteria, which is what Dr. Tiffin 
defined as job performance, should 
be described completely and accurately, 
the manual should comment on the adequacy 
of the criterion; wherever feasible it 
should draw attention to significant 
aspects of performance that the criterion 
measure does not reflect or to irrelevant

952.



-529-

factors that are likely to affect it.
This is printed in bold type and listed 
as essential.

MR. LOWDEN: If your Honor please, I think
he should state the page of that book 
for us.

A Page 16.
MR. LOWDEN: And describe what he's

talking about when he's reading. I believe 
he's talking about the manual, and what 
Dr. Tiffin did was conduct a validation 
study himself, not write a manual.

MR. BELTON: The testimony of Dr. Tiffin,
your Honor, is that he had followed this 
document in the validation study that 
he conducted and I'm questioning Dr.
Barrett about some of those standards 
or principles as set forth in there, how 
it compares with Dr. Tiffin's testimony.

THE COURT: I assume that the witness
would say that he agrees with what's in 
the book so instead of letting you ask

953.



-530-

him what he would consider as some of 
the procedures to be followed, I'm just 
letting him go ahead out of the book.
You agree with all that, don't you?

A Yes, sir.
MR. LOWDEN: What then is in evidence so

that we might —  the book should be in 

evidence.
THE COURT: He's putting it in, piece by

piece.
MR. BELTON: Your Honor, the only reason

why we are not putting this particular 
document in evidence is that Dr. Barrett 
indicates this is his own personal copy 
and he would want to take it back, but 
it will be available to the defendants 
and we wuld like to reserve the right 
to introduce it, a copy of that document, 
for the record, but under the circumstances - 

THE COURT: I'll let you do that.
MR. BELTON: For clarity purposes, your Honor,

we would like to leave Plaintiffs' Exhibit

954.



-531

No. 71 open for the introduction of that 
document.

Q Dr. Barrett, would you explain to the
Court the study conducted by Dr. Tiffin 
and the resulting report, how does that 
compare with the principles set forth 
in the document you are now looking at? 
OBJECTION: OVERRULED

HR. LOWDEN: Your Honor, I think he ought
to find out whether or not it violates 
the guidelines of the EEOC rather than 
some psychological association's guidelines. 
They may be incorporated but I don't know 
that.

THE COURT: This testimony is designed
1 take it to show if it can the inaccuracy 
of the procedures and methods employed 
by your witness and I'm going to let him 
testify.

MR. BELTON: Dr. Tiffin testified he used
this.

THE COURT: You've won this one, go ahead.

955.



-532-

The report does not give any description 
of the criterion and it was after Dr.
Tiffin testified that I learned some 
of the details of how it was done; there 
was not enough detail in my mind to assure 
me that factors that are relevant are all 
included and those that are not relevant 
are excluded. Shall I continue?
Please.
Another section, this is page 17, at C-4.4, 
it says, "The time elapsing between the 
test administration and the collection of 
criterion data should be reported . .
in the manual. This I learned only after 
the testimony was given that it was not 
included in the manual nor in the report 
and this is an essential piece of information.

Page 18, C-4.5 says, "the 
criterion score should be determined in­
dependently of test scores. The manual 
should describe any precautions taken to 
avoid contamination of the criterion or

956.



"should warn the reader of possible 
contamination." This is essential and 
again the report says nothing upon this 
topic and the description that was given 
by Dr. Tiffin was most sketchy on this 
point, a most critical point.

It also says, page 18, 
section C-5, "The sample employed in 
the validity study and the conditions 
under which the testing is done should 
be consistent with the recommendations 
made in the manual and they should be 
described sufficiently for the user to 
judge whether the reported validity is 
pertinent to a situation." And the 
procedures used are not described in 
the report. This also is essential. 

C-5.1.
THE COURT: You mean that it's essential

that it be described in the report?
A That you should know enough about the

conditions under which the testing was



-534-

MR.

Q

done to make sure that they were done 
properly. There are many ways in which 
tests may be improperly administered.

C-5.1 says, "The basic 
statistics which should be reported in 
the manual for validation sample are 
measured central tehdency and variability." 
This is essential. No such statistics

have been presented.
Section C-5.2 says, 'The 

validity sample should be described in 
the manual in terms of those variables 
known to be related to the quality tested 
such as age, sex, socio-economic status 
and level of education. Any selective 
factor determining the composition of the 
sample should be indicated." Essential.
This was not described in the report and 
was described somewhat orally later.

C-5.4.
BELTON:

Dr. Barrett, to what particular point in

958.



the testimony were your last remarks 
addressed?

A Dr. Tiffin said that he had no information
on the race of the individuals and Mr.
Moore testified that there were six or so,
, four to six, who were black. There is 
no real indication as to the age of the 
people although it was indicated that 
there were long and short service employees 
and in a mature organization you would 
assume there are people of wide age range 
which is critical because older people 
are quite different in their test behavior 
and job performance, than younger people 
and it may be that test scores are in 
no way indicative or useful in determining 
the validity of a test for selecting a 
different kind of person, namely, a younger 
person.

C-5.4. Well, this is what I 
said. It says, "The validity of a test 
should be determined on subjects who are

959.



-536-

960.
at the age or in the same educational 
or vocational situations as the persons 
for whom the test is recommended in 
practice. Any deviation from this require­
ment should be described in the manual." 
Essential. No such deviation was des­
cribed and based on the testimony I heard, 
there are people who are not in the same 
educational or age situation or vocational 
situation, as people who would be taking 

the test.
Page 20, C-6. Says, "Any 

statistical analysis of criterion relating 
to validity should be reported in the 
manual in a form from which the reader 
can determine what confidence is to be 
placed in the judgment or predictions 
regarding the individual." This is 
essential. One of the things that was 
lacking totally in the report was what 
kind of statistic was used and there was 
only under examination that we learned



-537-

961.

that a standard statistic of Phi co-effi­
cient was used, but it was not in the 

original.
Page 21, Section C-6.11: 

report in the manual or elsewhere 
concerning the criterion related validity 
of tests should ordinarily include:
(a) one or more correlation co-efficients 
of a familiar type; (b) description of the 
efficiency with which fhe test separates 
criterion groups, and (c) expectancy tables 
or (d) charts that graphically illustrate 
the relationship between the test and the 

criterion."
Now, a correlation of a familiar 

type was included for all the data; 
however, charts that graphically illustrate 
the relationship between the test and the 
criterion were reported only in those cases 
where the tests worked out and in fact 
only in that particular case where the 
test worked out the best, giving a distorted



-538-

MR.
Q

A

962.
picture of how the test would look since 
all the bad data were not included.

That's the end of the 
pertinent parts of the standards for 
educational and psychological test and 

manual.
BELTON:

Dr. Barrett, could you briefly describe, 
very briefly, the procedure for validating

a test?
Well, the first steps required in validation 
of a test is a thorough job analysis so 
that the person knows what jobs are 
covered, knows how to cluster jobs as 
necessary to put jobs of a similar nature 
together for validation purposes, to 
develop a criterion and if one is 
developing a test battery which is not 
the case here, to decide which test to pick. 
Then the test should be tried out and 
validated by comparing the test scores 
with the criterion scores. As Dr. Tiffin



963.

mentioned, there are two essential 
ways of doing this and one is called 
predictive validity in which the test 
scores are retained from a group of 
applicants until they havehad a chance 
to perform on the job and measurements 
can be taken. The virtue of this is 
that this is certainly the best way to 
get the information. The trouble is it 
takes too long.

The concurrent validity study 
which he described and of which this study 
is an example, has the virtue that it is 
quick, it literally can be done in one 
day. It is collecting the data by having 
ratings done one day and at the same time 
having the tests given. It has the vice 
that there are many problems. One is 
that as in this case it's quite possible 
to include people who are not like the 
candidates, quite possibly very much 
older people are included and the test

-539-



-540-

score and job performance may have a 
different relationship than would be 
true of candidates. Furthermore, we 
don't know anything about those people 
who over the period of time have left 
this sample. The more capable people 
have perhaps been promoted out of this 
work group. Less capable people have 
perhaps already been fired. Unstable 
people or people who have just happened 
to not work out in general may have quit of 
their own accord. There are many reason 
why a concurrent validity study is not 
desired, and the only real virtue is that

it's quick.
Again, referring you to the testimony of 
Dr. Tiffin and the procedures of the 
standards used to validate the test, 
strike that; referring to the testimony of 
Dr. Tiffin aid the procedure used to validate 
the tests, would you compare what he did,
Dr. Barrett, to the standard you just

964.



-541-

outlined in terms of what he did?
In terms of the standards in this book?
Just in terms of procedure in terms 
of validating these tests.
Well, part of what I said is that a . 
person administers tests and gets the 
criterion information. Implied in that 
is that the individual does it himself 
or does it under his direct control.
I tiink it's extraordinarily bad practice 
to have the basic data for studies collected 
by people who may not have the training 
to do this work properly and even worse 
practice to have the data collected by 
people who have an interest in the outcome. 
Well, what about job descriptions?
Job descriptions I thought were totally 
inadequate. There were no job descrip­
tions of a written nature. Dr. Tiffin 
testified that he studied a chart of 
progressions, spent about a half a day 
in the plant, and even if someone has a

965.



-542-

background by having been through other 
plants this is a very limited amount of 
information from which to conduct a 
validity study.

MR. BELTON: No further questions.
(Brief recess)

MR. LOWDEN: CROSS-EXAMINATION
q Dr. Barrett, have you ever been in the

Albemarle Paper Company mill in Roanoke 

Rapids?

966.

A No, I have not.

Q Have you ever been in any other paper mill?

A Yes, I have.

Q Which?

A Meade Corporation, Chillicothe, Ohio.

Q And that's the only one?

A Yes.

Q How long ago were you in that?

A. Oh, this was back around 1955.

Q Did you make a study for the Meade Paper

Company in 1955?



Yes. The purpose of my being there was 
to write job descriptions for the 
purpose of job evaluation.
You did not set up a testing program?

No.
Now, you testified about several paragraphs 
in this red book which is called "Standards 
for Educational and Psychological Testing 

Manual,"
Yes.
And you pointed to various sections I 
have briefly scanned and it appears to me 
that most of those go to the form of the 
report that Dr. Tiffin had made and not 
the substance, is that true?
I believe that these raise very important 
substantive issues. I think the report 
should state, for example, what the jobs 
are that are being covered in the report, 
what statistics were used so that one 
knows what statistics are more appropriate 
in given circumstances than others. These



things were left out completely.
From the report?
Yes, sir.
yjhat you were just talking about was left 
out of the report?
Yes. Excuse me, some things were left 
out of the oral presentation as well. We 
still have no data as to age of the people 
for example who took these tests, which 
is important.
I take it that, since this is your field, 
you do believe that psychological testing 
is a good employment tool, is that right? 

Yes, I do.
And as a matter of fact, isn't it true 
that the only practical type of validation 
is concurrent validation, isn't that true? 
No, that's not true. I've done a study 
which was partly made possible by a fore- 
sighted member of the company who stored 
away information for six or seven years, 
we then came back and compared that



-545-

969,

Q

A
Q

information with the later performance 
of the people on the job.
Assuming that the average person doesn't 
have that kind of foresight and you want 
to make a validation study and you don't 
have all that information, then the 
accepted method is concurrent validation, 

is that not true?
Yes.
And it's recognized perfectly acceptable 
under the EEOC and the OFCC guidelines?

A Yes.
MR. LOWDEN: We have nothing further,

your Honor.

MR. BELTON: RE-DIRECT EXAMINATION
q Dr. Barrett, Mr. Lowden asked you about

whether your comnmts went to the question 
of substance or whether they went to the 
form and you mentioned lack of the ages, 
would the lack of job descriptions go to 

substance or to form?



-546-
970.

MR. LOWDEN: OBJECTION:

A

Q
A

Yes.
Which one?
The substance.

MR. BELTON: No further questions.
vout Honor, I didn't hear MR. LOWDEN: Your nonoi'

the last question. But just let it go. 
the COURT: or. Barrett, Plaintiffs'

Exhibit 70 lists some twenty-one cases 
in which you have either appeared or been 
consulted and I notice in parentheses 
behind some of them that you have the 
word "won," what does that have reference to?

A I was a witness for the plaintiff and
winning means that the plaintiffs case 

was sustained.
wo!l there are two of those.THE COURT: Well, mere

Were any of them lost?
A I am not familiar with the total final

disposition. For a while there it seemed 
we weren’t going to win any of them but —

THE COURT: Things are better.
A Right. We also won some other cases



-547-

971,

that are not noted.
All "riaht sir. That's really THE COURT: Al1 rignt,

not pertinent. But I wanted to see if 
in your field as in the legal field that 
you tell us about the ones that you won 
and not about the ones that you lost.

A n o , sir.
(Witness excused)



-548-

DR. JOSEPH TIFFIN, re-called, testified as 

follows:
TIIE COURT: Dr. Tiffin, are you familiar

with this red booklet or pamphlet 
from which Dr. Barrett read?

A Yes, I am.
THE COURT: Are you a member of the American

Psychological Association?
A Yes, sir.
THE COURT: Do you agree generally with the

principles for validating tests which 
he referred to as appearing in that book?

A I do, sir.
THE COURT: Have you conducted other

concurrent type validation tests in the 
industry?

A Yes, sir.
THE COURT: Hae you done those tests

substantially in accordance with the 
procedures which you employed in the 
Albemarle case?

MR. CHAMBERS: OBJECTION:

972.

A Yes.



-549-

MR. CHAMBERS: Your Honor, I don't think
that the other validation studies that 
he might have made would be pertinent 
to this proceeding; it certainly doesn't show 
that he followed the procedure in this case.

i
THE COURT: All right, sir, your objection

is noted for the record.
Now, explain to me, if you will,

how the recommended procedures of your 
Association as given to the Court by Dr. 
Barrett differ from those that you employed 

in the Albemarle case?
A V7ell, as Dr. Barrett pointed out, there are

two ways of validating tests. The predictive 
method and the concurrent method. The 
predictive method is a follow-up method and 
is done if you have all kinds of time•
Now, study after study have shown over the 
years that if you get a significant 
correlation with the concurrent method 
which was followed here you still get a 
still higher correlation if you use the

973.



-550-

redictive method. In other words, theseP
correlations are very conservatrve state­
ments of the two relationships. And as 
Dr. Barrett pointed out, with the concur­
rent method, the guys that couldn't do 
the job, they've left or been terminated.
So you've got restriction of range of 
the people with the concurrent method.
And the more restricted the range, the 
lower the correlation is going to be.

MR. CHAMBERS: I'd like to object because
I don't think that's responsive to the 
Court's question. And I move to strike 

the witness' answer.
the COURT: All right, sir. Go ahead.
A You see, if you have a restricted range

it drops the correlation. Now, an extreme 
case of that, supposing everybody quxt 
except the guy that made the highest test 
score, or a few guys made very high test 
scores, you'd get no correlation at all, 
zero. But you've got a range of test

974.



-551-

975.
scores and a range of ability on the job, 
you get a higher correlation. Now, the 
follow-up method, the predictive method, 
you've got everybody in there, and so 
your correlation is going to be very high, 
other things equal. But with the concurrent 
method, ycdve got a'restriction of range, 
both the test score range and the job 
performance range. If you get a significant 
correlation with the concurrent method 
you're very safe.

THE COURT: Let ne hear you comment on the
failure in this case to provide you with 
any information relating to the age or 
sex or the race of these various testees.

A Well, Mr. Moore sent me the ages of all
the men but I didn't use them, the age 
figures, for the reason that I ran the 
correlation between the test scores and 
job success. Now, age, sex and race were 
incidental, more or less unimportant in
these studies.



-552

THE COURT: In view of the questions asked
by the Court, are there questions by counsel 

for either side?
MR. THOMPSON: We have no questions.
MR. BELTON: No further questions.
THE COURT: . All right, Dr. Tiffin and Dr.

Barrett are excused, and thank you for 
coming and giving us the benefit of your 
testimony.
(Witness excused)

(Recess to 2 p.m.)

MR. LOWDEN: Your Honor, we have now
furnished to the plaintiffs copies of the 
W-2 forms for all the people who were not 
in the affected class. I believe that plus 
the evidence already in gives them the 
earnings for everybody in the bargaining 
unit for the past two years. We expected 
turn to attempt to put them into evidence 
but there would seem to be some problem

976.



in having them identified, this pile 
of documents.

THE COURT: If they want them in, .iey
will be Exhibit No. 72.

MR. BELTON: Yeur Honor, I know the defendants
want us to conclude our case and we do 
have the W-2 forms that we will propose to 
introduce; there is just one copy and 
we would like to make copies so that 
what we want to do is give it the 
Plaintiffs' Exhibit No. 72 collectively, 
with permission to withdraw the documents 
tor reproduction purposes and offer 
Plaintiffs' Exhibit No. 72.

THE COURT: Is your problem that you only
have one copy?

MR. BELTON: That is correct, of each document.
THE COURT: Suppose you introduce it, have

it marked Exhibit 72 and take it back and 
make as many copies as you want and let us 
have them back.

MR. BELTON: We would like to offer at this

-553-

977.



-554-

978.

time, your Honor, Plaintiffs' Exhibit 
No. 72, consisting of the W-2 forms of 
employees for the years 1969 and '70 and

■ i ' ~

these are persons who were not, except 
for members of the affected class, includ­
ed in the documents we copied in 1968.

MR. LOWDEN: Your Honor, we object to the
admissibility of these documents on the 
grounds that they are immaterial and irrele 
vant to this case, what people who were 
not in.the affected'class and not in any 
way connected with this case earned is 
immaterial and irrelevant. It seems to 
us that what somebody else in the plant
earned has no connection with this matter.

THE COURT: It seems to me that a consider­
able portion of your case has been directed 
to showing how well off these people in 
+-v.o affected class are, particularly in
comparison with other employments in the 
area and why wouldn't this have some 

at least along those lines?relevancy



-555

MR. LOWDEN: We believe that it does not.
THE COURT: All right, sir, if I find

that it doesn't have any relevancy or 
any probative force of course it wcuLd have 
been done in vain but I'm going to admit 
it and let you argue later on on it.

MR. WOODS: I just wanted to associate
nyself with this objection, your Honor, 
for the record to show that the union 

obj ects.
MR. BLANCHARD: As does the defendant Ethyl,

your Honor.
MR. BUSDICKER: Again, your Honor, I understood

that Mr. Lowden was speaking on behalf of 
all corporate defendants unless he indicated 
to the contrary, and if there's any doubt,
I join in that objection.

THE COURT: Well, for questions of appeal
and whether or not you made an objection 
at the proper time, that is, individually,
I won't hold you to that; if an objection 
has been made and somebody wants to avail

979.



-556-

980.

himself of it, he can do it, and I think 
it would be only fair that you would have 
the benefit of that objection.

MR. BUSDICKER: Yes, your Honor, I had under­
stood that at the commencement of the trial 
Mr. Lowden indicated that with respect 
to such objections as he was making would 
be made for all corporate defendants.

THE COURT: Yes, that was my understanding.
MR. BELTON: We would like for the Court to

consider this document not only for the 
question of violation but the Court still 
has to consider the question of back pay 
and we think this document might go to that 
issue, also.
(W-2 FORMS, identified as Plaintiffs' Exhibit 
No. 72, admitted in evidence.)

MR. H3LTON: In order that we might be in
proper prospective, your Honor, with the 
introduction of this document, plaintiffs 
rest their case.

PLAINTIFFS REST



-557-

981.

MR. LOWDEN: Your Honor, the corporate
defendants would like at this point to 
make several motions to the Court if 
that is in order..

THE COURT: As we used to say in state
court procedure, you'd like to have a 
Friday afternoon nonsuit, wouldn't you?

All right, sir, make your 
motions. Are you going to want to be 

heard on these?
MR. LOWDEN: I think I'll just make them,

your Honor. The corporate defendants 
move the Court to dismiss the action in 
its entirety for the reason that plaintiffs 
have failed to show that the defendants have 
violated any provision of Title VII of the
Civil Rights Act of 1964;

* 2. All of the corporate
defendants move the Court to dismiss from 
this action any issue as to injunctive 
relief for the reason that the corporate 
defendants have been and remain willing to



982.
agree to the entry of a consent order 
providing for injunctive relief in the 
form submitted to the Court.

THE COURT: Let me inquire, does that
have reference to something that was left 
on our desk at the beginning of the week?

MR. LOWDEN: Yes, sir. I stated at the
outset of this hearing that we would be 
willing to accept it regardless of 

THE COURT: Reason I asked you that was
+--ha> T have not reviewed that document
in any detail, I've just scanned it. 
Your motion necessarily involves the 
consideration of its contents in depth.

Go ahead.
MR. LOWDEN: 3. The corporate defendants

move the Court to dismiss and strike from 
this suit any and all claims for monetary 
relief for the reason that plaintiffs have 
failed to carry the burden of showing the 
entitlement of any member of the class

to any monetary relief.



4. The corporate defendants 
move the Court to dismiss and strike from 
this suit any and all claims for monetary 
relief for the reason that plaintiffs have 
failed to show that this is an appropriate 
situation for the Court to exercise its 
discretion to award monetary relief.

THE COURT: That's the same motion but
for two reasons, is that correct?

MR. LOWDEN: Yes, sir. If the Court would
care to hear argument on those at this 
time we are prepared to make it. But in 
any event I wanted the record to show 
these motions at this point. I believe 
some of the other corporate defendants 
have motions, also.

MR. BUSDICKER: I was waiting, your Honor, to
determine the response to these.

THE COURT: Well, you intitially said that
you did not propose to argue the motions 
at this time and it valid be my preference 
to reserve rulings and allow full argument

-559-

983.



-560

984.

by counsel on all sides. I think if we 
have witnesses who are here that we should 
go ahead and accommodate them as best we 
can and when they're back at their 
occupations we can still be arguing law 
here. Mr. Busdicker.

MR. BUSDICKER. As Mr. Lowden has indicated,
the motions that he just made were on 
behalf of all corporate defendants, and 
on behalf of defendants Hoerner Waldorf 
and New Albemarle, I'd like to make the 
following additional motion:

First of all, as to the 
defendant Hoerner Waldorf Corporation, 
we move the Court to dismiss the suit 
for the reason that plaintiffs have failed 
to show defendant Hoarier Waldorf Corpora­
tion has had any connection with the acts 
alleged in the complaint or for that matter 
the acts referred to in the plaintiffs' 
portion of this suit sufficient to make 
out any tolerable claim against this
defendant;



-561-

On behalf of defendants,
Hoerner Waldorf and New Albemarle, we 
make the additional motions that the 
complaint and the suit should be dismissed 
for the reason that it is barred by the 
statute of limitations for the reasons 
more particularly set forth in our pre­
trial memorandum;

Secondly, that the suit should 
be dismissed for the reason that the Court 
lacks jurisdiction over the subject matter 
as pertains to the two moving defendants 
in that the plaintiffs have failed to show 
that they have exhausted administrative 
remedies before the EEOC, that it has been 
affirmatively shown no charges were filed 
against these defendants before the EEOC, 
that no letter of authorization was 
received from the EEOC;

We further move that the suit 
be dismissed as to these moving defendants 
for the reason that the plaintiffs have

985.



-562-

been shown to have been guilty of laches 
in their delay in bringing into issue 
or attempting to bring into issue the
matter of monetary relief;

These defendants further move

the Court that the Court should dismiss 
and strike from any claims against them 
any claims for back pay or other forms 
of monetary relief for the period prior 
to October 31, 1968, that being the date 
when New Albemarle acquired assets of 
and from Albemarle Paper Company, a
Virginia corporation, and

Finally, these defendants
move the Court for a dismissal of the 
claims against them for the reason that 
there has been no showing of any violation 
of Title VII during the period when New 
Albemarle owned and operated the assets 
consisting of the paper mill at Roanoke

Rapids.
THE COURT: All right, sir.

Ethyl Corporation?

986.

And the



-563-

987.
MR. BLANCHARD: May it please the Court, the

defendant Ethyl Corporation moves that 
the action be dismissed for the reason 
that there has been no showing that Ethyl 
has any connection with the matters alleged 
in the complaint or brought out during the 
hearing of this action.

Secondly, we move to dismiss 
on grounds that the Court does lack juris­
diction over the subject matter as it per­
tains to Ethyl Corporation for the reason 
that the plaintiffs have not exhausted their 
administrative remedies before the EEOC,

And we further move to dismiss 
on the grounds that the plaintiffs have 
been guilty of laches in their tardiness 
in bringing forth any monetary claims 
against this defendant, for the further 
reason, also", that we feel that the claim 
is barred by the statute of limitations.

We further move to dismiss the 
action particularly as it relates to any



988.

claim against Ethyl Corporation subsequent 
to the date of October 31,1968, when 
all of the assets of the defendant Ethyl 
were transferred.

THE COURT: All right, Mr. Woods?
MR. WOOD: Your Honor, the defendant Union

moves to dismiss because no violation by 
the union defendant has been proved.

With respect to the injunctive 
relief part of the case, we continue to 
be willing to sign any decree adapted to 
this particular plant and similar to other 
decrees which other Courts in the South 
have applied to the paper industry, with 
respect to the seniority system.

We also move to strike the 
claims for monetary relief on the same 
grounds that other counsel have recited.

We take no position on the 

testing issue.
THE COURT: All right, sir. Then your

motions are recorded for the record, I 11

-564-



-565-

MR.

THE

MR.

take them under advisement and full oppor­
tunity will he afforded all counsel to 
argue the motions.

CHAMBERS: Your Honor, I just wanted to
make one inquiry. The second motion of 
the company, Albemarle of Virginia, re­
ferred to the proposed consent order, 
that it had submitted, and we would like 
to request that in order that the record 
be complete in this connection that that 
matter be placed in the record with the 
defendant's motion, that is, the proposal 
that was submitted.

COURT: Of course, if he incorporates
that proposed decree in his motion, it 
necessarily becomes a part of the record 
before 'the Court. I don't understand that 
that would entitle it to an exhibit number, 
if that's what you had reference to.

CHAMBERS: No, we were not asking that it
be given an exhibit number, rather that the 
record reflect that it was included with his

989.



-566-

TIIE
MR.

MR.

MR.

motion so that the motion would be.complete.
COURT: Any objection to that?
LOWDEN: I have no objection whatever

to having that part of the consent order 
to which we are willing to agree without 
their agreement in the record, and the rest 
of it to which we have not agreed to be 
excluded, to-wit, paragraphs 15 and 16,
I believe.

CHAMBERS: Your Honor, we think the complete
document should be a part of the record.

WOODS: Your Honor, I would object to
the complete document; as I understand from 
what Mr. Lowden said, he is offering only 
to consent to the injunctive relief portion 
of the document he placed before your Honor.
The union defendant is likewise willing to 
consent to that injunctive relief or any 
other that is appropriate in this case.
But by no means are we willing, as Mr. Lowden 
indicated, to consent to the bottom portions 
of that document which dealt for purposes

990.



-567-

991.

of compromise, with such highly controver 
sial items as attorneys' fees and back •

pay.
MR. BUSDICKER: If I may just comment, your

Honor, I believe that Mr. Lowden's state­
ment at the commencement of this trial 
was quite clear, that this was in effect 
a tender and an indication of a willingness 
to consent to injunctive relief only.
Now, if Mr. Chambers wants to have that 
to which Mr. Lowden referred in the open­
ing of the trial and in this motion 
incorporated into the record as an attach­
ment in a sense to the motion then I 
think that certainly at the opening of
the trial on Tuesday morning we will have 
a copy of the precise language to which Mr.

Lowden referred.
the COURT: All right, I suggest that you

have that. I agree with counsel for the 
defendants that proposals of settlement

not accepted and not agreed uponwhich were



-568

have no place in the consideration of 
this motion and as I told you before, 
with the exception of one figure, I 
don't know what they are and don't care 
to know.

MR. CHAMBERS: We just have a couple of
responses. One is that the Courts have 
been talking about relief in these cases, 
talking about equitable relief, and we're 
not talking about damages. WTe are talking

i

about back pay as a form of equitable 
relief.

THE COURT: He says he's willing to what
he calls injunctive relief and he has in 
mind as I take it some modification of the 
seniority system, and they all seem to 
be in agreement on that and the fact of 
the matter is I believe they have stated 
and I understand that it was seriously 
contested that you were wining to go along 
with that phase of it. What I'm saying is 
if there are additional proposals by way

992.



-569-

993.

of compromise I don't think they have 
any part in this record.

MR. CHAMBERS: First of all, we did not
agree to the injunctive relief that they 
were talking about. And secondly, we think 
that the document that they are referring 
to should be included in the record because 
we look at equitable relief in the complete 
totality that the Fourth Circuit and other 
Circuits have referred to. And that is 
the reason we requested that it be included 

with the motion.
THE COURT: All right, sir. Well, I'll

overrule that. And I direct counsel for 
the defendants to lift out of whatever 
that proposal was those portions which 
you now want considered in connection 
with this motion, and as Mr. Busdicker 
suggests f have it available by Tuesday 

morning.
MR. LOWDEN: There is one other matter that

we think essential and I believe this is



-570-

the time to bring it up. We still would 
ask the Court to take a view of the plant.
It is our suggestion that if counsel 
insists on that view, we can have Mr.
Julian Allsbrook represent the corporate 
defendants and I believe he is available 
to go with you any time that is agreeable.

We think it’s almost impossi­
ble to comprehend all the things that we 
have been talking about without actually 
seeing it - a paper machine, see what 
it looks like, see what a pulp mill is;
I'm sure you know what a power plant is 
but we do have one there. We think 
that for the clarification of a lot of 
these questions, the Court really ought 
to see it and we so move at this time.

THE COURT: All right, sir. I had determined
in my mind that I would go to Roanoke 
Rapids and look at the paper mill. And

i

of course, I'd be pleased to be accompanied 
by the senator. I will not do that unless

994 .



-571-

there is representation from the plaintiffs. 
MR. LOWDEN: If there is no representation

from the plaintiffs we will not have Mr. 
Allsbrook there.

THE COURT: I know it1s a long way from
Charlotte where these gentlemen are from

995,

to Raleigh and it's ninety miles further 
to Roanoke Rapids. But Mr. Clayton is 
not too far from Roanoke Rapids and if 
he would like to be there I'd be pleased 
to have him as representative of the
plaintiffs.

MR. CLAYTON: If your Honor pleasQ we were
just discussing that and I could make 
myself available if it isn't Sunday.

THE COURT: Let me inquire about how long
counsel feel that this tour will require.

MR. WOODS: About an hour and a half
I would guess.

THE COURT: Is this mill in operation seven
days and three shifts?

MR. LOWDEN: Yes, your Honor.



(CONFERENCE BETWEEN COURT AND COUNSEL)
m zvll -ricrht. I'll meet Mr.THE COURT: Ail
Allsbrook and Mr. Clayton at the m a m  
gate of the plant in Roanoke Rapids at 
3:30 on Monday afternoon.

MR. LOWDEN: Your Honor, we re-call Mr.

Bryan.



-573-

MR.

Q

A

997.

JOHN E. BRYAN, JR., re-called, testified 

as follows:
LOWDEN: DIRECT EXAMINATION

I believe when we were interrupted you 
had finished discussing the lines of 
progression, had you finished, Mr. Bryan?
I believe I can pick up where we left 
off . With regard to seniority being 
applied within the lines of progression, 
j think it is important to understand 
that, as I said earlier, these lines of 
progression are jobs that are related to 
one another and people in these jobs work 
together as a team to accomplish a given 
part of the mill's function.

For example, the wood yard 
department has the responsibility for 
getting the chips to the pulp mill; 
receiving the wood in the form of logs 
or in the form of chips and turning the 
logs into chips, and turning that over 
to the pulp mill, and the pulp mill in turn



-574-

takes the chip and makes it into pulp, 
sends the pulp on to the paper mill 
and the paper mill makes the pulp into 
paper, to give a very simple flow 
there, to show that these jobs in the 
wood yard department are related to 
each other in accomplishing that function 
but are not related to the paper mill, 
or to the pulp mill. And it is an 
occupational grouping and also the line 
of progression furnishes a career 
opportunity for an individual to progress, 
so that when he's hired in and he goes 
into a particular line of progression 
he knows what his job opportunities are, 
he knows what he has to learn in order 
to reach and to reap those opportunities.

But what he learns in the wood 
yard, for instance, would be of no help 
to him in the paper mill. It's not 
something that is peculiar to paper mills, 
this is found in all forms of occupations,

998.



-575- 

999 .
such as, well, we've even got a dozen 
or so lawyers here today and the lawyers 
here have many, many yars of experience 
but I'm sure that none of them would 
want one of their brother lawyers to 
operate on their appendix --

MR. CHAMBERS: We move to strike that, your
Honor.

THE COURT: Well, I don't think it's
material; he's using it for an illustration; 
go ahead.

A The same sort of thing applies to these
lines of progression. They are occupa­
tional lines in and of themselves, the 
jobs within the line being related to 
each other but not to jobs in other lines 
of progression.

Now, to go on with how this 
particular seniority system is set up, 
it is a very common seniority system.

The next paragraph, 10.1.2,
has to do with those rare situations



-576-

1000.

when an employee does not desire to 
accept a job advancement that is offered 
to him. There is a penalty contained 
in here regarding his loss of seniority 
status if he so elects.

For instance, if the sixth hand 
on a paper machine were offered the 
fifth hand job and declined it, then 
the reason for the penalty is that this 
would tend to what we call freeze that 
sixth hand and he would be blocking the 
line of progression, meaning that people 
below him would not have the opportunity 
to work up into this line of progression 
during vacations and this sort of thing 
in order to learn the next higher job.
And there is a problem in training to 
get the seventh hand past the sixth 
hand up to the fifth hand if they by-pass 
the work of the sixth hand, because it's 
filled with frozen people.

Then when they are in the higher



-577-

jobs, they don't know the functions 
of the lower job, having no experience 
in them and this is essential as I explain­
ed earlier, to the efficient operation of

the paper machine.
10.1.3 again takes care of

exceptional situations. Normally sen­
iority is followed in promotions, assum­
ing that the people are qualified, but 
in such cases when the senior man is not 
selected the union committee must be 
notified by the company in order for 
the union to review the situation and 
determine whether or not they wish to 
contest it throuc^the grievance procedure.

For the company's protection, 

the next portion of this paragraph 
normally there are people in the lower 
jobs qualified to go up to the higher 
jobs. Where this does not exist, 
these rare cases, then this gives the 
company the right to select someone

1001.



-578-

1002.

from another department, after discus­
sion of the matter with the union 
committee, again, so that the union, 
if it desires to contest it, may do so 
through the grievance procedure.

But this is a rare sort of 
thing for this to occur and when it does 
occur it's often due to people being 
frozen because they were unable or 
unwilling to advance higher in the line 
of progression.

10.1.4 has to do with 
employees promoted to supervisory 
positions outside of the bargaining 
unit, represented by the union. It 
provides that the supervisor will retain 
his seniority back in the unit for no 
more than six months. The union insisted 
on this clause to force the company to 
not make selections of supervisors and 
put them on trial and then move them 
back because when they move them back it



-579-

1003.

adversely affect the status of at least 
one or more employees in the bargaining 

unit.
Seniority is of such nature 

that where one person is favored by any 
seniority provision, there is always 
another person who is adversely affected.

10.2, as I said earlier, 
normally an employee stays in the same 
line of progression his entire working 
career. However, there may be instances 
in which the person initially elects to 
go into one line of progression and then 
he gets in there and finds it's not what 
he thought it was or the opportunity 
doesn't look so good to him, he doesn't 
like the work, or whatever his reason 
might be, so a provision has to be made 
to let him apply for transfer to another 
department or line of progression.
This is what 10.2 is about. He does 
this by making apiication to his foreman



-580-

1004.
to the personnel department.

Mow, the company retains 
the right under this provision of the 
contract to grant or deny this request 
for transfer because the company has 
an investment in the training of these 
people and if it were too easy to obtain 
a transfer the people could possibly 
be moving all over the mill like 
checkers without any regard to the effect 
that it has on the efficient operation 
of the mill, and the loss of investment 
in the training of the individual.

This particular clause is 
one that has been in the contract many, 
many years. It goes back as far as we 
were ever able to research in the 
history of contracts between this company 
and the unions at this particular mill.

Part of the paragraph has 
to do with persons retaining or losing 
seniority upon transfer and the last part



-581-

where the transfer is effected at the 
request of the company, for some 
peculiar reason there is not someone 
qualified within the line of progression, 
the company may request an employee 
from another line to move over and take 
the promotion and then such an employee 
keeps his seniority in his old department 
and line for a longer period of time 
because it was on motion of the company 
and not his own motion that he did this.

In 10.3 there are definitions 
of the various types of seniority used 
in this system - jofĉ department and plant 
seniority. And all of this is based on 
the general principle set forth in the 
first paragraph of this section, that 
qualifications come first, and this 
is a traditional point of conflict 
between this company and this union and 
in fact between companies and unions in 
general, the employer wanting qualifications

1005.



-582-

to be the only consideration on the 
one hand and the union wanting seniority, 
plant seniority, generally to be the 
only provision upon which personnel
movements are based.

The unions take the position 
because they contend that leaving the 
determination of qualifications to the 
employer leaves it open to some disagree­
ment to perhaps partiality and various 
other considerations there, whereas the 
employer naturally takes the position 
that length of service itself is no 
criteria for advancement nor for reten­
tion in the event of lay-off.

Now, in this particular 
contract, typical of union contracts 
in that the parties have reached a 
compromise position, and put a great deal 
of emphasis upon job seniority in rela­
tion to the other points of seniority.

1006.

The term 'job seniority'



-583-

as used in this contract means the 
total length of continuous service 
in a particular job classification.
And it is cummulative within the line 
of progression. For example, to use 
the paper machine line again, an 
individual who has held only the 
bottom job of spare hand on number 4 
machine would have job seniority 
for that particular job classification 
dating from his entry into that job 
classification.

Now, as that person pro­
gresses up the line to machine tender 
then when he becomes a machine tender 
he has job seniority dating from his 
date of classification as a machine 
tender, but if there should be a reduc­
tion in force back down the line, say 
one of the paper machines was decommissioned 
and he ended up in one of the lower jobs, 
if he got all the way to the bottom, spare

1007.



-584-

hand number 4, and held up there it 
would be on the basis of his total 
job seniority in that line of progression, 
in other words, spare hand number four, 
plus seventh, sixth, fifth and so on 
up to machine tender, and this is then 
tantamount to department seniority 
and further, in most instances, is 
tantamount to plant seniority because 
of the fact that people go into and 
day in the same line of progression 
throughout their working career.

Therefore, when it comes to 
actual lay-off from the bottom job in 
a line of progression, it is based on 
not job seniority as such but really 
on plant seniority, the oldest man gets 
to stay as long as there's one job there.

And this principle is applied 
below that to the extra board in that 
people are laid off from the extra board 
when it becomes necessary to reduce the

1008.



-585-

1009.

size of the extra board, on the basis of 
the one with the least plant seniority- 
going first, plus people are assigned 
work from the extra board to temporary 
openings in the various departments on 
the basis of their plant seniority unless
they had previous experience in the type 
of work that is being called for.
And of course, those people have first 
call back to it in order to utilize 
their qualifications.

THE COURT: Did that answer your question?

MR. LOWDEN: Yes, sir.
q Now, there has been a discussion about

fhp extra boards, would you make an
explanation of what the general extra 
board was and the utility extra board, 
and how they worked? Just briefly.
The extra board is a form of labor pool 
and I believe they were probably first 
conceived by the railroads as extras 
to fill in when the regular employees



-586-

ware not available and to also fill 
in for vacations or what have you.
And they had to have a certain number 
of people to run t e train. The same 
sort of situation applies in this paper 
mill, that when someone was absent but 
it was known to be not a permanent 
thing, then this job had to be manned, 
every one of these jobs have to be filled 
at any given time. The mill runs twenty- 
four hours a day, seven days a week and 
you've got 365 days a year - as business 
demands and as negotiations with the

union will permit.
Eut instead of trying to just

go out and hire people temporarily to 
fill in maybe for just a shift or maybe 
for a week, as the ca^ might be, that 
would be an impossible situation. This 
labor pool was developed with the people 
employed who appeared to have potential 
for filling regular jobs in the future

1010.



and then they were listed so that when 
there is a need for a person to fill 
a job,it's the top job, if the machine 
tender is absent, everybody moves up 
on a shift, and that takes in another 
paragraph of this seniority section. 
Then the bottom job is filled from the 

extra board.
Nov/, we had up until the 

summer of 1968 X believe, two extra 
boards, the general extra board and 
the utility extra board. The people 
on the general extra board were people 
v/ho had the potential for filling jobs 
in the skilled lines of progression. 
The people on the utility board were 
people who did not have the potential 
for filling jobs in the skilled lines 
of progression but who could satisfac­
torily perform in the unskilled lines 
of progression.

THE COURT: Were the members of the
utility board all black?



-588-

1012.

A They were not after some time I believe
in early 1964, your Honor.

THE COURT: But there was a merger of the
+-wn hoards in 1968?

A Yes, sir.
THE COURT: Go ahead.

MR. LOWDEN:
q You may go ahead.
A The utility board, for example, in 1965,

fed the chipper line of progression in 
the wood yard and the service crew line 
of progression, and the brokeman line of 
progression, to name a few. And the 
general board, for example, fed the 
paper machine line of progression in 
the B mill, and the paper machine line 
of progression in the A mill, and the 

. digester and recovery lines in the pulp 

mill, as examples.
THE COURT: Was the general board at any

time all white?
A Yes, sir, at the time that I was employed



-589-

by Albemarle it was all white. The 
first blacks that I know of that went 
into it went in I believe in early '64.

THE COURT: Well, the two boards were
then integrated about that time and 
in 1968 they were merged?

A Yes, sir.
MR. LOWDEN:
Q Nov;, looking at the appendix attached to

the agreement dated September 1965, I 
believe you have it in front of you,
Appendix F., would you indicate to 
the Court which are the skilled 
lines of progression and predominantly 
white and which are the unbilled and 
predominantly Negro, historically,
I guess you would say?

A Well, in 1965 the yard crev; line of
progression in the wood yard was fed off 
the general board, as was the paper 
machine line in the A mill, the beater

1013.

room in the A mill, the finishing crew



-590-

1014.

and shipping crew lines in the product 
department of the B mill; the lines in 
the pulp mill, encompassing the the 
line is a forking line, the digester, 
recovery operation, and the caustic 
and the boiler operator in the old 
boiler room, fed out of the pulp mill 
department. That was out of the recovery 
part of the pulp mill which also has 
boilers; and the paper machine line of 
the B mill* the stockroom line of the 
B mill, the new power plant department, 
and in the technical service department, 
both lines of progression there were 
the mill and the laboratory, testing 
lines of progression; all others were 
fed off the utility board.
What were the educational and test performance 
requirement for people who went to the 
general extra board, new employees going 

on there?
High school education and satisfactory



-591-

Q

A

THE

A

MR.
Q
A

1015.

performance on the Beta and the Wonderlic.
Of course, these tests - I don't mean 
to imply these tests were the only 
criteria. People were interviewed and 
their pcist experience was considered 
with other qualifications of that type 
aid they were checked on as to their 
competence in performing past jobs 
and their character and that sort of thing. 
Were there any such requirements for the 
utility extra board?
Yes, sir, all of those that I mentioned 
with the exception of the educational 
requirement and the testing requirement, 
we did not have those.

COURT: Do you know what the cut-off
scores were for those tests?
Yes, sir. In the Beta it was 100, and 
on the Wonderlic it was 18.

LOWDEN:
On both tests?
On either. We gave two forms of the



-592

Wonderlic, A and B, to all the appli­
cants, and a score of 18 on either one 
would suffice. The reason we gave 
two was because some people may not have 
been accustomed to taking a test and 
it is a timed test and they could call 
the first one for practice if they 
wanted to, as long as they got an 18 
on either one.

Q All right, sir. I think you were asked
about paragraph 10.4.1. Would you pick 
up from there and give us a little 
further explanation of seniority?

A Yes, sir. This paragraph 10.4.1 means
that vacancies will be filled and 
reductions in force accomplished in 
accordance with the following procedure; 
this makes cross-reference back to 10.1.1 
which has the qualifications involved in 
it, so this is assumed throughout this.
But assuming qualifications are relative­
ly equal, if the vacancy is expected to

1016.



-593

1017.

continue for a period of more than two 
weeks then people will be considered 
for promotion across shift lines. Or 
if the reduction is anticipated to be 
for more than two weeks then people 
will be moved across shift lines to 
take care of the reduction.

Then we have another provision
in the next paragraph as to how this 
takes place if the vacancy is to be less 
than two weeks, and the reason for 
this distinction is that you've got 
four groups of people in the shift groups 
that man a paper mill, in order to cover 
the work twenty-four hours a day, seven 
days a week. They rotate and according 
to a schedule and one particular group, 
group A, let's say, is on the first 
shift for several days and then they go 
to the third shift and then to the second 
shift and then they're off, this sort of 
thing. This is a schedule they operate on



-594-

1018 .

and if it's for a shorter period of 
time, say a vacancy occurs, somebody's 
out sick, even on vacation for less 
than two weeks, it is impractical and 
uneconomical to move up and fill that 
vacancy across shifts by taking a back 
tender, say the machine tender's out 
and you take a back tender from group B 
and move him across to fill in on the 
shift that group A is working.

This is I say impractical 
and uneconomical because it disrupts the 
efficient working of this crew that work 
together as a team to put a stranger, 
so to speak, in amongst them there., in 
the first place, and then these people 
also have some personal considerations.
They may ride to work in car pools 
and they've got their personal schedules 
to fit this particular schedule and if 
you just move them for a short period of 
time they may not get any sleep that



-595

particular day.
Furthermore, under the union 

contract, the company has to pay time 
and a half for work over eight hours in 
a given day, in a twenty-four hour period. 
And if you move a person from one shift 
to another within the twenty-four period 
he would have worked sixteen hours and 
the company will be having to py a 
premium because somebody's absent. These 
are some of the reasons.

Then we have the two procedures. 
If less than two weeks then they move up 
within the shift or move down within the 
shift but the next paragraph says if the 
vacancy is for more than two weeks 
then we make an adjustment across shift 
lines. Because it voildn't be fair to 
the back tender, for instance, in a 
situation where that machine tender had 
say broken his leg and is going to be 
out for three months, to put a less

1019.



-596-

1020 .

senior back tender up just because'he's 
on the same shift.

10.4.4 is another case where 
an exception is taken care of and you 
get into this with union contracts where 
there has been a long history of nego- 
tions between the parties and the exper­
ience is that the contracts get longer 
and longer to take care of the exceptions.

It's a normal thing for the 
company to promote within the shift if 
it's going to be two weeks or less and 
the company wants to do this. But there 
may be times, because of the people 
being frozen in the jobs,that the line 
is blocked and the company may find it 
necessary to ask an employee to go to work 
on another shift. This sets up how 
this is accomplished.

Back in 10.1.2 there is a 
penalty for an employee refusing a job 
advance. We would get people refusing



-597-

1021 .

a temporary job advancement of this 
type so they have to put in a penalty 
here and this forces the senior employee 
who is qualified in the next lower job 
to take the advancement whether he wants 
it or not; if he refuses, then he is 
penalized seniority-wise.

Do you want me to continue with 
the seniority?

Q Yes. I believe it's section 10.5 that
we're down to.

A 10.5 says that; all of this that I've been
reading about and telling about with 
regard to seniority principles and 
applications does not apply to the 
maintenance department because it's got 
a separate provision applicable to it 
which is Appendix C. and part of this 
agreement.

Q. Do I understand that in the maintenance
department you have an apprenticeship 
program and you enter into that and



-598-

Q

Q

A

1022.

and progress automatically to the top 
if you pass the apprenticeship program, 

is that correct?
That is correct. It is a five year 
training program consisting of on 

job and classroom training.
And when you get through maintenance 
apprentice program what are you classified

as?
As a general maintenance man, I believe 
at the conclusion of the program he goes 
to a maintenance man "C", and continues on 
through maintenance "C" and "B" is the 
last step through the program until he 
gets up to an "A" maintenance employee, 
who is a generalist who performs all 
of the different crafts and trades involved 
in the maintenance of the equipment in 

the mill.
We do not have crafts as such in the 
maintenance department?
No, sir, this has been a most important



-599-

1023.
point for this company to maintain 
a generalist type mechanic who can 
and does do all of these trades that 
sire listed in Section C.1.4. And this 
is the purpose of the training program, 
to train him to be able to do all of 
these things.

Q There has been reference made many times
in this case that the company has no 
job descriptions, is that true?

A Yes, sir, that is true, there are no
job descriptions for jobs in this 
bargaining unit.

Q Tell the Court why that's so?
A There are several related reasons for that.

As I indicated earlier, for instance, in 
using this B paper mill line of progression 
as an example, the people in these jobs 
work together as a team and they have 
to work together as a team. Therefore, 
there is no really clear-cut distinction



-600-

between one of these jobs and the 
next lower job in any instance. There 
is a more clear-cut distinction between 
back tender and machine tender than there 
is between say seventh hand and sixth hand. 
These people are working as a team at 
different places around the paper machine 
and therefore, the company does not want 
to be restricted by definitive job des­
criptions. For instance, that the union 
might throw up to the company and say,
"this person is working out of classification, 
stop the mach'.ne and file a grievance and 
have a lot of litigation on it. This 
is a common source of dispute between 
companies and unions.

I have been in situations 
with other employers where it severely 
handicapped the efficient operation of the 
plant. It is a very costly sort of thing. 
Because this company has resisted union

1024.



-601-

THE

MR.
Q

A

union demands to describe these jobs, 
the idea has been that it could only 
result in less efficient operation of 

the mill.
COURT: 1 think this is a good time

to take a little recess. Suppose we 
go and come back at 3:25.

(Brief recess)

LOWDEN:
I believe we were down to seniority 
section 10.6, would you give us a bird s 
eye view of that one?
This paragraph has to do with employees 
who are on lay-off due to lack of work 
and for purposes of the company knowing 
who wants to come back to work and who 
is available to come back to work, they 
must give in writing notice to the 
company each thirty days following lay-

1025.

off of their current address at which



-602-

1026.
they may be corlacted, and signifying 
their continued interest.

10.7, where one employee 
has bypassed another employee who had 
more seniority but the first employee was 
either not qualified or not interested 
in the promotion, then the one who does 
the bypassing is deemed to have one day 
more seniority than the bypassed employee. 
This is a penalty to the person being 
bypassed.

10.8 is a clause that the 
company asked for to limit its liability 
in the event it makes an error. This 
came about by virtue of an error being 
made in applying the provision; in that 
particular instance, the company felt 
that either the employee or the union 
had known about it and not called it 
to the company's attention and let the 
meter continue to run, so the company 
insisted on this protection, that if



-603-

1027.

the employee and/or the union doesn't 
call it to the company's dtention then 
it doesn't have any liability for correc­
tion of the error.

10.9.1 sets out how seniority 
may be lost and an employee in a bargaining 
unit covered by a contract loses his seniority, 
he loses his right to his seniority status.

Job seniority is lost by transfer 
to another line of progression extending 
beyond the period specified in the para­
graph concerning transfer. It is also 
lost by transfer to another department for 
a period extending beyond such time, and 
by resignation or retirement of the employee, 
or by discharge of the employee by the 
company. It is lost also by absence due 
either to lay-off or disability for a 
period equal to plant seniority but in no 
event in excess of two years. So an 
employee retains his recall within that 
period, his recall rights for that period



-604-

1028.

of time.
He may also lose his 

seniority by failure to comply with 
the previous section, 10.6, with 
regard to notifying the company during 
lay-off of his interest in returning 
and this address.

Department seniority is 
lost by B through F of those above, 
obviously if he transferred from one 
line to another in the same department 
he still retains his department seniaity.

Plant seniority is lost,
C through F; he still retains his plant 
seniority even if it's a transfer from 
one line or a department to another one.

10.9.4 has to do with an 
employee on lay-off and says that he continues 
to accumulate seniority during the first 
sixty days of the lay-off. But if his 
lay-cff extends beyond that, he doesn't 
lose the seniority he already has but he



doesn't accumulate any additional 
seniority for time not worked. And 
the last sentence has to do with when 
a laid off employee is eligible to receive 
holiday pay and when he is not.
I believe that basic seniority system 
was negotiated in 1963, is that correct?
Yes, that is correct.
And then in 1965 it remained substantially 
unchanged, at least as far as this case 
is concerned?
Yes, sir.
And in your capacity as the personnel 
manager at the Roanoke Rapids mill and 
director of industrial relations for 
Albemarle Paper Company, was it your 
responsibility to keep yourself 
informed and advise your management of 
the company with respect to developments 
in the law, such as civil rights, and 
so forth?
Yes, sir. That was part of my responsibility

1029.



1030

to keep up with any area of law or 
other matters relating to the various 
functions under my jurisdiction which 
included employment practices and labor 
relations and this sort of thing.
Were you aware of the presidential 
executive order having to do with civil 

rights?
Yes, sir, I was aware of that at the time 
the first order was issued prior to my 
going with Albemarle Paper Company.
I bdieve that order was executive order 
10,925 issued by President Kennedy in 1961? 

Yes, sir.
Prior to the passage of the Civil Rights 
Act in 1964 —  strike that —  was the 
Albemarle Paper Company subject to the 
provisions of the executive order number 

10,925?
$o, sir, not during my period of employment 
I believe that order has something to



-607-

1031.

do with taking affirmative action, 
is that correct?
Yes. It was a presidential order to 
government contractors requiring them 
to in the first order develop and apply 
policies of non-discrimination in 
employment with regard to race, creed 
and color and further amendments to 
that order and regulations issued by 
the various agencies that were concerned 
with the administration of the order 
said that government contractors had to 
not only not discriminate but to adopt 
programs and plans for affirmative action 
to get minority groups'equal employment 
opportunity, to ensure that they did get it.

Q Did you at any time prior to the passage
of the 1964 Civil Rights Act, which 
is something different, did you take any 
affirmative action?
OBJECTION: OVERRULED

THE COURT: Did you finish the question?



-608-

1032.
MR. LOWDEN: Yes, sir.
THE COURT: Is the question 'did you take

any affirmative action?'
MR. LOWDEN: Prior to 1964.
THE COURT: With respect to what?
MR. LOWDEN: Equal employment opportunity.
A Yes, sir, I assume you mean with Albemarle.
Q With the Albemarle Paper Company.
A One of the first things that I recommended

and that we did was with regard to the 
maintenance apprentice program, the first 
year that I was there, in 1963. The 
opening of the program was advertised 
and listed in the plant and otherwise 
through the community, but we didn't 
get any Negro applicants for this 
program and in the course of the ensuing 
year before the next class was to begin 
about September of 1964, we embarked 
upon a program to solicit and encourage 
incumbent Negro employees to apply for 
participation in the program. And this



-609

1033.
resulted in I believe one being 
selected in the class that began training 
in September 1964. And this selection 
process started some months previous 
to that.

I think after the passing 
of the Civil Rights Act of 1964 but before 
the effective date on July 2, 1965, we 
took some affirmative action and steps.

Q What were they?
A We had not had any applications for

transfer on the part of any of the black 
employees from these unskilled lines of 
progression to the skilled lines of 
progression, and we thought it would be 
a good idea to encourage them to make 
application. And again we solicited and 
advertised, first for those who had 
a high school education or equivalent 
to come in and talk with us about it.
As a matter of fact, we went through 
the records and tried to find those who



-610

had such qualifications and talk with 
them. I talked with a number of them 
personally, myself, to encourage them to 
make application and those who were 
interested, we gave the Wonderlic and 
Beta tests to and those who qualified 
on that, I believe all who qualified were 
moved into the skilled lines of progression. 
They started working from the general 
extra board if there was not an opening 
available at the time. But they began 
to move into these lines of progression 
prior to the effective date of the Civil 
Rights Act of 1964. And subsequent to 
that, there wasn't but a handful that 
had a high school education. So we 
then decided to waive the high school 
education requirement per se if we 
could be satisfied that they had the 
educational background to handle these 
jobs, and we decided to let any who

1034.



-611-

wished take the Wonderlic and the Beta 
and if they demonstrated by that means 
that they could handle the jobs and had 
the learning ability, we would place 
them in. This was explained to them 
and they were sent letters or memos 
about this and they were called in 
and talked to about this and a number 
of them availed themselves of the oppor­
tunity; a number of others refused, and 
this resulted in some more going into the 
skilled lines of progression.

Q Do you recall approximately when charges
. were filed by ite named plaintiffs in

this case, that is, Moody, Mitchell, 
et cetera?

A Yes, sir.
Q Approximately when was that?
A It was in July of 1966. We were notified

by the EEOC that there was a charge 
filed against us and subsequently when 
we got the charge it wxs dated as having

1035.



-612

1036.

been signed by plaintiff or plaintiffs 
in January I believe, of 1966, and 
subsequently the EEOC told us that 
they had received the charge in 
May I believe of 1966. We had heard 
someting through the news media 
that there was a charge against us some 
time before wc were notified that there 
was a charge.

Q Do you know when it was actually served
on the company?

A The date it was served?
Q Yes.
A I don't recall it.
Q Do you recall whether the EEOC gave us

an opportunity to reply to that charge?
MR. CHAMBERS: Your Honor, we object.
THE COURT: I'll hear you on that.
MR. CHAMBERS: I don't know if it's the company's

position that evidence of transactions 
with the EEOC are supp>se to be relevant



-613

to this proceeding; if so, then we 
would like to go into some additional 
information about the proceeding 
before EEOC. Additionally, I don't 
see how when the charges were served 
on this company or whether the company 
had an opportunity to respond to the 
charges of EEOC would at all be 
relevant to this proceeding.

THE COURT: All right, I'll let him
answer for the record but I see no 
materiality to it.

A I'll have to ask him what the question
was, now, your Honor.

MR. LOVJDEN:
q ' The question was whether or not the EEOC

ever gave us an opportunity to respond 

to the charges.
A They sent an investigator in and the

investigator told us that we could 
make a statement of position there 
but before the deadline for our sending

1037.



-614

in our statement the plaintiffs filed 
suit in this.court against us so 
that our statement had not even been 
received by the time that the 
plaintiffs filed the suit much less 
a finding of fact or conciliation having

taken place.
3 All right. Subsequent to the filing

of this lawsuit were there conciliation 
meetings with the EEOC, the Equal Employment 
Opportunities Commission, their represent­
ative, and representatives of the 

plaintiffs?
MR. CHAMBERS: Your Honor, again I object.

I object to any evidence now being taken 
relative to the proceedings, conferences 
or whatever with the Commission involving 
this matter; I don't think it's relevant, 
first of all, secondly, the matters that 
go on between respondents and EEOC 
are prohibited from being discussed 
in proceedings of this nature by statute,

1038.



thirdly, we have already gone into this 
matter in the motions that were filed 
by the company in the early stages of 
this proceeding and the Court_ has already 
ruled upon them.

THE COURT: All right. Mr. Lowden, how
is that relevant? And I do seem to recall 

the motions —
MR. LOWDEN: Your Honor, I haven’t asked

him anything about what happened in the 
conciliation meetings; I have simply 
asked him if there’were some and 
the chronological sequence of events 
leading up to negotiations in 1968 ;
I'm leading up to negotiations in 
'1968 contract and the 1968 lines of 
progression.

THE COURT: You say that there’s some
predicate for action taken in your contract 
negotiations in 1968 with the union which 
relates simply to the fact that some 
negotiations were had, and not the

-615-

1039.



-616-

MR.
THE

A

Q

MR.

THE

A

sub stance of the negotiations?
LOWDEN: That's right.
COURT: All right, well, let him answer

the question.
Yes, there were two or three conciliation 
meetings with the EEOC and with the 
attorneys for the plaintiffs who were 

also present.
Can you tell us over what period of time
these meetings were held?

CHAMBERS: Your Honor, we'd like to
♦object again.

COURT: Well, I can't see that that
proves anything, either, I'll let him 

answer that.
• I believe the first meeting was held 
either in the late winter or the early 
spring of 1967. And then there was a 
period of some time between that and 
the next meeting, some months, and 
I believe the last meeting that we 
had was nine months to a year after the

1040.



-617-

first meeting which would put it at 
least in the latter part of 1967, 
perhaps the first part of 1968, I don't 
recall the dates.
Now, turning your attention to the 
negotiations of the contract that is in 
evidence now as the Plaintiffs' Exhibit 
No. 15, and I want to ask you if you 
have a copy of that in front of you 
together with a copy of Exhibit F.
.̂thereto, and a copy of Appendix F. of the 
1965 agreement that you had before?
Yes, sir, I have all three of those 
exhibits in front of me.
With respect to Appendix F. to the 
agreement which is dated September 23,
1968, does that reflect the changes 
from the one that had previously been 
in effect, Appendix F. to the agreement 
dated September 23, 1965?
Yes, sir. There were quite a number of

1041.

changes.



-618-

Q

A

MR.

1042.

Would you explain to the Court when they 
were made and what the changes are?
All right, sir. Negotiations on this 
contract took place in August and early 
September of 1968 and in the early 
part of 1968, prior to the opening of 
thse contract negotiations, we made 
some amendments to the 1965 contract 
with regard to these lines of progression.
The company proposed to the union and 
negotiated with the union and the union 
concurred in the change in the boiler 
room department; if you'll notice by 
comparing the '65 Appendix F. to the 
'68 Appendix F., you will see that in 
the '68 only one line of progression 
appears. And this was negotiated in 
the early part of 1968 prior to the 
contract negotiations —

CHAMBERS: Your Honor, we have set
forth in paragraph 11 of the stipulations 
the matters that are now being testified



-619

to. I don't know if this is ampli­
fication of the stipulations or not 
but this same matter is set forth in 
the stipulations.

THE COURT: Well, let's not duplicate
it if it has already been stipulated,

Mr. Lowden.
MR. LOWDEN: I wanted to amplify what

the effect of that is. I think very 
briefly some of it is in the stipulation, 
but I would like tohave Mr. Bryan make 
an explanation to you of what it means.

THE COURT: I'll let him do it. I seem
to recall that a similar request was 
granted for the plaintiffs with respect 
to someone's testimony. Go ahead.

MR. LOWDEN:
q Let me state to the witness this: that

most of these changes are spelled out 
in the stipulations of facts; could you 
review them quickly and I will to the 
one I want to ask you about.

A All right.

1043.



620

1044.

Go ahead.
Another change that was made in the early 
part of 1968 was in the beater room of 
the A paper mill. On the '65 appendix 
there, notice there are two lines of 
progression there, beater man, brokeman; 
and in the *68 in the upper right hand 
corner you will see that there is only 
one ] \ne of pxjgression.
Now, prior to the merger of those lines, 
the brokeman line came off the old 
utility extra board and the beaterman came 
off of the old general extra board, is 

that correct?
That's correct and the same thing applied 
in the boiler room, boiler operator came 
originally from the general extra board 
through some other jobs and the fireman 
line came from the utility board.

Changes that were made in the 
contract negotiations themselves, in 
the wood yard department, the crane



-621

operator line of progression and the 
chipper operator line of progression 
were dovetailed as shown in the 1968 
Appendix F. into one line of progression 
which was formerly one that came off 
the general extra board and one that came 
off the utility board.

Q And could you tell us how that was merged?
A Well, as I testified earlier, I kept

up with all the developments in this 
area of my responsibility, such as 
cases- that had been ruled upon. Of course, 
there were not many at this point but 
settlements with the EEOC and OFCC and 
what other employers and unions were 
doing, and the foremost one was, at 
that point, particularly in our industry, 
if not in industry in general, was the 
Crown Zellerbach settlement that had 
this dovetailing of these lines in the 
wood yard proposed by Franklin D.
Roosevelt, Jr., meeting with the parties

1045.



-622-

1046.

in New Orleans.
THE COURT: Did y°“ saY settlement?
A Yes, sir.
THE COURT: I thought that was an arm’s

length determination.
MR. WOODS: We settled several, your Honor,

before we got into court.
THE COURT: Judge Heebe made one that did

stick, didn't he?
MR. WOODS: He had the same authority that

you have, your Honor.
We did meet with FDR, Jr., 

then chairman of the EEOC, in New Orleans 
in late '65 or early '66, I believe, and 
did what they're talking about. But 

subsequently, that didn't satisfy the 

government.
THE COURT: All right, sxr.
A That was the state of affairs at that

point in time, and this appeared to be 
what the government at least thought 
would resolve disputes with regard to



-623-

wood yards in paper mills about lines

of progression.
And this dovetailing meant 

that the jobs were ranked according to 
their pay in the two lines of progression 
and then they were intermixed, putting it 
in one line of progression going from the 
lowest pay to the highest pay, and in 
our particular case this me nt that the 
chain opantor's positions of the yard 
crew line of progression fell in becween 
the chipper operator number one and the 
chipper operator number two, to use an 
example of how this dovetailing worked.

The people that were involved

in that retained their seniority status 

that they had on the old job since as 
was pointed out in the testimony of one 
of the witnesses from the wood yard 
yesterday who was a chipper operator 
number two, there were subsequent lay-offs 
and people who had formerly been in the

1047.



-624-

other line of progression in higher jobs 
were reduced down and he held onto his 
job because he had more seniority and 
they went on down and out, in some 
instances. Also, this places the people 
in the course of their seniority as next 
in line for promotion to the next higher 
level job, when the openings occur.

MR. LOWDEN:
Q Did they, in order to do that, have to pass

any tests?
A No, sir.
Q Did they have to meet any high school

requirements?
A No, sir.
Q So the effect of the merger at that time

of the lines was you put them in the lines 
and once you get in there you don't have 
to take the tests or have a high school 

. education any more, is that right?
A That's correct.
Q Go ahead.

. 1048.



-625

k And another change that was made, and
these changes came out of what we had 
found to be the state of development 
in the industry, particularly the paper 
mill industry, at this time. And we 
were trying to put ourselves in a good 
posture in this case, so that there would 
be nothing that we hadn't done that would 
call for injunctive relief.

MR. CHAMBERS: Your Honor, we object to that
and move to strike.
OVERRULED

A We made some changes, and if you'll look
at the upper right hand block of pulp mill 
there is a job of Kamyr operator on the 
left hand side. The Kamyr is a piece of 
equipment that was not related to the 
equipment operated by these other people 
and it should not have been in that 
line of pogression. The other people 
other than the operator himself, who

1049.



-626

1050.

worked in the Kamyr or in other jobs 
such as lift truck operator and laborer, 
and yet they had no opportunity to 
progress to the top job on that piece 
of equipment, the Kamyr operator. So 
we pulled that out and set up a line 
of progression that you see on the '68 
chart, third from the top on the right, 
that is entitled the Kamyr department. 
That-opened up opportunity for those people 
to progress on up and those people in the 
jobs other than Kamyr operator at the time 
were black and the Kamyr operators were 
white. And the Kamyr operators were 
downgraded to stockroom second helpers,
'that' s where they had come from before.

Then the payloader job was 
in a line of progression as shown under 
the pulp mill, the lancer, lift truck 
operator I referred to previously and 
the salt cake man and laborer, but that 
is not in the true sense a real line



-627

1051.

of progression because those jobs 
weren't related. They had just been 
grouped together as unrelated jobs 
and somewhere in the past when parties 
had agreed to put arrows in between 
to provide a line of progression for 
people to get the higher job rather 
than to hire people directly into some 
higher paying job. So it really made 
no sense from an occupational standpoint 
and didn't afford the people in these 
jobs ample opportunity for advancement.
So that pay loader job was placed into 
the service department line of pro­
gression at the top of the line because 
it was a higher paying job than those 
other jobs in the service department 
and it is a piece of equipment that is 
used in the same manner that the Dempsey 
dumpster in serving various other parts 
of the mill, various functions are 
performed throughout the mill, not just



O'

1052.

the wood yard or the pulp mill and so 
forth. So it made sense there to put 
that in at the top of that line of 
progression.

And the service department 
at that time was filled entirely by 
blacks. The lancer job that was in 
that line of progression I mentioned 
in the pulp mill that had unrelated 
jobs, was taken and placed into the 
pulp mill line of progression that 
feeds from the general extra board, 
given some other function and named 
'utility helper', so that those people 
could advance on up as far as recovery 
operator if they were so qualified, 
which is one of the highest paid jobs 
in the mill.

The salt cake man job was 
combined with the job of second fireman 
in the boiler room because neitherof

-628-



-629-

those two jobs is a full tine job and 
they were somewhat related; the second 
fireman moved coal in the boiler room 
and the salt cake man unloaded salt cake 
for use by the pulp mill, so that they 
were jobs that had similar functions 
to perform. And it opened up an opportunity 
for the salt cake man to progress to 
higher jobs that we afforded these firemen 

earlier.
I believe those are the principal 

changes that we made in that Appendix F .
Were they the company's proposals for 
changes in seniority?
Yes, they were.
Did the company and the union agree on 
some changes in the seniority provisions 
of the 1968 agreement?
Yes. The principal change was in this matter 
of transfer that in the 1968 contract 
resulted in paragraph 10.2.1 and paragraph

1053.



-630-

1054.

10.2.2 and paragraph 10.2.3.
Would you explain to the Court what the 
effect of those changes you just 
mentioned were?
Well, we already had this 10.2.1 and in 
essentially this form in the older 
contract as I mentioned earlier. It 
gave employees an opportunity to request 
transfer to other lines of progression 
in other departments but in the course 
of talks with the plaintiffs and the 
EEOC and in following other employers 
and union cases, particularly Crown 
Zellerbach and International Paper Company 
and their settlements either with the 
EEOC or the OFCC, v/e encountered this 
objection - that even though the oppor­
tunity was there for transfer which I 
don't believe was there in the cases of 
Crown Zellerbach and IP —  but the point 
was raised that if an employee did go 
to another line of progression then he



-631

1055.
would have to go to the bottom of the 
job, he would have to take a pay cut and 
he would lose his job and department 
seniority. So in order to eliminate 
that as a possible objection, we put in
10.2.2, that provided that the trans­
ferred employee would be vested with 
the department and job seniority equal 
to that held in his last job or equal 
to that held in the lowest job in the 
line of progression from which transferred.

It had the effect in the 
lowest jobs, as I explained earlier, 
he had cumulative job seniority for 
every job in that line of progression 
and that was tantamount to department 
seniority and in most instances to plant 
seniority, since most of them worked only 
in one line of progression.

This got around that objection.
And, incidentally, we got the idea from 
what thesa other paper companies had



-632-

agreed to with the various government 
agencies' blessings.

The next one, 10.2.3, has 
to do with letting the employee not 
suffer in his rate of pay when he makes 
a transfer, that is, that he can carry 
his normal rate of pay over to this 
other job, even though it normally pays 
a lower rate, he would be as we say 
in labor relations, red circled at that 
rate, he would retain that rate until 
such time as he got promoted to a job 
that paid that much or more. So he 
didn't suffer rate-wise as a result.
This ws the purpose of those clauses 
and the reasons that the company and 
the union put them in.

Q Do you recall that the company installed
a new power plant some time approximately 
1965?

A Yes.
Q Would you tell us what you did, Mr. Bryan,

1056.



-633

in connection with staffing the new power 

plant?
A Yes, sir. That power plant was approved

to be constructed, to expend the money 
for it, back at least in '64 if not 
before, so plans began to take place 
including the plans for staffing of 
the plant with personnel. And this was 
a plant such as this mill had never had 
before to generate not only steam but 
electricity as well, and involving the 
very latest, most modern, pieces of 
equipment, very complex equipment with 
numerous instruments and the like, as 
opposed to the old boilers that we had 
had before to just generate steam, and 
they were very simple in comparison 
to the new power plant.

So it was decided upon that 
we could not staff this power plant 
from within the mill. The first thing 
we did was to go out and try to recruit

1057.



I

an experienced power plant super in t .ndent 
and after we acquired this gentleman 
to work with the engineers and construc­
tion firms building the power plant, 
we worked with him in deciding what 
jobs we needed to have, how many people, 
what duties they needed to perform, 
what qualifications they would need 
and again it was apparent that we didn't 
have people with this background in our 
mill, that we would have to go outside 
at least for the power plant operator.
It was felt that maybe we could find 
some people that we could bring in 
under experienced operators and in 
the helper positions because the recovery 
boiler in the pulp mill had some similarity 
to a power plant that generates steam 
and electricity. The recovery boiler 
does generate steam as a byproduct.

Even our recovery operator, 
as I said earlier one of the highest paid

-634-

1058.



-635-

people in the mill, could not function 
as a power plant operator.

Under Section A.l, Appendix A.,
I believe, our labor agreement is A.3, 
it's on page 40 of the 1968 agreement, 
the same section that was in effect 
in 1965; we were required to notify the 
union when major changes of this type were 
made and the company after evaluating 
the situation would inform the union 
of its decision as to the size of the 
crew and the rate of pay and the union 
has the right and privilege of meeting 
with the company for the purpose of 
re-negotiating such rates. All of this 
was done, entered into negotiation with 
the union and we had an agreement con­
cerning the lines of progression and jobs 
and this sort of thing, and explained 
the whole thing to them, showed them 
what the power plant was going to consist

1059.



= 636 -

of. They agreed that we would have 
to go outside the find the power plant 
operators but naturally they were 
representing the incumbent employees 
and they were interested in getting any 
of those in if at all j -ssible, so we 
had a discussion and review of the 
qualifications of incumbent employees.
We ultimately did take some incumbent 
employees as I said, primarily from 
recovery, to go into the helper positions 
but we went outside and recruited the

1060.

power plant operators.
THE COURT: You kept Birdsong and Norwood?
A Yes, sir. Birdsong and Norwood were

boiler operators in the old boiler room
and as I recall, the company’s initial
position was that there was no one in
the old boiler room who could qualify
for any job in the new power plant
but the union asked us to go over it
with them and we went over every individual



-637

and we had already done this, the 
management had, so we again went over 
it with the union and after reviewing the 
background and qualifications of all 
these people, the union persuaded us 
to agree to take Birdsong and Norwood 
as helpers and provided they could

pass some tests.
One was - well, they had 

to pass these intelligence tests we've 
been talking about, plus a test that the 
union agreed to be designed by the power 
plant superintendent, asking questions 
about numerical calculations that were 
required of people in -he power plant 
jobs. This was done and they were 
successful in passing this and those 
two were put into the power plant as 
helpers and they were given training 
along with the other helpers.

Incidentally, even the power 
plant operator that we hired from

1061.



-638-

1062.
outside who had many years of experience 
received at least three, maybe four months 
or so, of training under our power plant 
superintendent with blueprints and 
diagrams and instrument manuals and this 
sort of thing before the power plant v/as 
started up.

i
:

MR. CHAMBERS: CROSS-EXAMINATION
Q Mr. Bryan, the Court asked you a moment

ago about integrated call boards?
. i

A Yes.

Q Would you tell the Court how many white
employees you had on the utility board 
in 1965?

A I couldn't say.
Q Did you have any?
A I know there were - in 1964 there were

a number of blacks on the general extra 
board and probably at that time there 
probably weren't any whites on the



-639

utility board because we had some set­
backs and the board had gotten too 
large and we had to even reduce some 
off of the utility board so it was 
probably composed of long service 
people, so they would all be black 
in all probability’.

Q Up until 1965, Mr. Bryan, had you had
any whites on the utility board?

A Not to my knowledge.
Q So in 1965, would you tell the Court

the number of black employees you had 
on the general board?

A I don't recall that number, there were
several. I believe you've got that 
in some exhibit we prepared 'way back 
then.

MR. CHAMBERS: Your Plonor, in connection
with the racial composition of the various 
boards, I would like to call the Court's 
attention to subparagraph L. of paragraph 
12, appearing on page 9, and this shows

1063.



-640

that there were two Negroes on the 
general board and sixty-two whites, 
fifty Negroes on the utility board 
and no whites as of June 30, 1967.

Q Now, Mr. Bryan, you testified that
in 1968 you merged the two boards, 
how did you accomplish this?

A Well, all the boards themselves were
lists of people and there were two 
lists and they were just merged into 
one list with the person with the highest 
plant seniority I presume at the top of 
the list.

Q Is it your testimony, Mr. Bryan, that
a person who was formerly on the utility 
board is now called to do what you 
classify as skilled work?

A I would assume that there have been
instances in which some have but I valid 
also assume that there have been 
instances in which some have not because 
I know of personal knowledge that some

1064.



would not be able to perform work 
in the skilled lines.
During the time you were there after 
the merger, would you tell the Court 
the name of one person who was formerly 
on the utility board who was called 
to do skilled work?
I doubt if I could. I was in Richmond 
during that time and the board was 
u nder Mr. Moore's direct supervision.
So you don't kow of any such person, 

is that correct?
I know that Mr. Moore told me that 
there were people.
Do you know of any person who was formerly 
on the general board who had been called or 
was called during the time that you 
were with the company to do unskilled work,

as you term it?
Yes, there have been some.
I'm saying do you know of any such 
persons at all?

1065.



-642-

A

Q
A
Q
A
Q

A

Q

A
Q

A

No, I don't know them by name.
I know that it was reported to me in 
my capacity as director of industrial 
relations that there were some.
By Mr. Moore?
Yes.
And that was in 1969?
Well, after the time that it was merged.
You began high school requirements 
about 1952, is that correct?
Some time in the early to mid—50 s,
I don't know what year.
Do you know how many white employees 
were hired subsequent to 1952?
No, I do not.
Do you know the number of white 
employees you hired subsequent to 1952 
without the high school education?
During my tenure there, there were 
no employees of either race hired on 
to the general extra board without a high 
school education or its equivalent that

1066.



-643-

I know of, with the exception of any 
who may have falsified their statement 
as to that.

Q So you don't know of any employee hired
subsequent to 1963 whenyou went with the 
company without a high school education 
who was assigned to the general extra 
board?

A No, I don't know of any.
Q Did you follow the same procedure in

the employment of personnel where a 
person or persons were assigned to the 
utility board, as you did when persons 
were assigned to the general extra board?

A What do you mean by the procedure?
Q Could you tell the Court what procedure

you followed when you employed persons 
who were assigned to the utility board?

A Well, as I said a minute ago, the utility
board had so many high seniority people 
on it, we may have hired some for that 
board during my tenure but I don't recall

1067.



it, that it was necessary to hire any.
We had problems at times because 
we weren't getting enough work off of 
that board to justify keeping that 
number of people and this is hard 
on the individuals who are there and 
not fair to the senior people that are 
on the board, so on one or more occasions 
we had a reduction from that board to 
get it down to the point where they 
could get more work , the senior people.

Q Are you saying you had no procedure
during the time you were there that you 
are familiar with for employing persons 
for the utility board?

A Well, insofar as employment procedure,
if we had had occasion to hire any it 
would be the same type of procedure that 
we would have for the general board with 
the exception as I mentioned in answer 
to Mr. Lowden's question, that we didn't 
require the same education and testing

-644-

1068.



1069.

and that sort of thing.
Do you recall any black applicants for 
employment during the period you were 

there?
Any black applicants?
Yes.
Yes, there were quite a few.
Your testimony is that you followed 
the same procedure in considering their 
application for employment?
Yes, sir, they were not considered for 
the utility board or for the general board, 
they were considered as applicants for 
employment and they of course, were asked 
what type qualifications they had and 
the type of work they were interested in. 
Do you recall an employee applying for 
employment through the watchman?
Throu<ji the watchman?
Yes.
No, I don't recall that.
Is it your testimony , Mr. Bryan, that



-646

all of the maintenance employees 
performed all the crafts or that this 
is something you would like or the 
company would like to have?

A • They are qualified to and do perform
all of the crafts as assigned. Some 
of them are better at some crafts 
than at others but if a person works 
to a great extent in instrumentation 
and he comes to a wall he's got to 
cut a hole in, he doesn't send for 
somebody else that we call a carpenter 
to cut that hole, he does it himself.
Same way with a pipe or wiring that 
may be connected to instruments, and 
this sort of thing.

Q You still have employees in the main­
tenance department without high school 
educations, is that correct?

A I do not know today, Mr. Chambers,
who's in there. I think the record 
will show that list you were referring to

1070.



-647-

of June I believe it was 1966, I believe 
it had the educations of all the incum­
bent employees by department at that 
time.

Q And there were employees in that
department without a high school education?

A I couldn't say whether there were or not,
but since the apprenticeship program 
was started I know one had entered into 
that without a high school education or 
its equivalent.

Q Entered the apprenticeship program?
A Yes, sir.
Q My question pertains to the maintenance

department, and you know for a fact,
Mr. Bryan, that there were employees 
in the maintenance department during the 
period that you were there who did not 
have a high school education?

A No, sir, I do not know that for a fact.
Q You don't know either whether there

were employees in the maintenance

1071.



department who hadn't taken the tests?
X would expect that possibly there were 
one, I couldn't tell you for sure, 
for a fact, whether there were or not 
but it s been a long, several years since 
I've seen the records. But you've got 

m  the record whether they were there 
or not.

And yai did not require those employees 
to either go back to high school or to take 
the tests?

Those employees who what, which ones?
Those in the maintenance department who 
did not have a high school education 
and who did not take the tests?
I said I don't recall whether there 
were any at that time, you've got the 
records and you know whether there were 
or not; if there were any, we did not 
require, I don't recall requiring anybody 
to go back to high school, no, sir.
Or to take the tests?



Well
As a condition for continuing employment 
in the maintenance department?

No.
So with respect to job descriptions 
is it not true that many paper industries 
have defined job duties and have 
written down job descriptions?
I don't know that I would say many,
I know of some that have job descrip­

tions, yes.
So, you testified that you were aware 
of the presidential order regarding 
discrimination in employment practices? 

Yes, sir.
You also testified that you had taken
some affirmative action -

Yes.
—  with respect to the elimination of 
the discriminatory practices that might 
have existed there at the plant?
I didn't testify to that, Mr. Chambers,



-650-

1074.

I said we took affirmative action which 
is different from what you've just said.

3 What did you take affirmative action
with respect to?

& You added on to it with regard to
eliminating discriminatory practices,
I didn't say that we eliminated any 
discriminatory practices because I didn't 
know of any that in my opinion were 
discriminatory.

THE COURT: The witness says that your
question is loaded and he doesn't want to 
answer it exactly like that.

MR. CHAMBERS: I think the witness could
answer the question and then explain it 
if he'd like to, your Honor; that would be 
in support of his testimony with respect 
to the presidential order that Mr. Lowden 
was questioning him about.

jv. The presidential order is in effect today,
requires affirmative action whereas Title

VII does not.



-651-

1075.

q That's your interpretation?
A That's right.
q Well, let's go to the presidential order you

said you were aware of, you do recall 
that you had segregated locker rooms there 

at the plant?
A No, sir, I would not agree that they were

segregated, we discussed it at the time.
q Let's talk about this then, you did have

locker rooms that were us d exclusively 
entirely by whites and locker rooms that 
were used entirely by blacks, is that 

correct?
A Yes, sir, I define that as different

from being segregated, they were not 
segregated by company policy or requirement.

Q They were used separately by the races?
MR. LOWDEN: Your Honor please, I believe

we stipulated earlier that the eeting 
facilities and locker rooms were no longer 
an issue in the case, it's water over 
the dam, so to speak, and I'd like to



-652-

1076.
get through this witness today if we can.

MR. WOODS: I thought we concluded earlier
that we could adjourn today at 4:30.

THE COURT: Well, it was my plan to stop
at 4:30 and that occurred about twenty-two 
seconds ago. However, this gentlemen has 
indicated that he is from the State of 
Tennessee and if by staying a few more 
minutes we can get through with him I'd 
prefer to do that; at the same time I'm 
cognizant of Mr. Busdicker's airplane 
schedule and his desire to depart 
North Carolina at or about 5:20.

I was going to say that if 
you care to do so, sir, and if you feel 
that you'd be safe in doing so then you 
may retire at this time.

MR. BUSDICKER: I was simply going to suggest
that, your Honor, if I could, and I 
would be happy for the proceeding to
continue, thank you.



-653-

1077.

THE COURT: Insofar as the direct
examination of the witness is concerned 
Mr. Chambers is getting along toward 
the last, the heart of it, I don't know 
what he has in mind in addition to that 
but I would take it you are not too 
far from being through, are you, Mr. 

Chambers?
MR. CHAMBERS: Your Honor, I think I'm about

forty-five minutes or an hour from being 
through, and I was under the impression 
that the direct examination could 
have ended a few minutes earlier than 
it did and we just have some examination 
that we would like to do with this

witness.
THE COURT: Well, of course, the trial of

the lawsuit takes priority over the 
convenience of the witnesses and if you 
have forty-five more minutes or an hour 
of cross-examination of this witness, 
then we're obviously going to have to



-654

MR.

MR.

MR.
THE
MR.
THE

THE

MR.

Q

1078

have him come back.
LOWDEN: That would be very inconvenient,

sir, and if the Court will stay, we'll stay. 
BRYANT: I would appreciate it, your

Honor if we could finish today, it would 
cause me considerable hardship to come 
bade next week.

WOODS: I have a long drive tonight.
COURT: You're going to Washington?
WOODS : Yes, sir.
COURT: All right, I believe I'll

finish with this witness today then.
We'll take a five minutes 

recess so the courtroom personnel 
can make their arrangements and come 
back.
(Brief recess)
MR. BRYAN returned to the dtand.

COURT: All right, you may continue,
Mr. Chambers.

CHAMBERS:
Mr. Bryan, my last question pertained 
to the separate locker facilities there



-655

at the plant, and I asked if youvere 
aware that they were used separately 
by the races.

A Yes, I was aware and that was, as I
said, not by policy or requirement by 
the company but as I understand it, had 
been a requirement under the state law 
in the State of North Carolina pricr to 
that time.

Q Prior to that time?
A Yes, sir.
Q That state law was not in effect in

1964, is that correct?
A I don't know when that went out.
Q Are you also aware, Mr. Bryan, of the

separate uses by race of the restaurant 
there on the plant facilities at that 
time?

A Mr. Chambers, at that time there was no
separate use by races as such, a lot of 
the blacks used one portion of the eating 
facility and a lot of the whites used

1079.



-656-

the other, but there were instances of 
people of both races going into both 

parts of it.
There was a partition inside the restaurant 

facility, is that correct?
There was no, a partition is a wall, 
there was no wall, there was a counter 
that separated one portion of the restaurant 
from another and the back portion was by 
the place that helpers on palp wood trucks 
came into the mill and waited and they 
went in there and used that portion 
of the restaurant as a convenience to 
them, they had a little waiting station 

right inside there.
The back portion was used principally by 
the black employees there at the plant, 

is that correct?
Mr. Chambers, as I said, prior to that 
time, I had seen black employees in 
both sections of that restaurant.
My question is, the black employees of

1080.



-657-

A

Q

A

Q

A

Q

A

MR.

THE
MR.

1081 .

the plant principally used the back 
portion of the restaurant . .
I didn't make any survey, Mr. Chambers,
I told you what I observed.
Haven't we gone into a discussion about 
this before, Mr. Bryan?
Yes, sir, quite a few years ago, as I 
recall.

And you are aware of the discussion at 
that time, are you not?
Sir?

You are aware of the discussions at 
that time?

Yes, and I believe you went in to observe 
the facility.

LOWDEN: Your Honor, this is just
argument. I think he should ask a question 
and have the answer recorded and I think 
this total line of questions is irrelevant 
and I move that it all be stricken.

COURT: MOTION ALLOWED.
CHAMBERS: Your Honor, I would like to



-658-

1082 .

point out that this witness has testified 
that he with the company had instituted 
some affirmative programs puisuant to 
the presidential order —

THE COURT: And you're showing that he
did not institute any programs with 
respect to eating facilities and locker 
room facilities.

MR. CHAMBERS: These are programs of the plant
and I'm 'showing that this witness did 
not institute affirmative action.

THE COURT: That's right. But you have
already stipulated that those are not 
issues in this case.

MR. CHAMBERS: We stipulated that we were
not asking for injunctive relief with 
respect to it but we certainly didn't 
stipulate to exclude that evidence on 
the question of the company's good 
faith in carrying on this policy 
and it's relevant in this connection.

THE COURT: All right, go ahead and
ask your question.



MR. CHAMBERS:

Mr. Bryan, is it true that after this 
lawsuit was filed the company agreed 
to remove the partition or have the 
partition in the restaurant removed?
Mr. Chambers, I would not phrase it that 
way, I will tell you what happened if 
that is what you'd like to know. After 
the lawsuit was filed this matter of 
facilities, locker rooms and restaurant, 
came in to some discussion and review 
and as a result of that we asked you 
and the other plaintiffs' attorneys and 
the EEOC, 'well, what is it you want 
there,' and you suggested that this 
counter be removed and you or the EEOC, 
one or both, suggested that the lockers 
be assignee alphabetically, whereas 
before we had had what you might call 
a freedom of choice plan, they could 
go where they wanted to, but we said, 
o.k., if this is what will satisfy



-660-

1084.

you on it, this is what we will do,' 
and that's just what we did.

Q And that took place after the lawsuit
was filed?

A Yes, sir.
Q Mr. Bryan, are you aware of complaints

that were filed by black employees at
the plant concerning their dsire to
go into the better lines of progression?

A Mr. Chambers,I know of no black employee
during my tenure there that made an
application to transfer under this clause
of the contract that I previously
discussed that was denied a transfer.

MR. CHAMBERS: Your Honor, I would like
to move that that statement be stricken
because it is not responsive to myc

question.
THE COURT: Well, I will not consider it,

I agree that it wasn't exactly,, responsive. 
Answer his question, please.

A WeU, your Honor; I believe I've answered



-661-

MR.

Q

A

THE

A

THE

A

MR.

1085.

it; I know of no black employee that 
filed an application for transfer.

CHAMBERS:
My question is are you aware of complaints 
by black employees at the plant about their 
desire to get into the better lines of 
progression?
Mr. Chambers —

COURT: You can answer yes or no and
if you have an explanation then you can 

give that, too.
It's very difficult to answer yes or 
no because he's got some words in there 

that —
COURT: Well, you know whether or

not any complaints were filed and if so, 
if you were aware of them, that's all 
you have to answer.
Joe P. Moody had some complaints in 
this particular area, I wouldn't: define 
them in the same manner in which you did. 

CHAMBERS:

Q Well, as you understood them, was he not



-662
«ss '

1086 .

complaining about the inability of 
blacks there at the plant to get into 
the better lines of progression?

A Mr. Chambers, he had numerous complaints,
on numerous subjects and I would say 
'yes' to the extent that Mr. Moody 
wanted to get a better job, that would 
be true.

Q Did he not also talk about other black
employees there at the plant?

A Yes, he talked about other black
employees whom he said would like to 
have better jobs than the jobs they had.

Q And who would like to get into the better
lines of progression and to receive 
the same job opportunities as white 
employees who were similarly situated?

A Mr. Chambers, that has a lot of
implications in it; I don't know which 
lines of progression you would consider 
better than other lines of progression 
and he never framed a complaint in that



-663-

Q

A
Q

A
Q

A

Q

A
Q

A
Q
A

Q

1087.

form in which you did, no, sir.
At the time of the filing of this 
lawsuit, you had two separate lines in 
the wood yard department, did you not?
Yes, sir.
And one line was the yard crew line of 
progression?
Yes.
And that was principally white, is that 
correct?
It was principally but not entirely white.
You had about two black employees in 
that line of progession?
Something like that.
And then you had the service crew line 
of progression?
Right.
And is it not true that that was all black? 
That was all black at that time.
So is it not also true, Mr. Bryan, that 
the yard crew line of progression paid 

than the service crew linemore money



-664-

1088 .

line of progression?
A Mr. Chambers, you have to take the jobs,

there are some jobs in the yard crew 
line of progression that paid more than 
some jobs in the service crew line of 
progression, and I don't have the rates.

THE COURT: And is the reverse true?
A I don't know, sir, I would have to look

at the rates to see.
MR. CHAMBERS:
Q I think it is shown, Mr. Bryan, is it not,

in your testimony about the merger of 
these two lines of progression?

A You said service crew, Mr. Chambers,
and I talked about the merger of the 
chipper and the yard crew.

Q Is it not true that the chipper line of
progression was all black?

A Yes, I believe it was at that time,
but some jobs, I know for a fact that 
there were some jobs in that chipper 
line of progresion that paid more than 
some jobs in that yard crew line of



-665

Q

A

Q

A
Q

A

Q

A

1089
progression. When we dovetailed them 
they came out that way.
That is reflected, is it not, in your 
merger of 1968?
That's right.
Where you have the chipper number 2, over 
the chain opaator?
That's right.
So that one position in that line of 
progression, the chipper line of progression, 
which paid more than the other positions 
in the yard crew line of progression 
was the chipper number 2?
That's right.
Is it not a fact, Mr. Bryan, that Mr.a
Moody was complaining about the inability 
of blacks to get into the yard crew 
line of progression which paid more 
money?
Well, that was probably included among 
his numerous complaints, Mr. Chambers, 
that he would like to go to the line of



]
1090.

progression, the yard crew line of jIiprogression.
Q so you testified that you began around

1964 trying to solicit blacks to 
apply for the maintenance apprenticeship

program?
A Yes, sir.
q You stated that you advertised for

blacks to apply or for people to apply 
for this program?

A Yes, sir.
q Would you tell the Court where you

advertised?
A On bulletin boards at the mill and we

sent people out to the high schools in 
the area including the predominantly 
black high schools in the area to discuss 
this and to explain it to the people 
and encourage them to apply. 

q And you say that as a result of this
you had one applicant?

A I said we had one selected. I don't recall

- 66 6 -



-667-

Q

A

Q

A
Q

A

Q

1091.
whether there were other black 
applicants or not, we had one v-7ho was 
selected.
I believe that as of 1967 you had four 
blacks in the apprenticeship program?
You've got the records, I don't have 
them, I don't recall.
Did your office talk with any of the 
black incumbents about going into the
*apprenticeship program?
Yes, sir.
Do you know the names of any of the blacks 
you talked to?
Well, the one who was selected I know 
was a Williams, and I couldn't say for 
sure but perhaps one or both of the 
Hardings, and there were some others 
whose names I don't recall. It's been 
some time ago now.
You stated that another part of your 
affirmative program was to ask some
blacks to transfer to the skilled lines



- 668 -

1092.

of progression?
To try to get some to go on the general 
board and to openings in the skilled 
lines of progression, yes.
Did. you tell the blacks at that time
that they would have to have a high school

education?
On the first instance we did, on the

tsecond instance we did not.
So for those whites who were in the 
skilled lines of progression, did you 
ask them to have a high school education 
or get a high school education?

A That were already there?

Q Who were already in those lines of progression

A No, sir, but most of them were frozen

in the jobs that they were in.

Q You didn't ask them to go back and get

a high school education?

A No.

Q Did you ask them to take a test?

A Most of them had already taken the

tests



-669-

Q

A

Q

A

Q

A

1093.
Talking about those who had not taken 
the tests.
Most of them that had not were frozen 
and we did not ask them to take a test.
We have an exhibit that shows the employees 
who were frozen, is that correct?
I believe you have'an exhibit that lists 
them, I don't know whether it shows they 
were frozen or not, but you have one 
that shows their education, whether or 
not they've taken the tests.
You testified a moment ago about the 
conferences you had following the filing 
of charges with the EEOC, and you stated 
that the first conference was some time 
in 1967, would you please tell the Court 
who participated in those conferences?
Yes, sir, as I recall, the first one 
was in Roanoke Rapids and the 
plaintiffs' attorneys and the EEOC were 
represented there.

MR. LOWDEN: If your Honor please, just a



-670

1094

while ago, he objected and said I 
coudn't go into the EEOC proceeding; 
now we're going into who was there 
and all that.

THE COURT: But the rule is that if you
go into it, he can ask questions relating 
to that, he objected to your going into 
that —

MR. LOWDEN: Yes, sir.
THE COURT: But he can ask these questions

without waiving his objection, and I'm 
going to let him do it.

MR. LOWDEN: I believe you sustained the
objection, your Honor.

MR. CHAMBERS: Your Honor, I won't be long
on this subject, I think the Court permitted 
Mr. Lowden even for some of the questions 
you sustained the objections to, to show 
what the witness would have answered, 
and I want to add to that. I'm not 
going into the substance of what was



-671-

1095.
discussed at the conference but only 
to show who participated in the 
conference.

THE COURT: Well, in that view of it,
I'm not so sure thatyou don't waive 
the objection, but I'm still going to 
let you go ahead.

A I've already answer that, do you want
me to answer it again?

MR. CHAMBERS:
Q Let me ask you this: do you know, Mr.

Bryan, or did you know Mr. Jules Gordon?
A Yes, sir.
Q Was he one of the participants for the

EEOC?
A Yes, sir.
Q Was Mr. Robert Belton there?
A Mr. Belton was at some, I don't know

whether he was at all the meetings 
or not, but he was there at some of 
them, yes, sir.

Q Did I participate in it?



I believe you were at some, too, I know 
one of the others, one or the other 
of you or one of your other partners 
were there. I know at one of the meetings 
in Richmond one of your other partners 
I believe was there.
Was Mr. Lowden there?
Yes, I believe he was at all of them, 
he and/or Mr. Thompson.
Mr. Thompson was at each of them?
I couldn't say for sure, Mr. Chambers, 
whether he was at all of them, but either 
Mr. Lowden and/or Mr. Thompson were 
present at each meeting.
Would you look at Exhibit F. attached 
to the 1968 contract, Mr. Bryan.
Yes.
You testified that you made several 
changes in the lines of progression, 
looking at the wood yard department, 
when a person who was formerly in 
the yard crew line of progression bumped

1096.



-673-

back as a result of the job cut off or 
reduction in the labor force .or 
for whatever reason, does he go for 
instance from small equipment operator 
to oiler and to chip unloader and 
to chipper operator number 2 and down 
to laborer or does he bump out before 
he gets to that position?

A Well, this is in accordance with his
seniority and qualifications. He, of 
course, has to be qualified to do each 
job as he goes down and assuming he 
wentup there assumes he could be qualified 
and would be qualified, and then in 
accordance with his seniority; as was 
pointed out yesterday by Mr. Ernest Garner,
I believe, there have been cases where 
someone formerly in the yard crew line 
of progression has bypassed him and gone 
on down because he didn't have as much 
seniority as Mr. Garner had.

Q Do you know of any occasions, Mr. Bryan,

1097.



-674-

1098.

where employees formerly in the yard 
crew line of progression have bumped 
down irrespective of seniority without 
going in the former chipper line of 
progression?

A I don't follow that question, Mr. Chambers.
Q The question is this: do you know of

occasions where employees formerly in 
the yard crew line of progression have 
bumped out of the wood yard department 
without ever getting to or into 
the chipper positions?

A I don't know of any. That could
conceivably happen because the chipper 
position could be filled by people 
with more seniority that some of them 
further up the line, that could happen.
I don't know that it has happened, 
or that it hasn't.

Q Following the reduction that you
testified about in the work force in 
the wood yard department, when the



-675
1099

employees were called back, were the 
employees who bumped out because of 
lack of seniority jumping over the 
employees who were in the chipper 

line of progression?
Well, yes and no; it wouldn't happen 
if the ones in the'chipper line of 
progression were qualified for the 
higher jobs. In the case of Mr. Garner 
again, using an illustration, he was 
not qualified for the hie er job so it 
could happen in his instance where that 
man that bypassed him going down would 
also bypass him going up, but if the 
man was qualified and had the seniority

it wouldn't happen.
You discussed the boiler room and the 
merging of the lines of progression, 
the f iremai and the boiler operator?

Yes, sir.
Would you tell the Court approximately 
how many employees you now have m



-676-

A

Q
A

A

Q

A

1100.

the boiler operator position, or
you had at the time you left the plant.
Boiler operator?
Positions.
I can't say for sure, I would imagine 
maybe there were four, I don't know 
though.
Would you tell the Court at the time 
that you left the plant the approximate 
number of employees you had in the 
kamyr operator position?
I don't know. At the time I left 
Albemarle I don't know that we had any. 
Because I don't know that the kamyr was 
operating at that time. It had operated 
sporadically.
N.w, will you tell the Court the number 
of employees you had in the pay loader 
position at the time you left the plant? '
At the time I left Albemarle. Now, I'm 
speaking of June 1969, when I left
Albemarle;



1101.

That's right.
I don't know, I would assume there was

probably one at that time.
Would you also tell the Court the number
of employees you had in the beaterman 
position at the time you left the company? 
I don't know for sure, again, I would 
guess that there were probably four.
Is it true, Mr. Bryan, that most of 
these changes made here involved largely 
dead end or diminishing jobs?
I don't know that I would chara±erize it

that way.
Is it true that you had not increased 
the number of positions in the beaterman 
position, is that correct?
Had not increased it?
Increased.
Oh no, sir.
In fact you had reduced the number of 

beatermen.
I don't know that we had reduced them,



I imagine we had the same number we had 
had for years.
Were these beatermen working regularly?
I would assume they were.
Had you reduced the number of people 
in the payloader position?
No, sir.
And you had one, you say?
Yes, as I recall; there might have been 
more than one at some time but to my 
knowledge there was just one the whole 
time I was there.
And you had in fact reduced the work 
force in the boiler room?
Yes, sir. This came about by the 
introduction of the new power plant, 
and this was one of the reasons we merged that 
line of progression.
Did you testify that you cut out the 
lancer position altogether?
We made it into the utility helper 
position in the pulp mill, changed the
name of it.



-679-

Q

A
Q
A

Q

A

Q

A

Q

A

Now, going to the changes in the 
seniority provisions, would you look 
at paragraph 10.2.1?
Of the 1968 agreement?
Yes.
All right.
First of all, before an employee, 
for instance, in the service department, 
can transfer to the paper machine line 
of progression in the A paper mill, 
does this employee have to take a test 
and have a high school education?
I'm not the one to ask that in the 
present tense, Mr. Chambers.
Did he at the time that this agreement 
was entered into?
Well, that was not my contemplation at 
the time I negotiated this agreement 
in 1968 to require that.
Was that in fact what happened up until 
the time that you left, Mr. Bryan?
No, sir, I could not say that it is

1103.



-680-

1104.

because as I say earlier, I know of no 
employee from the service crew who made 
application for transfer to another 
department who was denied that applica 
tion; I know the first one that came 
in was from the service crew but he agdied 
for a position in the store room and at 
the time I left, there had not been 
an opening in the store room, in fact, 
there hadn't been an opening in the store 
room for many, many years.
Mr. Bryan, did the company communicate 
to all of the employees that they could 
transfer under the provisions of 10.2.1 
without the necessity of having a 
high school education and passing tests?
We communicated this provision to them 
we did not put out any memoranda or 
anything like that saying exactly what 

you said, no, sir.
Did you tell the employees they didn't
have to take the tests?



1105

I didn't have occasion to tell them.
And is it your testimony that this 
provision, 10.2.1, means that an employee 
could now transfer without the necessity 
of takii j the test?
No, sir, that provision says nothing 
about that, Mr. Chambers.
Was it your understanding that this 
whole contract means that an employee 
can transfer from one line of progression 
to another without the necessity of a 
high school education or taking a test?
No, sir, that contract says nothing 
about that, it doesn't speak to that point. 
Was it company policy, adopted by the 
company which you were familiar with,
Mr. Bryan, that an employee could transfer 
without taking the test and without high 
school education?
No, sir, there was no policy adopted 
with regard to it; I told you in answer 
to your previous question what my intention



-682-

1106.

was at the time I negotiated the 
contract. You will have to ask some 
people who are presently in positions 
of responsibility with the company what 
the policy is about that.

2 Did you ever communicate with anybody, Mr.
Bryan, either the union or the plaintiffs, 
that employees could transfer under 
this provision without the necessity of 

testing?
A Well, you listed three parties in that

question, Mr. Chambers, anybody, the 
union or plaintiffs; I would say to the 
last two, I don't recall communicating 
to concerning this point.

Q You say the company did adopt that policy?
A No, sir, I didn't say that.
Q So it's your understanding that the

company never adopted a policy that an 
employee could transfer without the 
necessity of taking the test?

A No, sir, that's not my understanding. I



-683

1107

said I do not know what the present policy 
of Albemarle Paper Company is with regard 

to that point.
q I'm talking about at the time' that you

were there, you were there from the 
adoption of this contract until June or 
July of 1969 , isn't that .correct?

THE COURT: He answered that question.

MR. CHAMBERS:
q I'm asking about the policy of the

company during that period, Irm asking 
if the company had adopted the policy 
than an employee could transfer under this 
provision without the necessity of taking 
a test and having a high school education, 
without a high school education.

A Mr. Chambers, in the sense that policy
is the formal statement in writing, 
we had no such policy; I merely told you 
what my intent was and my thinking was 
when we were negotiating this particular 
provision and subsequent to that we had



1108.

no occasion upon which to make a policy 
because no black employee filed an 
application for transfer that required

a decision upon it.
You also testified that you did 
not communicate to the black employees 
that they could transfer without the 
necessity of taking the test?
I didn't communicate to them that they

would have to, either.
Well, was it company policy before this 
agreement, Mr. Bryan, that they would have 
to have a high school education and would 

have to pass the test?
That had been the practice, yes, sir.

' 'Ana the black employees there knew it? 
Well, you'll have to ask them what

they knew.
Wasn't that in fact one of the complaints_ 
that was brought to your attention,

Mr. Bryan?
What?



-685-

1109.
That black employees would have to take 
a test and would have to have a high 
school education in order to get into 
the better lines of progression?
No, sir, as I told you at one point we 
solicited applications from those who 
had a high school education and the next 
time we dropped that requirement.
Wasn't it the policy of the company 
that an employee who wanted to transfer 
from one of the quote unskilled lines 
of progression to the skilled lines 
of progression had to take a test?
At one point in time it was, yes, sir.
Wasn't that true up untilthe time that 
you negotiated this agreement?
I would say it was probably true up 
to that time, yes.
And didn't you testify that you communicated 
to the black employees there that they 
would havsto take a test in order to 
transfer to these other lines of progression?



-686-

(no answer)
That was one of your affirmative programs 
That was prior to the negotiations of 

this agreement.
Was that one of your affirmative programs? 
That was part of what I explained at that 

point.
You never followed that up and communicated 
to the black employees that you would 
permit them to transfer without the 
necessity of taking a test?
No, sir, because that decision had not 
been made, this was merely, as I said, 
my thinking at the time when we would 
be faced with that. This was what I would 
recommend, but at that time that time 

never came.
The only thing I'm trying to find out,
Mr. Bryan, is whether you communicated this 
to other employees there in the plant?
Not members of the class nor the union, 
other people, yes, sir.

1110.



1111.

Are you saying, Mr. Bryan, that after
1965 you did not require a high school
education for a black employee or a
member of the class here involved to
transfer to one of the better paying
lines of progression?
Of the incumbent employees we still
had the requirements, our applicants
of all races, if he were going to be
considered for a skilled line of
progression, we made that waiver for the

#

incumbent black employees.
So in paragraph 10.2.1, is the effect 
of that provision to transfer the 
previous preference of job seniority 
to department seniority?
Ten what number?
10 . 2 . 1 .

10.2.1 doesn't transfer the individual's 
seniority, this was why we put in 10.2.2. 
Well, would the effect of 10.2.1 and
10.2.2 be to transfer the previous reliance



/r //
- 688 -

1112.

on job seniority to department seniority?
1 I wouldn't put it that way, you trans­

ferred the person's job, department
and plant seniority and in most instances 
because of definition of job seniority 
it was tantamount to department and 
plant seniority.

2 All right. Now, 10.2.2 states that if 
the transfer is granted the employee 
will be vested with department and job 
seniority equal to that held on last 
job or equal to that held in the lower 
job in the line of progression from 
which transferred; now, that doesn't 
transfer plant seniority or give him 
the plant seniority for promotion 
purposes within the line of progression, 

does it?
A He doesn't lose his plant seniority by

transfer from one line of progression 
or department to another.
It's not plant seniority for purposesQ



1113.

of promotion.
No, sir.
And it is not plant seniority for 
purposes of being bumped back in 
case of a reduction in work force?
Only if he's bumped off the extra board 
it's by plant seniority and as I said 
earlier, it's tantamount to being 
plant seniority in the bottom job 
in a line of progression for most people 
since most of them, have been in the 
same department all their career.
But those who have not been in the 
same department all of their career 
they had for promotional purposes and 
bump back purposes only departmental 

seniority?
Job seniority and departmental seniority 
that they had in their old department. 
Now, in paragraph 10.2.1, does not this 
provision vest the absolute discretion of 
whether to grant the transfer to the



1114.

company?
Yes, sis it does.
So even if a black employee wanted to 
transfer to another line of progression 
whether to grant that transfer would 
be left to the sole discretion of 
the company, is that correct?
That's correct.
In paragraph 10.2.3, does the company 
in deciding to fill a position, have to 
give preference to incumbot employees 
over new hirees from the street?
That wouldn't be under 10.2.3, you mean 
under 10.2.1.
Let's take them both together, 10.2.1 and
10.2.3.
WeH, as I answered your previous question, 
the company has the discretion whether 
or not to grant the transfer so it's 
up to the company to decide how to 
fill the job except where the job 
is filled from within the line of 
progression.



-691-

1115.

Again looking at Exhibit F. attached 
to the 1968 agreement, if an employee in 
the wood yard, for instance, take a 
tractor operator, requested transfer 
to the A paper mill and the company 
agreed to the transfer, would you explain 
to the Court exactly how this would 
affect him with respect to the job 
seniority, plant seniority, and 
department seniority, and let’s assume 
an employee of ten years plant seniority

with the company.
YOU want to assume a certain amount of 

job seniority?
Let’s assume a five years job seniority.
Has he been in this same line of pro­

gression all this time?
Let's assume ten years with the plant, 
five years on the job, this particular

job, tractor operator.
O.k., he would carry his ten years

to the A paper mill;plant seniority over



-692-

1116.

he would carry not just his five years 
as a tractor operator on the job and 
department seniority but he would carry 
his whole ten years if he started ten 
years ago at the bottom job of laborer 
and had been in that line of progression 
the whole time.

Q In the wood yard department?
A Yes, sir. He would start over there

as a back plugger number 2 with ten 
years job seniority and this would probably 
mean that he would be immediately placed 
at the top of the seniority list of 
back plugger number 2 and would be 
the next one in line for promotion to 
back plugger number 1. And when he got 
up to back plugger number one, he 
would probably be at the top of the list 
again and the next one in line for 
promotion to front plugger number one 
and so on, because he had all this service 
there and this is what this was designed



1117.

to do, to put him in a position where he 
could progress rapidly up the line of 
progression. We couldn't just put 
him in at some point further up without 
knowing these other jobs but give him 
the benefit of his seniority that he 
carried with him and move right on up, 
in event of reduction in force, he would 
have seniority and he would be the last 
one laid off out of that back plugger 
number two, in fact, others would come 
down from higher jobs and go out the gates 
on the streets and he would hold on there.
If this tractor operator, just for purposes 
of comparison, moves over, you testified he 
would have ten years seniority in the 
department and on the job?

■-Yes, sir.
And if the back plugger number 2 has 
five years seniority on the job and with 
the plant, the tractor operator who had 
transferred would go in with more seniority



-694-

for purposes of promotion and bump 
back than the back plugger number 2?

A That's right.
Q Does that contract provision provide

for job posting of vacancies?
A No, sir, I know of no provision in

that contract for posting vacancies.
Q Do you know why you didn't include that

in the contract?
A Well, it wasn't in there when I got

there and I wasn't about to put it in,
I had experience with that and it's 
a heck of a mess to administer.

Q If a black employee in the former
chipper line of progression wanted to 
transfer to perhaps the A or B paper 
mill, he wouldn't know of any 
vacancies in the A and B paper mills 
without posting the job, would he?

A He wouldn't have to know of vacancies,
Mr. Chambers, he could file his request 
today and it would remain on file until

1118.



-695-

a vacancy occurred and then rt is
our obligation, obligation of the company
to inform him of the vacancy.

Q Now, you were testifying about your
familiarity with labor practices 
in other industries, would you tell 
the Court whether it is a practice or 
not a practice for companies to post 
vacancies?

A Posting is in a number of contracts
but I am sure I can say I've never 
signed my name to one with posting in 
it that wasn't already in there when I 
took over the responsibility for it.

Q Well, that's a matter that I suppose
' we have to —

THE COURT: He doesn't like that particular
provision.

MR. CHAMBERS: I can understand why.
Q Taking the position that you have,

Mr. Bryan, an employee really wouldn't 
know if a vacancy occurred in the other

1119.



-696-

A

Q

A
U

A

Q

A

Q

department, would he, without posting?
Not except by word of mouth; as I 
said, he doesn't need to know.
He wouldn't know if the company 
granted him the first vacancy?
Oh, he'd find that out, yes, sir.
That would be by word of mouth, too?
Yes, but you can be cure that he would 
find out.
You testified about Crown Zellerbach 
and the steps that the company took 
in 1968 agreement, are you familiar with 
the decision of the court in that case?
That was subsequent to that time, I believe,
I think back at that time they were 
in court on other matters, in fact, I 
went to District Court in New Orleans 
to hear part of that case.
Is it true, Mr. Bryan, that the transfer 
provisions now in effect in that company 
are different from the provisions 
you had in the 1968 contract?

1120.



-6 97-

1121.

A I couldn't say, Mr. Chambers, I have
not followed the Crown Zellerbach since 
I left Albemarle.

Q Were you familiar, Mr. Byan, with the
preliminary injunction that had been 
issued by the District Court in that 

case?
THE COURT: OBJECTION SUSTAINED.
A (no answer)
MR. CHAMBERS: Would you permit him to

answer that just for the purposes of 
the record; he has testified that he 
was familiar with the agreement that 
was entered into and he was familiar with 
what was going on —

THE COURT: Mr. Chambers, you just asked
him a question as to whether or not any 
difference between the provisions of the 
Crown Zellerbach decree and the labor 
contract; it seems to me, and there was 
no objection to that, that that's purely 
and simply a matter of argument; if you



-698-

MR.
THE

MR.

Q

A

Q
A

1122.

can show that there is, you're going 
. t o  have simple opportunity to do so.
I don't see the point in continuing 
to ask this witness about the details 
of some other litigation.

CHAMBERS: We will move on, your Honor.
COURT: Now, I don't want to cut you

off. I want to give you plenty of chance 
to develop your case but now, that was 
just something that escaped me and I 
thought I would make that observation 
so that you'd know my thinking on it.

CHAMBERS:
Mr. Bryan, with respect to the power 
plant, would you tell the Court the number 
of incumbent employees who were initially 
assigned to the power plant?
Of incumbent employees?
Incumbent employees.
I don't recall that number, Mr. Chambers.
I know that there were these two,
Norwood and Birdsong, and they went in



1123.

as helpers, as I said, and there were 
some who went in as utility men. I 
believe Mr. Warren Davis transferred 
in there at that time, and I know there was 
at least one or more from recovery, 
but no incumbent employee went in the 
classification of power plant operator.
Mr. Birdsong and Mr. Norwood are both 
white, is that correct?
Yes, sir.
And is it a fact that all of the incumbent 
employees who were transferred to the 
power plant were v/hite?
Yes, sir, I believe that is correct.
In the answers to interrogatories that 
were filed by the company, do you 
recall the report of the company with 
respect to Mr. Birdsong and Mr. Norwood 
with respect to their taking of a test?
No, sir, I don’t recall it. If you want 
to read it to me to refresh my memory,
I can tell you what I know about it.



1124
The employee that I was referring 
to was not Mr. Birdsong nor Mr. Norwood 
but Mr. J. Taylor.
I don't recall Mr. J. Taylor.
Let me just show you this, Mr. Bryan, 
it shows that he was transferred from 
the technical department as a lab assistant 
to the power plant and it states that 
there was a mistake in the failure of the 
company to administer a test in his case.
Yes, sir, it shows that, and since you 
show me this exhibit here, I do recall 
something about that.
Would you tell the Court what you recall 
about it?
When we prepared that document there and 
found that Mr. Taylor had not in fact 
been tested prior to his transfer from 
one department to another, we corrected 
the situation by giving Mr. Taylor the 
test.
This document, the answers to interrogatories 
were prepared in October of 1967, is that



1125.

correct?
That's what it says here, yes.
And the report with respect to the testing 
of Mr. Taylor would be in his personnel 
folder, is that correct?
I don't know, Mr. Chambers, I just remember that 
we discovered that when we prepared those 
answer to the interrogatories; I told 
you we did give him the test and he 
passed it.
The normal procedure would be to put 
the test scores in his personal folder?
Test scores? No, sir, I don't know 
that that was normal procedure that they 
always went into the personnel folders.
There might have been some in there but 
as a matter of practice as far as I was 
concerned, I didn't always keep the 
test scores in there because people 
who didn't know anything about the test 
had no business interpreting them and 
applying them and some of the poô Je who



-702-

1126.

didn't know anything about tests, had 
access to the folders, such as the 
plant supervisors from time to time 
so I wouldn't say necessarily they 
were kept in the folder.

Q How would you know v/hether you had
tested a person?

A How would I know whether I'd tested him?
Q Whether he had been tested?
A Well, there were records kept of it.
q Where did you keep those records?
A If you're asking me in the present tense,

you'll have to ask Mr. Moore that.
Q I'm sorry. I said, where did you keep

those records?
A Well, kept them in a file on testing,

I presume. There were some probably 
in the file when I was employed there, 
in the personnel file, I don't kow 
that we purged them.

MR. CHAMBERS: I have no further questions.



-703-

TIIE COURT: Do you have any questions
of this witness, Mr. Woods?

MR. WOODS: Your Honor, with the understanding
that I will be able to use as a part of 
my case the portions of Mr. Bryan's 
examination by deposition by Mr. Ledford,
I will not ask him any questions.

THE COURT: Do you have any further questions
on re-direct, Mr. Lowden?

MR. LOWDEN: No, sir.
THE COURT: All right. Then we will

recess. We will not hold court here 
on Monday but at 3:30 Monday afternoon 
at the main gate at Albemarle in Roanoke 
Rapids, I will meet Senator Allsbrook 
and Mr. Clayton.

(Recess)

1127.



1128.

-704-

(August 3, 1971)

THE COURT: Mr. Lowden, you may proceed.
MR. LOWDEN: I hope it's agreeable with

the Court, Mr. Thompson is in Maine.
I talked with him yesterday and with 
leave of the Court I ask that he be 
permitted to stay there.

THE COURT: That's all right. I just
wanted to let him know that Exhibit 19 
is now ready for introduction.

MR. LOWDEN: Exhibit 19?
THE COURT: Don't you remember?
MR. LOWDEN: Yes, sir, I do. I hope you

enjoyed that exhibit.
THE COURT: Gentlemen, I did visit the

mill yesterday afternoon in company with 
Mr. Clayton and Mr. Allsbrook and I believe 
one of the chief engineers at the plant, 
had a very nice trip and insofar as the 
operation of the paper mill is concerned



-705-

MR.

1129.

a highly informative trip.
2̂ 11 right, the defendant was

putting on evidence and I believe that 
the case is back with the defendant 
for the introduction of evidence.

LOWDEN: Your Honor, we will have Mr.
Moore as a witness this morning for a 
couple of hours to wrap up some odds 
and ends and then I believe, unless 
something unforeseen develops, we will 
rest our case after Mr. Moore's testimony.

■r —a. ■u■;m nnmp back to the stand.THE COURT: Let him come



1130.

The witness, EDWARD C. MOORE, JR., re­
turned to the stand and testified as follows 
rN . DIRECT examination
Would you just state your name again 

for the record, Mr. Moore.
Edward C. Moore, Jr.
You have testified previously in this

matter?
Yes, sir.
I believe you have said that you are 
the person in charge of employment 
relations at the mill in Roanoke Rapids 
and in charge of the records and files 
there pertaining to the employees?

That is correct.
Do you have with you the personnel file 

of Mr. James Ed Jones?

Yes, I do.
Would you briefly review what our file 
reveals with respect to Mr. Jones' 
personal history?
With respect to what Mr. Jones testified



-707

1131.

to the other day regarding request for 
transfer, we did check that file and 
found that on the 20th of January 
1969 Mr. Jones did fill out and turn 
in a request for transfer to the service 
crew department. However, there were 
no vacancies in that department at 
that time, at the time the application 
was filed and I believe one vacancy 
occurred subsequent to that date but 
it was filled by an employee 
who had recall rights to that department.
All right, sir. Would you tell us when 
Mr. Jones was employed?
Mr. Jones first came to work November 4,
1946. He quit on March 19, 1947. He 
applied and was hired on January 21, 1952, 
he was laid off the kamyr in 1952, April 
23; he was then rehired on August 11,
1952, and has been employed, apparently, 

ever since.
And what is his classification at the



-708-

present time?
A He's on the call board.
q Do you have a file for Mr. Ethoria Jones?

A Yes, sir.
Q Mr. Moore, I handed you a document

identified as Defendant's Exhibit NO.
25 which is in evidence, would you state 
what that exhibit is?

A That's a certified letter sent to Mr.
Ethoria Jones on January 24, 1968, 
from me, a letter in which we offered

MR. CHAMBERS: Your Honor, we object. We
went into this in the hearing last 
week and the Court has already admitted 
that document and Mr. Moore has already 
testified about the document.

THE COURT: Well, the document, of course,
would be the best evidence of its 
contents and I don't know the purpose 
of the question but I'll let him ask 
him the circumstances surrounding it;
I think it would be redundant to ask

1132.



-709-

him what the document says if 
it is already in evidence.

MR. LOWDEN: I just want it identified
so everybody will know what we are 
talking about.

THE COURT: All right. Well, I'll
permit you to do that.

MR. LOWDEN:
Q That is the letter in which you

offered to let him take the test?
A That is correct.
Q Do you have a return receipt showing

receipt by Mr. Jones of that letter?

A Yes, sir.
Q Will you produce it, please?
A It is dated January 26, 1968, Certificate

#59278.
MR. LOWDEN: I would like to have the re­

turn receipt identified in evidence as 
Defendant's Exhibit No. 31 and I ask that

1133.

that be admitted in evidence.



-710-

MR. CHAMBERS: Objection. I would like
to conduct a voir dire examination 
of this witness before the Court 
looks at that document.

THE COURT: Well, I believe it would be
more orderly to let him go ahead and 
you can reserve your objection and 
make your motion to strike at the 

proper time.

(REGISTRY RECEIPT NO. 59278, identified 
as Defendants' Exhibit No. 31, received 

in evidence.)

LOWDEN:
Mr. Moore, do you have with you the 
personnel record of Mr. Philmore Taylor?

Yes, sir.
Would you give us that information, 

please?
Mr. Philmore Taylor was first employed 
on October 7, 1948. He quit the company

1134.

MR.
Q

A

Q

A



-711-

Q
A

Q

A

Q

A

1135.

on November 11, 1948, was rehired 
March 23, 1956, was laid off April 
the 15th, 1957, and was rehired on 
August the 9th, 1957. After the 
Kamyr went down in, sometime, I believe 
1969, Mr. Taylor was placed back on the 
call board and on October 7, 1969, we 
tried to contact him for work and his 
statement was that if the company 
couldn't guarantee him forty hours work 
a week he wasn't interested in working 

for us any longer.
And so he quit in 1969?
October 7, 1969 is his termination date.
All right. Do you have the personnel 
records of Mr. M. C. Boone with you?
Yes, sir.
Tell us what that record reveals about 
him.
Mr. Boone was first hired on July 10,
1961. His application shows that he



-712-

1136.
attended high school. He was given 
the company test on or about December 4,
1964 on the basis that he had completed 
high school, or his record indicated 
that. He scored 95 on the revised 
Beta test, 9 on the Wonderlic A ,;nd 2 
on the Wonderlic B.
Do you have the personnel file on Mr.
Eulis Lawson?
Yes. Mr. Lawson was first hired July 
31, 1950. On or about January 5, 1966 
Mr. Lawson was also offered the opportunity 
to take the company test to be considered 
for the skilled line of progression and he 
did take the test. He received a score of 
76 on the Beta revised test, 1 on the 
Wonderlic A and 2 on the Wonderlic B. He 
was notified of his not meeting the com­
pany standards on January 4 —  14th of 
1966.

What jobs had Mr. Lawson held since he had 
been employed?



f -713-

1137.

He started out as a laborer in the pulp 
mill. He was transferred to the Kamyr 
operation on May 13, 1957. He went from 
the Kamyr over to the limer on Septem­
ber 9, 1957. He was promoted to lime 
truck operator on -January 6, 1958. He 
went over to the number 5 and 6 recoveries 
as a lancer on August 28, 1961, since 
they had eliminated the limer pay- 
loader job which had been cut to one 
operator. On August 6, 1962, he went from 
No. 5 recovery lancer to salt cake man.

On May the 6th, 1964, he went 
from the salt cake to the Kamyr as a 
laborer. That was a job curtailment. The 
salt cake went down to one shift rather 
than four shifts.

On December 26th, 1966, he went 
from the Kamyr to the extra board and was 
worked back and forth between the Kamyr 
and the extra board until the Kamyr ter­
minated operations. He is presently on



-714-

the extra board.
Do you have the personnel records of Mr. 

Johnnie Easter?
Yes. Mr. Easter was first hired Septem­
ber 15, 1940. This record is somewhat 
unclear. He left sometime in late 1941 
or early 1942. He was rehired April the 
7th, 1947. His application indicated 
that he went through the second grade.
He was in the beater room in the A paper 

mill.
On May the 11th, 1968, after 

the company merged the beaterman line 
of progression with the brokeman line of 
progression, he was offered the opportunity 
to promote to first helper classification. 
He elected to freeze himself rather than 
take on that responsibility.
I think several times during this pro­
ceeding we have talked about people being 
frozen and people freezing themselves, 
would you briefly state to the Court what

1138.



1139

THE

A
MR.
Q

A

that means?
COURT: I think I understand what

that means. The Company can freeze 
him or he can freeze himself.
(No answer)

LOWDEN:
All right, sir, let's turn to Mr.
Ernest Garner.
Mr. Garner was first employed November 
10, 1941, as foreroom helper. His record 
indicates that on August 25, 1949, he 
was promoted to a chipper feeder 
apparently having joined the wood yard 
department prior to that date and worked 
in various job classifications. After 
the conclusion of the 1968 negotiations, 
the old chipper line of progression in 
the wood yard department was merged with 
the yard line of progression and we went 
to Ernest and the other senior No. 2 
chipper operator, Joe H. Moody, and com­
menced to train them in the chip unloading



-716-

job which is the next progression from 
the No. 2 chipper operator.

Mr. Garner was trained for 
eight hours - during the week ending 
September 29 he was trained in the 
chipper unloader job eight hours on 
Friday and eight hours on Sunday. Dur­
ing the week ending October 6th, 1968, 
he received eight hours training on 
Saturday and an additional eight hours 
on Sunday. During the week ending 
October 13th, 1968, he was trained eight 
hours on Monday, eight hours on Tuesday, 
eight hours on Wednesday, eight hours on 
Thursday, and eight hours on Friday. It 
was determined at that time that his work 
was not satisfactory and his superinten­
dent, wood yard superintendent, Mr. Frank 
Kidd spoke to both Ernest and Joe H. Moody. 
Joe H. Moody had also received training 
and he was requesting to be taken off the 
chipper unloading job because he did not

1140.



1141.

-717

MR. BELTON:
feel he could do it properly.
: Your Honor, we'd like to 
object to the answer of the witness.
He has not shown that Mr. Moore was 
a part of this and he is not testifying 
from the records in terms of the last 
answer he has given.

THE COURT: Well, are you testifying to 
something that you know?

A Yes, sir.
THE COURT: I'll let you do it.
A Mr. Kidd told Mr. Garner at that time, 

on or about October 13, 1968, that his 
work was unsatisfactory, and that we 
were aware that he was attending school 
sponsored by the company and also jointly 
by the union, and if he improved his
ability to read nd write, and felt that

\.he could come back with additional educa­
tion and perform those duties, that we 
would give him another opportunity to go
into the chipper unloader job at that



-718-

time. He was not frozen at that time.
On January 27, 1969, a 

vacancy did occur in the chipper un­
loader job, at which time the company 
had to determine whether to move Mr.
Ernest Garner up to the classification 
of chipper unloader or by-pass him with 
another employee.

Mr. Kidd talked to Ernest 
Garner at that time and Ernest said it 
was his understanding that the company was 
to put a clerk down at the chipper unloader 
station to perform the administrative 
record keeping. Mr. Kidd informed him 
that that was not correct, that we had 
never agreed in negotiations to provide 
any clerk on any of these jobs.

Mr. Garner said he felt that he 
was being discriminated against because he 
was black and the company didn't have any 
right to test him or require him to go to

] school. Mr. Kidd told him if he did take
_

1142.

I



-719-

additional training, he would consider 
him at a later date if a vacancy 
occurred in the chipper unloader job.
A memorandum was then entered in Mr.
Garner's file which reads:

"Ernest.Garner, No. 2 
chipper operator in the 
wood yard department, has 
been given extensive train­
ing in the classification of 
chipper unloader and — "

MR. CHAMBERS: We object, your Honor, until
there has been some identification of 
who put this document in the file.

MR. LOWDEN: Before we get to that, your
Honor, it is sort of like a see-saw here. 
First he jumps up, he objects, and then 
he objects. I would like to suggest that 
we go by the normal rules.

MR. CHAMBERS: I didn't know the normal rules
prevented co-counsel from objecting to

1143.



-720

1144
a witness's testimony. It is my 
understanding that the local rules 
require that one attorney examine the 
witness and that he is not required to 
be limited to objections.

THE COURT: That's my understanding of
it. I'll take objection from- them and 
I won't require one person to make 
all the objections. We try to adhere 
to the rule that when he is taken for 
cross-examination that he will continue 
with one lawyer. The present objection 
is overruled.

A "Due to his inability to
read and write he was de­
termined unqualified to per­
form all of the duties of 
chipper unloader, and, there­
fore, unqualified for temporary 
permanent promotion to this 
classification in accordance
with Section 10.1.1 and



. -721-

MR.

Q

A

1145.
Section 10.1.2 of the 
current agreement. Garner's 
seniority and future opportunity 
to progress shall be in accordance 
with Section 10.7 of the current 
agreement. Signed S. E. Kidd, 
wood yard superintendent, dated 
January 27, 1969."

LOWDEN:

Mr. Moore, would you give us the file on 
Mr. Willie Henry Mason?
Mr. Willie Henry Mason was first employed 
in 1936 as a helper in the maintenance 
department, or as a laborer rather, as a 
laborer in repairs.

In 1943, on February 21st, he 
was promoted to the position of second 
helper in the repair department. Mr.
Mason went to the old laborer's gang, 
bull gang, on January 22, 1951, as a lead 
man.

On October 1, 1953, he was



-722-

reduced from lead laborer to laborer 
in that department.

He was promoted to winch 
truck driver September 18, 1961. He 
was promoted to Dempster Dumpster opera­
tor October 4, 1965, and that is his 
present classification.

On or about thetime 
Mr. Mason gave his deposition in 1968, 
he stated that he talked with Mr.
Hagermyer about being returned to the 
maintenance repair department and he 
also stated that he talked to Mr. Running.
As best I can recall, Mr. Hagermyer was 
retired at that time, so I went to Mr. 
Running and spoke to him about what Mr.
Mason had testified, and Mr. Running said 
OBJECTION:

Q Was this part of your duties as personnel
director of the plant?

THE COURT: Is Mr. Running going to testify

1146.

in this case?



-723-

MR. LOWDEN: Not unless we are forced into
calling him.

THE COURT: I will let the witness testify
anything he did in consequence of what 
Mr. Running told him. I believe his 
attempt to give us something that Mr.
Running himself said is subject to the 
hearsay rule.

MR. LOWDEN:
Q Will you state what you did in that

connection?
A After Mr. Mason had his conversation

with Mr. Running he came to my office 
and we talked about transferring to the 
maintenance department.

THE COURT: Mason did?
A Yes, sir. I gave him a transfer applica­

tion and explained the maintenance 
apprenticeship program and advised him 
that all of our maintenance mechanics 
came up through the maintenance appren­
ticeship program, that this required a 
high school graduate and one who was

1147.



-724-

MR.

Q

A

Q

A
Q

pretty well versed in mathematics, who 
had some algebra, possibly physics or 
chemistry, both on the job and off the 
job program for training.

Mr. Mason never did return the 
transfer slip to my office. I would like 
to note that on November 30th, 1965, he 
refused to take the test.

LOWDEN:
Just as an aside, at that point there was 
testimony here about people working in the 
maintenance department, do we have helpers 
in the maintenance department?
Not at this time, not in the classification 
of helper. They are either class 
mechanics or journeymen or apprentices and 
we do have some laborers off the call board 
working on an as-needed basis.
Do you have the personnel file of Mr. Joe 

P. Moody?
Yes, sir.
Would you give us that, please?

1148.



-725-

1149.
A Mr. Moody was hired on September 3rd,

1952, as a laborer in the wood yard.
On February the 9th, 1959, he was given 
a written warning for leaving a portion 
of his work undone at the end of a shift 
without notifying anybody about the work 
that should have been completed.

On February 10, 1959, he was 
given one week off for arguing with his 
foreman and disrespect to his supervisor.

On July 3rd, 1961,.he received 
«a warning for leaving the job without 

completion.
On January 26, 1967, he was given 

four and one-half days suspension for in- 
' subordination.

On January 13, 1971, he was dis­
charged for insubordination and refusing to 
work overtime and walking off the job.

Mr. Moody's record indicates he 
attended the first grade. On January the 
4th, 1966, he waived taking the company



-726-

test.
Tell us what jobs Mr. Moody had, just 
briefly.
He started as a laborer in the wood yard.
He worked up to tractor operator on 
November 26, 1961. He was promoted to 
No. 1 chipper feeder on February 22, 1965.
He was curtailed on November 13, 1967, 
to the tractor operator on the No. 1 
chipper when the No. 1 chipper ceased 
operations. He was promoted to chain 
operator, which was a skilled job, in the 
new merged line of progression on May 
18, 1970. Those operations were cur­
tailed on December 14, 1970, and he was 
demoted to the classification of chip 
bin operator, which he held at the time of 
his discharge.
Would you give us the personnel records 
in the case of Mr. Clarence High?
Yes, sir. Mr. Clarence High was first

1150.



-727-

1151.

employed on January 10, 1947, as a 
laborer in the repair department. He 
was promoted to fourth helper in the 
repair department on July 9, 1951. He 
was transferred on March 24, 1952, to 
lead man in the old labor gang. He was . 
reduced to laborer in that department 
on October 1, 1953. He transferred to 
the wood yard on October 8th, 1957, as 
a laborer. He was promoted to chip bin 
man on May the 18th, 1970, and reduced 
to laborer on December 14, 1970. He 
requested to take the test on November 
23, 1965. He received an 85 on the Beta 
revised test, 5 on the Wonderlic A and 
1 on the Wonderlic B. His record in­
dicates he attended the fifth grade at 

Gaston School.
He was notified of his testing 

result on January 4, 1966, by letter from 

the company.
Do you have the lines of progression



-728-

chart dated September 23, 1968, in 
front of you?

A Yes.
Q I believe this is an ;Exhibi-t to the

Stipulations of Fact, Appendix F of 
the agreement dated September 23, 1968.

THE COURT: It is.
MR. LOWDEN:

1152.

Q

A
Q

A

Q

A
Q

A

First of all, I would like or you to 
indicate for the record the number of 
people who are in the top jobs of these 
lines of progression.
Mr. Lowden, do you mean the whole mill?
How many crane operators, American, do 
we have?
' Four.
How many machine tenders number one in the 
A paper mill?
Four.
How many beater men do we have in the A 
paper mill?
One.



-729-

A
Q
A
Q
A
Q

A

Q

A
Q
A
Q
A
Q
A
Q
A

Q
A

How many digest operators do we have 

in the pulp mill?
Four.
How many recovery operators do we have?

Four.
How many caustic operators do we have?

Four.
Now, in the B paper mill department, how 
many machine tenders do we have?
Four per machine, eight total.
How many stock room operators in the B 

paper mill?
Four.
How many power plant operators?

Four.
Technical service, B mill shift test men? 

Four.
General lab test men?

One.
Storeroom department, storeroom operators? 

Four.
Service department, pay loader?

1153.

One.



-730-

1154
One.
Since September 23, 1968, has there 
been any change in the hours that you 
work in the wood yard department?
Yes, sir.
Would you explain what happened there?
There are two types of operations in 
the wood yard department. It basically 
breaks down into long wood and chips 
and short wood which is pulp wood 
four feet or less. The short wood 
operations, due to'an increase in the 
facilities for loading chips, and also 
for the long log operations, the short 
wood operation was curtailed to two 
shifts five days a week. This necessarily 
affected the crane operator, American, 
large, the chipper operator No. 2, the 
chain operator, the tractor operator, 
and the laborers' classifications in the 
wood yard department.
And in the A paper mill department, have



-731-

1155.

there been any changes there?
A Yes. The No. 2 paper machine was shut

down the past year and that regressed 
one-half the total personnel complement 
in the A paper mill department. The 
beater room is manned by one beater 

man.
THE COURT: How come you to shut that

No. 2 machine down?
A It was just uneconomical.
MR. LOWDEN:
q Coming down to the product department of

the B mill, did something happen there?
A Yes, the entire finishing crew depart­

ment was shut down, I believe in 1969.
The only classification that remains in 
that dual line of progression, I believe, 
is core cutter.

Q The what?
A Core cutter. This gentleman cuts cores

for a paper machine.
Q Did anything happen to the shipping crew?



1156.

No.
Was the shipping crew curtailed some­
time prior to 1968?
Yes, it had been curtailed prior to 1968.
Has anything happened to the Kamyr de­
partment?
The Kamyr shut down, I believe it shut 
down in 1969.
What was the reason for the Kamyr in the 
first place, and why did it shut down, 
just make it real brief?
The Kamyr was to produce pulp for the 
papermaking facilities in Richmond,
Virginia and as the mill in Roanoke 
Rapids expanded its production, it required 
more and more of the pulp produced in the 
pulp mill. Therefore, we didn't have pulp 
to sell on the market and our paper machines 
now can use more pulp than we can produce.

The shipping room department of 
the A paper mill also curtailed, attendant 
to the No. 2 paper machine shutting down.



-733-

1157.
This also affected the A paper mill,
A paper mill test men in the service 
department. We have one A mill test 
man in the A paper mill at this time.
I hand you our copy of what is supposed 
to be Plaintiffs' Exhibit No. 10. Put 
it before you. I ask you if you had 
occasion to audit or check that docu­
ment?
Yes, I believe we received this item late 
in 1968 or early '69. It is supposed to 
be a compilation from the microfilming of 
personnel records of the bargaining unit 
employees at the mill at Roanoke Rapids, 
and to determine the degree of accuracy 
we started to check some of the entries of 
this document against what the actual 
records showed. We could only check these 
entries. We don't know - we don't know 
what the omissions were. In order to do 
this would be to reproduce in the entirety



-7 34-

this same document from our records.
The errors in this document 

amount to 264 employees. i believe the 
plaintiffs have indicated there were 
something in the neighborhood of 600 
employees, incumbent employees incorporated 
in this document, and 264 employees have 
errors in their entries.

MR. CHAMBERS: We request that the witness be
restricted to testifying what the document 
is supposed to show rather than summarizing 
and concluding as he is doing now.

THE COURT: Well, I don't know what he's
attempting to show, but I will let him 
testify as to what his check of your ex­
amination of the records revealed to the 
extent he knows of his own knowledge, and 
of course, you can cross-examine him.

A We checked such things as employment
dates, education listed, job change, test 
score, department date, race, actual job 
dates and age. And it was in this area

1158.



-735-

we found one- or more errors on the 264 
employees.

MR. CHAMBERS: Again, your Honor, I make the
same request. If the witness wants to 
testify about the errors in it we think 
he should be permitted to do it, but he 
shouldn't be allowed to summarize as he is 
doing now. It is not clear in the record, 
in each of the 264 he claims errors were 
made, that errors appear in all those 
categories, and if he wants to testify 
about that I think he should be restricted 
to stating specifically what errors he 
claims appear.

MR. LOWDEN: Your Honor, we can do one of two
• things. Mr. Moore can read into the record 
one by one those errors or he has a re­
capitulation that we can just put in evidence 
to show that.

THE COURT: Well, his testimony up to the
present time would afford a basis for 
finding that not all of the work done by 
plaintiffs' attorneys and their employees

1159.

\



I

MR.
THE

MR.
THE

MR.

THE

i
j

-i
1160.

was entirely accurate.
LOWDEN: That's right.
COURT: If that's what you want to show,

|go ahead. I don't see how it will further 
this case particularly to list each man 
name by name and number and race and sex 
and so forth and show what the error was, 
we might be here forever if we did that.

LOWDEN: All right.
COURT: Do you see any necessity for

doing that, Mr. Chambers?
CHAMBERS: Yes, Your Honor, if the Court would

permit we would like to identify his re­
capitulation sheet and examine him on 
that.

COURT: Well, when you get him on
cross-examination you may go into all of 
this subject,vith the reservation that if we 
begin to get too detailed I may say that 
there is no point in staying here end­
lessly.

-736-

1
MR. LOWDEN



- 737 -

1161.

2 Mr. Moore, during the course of the
testimony here there has been some 
testimony by employees about their having 
been painters and painting, and so forth, 
would you explain that to the Court?

A I believe you are referring to employees
from the extra board working with the 
maintenance department?

Q That's right.
A In 1967 we had experienced some curtailment,

in 1966 and in 1967. Things got a little., 
tight around the mill as far as operations 
were concerned and some of these older em­
ployees were not getting much work and in 
an effort to try and provide additional 
work for them we assigned them to do more 
maintenance, painting, and general labor 
type work around the mill than what we had 
normally budgeted. This is work that 
laborers from the call board have always 
done with the maintenance painting crew.
We don't consider this as being class



-738

1162.

maintenance work at all. It was an 
effort to provide them with more in­
come. We just didn't have work in the 
operating department and production de­
partment requiring their services. In 
1968 the union during negotiations spoke 
in behalf of these long-service employees 
and asked us to give them additional 
consideration. In fact, I think, as I 
recall, they would like to have us put 
something in the contract but we said 
necessarily that we could not incorporate 
in the contract, not knowing what the 
future business necessities would hold.
We did give them a letter of intent at 
that time that we would in every con 
ceivable way try and find additional work 
f or the long service employees in the un­
skilled job classifications.

This included painting, this 
included construction work 6uch as 
putting in concrete ramps and storage



-739-

ramps at the long log operation, 
utilizing our mill labor in many 
cases where contractor's laborers 
would only perform these functions 
and all of it was at considerable 
additional cost to the company.

q Do you have in front of you a copy of
Company Exhibit No. 4?

A Yes.
q Am I correct that this shows the number

of black people who were either trans­
ferred or entered so-called skilled 
lines of progression?

A That is correct.
q Since what date?
A January the 28th, 1966. What this

really is, is when the EEOC investigated 
the charges filed by the plaintiffs, one 
of the comments that the investigator 
made and also in his report was that the 
company did not have--

Mr. BELTON: Objection, your Honor, to

1163.

I



-740-

';hat the investigator said.
1164.

THE COURT: He said it was incorporated
in the report. Did you have access to 
the report?

MR. BELTON: Your Honor, there were two
or three different reports that came 
from EEOC, and there was a supplemental 
report along the same lines—

THE COURT: Have you seen it, Mr.
Belton?

MR. BELTON: 
THE COURT:

about? 
Yes, sir.

I have seen it.
Is this what you are testifying

MR. BELTON: At the time, your Honor, that
we sought to introduce that document into 
evidence, the Court indicated at that time 
that this was a trial de_ novo and that the 
Court would not be influenced by anything
contained

THE COURT:
MR. BELTON:

in the documents.
That still goes.
Well, your Honor, we think that



-741-

1165

if that is the case then the report

THE COURT:

should come m —
You think the report is the

best evidence?

MR. BELTON : That is correct.

THE COURT: Have you got the report with

you?

A No, sir.
THE COURT: Are you going to put the report

in?
MR. LOWDEN: We didn't think we wei: going

THE COURT: 

A

to go into the details of the report.
All we're trying to do is to show what 
it was that motivated us to do certain 

things.
I'll let him testify what he did 

in consequence of the report. I won't let 
him tell me what's in the report if it is 
not coming in evidence but if you want to 
show what he did in consequence of the re­

port, I'll let him say that.
The allegation was made that we had notA



-742-

1166.

many Negroes in skilled lines of pro­

gression.
MR. BELTON: Objection, your Honor. He s

talking about some kind of observation 
and he is not referring to the EEOC's 

report.
MR. LOWDEN: That is what they charged us

with, what their clients charged us 

with.
THE COURT: You know what that was, don t

you?
MR. BELTON: I know what the charges were,

THE COURT:

your Honor, but—
He's not talking about the re­

port now. He's talking about the charges. 
He's talking about something you do know 

about now.
MR. BELTON: Well, your Honor, he didn't

make that clear from his testimony, and 
we think it ought to be clarified.

THE COURT: Now go ahead and tell what they

i charged you with.



-743-

1167.
A Well, they said we didn't have many

Negroes in skilled lines of progression 
and what we attempted to do is go out 
and recruit Negro applicants who we felt 
were qualified and skilled and could 
perform some of these skilled jobs as 
well as look amongst our incumbent em­
ployees who had the capabilities of 
transfer and training in skilled lines 
of progression.

This is a chronological recap 
of employees who were hired and promoted 
into areas of skilled lines of progression 
and, in fact, did work in skilled jobs 
at one time or another.

THE COURT: This?
A Exhibit No. 4.
Q This is Company Exhibit No. 4?
A Yes, sir.
MR. CHAMBERS: I know we will have the witness

on cross-examination, but just so the 
record will be straight, is it my understanding



-744-

that this witness is saying, and 
this is why we are objecting, that the 
investigator, whoever came down, was 
saying this was what existed at the 
company and that this document which is 
Company's Exhibit 4 was prepared to show 
that there were at that time these people 
in these lines of progression?

THE COURT: I don't understand it that
way. I understood that your clients 
made some charges against this company, 
that in consequence of these charges the 
EEOC made some report. You objected to 
his telling me what was in the report. I 
sustained the objection, but he now is 
asked what in consequence of that report 
he did. He has told me he went out and 
recruited some black people to go into the 
skilled lines of progression. He has told 
me that he tried to find people there who 
were already in the employment of the mill 
to do the-same thing and that Exhibit 4 is

1168.



-745-

the company exhibit which has something 
to do with, it is a compilation of what 
they did in consequence of that. Is that 
correct, is that what your testimony is?

A Yes, sir.
THE COURT: Now, is there any objection to

any phase of that?
MR. CHAMBERS: No, I say we will have the wit­

ness on cross-examination and I wanted to 
get clear what the witness was saying.

THE COURT: Well, I told you what I under­
stood he said and he says that's what 
he said and now we're all clear on that.
Go ahead.

MR. LOWDEN:
Q Mr. Moore, in addition to the people who

are listed on Company Exhibit No. 4, would 
you tell us what incumbent black people 
you transferred to skilled jobs since 
1966?

A Yes, sir. F. W. Harding was transferred
to the wood yard department February 1st, 
1965. This was in addition to this Exhibit

1169.



No. 4. C. I. Harding was transferred 
to the maintenance department Septem­
ber 12, 1966, and things didn't work 
out too well for him there and he dropped 
out of the maintenance program and went 
to the extra board, and was then trans­
ferred to the B mill finishing on Janu­
ary 13, 1968, a skilled job of 
plugger, when that department was shut 
down he was then transferred to the pulp 
mill on August 18, 1968, and he is 
presently there working as first helper 
on the No. 5 and 6 recovery boilers.

Mr. Perry Cowan was transferred 
to the pulp mill - pulp mill's utility 
classification on September 29th, 1969, 
and in 1971, I think in January, he was 
promoted to second helper on the No. 5 
and 6 recovery boilers.

Mr. Otis Jones was transferred 
to the A paper mill as a back plugger 
No. 2 paper machine on December 14th,
1970.



Mr. T. E. Taylor was 
transferred to the B piper mill, 
in the spare hand classification, 
on September 23rd, 1968.

Mr. Henry Hill was promoted 
to the classification of first helper, 
beater room on May 13, 1968.

Mr. Eugene Harris was promoted 
to first helper beater room on May the 
6th, 1968.

Mr. W. D. Scott had been on the old 
utility board. He quit us and came 
back in 1967. He was hired in as a 
maintenance apprentice on September 
20, 1967.

Mr. C. L. Williams was 
transferred to the maintenance apprentice 
ship program on August 3rd, 1964. He has 
since completed the program as an A class 
maintenance employee.

Mr. Nonie King was promoted to 
chip unloader on December 14th, 1970.



-748

1172

Mr. Robert L. Alston was 
promoted to chip unloader on Decem­

ber 14, 1970.
Mr. A. L. Scott was promoted 

to the B finishing department on Septem­

ber 28 , 1966.
Mr. T. Daniels was promoted 

to the service crew foreman April 

29, 1968.
Mr. J. Boone was promoted to 

chain operator on September the 13th,

1969.
Mr. J. Norton was promoted 

to chain operator on Feb ruary 13, 1969.
Mr. Woodrow Jarrell was 

promoted to the salaried classification 
of mail clerk on March 1, 1971. This 
in addition to the listing on Company 

Exhibit 4.
Mr. Moore, do you have in front of you 
a copy of Company Exhibit No. 7?

A Yes, sir.



-749-

Q Would you explain to the Court what
Exhibit No. 7 shows?

A Exhibit No. 7, the left-hand column
shows the personnel complement in the 
classifications of coal boiler operator, 
bark boiler operator, first fireman, second 
fireman and laborer, for the week ending 
October 31, 1965. The extreme right-hand 
column indicates the personnel complement 
in the power plant and the date shown is 
November 2, 1965. I believe this was 
after that because the people were all 

- left in that specific classification on 
that date, this is when the coal boiler 
personnel were actually involved.

Q ' Over in the right-hand column, power plant
operator, it shows Mr. Anderson, Mr. Welch, 
Mr. Kelly, and Mr. Morrison. Did they come 
from the plant or from the outside?

A They were all hired from the outside.
Q And the old boiler room, the top item in

the left column, coal boiler operator, Mr.

1173.



1174.

Birdsong and Mr. Norwood show up as 
first helpers in the power plant in 
the column in the far right; and Mr.
Coker and Mr. Lassiter transferred to 
the power plant,‘is that true?
That is true. What happened was that 
when the power plant actually went on 
production in September 1965 we only 
had the necessity of one boiler in 
production to supplement the steam re­
quirements of the recovery boiler and 
the new power boiler had not been proven 
to the extent that if one boiler went 
down we would have an auxilliary piece 
of equipment that we could get relief 
from immediately.

Mr. Birdsong and Mr. Norwood 
were the most senior in the job of old 
coal boiler operator. They elected to 
transfer to the new power plant depart­
ment in view of the prospects of more 
steady employment and the addition of this



-751-

power boiler facility improved and 
increased potential employment 
opportunities.

The bark boiler was shut 
down and those employees having ex­
perience operating the boiler, were 
then placed in thq coal boiler operator 
classification. Mr. T. W. Edwards and 
Mr. L. Kennedy transferred over there.
Mr. I. Holloway went to the pulp mill 
and Mr. J. Merritt transferred to the 
power boiler. Under the notice posted 
by the power plant superintendent of 
the pending vacancies prior to the power 
plant start-up, he put in a request and 
it was reviewed on the basis of his 
qualifications and experience and he was 
selected on that basis.

The employees in the first fire­
men and second firemen and labor classifi- 
cation were necessarily laid off when 
the boiler started up and there was no

1175.



-752-

1176.
need to maintain that classification.
These employees were recalled to their 
former jobs and did work these jobs. I 
might add that at the time we put the 
new power boiler in service there were 
many problems and frequently people were 
re-employed to meet the steam require­
ments .

Q Subsequently you made a change in the
boiler room operation in this line of 
progression. Would you tell us about 
that?

A In the spring of 1968, I think along
about April, it was some time after that 
that Mr. William Towne testified that he 
had been a coal roller in the old boiler 
department and that he felt some em­
ployees in the power plant department 
were doing work he used to do and he was 
not getting much work.

We proposed to the union to 
eliminate the classification of utility



-753-

1177.
in the power plant department and put 
that work on a fireman over there and 
second helper in the power plant to 
perform the duties attendant to the 
utility power plant. The union agreed.
We merged that line of progression in 
the old boiler room with boiler operator 
and bark boiler operator, first and 
second fireman, and this improved and 
increased the employment opportunity 
for Mr. William Towne and Mr. J. Mallory. 
They have both since that time been 
given extensive training in the operation 
of the bark and coal boiler operations 
and, X believe, both have been promoted 
and now operate the boilers with close 
supervision.

Q Since you have been in charge of industrial
operations at the mill in Roanoke Rapids 
what affirmative action, if any, have you 

. and your department engaged in?
A Early in 1966 after I joined Albemarle,

I personally visited all the Negro high



-754-

schools in Halifax County and I went 
as far away as Enfield and Scotland 
Neck and spoke to the principals of 
those schools and to the student 
counselors and vocational guidance 
counselors, and on occasion I spoke 
to the senior and junior classes in 
these schools. In addition, I have 
personally made contact with some of 
the leaders in the Negro community 
seeking assistance in referring quali­
fied candidates to the mill.

During the period 1966 to 
date we have hired four young Negro 
women as accounting clerks, secretaries, 
and key punch operators, and three or 
four are still employed with us. One of 
those received a maternity leave of 
absence and has returned to work.
Have you served on any community projects 

in this area?
In 1967 I was appointed to the 
Commission of the City of Roanoke Rapids,

1178.



-755-

representing both Albemarle and the 
industry. During this time one of 
our main projects was to establish the 
Housing Authority Commission for the 
construction of low rent housing in 
the City of Roanoke Rapids. Prior to 
my being on that Commission one of my 
predecessors, Mr. John Bryan, served 
on the Bi-Racial Committee in 1964 
and 1965.

While I was on the Commission 
I used it as a means to discuss some of 
the employment opportunities at Albemarle 
with Negro members of the Commission 
and on occasion they referred applicants 
to my attention.

Another part of the affirmative 
action: The foreman of the old service
department died in 1968 and the named 
plaintiff spoke to the superintendent 
of that department and requested that we 
give consideration to replacing the fore­
man with a Negro, Mr. T. Daniels, Coley

1179.



-756-

1180.
Rivers, Gene Peebles, all three members 
of the affected class—

MR. BELTON: Objection, your Honor, to the
reference by the witness to the affected 
class, that has not been determined yet.

MR. LOWDEN: We think it has, your Honor.
THE COURT: At least Mr. Daniels is a

named plaintiff. '
MR. BELTON: We object, your Honor, to his

reference to the affected class and we 
say this leads to a conclusion.

(Brief recess)

THE COURT: All right, you may proceed.
MR. LOWDEN:

I believe you were in the middle of a 
sentence when we stopped, if you remember 
where you were, go ahead.
I wonder if I might have that sentence re­
read .

(Last portion of answer appearing on
Page 1178 read.)

l\^A

Q

A



1181.

We interviewed all three and looked 
at their qualifications and the job 
was given to Mr. Daniels. Since that 
time we have used both Mr. Peebles and 
Mr. Rivers as a temporary setup foreman 
in Mr. Daniels'absence. Additionally,
Mr. Daniels has received some training 
as a wood yard foreman on the short and 
long wood operations of the wood yard 
department.
All right, sir, let's go on to something 
else. There have been references through­
out the trial to a school or a union 
school, would you tell us about the 
school?
We felt that one of the many dilemmas ^ 
in this litigation arose around the fact 
that many of the long service employees 
had very little education and could not 
perform the administrative duties of 
the various skilled jobs.

I don't recall the exact dates 
but I know it v/as prior to the establishment



-758-

of our "mini-learning lab." The com­
pany had adult education in the mill 
and the company sponsored it and its 
success was not too great. In dis­
cussing it with some of the senior 
employees it was determined that the 
problem was one of getting employees 
on shifts to attend classes reguarly 
and keep abreast of their classwork 
and, too, that the participants were 
not all starting at the same level of 
education. So I contacted the Halifax 
Technical Institute which is an organi­
zation arising from the Department of 
Community Colleges of the State of North 
Carolina and asked them what type of 
training program we might establish with 
their assistance and they had a program 
in the State of North Carolina in several 
locations which appeared to be pretty 
well tailored to our needs, so it was 
entitled "mini-learning lab" and what they 
do is program the various subjects so that

1182.



-759-

each participant studies and progresses 
at his own speed aside from all of the 
other participants. They had school 
teachers and qualified instructors to 
attend all these sessions so that at any 
time a participant had a question or 
difficulty or anything, you had a 
qualified person there to assist him.

We established this program 
in about July or August of 1968. We had 
a problem trying to find a location where 
to hold this schooling. We didn't have 
the facilities at the mill and the 
facilities uptown were rather limited, 
and we anticipated a pretty large group of 
employees. It occurred to us that since 
the union was a co-defendant in this 
thing and since these participants that 
we were concerned about were mostly members 
of the union, that perhaps they might con­
sider the use of their hall as a school

1183.

room. The union was delighted to co-sponsor



-760-

this training with us. We had forty-two 
white employees and forty-one Negro em­
ployees who initially signed up.

As of November 4th of 1970 
eighteen employees have completed 
various levels of education and received 
GED certificates, which is a certificate 
of General Educational Development 
equivalent to a high school graduate.
This certificate is awarded by the Depart­
ment of Instruction of the State of North 
Carolina. Of those eighteen employees, 
seventeen were white and one Negro.
Necessarily, I believe that many of the 
forty-one Negroes who signed up were in 
very low levels and many are presently 
continuing their education and attending 
the school.

It was in about 1970 that the 
Department of Public Instruction in 
Halifax County told us that they were 
going to have to withdraw from the "mini­
lab" at Roanoke Rapids and move the

1184.



-761-

1185.

training school to the Technical 
Institute at Halifax, North Carolina, 
so this program is in effect still 

operating.
We found that a number of 

our employees, both white and black, 
have improved their educational 
development and are able to perform 
better on the job as a result of attend­

ing these classes.
I had a document that was 

printed by the Department of Community 
Colleges dated summer of 1969 in which 
they featured a center page spread 
article on Mr. Henry Hill, describing 
our "mini-lab," and they came to us 
and asked us if it would be all right 
if they did this article. Their purpose 
was to encourage other industries to 
review this "mini—lab" in th eir plant 
and we were delighted with the prospect 
and we thought that this would help the 
Department of Community Colleges. We



-762-

1186.
had no objection and Mr. Hill had

tno objection to being photographed
and featured in this article.

q Do you have it in front of you?
A I do, sir.
q We will have that marked.
MR. LOWDEN: I would like to have this

marked as Company Exhibit No. 32 and 
ask that it be admitted in evidence.

MR. CHAMBERS: We request the Court to
restrict this exhibit just to illustrate 
the testimony of Mr. Moore. We think 
that the Court should not receive it as 
substantive evidence.

THE COURT: I grant that request.

(Document printed by the Department of 
Community Colleges, featuring article 
on Mr. Hill, identified as Company 
Exhibit No. 32, was admitted in evidence.)

MR. LOWDEN:
q Mr. Moore, I would like to turn now to

the question of employee turn over—



-763-

A Before that, I wonder if I might mention

one other item.
MR. CHAMBERS: We would like to object to

this witness testifying without having 

a question.

MR. LOWDEN:
q Is it an explanation to a former question?
A It had to do with, I mentioned about the

company's school--
MR. CHAMBERS: Objection.
THE COURT: Ask your question again, please,

and before he answers let him get in an 
objection so that we can rule.

MR. LOWDEN:
Q Mr. Moore, do you wish to amplify the previous

question with respect to the company school?

THE COURT: The question?
MR. LOWDEN: His previous answer, your Honor.
A Yes, I would like to. The company for

many years has sponsored off the job 
home-study with correspondence schools 
that we recognize as being reputable

1187.



-764

1188.

correspondence schools and when an 
employee signs up for one of these 
courses and it appears to be of some 
value to his employment, we have 
approved it under the company training 
program and advanced the employee the 
sum total for the expense and make 
deductions from his pay check while 
he is in home-study, and upon successful 
completion and showing proof of success­
ful completion, we reimburse the employee 
50% of the total expenses. Some of the 
subjects of that might be basic education 
such as through high school and attaining 
a high school equivalency certificate, 
involving papermaking, chemistry, 
mechanics. Some of the courses are 
specifically designed to be used in our 
maintenance apprenticeship training pro­

gram.
Q Now, turning to the subject of employee

turn over, to shorten it down, will you 
tell us what the turn over rate is at the



-765-
1189.

present time and has been for the 
past couple or three years?
For the past three years ending with 
the year 1968 our employment annual 
turn over has been .52%. In 1969 it 
was .003%. In 1970 through July 1,
1971 it has been .003%. We believe 
we have a very low turn over at the 
mill.

Are there any white employees on the 
extra board who have worked in the main­
tenance department on things such as 
painting, and so forth?
Yes, sir. This is not an uncommon 
practice. I can state that when 
the A paper mill went down last summer 
that the employees, W. L. Carroll, J.
Johnson, R. A. Gibson, J. G. Walker,
W. G. Manning, K. P. Jones, E. W. Davis, 
worked with the maintenance department 

laborers and as members of a painting 
crew from the general extra board.

Employees E. E. Cookland, H. T.
Yon, M. R. Baird, R. L. Powell, Jr.,



F. M. Johnson, W. E. Newton, C. M.
Cheetah, R. H. Kidd, F. K. Banney,
S. T. Jordan, R. W. Woodruff, J. F.
Butler, and S. W. King, had worked in 
those same capacities this year.
Have any white employees worked in the 
service department?
Yes, sir. In 1971 our records indicate 
that H. T. Yon, P. R. Wichard, S. W.
King, and R. H. Kidd had worked with the 
service department.
Mr. Moore, I would like to turn your 
attention to the labor agreement between 
Albemarle and the United Papermakers and 
Paperworkers dated September 23, 1968, 
have you got that in front of you?

Yes, sir.
I direct your attention to Sections 
10.2.1, 10.2.2, and 10.2.3, and in 
particular the second sentence in 
Section 10.2.1 which reads:

"The decision of the company

1190.

in granting or denying such



-767

requests for transfer be 

final . . . "
Would you state to the Court why the 
company insists on that prerogative?

A Yes, sir. When we included Sections
10.2.2 and 10.2.3 in the 1968 labor 
agreement, we were placed in the position 
then with vesting employees from a de­
partment line of progression to a new 
department line of progression with job 
seniority equal to that held in his last 
job or equal to that in the lowest job in 
the line of progression from which transferred 
and this in effect would be tantamount to 
plant seniority.

This is to say, that if we have 
a very senior employee in a very high 
skilled job, he would take to the new 
department his plant seniority and his 
job seniority.

Under Section 10.2.3 he was 
capable of being vested with the red 
circled rate or a higher rate of pay.

1191.



-768-

For instance, a machine tender making 
a rate of pay, say, of $5.03 an hour 
would carry that red circled rate under 
this language.

We pointed this out to the 
union that we didn't want some of the 
senior employees who no longer wanted 
to perform some of these responsible 
jobs to transfer over to say a laborer 
in another department or entry level 
classification in another department and 
be paid that higher wage rate for all 
this time, and we felt that we 
necessarily had to be in a position of 
determining based on the merits of the 
individual transfer whether the employee 
would be vested in this way or not, and 
if we contractually gave that, then we 
would have no control and might very well 
end up having employees, if not all in 
the senior classification, that some of 
the higher classifications going into

1192.



69-

1193

MR. LOWDEN

lesser responsibility jobs and perhaps 
taking jobs that we had negotiated 
rates on shift work to day jobs. 
Obviously, as an employee gets along in 
years, he would rather work day shift 
steady than work swing shift seven days 
a week, three hundred and fifty-two days 
a year.
: All right, sir.

MR. CHAMBERS: Your Honor, we wonder if the

MR. WOODS:
union defendant could go next.

We just have a couple of
questions.

THE COURT: All right, sir, you may
proceed.

MR. WOODS: CROSS-EXAMINATION

Q Mr. Moore, in your direct examination 
you reported efforts made in 1968 to 
give more work to extra board employees 
with long seniority. Do you recall 
that testimony?

A Yes, sir.
Q Isn't it a fact that Mr. Mills for the



-770-

1194.
union had spoken to you several 
times in an effort to have that 
happen?

A I'm sure he has. I had many, many
conversations with Mr. Mills but I 
don't recall a specific one. I'm sure 
he may have.

Q I show you a letter marked for identi­
fication as Union Exhibit No. 2 addressed 
to Mr. David Mills from Mr. K. D. Running, 
Vice-president, dated December 23, 1968, 
and I ask if you can identify that letter 
as representing the company response to 
the union's request?

A Yes, sir.
MR. WOODS: I offer Union Exhibit No. 2.

(Letter to Mr. Mills from Mr. Running 
dated December 23, 1968, marked Union 
Exhibit No. 2, and admitted in evidence.)

Q _ In connection with the school arrangement
in 1968, I take it that the classes were 
held a couple of years at the union
hall?



1195

That is correct.
The company had made the arrangements 
to have the Halifax Technical School 
furnish the instructions, the union, 
however, furnished the air-conditioning 

and the hall?
That is correct. We also purchased 
some tables and I think we purchased 
some of the supplies necessary, and 
tsxts, I believe. The union principally 
was overseeing the use of the hall.
I might add, by the way, that this was 
sessions were held in the morning, 
afternoon, and evening. And I think it 
was four and five days a week, weekdays. 
With respect to the promotion of Daniels 
to foreman, the union was also active in 
promoting a colored employee for a fore­
man's job, was it not?
Not that I recall.
You don't recall Mr. Mills talking to you

about that?



-772-

A
MR.

MR.

Q

A
Q

A
Q

A

No, sir.
WOODS: That's all I have, your

Honor.

BELTON: CROSS-EXAMINATION
I believe you testified, Mr. Moore, 
that you did examine the Plaintiffs' 
Exhibit No. 10?

IYes.
Now, I show you this document and in 
response to several questions raised 
by Mr. Lowden about No. 10, did you 
have reference to that document in 
terms of the errors that you say you 
found in the Plaintiffs' Exhibit 
No. 10?
Yes, that is correct.
Do you know when you made the examina­
tion of Plaintiffs' No. 10?
Yes. We, shortly after we received 
this summary that you sent to us, I 
believe that was in 1969, we wanted to

1196.



-773-

MR.

THE

A

MR.

Q

1197.
determine the accuracy of the entries 
because I had mentioned many times to 
your employees when they were at our 

mill—
BELTON: Your Honor, I object to what

he said to our employees.
COURT: Well, so long as the only

thing with which we are concerned is te 
fact that he had any communication with 
them, I see no objection to it. Go 

ahead.
Many of the documents that were contained 
in the personnel records were very old 
and very difficult sometimes to distinguish 
entries and I wasn't at all confident 
that the information contained in these 
files would be put in its proper order in 
your summary.

BELTON:
Did you check Plaintiffs' Exhibit No. 10 
against the original records of the com­

pany?



1198.

A Yes,
q  Now, do you know whether or not, Mr.

Moore, that document you are looking at 
containing your statement of the errors 
contained any information about the em­
ployees on the document for the years 
subsequent to 1968?

A It may well have because when it became
known to us that you were going to use 
Plaintiffs' Exhibit No. 9 as evidence we 
went back and started to recheck it to be 
certain of our accuracy. So it might have 
included any entries made to date. I 
can't state right now, looking at the

one in front of me.
The accuracy of the entries in

Plaintiffs' Exhibit No. 10 is reflected 
exactly in our recapitulation of this 
against the actual personnel records. 

q In addition, I think
THE COURT: One moment. In your recapitula-

that that extended beyondtion you say



-775-

A
THE
A

THE

A
THE

A
MR.

Your Honor—
COURT: Since that time?

What I was saying, your Honor, in our 
pre-trial conference they indicated 
they were going to submit this as an 
exhibit and after that we went back and 
continued to recheck our recap here.

COURT: Well, if they stopped in
1968, anything that you pick up after 
that time would not reflect an error 
made by them - 
No, sir, it would not.

COURT: Well, in this total of 264
errors you say you found, are there 
any attributable to some compilation 
that you made subsequent to the records 
you made up to 1968?
Not to my knowledge.

BELTON: Now, your Honor, in the
interest of preserving time we would

1968?

1199.

like to offer Mr. Moore's errata sheet



-776-

1200.

in lieu of going through 
Plaintiffs' Exhibit 10 one by 
one, we think in order to meet 
this testimony we need to know.

A Mr. Belton, I have just run through
this and I don't see any dates beyond 
1968. I just didn't want to say 
specifically one way or the other until 
I had looked and I don't see any date 
beyond 1968.

THE COURT: Would you like to offer his
errata sheet?

MR'. BELTON: In lieu, your Honor, of going
through it one by one with the witness 
and getting this information down, be­
cause in order for us to understand the 
errors that he is talking about we should 
have specifics and he has them here.

THE COURT: All right.
• (Errata sheets, identified as Plaintiffs'

Exhibit No. 73, admitted in evidence.)



-777-
1201.

A Mr. Belton, I wonder if in the interest
of clarifying this thing, our summary 
does not correspond with the summary 
that you gave us the other day before 
the Court, I believe. I think that this 
document would have to accompany that in 
order to have a continuity.

MR. BELTON:
Q Let me ask you this, Mr. Moore, in terms

of trying to clarify it. Would the names 
in Defendants' Exhibit No. 10 be in the 
same order in your errata sheet as appear 
in Plaintiffs' No. 73?

A That is correct, yes.
MR. LOWDEN: Your Honor, this might help.

They would appear in the same order as 
Plaintiffs' No. 10 as furnished to us 
some time ago. The one that they came 
up with the other day at this hearing, 
as you recall, your Honor, was different.
It contains the same information but the 
pages are all changed and that is why the



-778
1202.

other day we couldn't find what they 
were talking about on that page. So, 
this document goes to that one there 
and if you use the actual Exhibit No. 10 
it would be pretty confusing because 
they're not in the same order.

THE COURT: The errata sheets relate, he
says, to your original compilation and 
not to the one that you offered in 
evidence. So if you're going to relate 
the two maybe you want to re-introduce 
your Exhibit No. 10 for ease in shifting 
from one to the other, making a comparison 

between the two.
MR. LOWDEN: Isn't it true that that one

and the one you gave us the other day 
contains the same information but is re­
arranged between the two?

MR. BELTON: I don't know the rearranging,
but the documents should contain the 
same information.

THE COURT: All right, I will accept Exhibit
No. 10 or his version of Exhibit No. 10 as



-779

MR.

THE
MR.
Q

A

THE

1203
an auxilliary sort of document for 
the errata sheet so if I have to make 
any comparison between the two I will 
look at the one that follows the same 
order, names, and so forth, as he has.
You say that they are the same.

BELTON: They are the same, your
Honor.

COURT: All right.
BELTON:

For further clarification, Mr. Moore, I 
note that there are some red pencil marks 
and changes on your copy of Plaintiffs' 
Exhibit No. 10. Are these the changes 
that are reflected on the document we 
just introduced, Plaintiffs' Exhibit No.

73?
That is correct.

COURT: I understand that your copy of
Plaintiffs' Exhibit No. 10 contains in red 
pencil the errors that you say your errata

sheet contains?



-780-
r/6  6

1204.

A Yes, sir. The only thing it doesn't
contain is omissions. I don't know, 
unless we made a complete recap of every­
thing in our file to compare it, I don't 
know - in our file, we don't know if 
they are all of the omissions or not.

MR. BELTON:
Q Mr. Moore, I think you testified with

respect to your Exhibit No. 7 which is 
the boiler room, power plant employees, 
and I think you indicated the date of 
11-2-65 was incorrect?

A Well, what I'm saying, Mr. Belton is
that on 11-2-65 the power plant started 
up and as I line up the employees in the 
various job classifications, I did not 
want to testify that each one of those 
was performing that specific job on that 
date. They may have transferred into 
those classification by then or shortly 
after that. I just didn't want to say 
specifically that everybody was in that



job on that date.

THE COURT: That was the date on which
the first one of them transferred?

A Yes, sir.
MR. BELTON:

Q Looking at the left-hand column of the
names, department, and employees, taking 
the boiler room, do you know the race 
of the specific individuals under the 
various job categories, coal boiler, 
bark boiler, first and second firemen, 
laborer?

A Yes.

Q Now, were all of the employees listed as
first firemen black?

A Yes, sir.

Q What about the category of second fire­
man?

A Yes, sir.
Q They were all black?
A Yes, sir.

Q And the employees classified as laborers,



-782

1206

they were all blacks?
A As far as I know, all of them were

black.
Q Now, did you have any of the employees

in the boiler room, Mr. Moore, to trans­
fer to any positions in the power plant?

A Yes, ■ two.
Q And these two were—
A J. E. Birdsong, coal boiler operator;

J. W. Norwood, coal boiler operator.
Q And both of these individual are white, I

take it?
A Yes.
Q Birdsong and Norwood?
A That's right.
Q I again refer you to—
THE COURT: Let me see that Defendants'

No. 7. Do I correctly understand that 
only three employees of the original coal 
boiler, bark boiler departments in the 
boiler room and bark boiler employees 
transferred to the power plant?



-783-

1207

A That is correct, your Honor.
THE COURT: And Norwood and Birdsong 

are two of those. They became first 
helpers in the power plant?

A Yes, sir.
THE COURT: And J. Merritt, the bark 

boiler operator became what?
A A first helper.
THE COURT: He became a first helper

too?
A Yes, sir.
THE COURT: Those three?
A Yes, sir.
THE COURT: Is J. Merritt white or

colored?
A White.
MR. BELTON:
Q Mr. Moore, do you know the educational

background of Mr. Birdsong or Mr. Nor­
wood and Mr. Merritt, do you know if they

A
completed high school?
Mr. Belton, I am inclined to believe that



-784-

Mr. Birdsong had not completed high 
school. I can't testify specifically 

about Mr. Norwood.
t

q I show you a document and ask you if
you recognize your signature on this 
document, this document relating to em­

ployee Norwood?
A Yes, that is my signature.
MR. BELTON: I would like to have this

identified as the Plaintiffs' Exhibit 

No. 74.
(Letter re Norwood from Mr. Moore 
identified as Plaintiffs' Exhibit 

No. 74.)

MR. BELTON:
q Mr. Moore, the document I have just

identified as Plaintiffs' Exhibit No. 74, 
would you explain to the Court the cir­
cumstances for that?

A I wonder if I might have that document.

q Yes.
A This is a document dated January 24, 1968,

1208.



/

in which Mr. Norwood was waiving the 
opportunity to promote to the power 
plant operator classification and in do­
ing so, would be reduced to the lowest 
seniority standing in his present classi­
fication, that all employees would by­
pass him in the event of reduction or 
curtailment.

Q Did this question go to the qualifications
of Mr. Norwood to perform jobs in the 
power plant?

A No, it did not.
Q In any event, you don't recall what Mr.

Norwood's educational background is?
THE COURT: He said he did not know about

Norwood, whether he had finished high 
school or not. He didn't think that Bird­
song did.

A I believe the reason this gentleman waiv ed
on this particular exhibit was due to nerves 
and a skin condition which was created from 
his nervous condition when he had to operate

-785-

1209.



MR.

Q

A

Q

A

Q

A

1210.

as a power plant operator.

BELTON:
I think you also testified that some 
of the black employees who were in the 
boiler room have been given training in 
some jobs in the power plant, is that 
correct?
Not in the power plant,- in the boiler 
room department.
What was the nature of the training, Mr. 

Moore?
They were trained to operate the bark boiler 
and the coal boilers.
Were these the types of equipment they worked 
on prior to the discontinuance of the boiler 
room and bark boiler?
They had worked in this equipment, yes, that 
is, the coal boiler. They had not worked 
on the bark boiler, to the best of my know­
ledge. They had not received any duties in 
operating either the bark or the coal boiler 
prior to the merger of the duties in the

-786-



-787-

Q

A
Q

A
Q
A
Q

A

line of progression in 1968.
Mr. Moore, would you further that 
characterization to say that the coal 
boiler was fired by coal?
Coal and oil.
And the bark boiler, how was that 
fired?
With bark.
With bark?
Yes, sir.
Now, is there anything mechanically 
different between the firing of the coal 
boiler and the firing of the bark boiler 
apart from putting the fuel into the boiler 
and reading the various gauges?
Yes, there are quite a few differences.
We discussed this prior to merging these 
progressions. We talked to the superinten­
dent of the power plant who is responsible 
for all of this equipment and its operation 
and he had definitely more knowledge than 
I.

1211.



-788-

Thd bark boiler is not a 
high pressure vessel. The coal 
boiler is not necessarily as high as 
say the power plant boilers but more 
so, above the bark boiler operation.
You get into an area of how much steam 
and pressure is on the vessel itself.
I can't quote you those numbers. I don't 

know.
Q Let me ask you this question. You have

the coal boilers and'you have the bark 
boilers and you have the boiler, it is 
called a diesel in the power plant?

A Coal and diesel in the power plant.
Q Now, based on your knowledge of the opera­

tion of these pieces of equipment, how 
would you rank them in degree of diffi­

culty?
A The power plant is the most technical.

It uses all forms of fuel, both coal, oil, 
and bark as a source of fuel and has a 
much higher pressure level than the other

1212.



-789-

two. It also requires a much greater 
degree of skill and technical training 
to operate than the other two boilers and 
it has coupled to it a turbine which 
generates the production of electricity.
We produce 60% of the electricity in the 
mill with the new power plant whereas here­
tofore we purchased all.our electricity 
requirements.

In that respect, the operator 
of the power plant in his technical training 
and skill has got to be able to swing, let's 
say when a boiler trips out, and you lose 
production of the fire boiler in our mill, 
to converting over and picking up the 
electrical supply from the outside source.
A man has to know exactly what's going 
on, what he's doing at all times, and he 
just does not have the latitude of guess.
It is a very, very high skilled and 
technical job.

Q You rate the equipment in the power plant
at the very top, is that correct?

1213.



-790-

1214.
Yes.
What about the rating with respect to 
the coal boiler and the bark boiler?
I would rate the coal boilers next.
And the bark boiler?
There are seven what we call package 
boilers down there and they have been 
there for years and years and years and 
affectionately referred to as old tea 
kettles. They produce steam and that's 
all their function is, to generate 
steam, and you have a boiler operator 
who has to be able to, in series, take 
them on and off depending upon the mill's 
requirements. The paper machine perhaps 
has a break in their requirement for 
steam which is considerably less than 
they've been getting, and then you reduce 
the capacity. If the pulp mill and re­
covery boilers over there get into an 
unusual situation they notify the fellow 
who is operating the package boiler and



-791-

1215.
he shifts accordingly. So, if they're 
operating all the package boilers during 
inclement weather or very unusual situa­
tions, he has got to know what he's doing 
too. But the degree of his technical 
knowledge is not as great as that as the 
fellow in the powdr plant.

The bark boiler, there are two 
very old units, and after the shut down 
of the bark boilers, they rarely operated 
more than two or three times a year, 
generating during the winter months, pro­
ducing steam for heating purposes in the 
office and that sort of thing.

Q How often would you say you have operated
during the past two years the coal boilers?

A Every day. At least one package boiler
is on all the time now. I will qualify 
that to say that there might have been a 
time when they were all down, but under 
normal circumstances one package coal boiler 
is on the line producing steam at all
times.



-792-

Q Referring to Defendants' Exhibit
No. 7, would you identify for the 
record if you can the race of the em­
ployees named under coal boiler operator 
and bark boiler operator?

A Are you speaking of the left-hand column
or the right-hand column?

Q The left-hand column.
A Birdsong, Coker, Lassiter, Norwood, Edwards,

Holloway, Kennedy, and Merritt are all 
white, as far as I know.

Q All of the employees listed under these
two categories then are all white?

A Yes, as far as I know.
Q I think you stated, Mr. Moore, that there

were approximately forty-two whites and 
forty-one blacks who had participated in 
the " niinir-learning lab", is that correct?

A That was the initial enrollment, yes.
Q In 1968?
A In 1968.
Q Do you know any whites who participated in

1216.



1217.

it?
By name?
By name.
I don't have that before me although I 
do have the enrollment of everybody 
who began in that program.
Now, do you know whether any whites 
participated in the program who were 
high school graduates, all or any?
No, they were not high school graduates. 
This was not any type of extension beyond 
high school. We were attempting here to 
develop a training program leading to a 
high school equivalency certificate. If 
they wanted to take additional studies 
say in electricity or welding or something 
of that type, this was not designed for 
that, they were referred on to the Halifax 
Technical Institute for separate enroll­

ment.
Do you know whether any of the forty-two 
whites who participated in the initial



-794-

1218.
program, the initial phase of it, had 
taken any of the tests offered by the 

company?
I can't testify to that, Mr. Belton.
Do you know the position that some of 
these whites held, Mr. Moore, and I'm 
referring to the forty-two who initially 
participated in the program?
The one I am familiar with is an employee 
who worked for me personally. He is a

watchman.

Q Do you know the jobs any of the others

had?

A No, sir.

Q Do you know the name of the black that you

said completed the program?

A Who completed?

Q You said there were seventeen whites who
completed by 1970 and one black, do you 
know the black who completed by name?

A Otis Jones.
q Otis Jones?
A Yes. I might - the Court might be



-795-

1219.

interested to know that Mr. Otis Jones 
in joining the program had only a third 
grade education. I thought that was

commendable.
the c o u r t: Did he get any better job by

reason of having acquired this additronal

education?
A Yes, sir. we transferred him over to the

*. paper mill in the beginning classifica­
tion of a cutter and he was vested with 
the former seniority of the wood yard 

department.

MR. BELTON:

Q
DO you know if Hr. Jones is still employed 

in the A paper mill?
yes. He is not in there because when the 

2 machine shut down, he, along with 
possibly one-half or more of the A paper 
mill employees, was regressed. He does 
retain recall rights to that department and 
the job. He is presently working on the

general extra board.
The general extra board?



1220.

Yes, sir.
I believe you testified also, Mr. Moore, 
that you had a merger of the extra 
boards in 1968, is that correct?
Yes.
Prior to the merger in 1968 you had the 
utility extra board and the general extra 
board, is that correct?
That is correct.
And the utility extra board served certain 
lines of progression and the general extra 
board served other lines of progression, is 
that correct?
That is correct.
Do you know if these lines are still being 
serviced the same way after the merger in 
1968?
No, sir, they are not.
How are they called off the board, for 
example?
The purpose of merging the two boards was 
that we felt that there were possibly some



-797-

1221.
employees on the utility board who 
were capable of performing some of 
the duties in the skilled lines of . 
progression but certainly not all of 
them. We would like to have assigned 
them to these areas to determine how 
they did and if they were satisfactory 
perhaps give them consideration when 
vacancies occurred and we did do that.

Q Do you know whether, Mr. Moore, the
employees are recalled from the combined 
board for any and all jobs on the basis 
of seniority?

A I don't understand your definition of
recall. Recall to me says that when an 
employee has been permanently assigned to 
a job in one of the departments and 
thereafter demoted to unemployment, he re­
tains the right back to that job or de­
partment, and that is called recall.

THE COURT: You were just talking about when
they needed a man for a particular job, would 
they call them in line of seniority?



-798-

A
MR.

THE

MR.

THE

MR.
Q

A
Q •

(No answer)
BELTON: Your Honor, I wanted the wit­

ness to explain how they operate under 
the merit situation, the call boards, 
and I was—

COURT: He says recall has a different
definition from apparently your question 
involved.

BELTON: I realize that, your Honor.
I will try to clarify that.

COURT: I was interested in an answer
to your question, that's the reason I made 
the comment.

BELTON:
Mr. Moore, do you have a pool of employees 
who have worked on various jobs on a perma­
nent basis who are now on the call board or 
who may be on the call board?
That is correct.
And do these employees have first recall 
to openings to those positions for which 
they held at a permanent time over a senior

1222.



-799-

A

Q

A

Q

A

Q

employee in terms of plant service 
who has never worked on the job?
Yes, by seniority. That is my definition 
of recall. For instance, if I can give 
you an example of that, say a laborer in 
the wood yard who has regressed to the 
call board, if a vacancy occurs because of 
sickness, vacation, or increased operations, 
if he is on the call board and he is the 
most senior of laid off laborers from the 
wood yard group, he would be the first one 
to be called or contacted to return to the 
wood yard.
Would the same be true, for example, with 
a back plugger No. 2 in the A paper mill?
Yes, sir.
The employee who worked the job before gets 
the first recall, right?
If he has been permanently assigned to that 
job, then we call them on the basis of 
seniority.

1223.

Plant, department, or job?



-800-

1224.

Well, that goes back to department—
Could we get an illustration so we can 
understand how it operates? Assuming 
you had two employees on the call board, 
one worked in the wood yard department as 
a chain operator and he has worked in the 
wood yard department ten years, worked on 
the chain operator's job for one year; the 
other employee works in the A paper mill 
department and he has worked that position 
of fourth hand and has been with the com­
pany five years and has worked the position 
of fourth hand four years, both of these 
employees are now on the call board, they 
are not actually working. They need someone 
to fill the fourth hand position and as be­
tween these two individuals—  do you under­
stand the illustration?
I'm following you so far.
As between these two individuals, who would 
be recalled under the system as it now
operates?



-801-

A If the vacancy occurs in the paper mill
in the fourth hand classification, actually 
it would start at the bottom of the line 
of progression, the employee with the 
seniority from the paper mill department 
would be recalled to that classification.
The employee from the wood yard who had 
never worked in the paper mill would have 
no recall right to that department.

Q The collective bargaining agreement makes
reference to job seniority, plant seniority, 
and department seniority. Is that not 
true?

A That is correct.
Q What purpose does job seniority serve in

terms of promotion or demotion under the
present contract, Mr. Moore, and I'm talking 
about within a line of progression as to 
promotion and demotion within a line of 
progression?

A Well—
MR. LOWDEN: If your Honor please, this is

1225.



MR.

THE

A

1226.
outside the scope of the direct 
examination of Mr. Moore, and I be­
lieve we spent the whole day Friday 
with Mr. Bryan covering this subject.
I believe it has been covered and I 
don't think I asked Mr. Moore anything 
about that.

BELTON: This is cross-examination,
your Honor, and also Mr. Bryan did 
terminate his services with Albemarle 
and at the present time having new 
corporate defendants, I'm trying to find 
out if the system as it operated before 
continues to operate at the present.

COURT: I think it's a proper subject
for cross-examination. You may go ahead.
The most qualified senior employee in a 
given job classification will be the first 
one to be promoted in the event of a 
vacancy that occurs in the next higher 
classification. In the event there is a 
regression or demotion, the most junior

-802-



-803-

of the employees qualified and by 
seniority in that specific job 
classification will be the first to be 
demoted on a regression.

MR. BELTON:
Q Now, would you explain to the Court, Mr.

Moore, how department seniority, what role 
department seniority plays in the promotion 
or the demotion of an employee in a line 
of progression?

A Well, as Mr. Bryan testified—
Q Could I get your testimony, please?
A I will. The two are synonymous. Many times

what you have, departmental seniority is 
the first day the guy went in on a job in 

■ , a department. Job seniority is defined as 
total length of continuous service in a job 
classification, seniority in a higher job 
in the same line of progression, so it counts 
toward job seniority in a lower job in said 
line of progression. That is to say that as 
an employee progresses from job one to job

1227.



1228.

two to job three, his job seniority - 
well, in a given job classification is 
less than department seniority and is 
synonymous to departmental seniority.
The application of departmental seniority 
relates in terms of selection of vacations, 
in the event that his progression backs 
down if there are-other areas he might 
be considered, he might exercise depart­
mental seniority. That would be the normal 
application of departmental seniority.

Q Now, given an employee, Mr. Moore, who has
a different job seniority date from a depart­
ment seniority date, as between those two, 
those two types of seniority, which would 
control his movement upward and downward?

A Right now, his job seniority.
Q His job seniority?
A Yes.
Q Now, would you explain, Mr. Moore, what role

plant seniority plays in terms of promotion 
and demotion of an employee in any line of 
progression?

-804-



-805-

A
Q
A

Q

A
Q
A
Q

A
Q

A

It principally does not.
It does not?
It does not play any part in a demotion 
or a promotion in a line of progression.
Now, Mr. Moore, reference has been made 
to Sections 10.2.1, 10.2.2, and 10.2.3.
Do those sections, would those sections 
come into play, Mr. Moore, if an employee 
is not transferred from one department to 
another department?
Yes.
They would?
Yes.
The reason why I ask, Mr. Moore, is that 
the language speaks in terms of transfer 
and I'm trying to understand that opera­
tion.
That's right.
But even if an employee never transferred 
out of the department, he would get the 
benefit of these sections?
That is possible.

1229.



-806-

MR.
Q

A

Q

A
Q

1230.

(Brief recess)

BELTON:
We were discussing Sections 10.2.2 and
10.2.3 of the contract, and you said 
that even if an employee did not transfer 
he could get the benefit of these red 
circle breaks and the operation of job and 
department seniority, is that correct, even 

without transfer?
What you said was, as I recall, you said if 
an employee did not transfer outside of his 

department.
And these sections still would apply/ you 

say?
Yes, sir.
Mr. Moore, when an employee who has not had 
a high school education and has not success­
fully passed the test battery, would he be 
allowed to transfer under the sections that 
we are referring to now, assuming he was in



-807-

the wood yard department and he wants 
to transfer?

A I think I would have to modify that to
say that we would have to look at the 
specific individual and the job to which 
he was requesting transfer.

Q Is it your testimony that there would be
some circumstances where the lack of a 
high school education and an inability to 
pass the examinations might be waived with 
respect to a specific individual? .

A Let me answer that question in this manner.
We had employees who did not have a high 
school education and had previously com­
pleted the test and after we merged the 
two extra boards we wanted to determine if 
some of the employees that we felt were 
qualified and capable of performing some 
of these jobs and could do so, we did trans­
fer them on a temporary basis. I don't re­
call, but there may have been one that we 
did transfer on a permanent basis without

1231.



-808-

meeting the criteria of high school 
and the test.
Do you know the name of that employee?
I think it is A. L. Scott. It was in the 
B mill finishing department.
Do you know whether he is white or black?
He was black.
Mr. Moore—
I might give you another instance of that, 
if you'd like. Mr. Woodrow Jarrell, 
brother-in-law of Mr; Moody here, was 
promoted from the janitor classification 
in the industrial relations department to 
a salaried classification as a mail clerk, 
he had as I recall around a tenth grade 
education, did take the test and was not 
successful on the test. We still felt that 
he was capable of performing the duties of 
a storeroom clerk and a mail clerk. Mr. 
Jarrell is the brother-in-law to Mr.

1232.

Moody.



-809-
1233

THE COURT: The plaintiff, Mr. Joe

P. Moody?

A Yes, sir.
THE COURT: And you promoted him to a

salaried position?

A Yes, sir.
THE COURT: Notwithstanding he didn't

have certain educational qualifications?

Now, would you briefly describe, Mr.
Moore, what Mr. Jones does in his 
salaried position?
He looks after the office supplies in terms 
of business forms and all of the office 
supplies used in the mill. He has certain 
responsibilities about ordering those 
supplies, he distributes them in the mill 
within the main office building, he looks 
after the other supplies within the main 
office building for us.
Does the job entail any janitorial duties

A Yes, sir.
MR. BELTON:

Q



I

A
Q

A

Q

1234;
in the various offices?
I don't believe it does.
And does the position require reading 
and writing?
Yes, sir.
I think you testified that under some 
circumstances, Mr. Moore, the test, high 
school requirement, have been waived. Is 
it the present policy of the company, 
what is the policy of the company with 
respect to high school education, Mr.
Moore, or successfully passing the test 
for an employee who wants to transfer out 
of one department to another department 
who has not passed either of those require­
ments, what is the present policy, what 
is the present policy with respect to an 
individual who wants to transfer from one 
department to another department who neither 
has a high school education or its equivalent 
or is unable to successfully pass the test

-810-

battery?



-811-

1235.
If the individual is illiterate I don't 
believe we would consider him for quali­
fication in the more demanding skilled 
jobs. However, if the individual can read 
and write and perform some of the functions, 
we have considered them and transferred 
them.

Well, do you have a policy with respect to 
that category employee, Mr. Moore, at the 
present time?

We would require that they be able to im­
prove their abilities of reading and 
writing before we would have to reconsider 
them. If we were talking about, for 
instance, in the B paper mill, we would 
want that employee transferring to be able 
to successfully pass the test battery. It 
has pretty much been our position that we 
have waived them for the incumbent employees, 
the high school requirement, if they success­
fully pass the test.



-812-

We have looked at certain 
departments as being more demanding 
than others and in that light require 
any transferees to successfully complete 
the test battery.

Q The thing that I am trying to get at, Mr.
Moore, is there a general policy that the 
company has and is presently operating 
under with respect to employees who wish 
to transfer who do not have a high school 
education or its equivalent and are unable 
to pass the present test battery, and I 
think you have already testified that there 
have been some exceptions, but I want to 
try to find out about the general policy of 
the company with respect to that category of 
employee?

A The general policy would be that they would
not be permitted to transfer and the basis of 
that would be qualification.

Q * Mr. Moore, since you have been associated
with the Albemarle Paper Company and have had

1236.



1237.
some responsibility for employee 
selection and promotion, do you re­
call at a time when there was no waiver 
of a high school education and passing 
the test battery, where you did not 
waive these requirements for transfer 
from one department to another or from 
one line to another, or I can rephrase 
the question differently.

When did the company decide, 
if you know, Mr. Moore, to waive the 
high school education requirement and the 
test battery for employees who wanted to 
transfer?

A In those specific cases where this occurred
it was after we merged the call boards in 
1968.

Q After 1968?
A Yes, I would like to emphasize though, that

we looked at the individual pretty carefully 
because we didn't want to get into an argu­
ment with other incumbent employees that we 
did it over here and we were not doing it for

-813-



-814-

him and that sort of thing. But we 
did feel that there were some individuals 
who were capable in some lines of pro­
gression that didn't require as much skill 
as others, and we were attempting to see 
how.far they may go. The thing that was 
difficult there is that those departments 
specifically shut down and we didn't have 
an opportunity to see how far the individual 
could have progressed in the normal course 
of employment.

Q Mr. Moore, would this have reference to I
think the case of Mr. Otis Jones in the A 
paper mill?

A No. Mr. Jones, when he went to the A
paper mill he had completed the company's 
schooling as I said and received a GED 
certificate. I don't believe we did — 
well, I had just as soon not testify. I'm 
not sure he was tested at that time or not.

Q You don't know if Mr. Jones was tested

1238.

at that time?



-815-

A

Q

A

Q

A

1239.
I am not in a position to testify at 
this time.
Now, apart from reviewing the personnel 
records of people who have transferred,
I think you mentioned Mr. Jones as an 
example, what other factors or things 
did you do in making this determination 
to waive the educational and test re­
quirement?
I don't understand your question, Mr.
Belton.
I think you testified that you looked at 
the qualifications of some individuals and 
determined that there were some who could 
transfer or promote to other jobs even 
though they didn't have a high school educa­
tion or did not take the test battery, and 
what I'm trying to focus in on now is to 
determine, Mr. Moore, how this determination 
was made, the mechanics of the determination, 
if you will?
Well, we looked at their background and



-186-
1240.

education and for the most part the 
ones that we were looking at were 
10th, 11th, or maybe 12th grade, and 
had not heretofore passed the test, 
perhaps their test scores were not so 
poor that they were determined un­
qualified and the foreman's recommenda­
tion, the people they work for, the 
employee's skill, diligence, his 
attitude in doing the job, and that 
sort of thing, were factors in our de­

cision.
Q Do you consider Mr. Jarrell's job a

skilled job?

A Who?
q Mr. Jarrell.
A Mr. Woodrow Jarrell?
Q Yes.
A It is outside the bargaining unit, yes.
Q Mr. Moore, do you know the job to which

the company has allowed an employee to 
transfer to or to be promoted to, the



-817-

1241.
most skilled job or line that the 
company has allowed an employee to 
transfer to or be promoted to without 
a high school education or taking the 
test, do you understand the question?
I believe I do and I will try to answer 
it, sir. The one I mentioned previously 
was an employee named Scott and he went 
to the B mill shipping line of progress­
ion. I have some notes on that b it I 
am not able to locate them at this 
moment.

Mr. Scott was hired in 1965 and 
worked on the utility extra board. He 
transferred to the B finishing department 
line of progression on September 28, 1966. 
He was hired in 1965 on the general extra 
board?
I believe it was the utility extra board, 
yes, it was. Mr. Perry Cowan only com­
pleted the ninth grade, took the test and
failed.



1242.
What was the name?
Cowan. He had recall rights to the old 
lancer job which was ultimately re­
classified as utility in the pulp mill, 
and after he went back into utility, 
the incumbent utility employees were all 
frozen because they lacked qualification, 
and when a vacancy occurred in the second 
helper position on No. 5 and 6 recovery 
boilers, we looked at his background and 
whether or not he was capable of moving 
on to a skilled job, and we did promote 
him into the second helper classification. 
Now, Mr. Moore, looking at Corporate De­
fendants' Exhibit No. 4, this has to do 
with Negroes hired and transferred into 
skilled job classifications?
Yes, sir.
Now, do you know, Mr. Moore, which indi­
viduals of these took a test prior to 
transfer or hiring into these jobs?



-819-

A First, most of these employees were
hired on to the general extra board 
so they necessarily were people who 
completed high school and had a certi­
ficate of one type or another and did 
complete the pre-employment test. My 
notes reflect that A. L. Scott was 
hired in 1967, as I understand it, and 
had been on the utility board prior to 
that.

W. D. Scott, 1969, was origin­
ally hired in 1967. He had been employed 
in the utility board prior to his re­
employment date. He then went into the 
maintenance department. Apparently what 
he did in the meantime was to further his 
education.

Q Let me ask you this question. Did you
finish your answer, Mr. Moore?

A I was just looking to see if my notes re-
fleet anything further. I believe the rest 
of them were either transferred and did so

1243.



-820-

1244.
after having had a high school and/or 
completing the test.

Q Let me see if I can clarify this. Now,
would you identify for me, if you can, 
from Exhibit No. 4 those individuals from 
this list who qualified for promotion or 
transfer after being with the company as 
opposed to those individuals who qualified 
by being high school graduates and passing 
the test prior to being hired?

A The answer is A. L. Scott, the employee who
was transferred in 1966 to the B mill 
finishing department.

Q He took the test and had the high school
education after his employment, is that 
correct?

A No, this doesn't reflect that. He was on
the old utility board and he was one of the 
employees that we felt could go over to the 
B mill finishing department and do that 
work and as I say, we wanted to see how far



-821

Q

A

Q

A

Q

A

Q

1245
he could go over there. He had pretty 
good credentials going into that job.
I don't have his personnel file before 
me here so I am at a loss to give you 
specifics on that.
Can you identify anybody else in this 
list who falls into the. category of 
qualifying after being with the com­
pany?
I cannot identify any others who did not 
have a high school education or pass the 
test.
I believe, Mr. Moore, you also testified 
that Mr. Garner was given an opportunity 
for training at the chip unloader job, is 
that correct?
That is correct.
Now, do you know what the nature of his 
training was?
Yes, sir.
You testified as to the hours?



Yes, I think it was on the job train­
ing. That is the only thing that you 
can r eceive in that type of work. You've 
got to go down and work the job and learn 
as you perform. What I was testifying to 
was the number of hours that he received 
training on the job. In his testimony 
that he gave previously, I think that he 
said he had only one or two days of 
training.
But you don't know what the nature of his 
training was apart from the hours that 
you testified to?
Yes, I do. Mr. Kidd, the foreman, told me 
that they took him down there and explained 
it to him and went through it with him and 
that he was down there with the operator 
who was actually performing the job and 
Ernest was assisting him and learning as 
the operation was going on.
Do you know of your own personal knowledge,

1246



-823-

Mr. Moore, what Mr. Garner did while 
he was in training on this job, of 
your own personal knowledge?

A Well, I wasn't down there if that's
your question, sir.

Q That is my question. I was asking you
earlier, Mr. Moore, about the operation 
of the high school education and test­
ing as it affected the transfer and 
promotion of lines of employees, let me 
ask you this: if an incumbent employee, 
and I'm addressing this to the operation 
as of today, last year or so, if an in­
cumbent employee has a high school educa­
tion, would it be necessary for him to 
successfully pass the test battery to be 
considered for transfer from one line 
or department to another?

A It may be. It depends upon where he wants
to transfer to.

Q Mr. Moore, could you list me the category

1247.



-824

1248.
of jobs he would have to take the 
test battery for if he wanted to 
transfer, do you have those lines of 
progression charts before you?

A The loader classification in the
pulp mill, the second helper in the 
power plant, back plugger No. 1 paper 
machine, stockroom, second helper 
B paper hill, spare hand No. 4 B paper 
mill, trainee technical service.

Q If an employee did not have a high
school education and successfully 
passed the test battery, what jobs 
would he be considered for in terms 
of transfer or promotion?

A As I mentioned, we said we would waive
the high school for the incumbents. He 
could conceivably go into an area, loader 
in the pulp mill, back plugger No. 1.
These would be the areas we would con­
sider.



-825-

1249.
Q These two areas?
A Yes, sir.
MR. BELTON: Your Honor, we have no

further questions.

MR. LOWDEN: REDIRECT EXAMINATION
Q For an incumbent employee, that is

employees who were employed in 1965, 
when did we waive high school educa­
tional requirements for those people?

A In 1965, during the negotiations.
Q And they were offered to take the test

without a high school education?
A That is correct.
Q Since that time have we ever employed any

people without a high school education 
and without passing the test?

A No, sir.
Q When we're talking about incumbent em­

ployees, are you talking about people
who were there some time prior to when
we waived the high school education?



-826-
1250.

1965, November 1965.
In 1968 I believe we merged the lines 
of progression and if a man ended up 
in a merged line of progression could he 
go up that line of progression without 
a high school education and without passing 
the test just like other incumbent employees 
in that line of progression?
Yes, that is correct.
Now, I think you talked about a man named 
Mr. Cowan. You said that he had a ninth 
grade education, and without passing the 
test he is now able to progress up the 
C. E. recovery operator line of progression 
in the pulp mill?
Yes, sir.
Is that right?
Yes, sir.
Of course, the utility job was one of those 
that you merged into the pulp mill when you 
merged the lines, is that correct?
Yes, sir.



-827-

1251.
Q So that Mr. Perry Cowan had recall

rights to the job of utility helper 
which he exercised and, therefore, be­
cause of the merger of that one job 
into the line he can move up there and 
without meeting these requirements, is 
that true?

A Yes, sir, that's right, if he can
qualify.

Q Now, for people who didn't enter a skilled
line of progression by reason of the 
merger and they would now wish to transfer 
to another line, to that so-called skilled 
line, have we waived the test for them?

A No, sir.
MR. LOWDEN: That's all I have, your

Honor.
MR. WOODS: No further questions, your

Honor.
MR. BELTON: I have several questions, your

Honor, on the merger.



MR.

Q

A
Q

A

Q

A

1252.

BELTON: RECROSS EXAMINATION
Looking at the wood yard department,
Mr. Moore, that is one of the depart­
ments where the lines were merged, is 
that correct?
That's right.
Employees moving in this line, are they 
required to go through each job category 
in the upward movement of those jobs so 
that they must be performing in each job 
before being considered for the next high­
er job?
It would normally follow that an employee 
being hired into or having recall rights 
to the labor classification would pro- 

' gress through each of the classifications. 
But I can think of situations where em­
ployees having bypassed incumbent employees 
because of their being frozen.
Now, what jobs have been bypassed, incumbent 
employees?
Chip bin operator, No. 2 chipper operator,

-828-



-829-

Q

A

Q

A

1253.

bulldozer operator. That's all.
Now, Mr. Moore, the employees moving 
around these positions did not perform 
the jobs that you just mentioned, is 
that correct?
No, I didn't say that. What I said was 
that they didn't get promoted to that 
classification in some instances, they 
promoted around it. They may have worked 
the job at one time or another.
One further question, Mr. Moore. Is it 
your testimony that you waived the high 
school requirement and the testing re­
quirement for Mr. A. L. Scott?
Mr. Belton, as best I recall, that is 
correct. Now, I hate to hedge the Court 
here and this is my absolute testimony, 
that I don't have his record in front of 
me and my notes reflect that's what 
happened.

THE COURT: You also fired him on the



-830

A

MR.

THE

MR.

THE

MR.

1254.
13th day of August 1970, didn't 

you?
Yes, sir.

BELTON:

COURT:

LOWDEN:

COURT:

We have no further questions, 

your Honor.
Does the defendant have anything 

to occupy us with for about seven minutes?
I believe that we have nothing 

further but if you could indulge me over 
the lunch period so that I can make sure,
I would appreciate it*

If I can indulge you for seven
minutes you'll let me know at two-thirty?

LOWDEN: Yes, sir. I am pretty sure
that the answer will be that we are 
through and we will rest at that point,
I believe, unless something comes up that 
I have forgotten. Then I think Hoerner 
Waldorf has one witness that will take 
more than seven minutes, I think.

(Witness excused)



MR.

MR.

MR.

MR.

*  *  *  *

1255 .
BLANCHARD: Your Honor, I don't think

we will have any witnesses.
WOODS: Your Honor, we will have two

witnesses and portions of the deposition 
of Mr. Bryan.

(Noon recess)

LOWDEN: After five years, your Honor,
it gives me great pleasure to tell the 
Court that the defendant Albemarle of 
Virginia rests.

DEFENDANT ALBEMARLE RESTS

BUSDICKER: Your Honor, on behalf of the
defendant Hoerner Waldorf and New Albemarle 
and Albemarle of Delaware, I request the 
Court to consider the matter that came up 
among the first days of the trial. I believe 
it was the introduction by plaintiffs of 
Exhibit No. 64 at which time, on behalf of

-831-



-832-

these defendants, I objected to the 
introduction of that exhibit for the 
purpose that was indicated by the plain­
tiffs and the only reason why we would 
need any introduction of evidence at 
this time would be the matter of the re­
served ruling on this objection.

And my recollection was that 
the objection went to the attempted intro­
duction of this Exhibit No. 64 for the 
purpose of substantive evidence of a pur- 
ported assumption of liability in 
connection with this proceeding.

THE COURT: Now you are calling the attention
of the Court to the fact that an objection 
'was interposed timely to the Plaintiffs' 
Exhibit No. 64, it being the contract of 
purchase between Hoerner Waldorf and the 
Ethyl Corporation, the ruling on it was 
reserved, and that you say now that the 
determination of whether or not you will

1256.



-833- 

1257 „
put on evidence will depend upon 
the ruling on that, that you would 
like to have?

MR. BUSDICKER: Yes, sir. And if I might
just briefly amplify that objection.
Our objection was that the issue that 
plaintiff referred to in offering this 
exhibit was never properly completed 
in this proceeding and was never brought 
into this proceeding and I submitted it 
at that time and I submit it again that 
it is not properly in this proceeding.

THE COURT: Well, Mr. Busdicker, I am
inclined to agree with you and I fail to 
see the materiality of this exhibit.
However, I believe for purposes of this 
record and further consideration of the 
arguments of plaintiffs' counsel, that a 
more orderly handling of it would be to 
overrule your objection and let you put 
on the evidence so that the record will 
be complete in that respect. I don't



1

1258.'
understand that we are talking about 
any extensive, two or three days of 
evidence.

MR. BUSDICKER: Your Honor, it will be very
short and I would not, under these cir­
cumstances, object to a continued reserva­
tion as to my objection.

THE COURT: All right. That being so, I
will avail myself of your invitation to 
continue the reservation.

MR. BUSDICKER: Your Honor, at this time I would
like to call Mr. O'Connell.

-834-



835-

1259J
CHARLES O'CONNELL, having

been first duly sworn to tell the truth, testified 
as follows:

MR. BUSDICKER: DIRECT EXAMINATION
Q Will you state your name and your address,

please.

A My name is Charles O'Connell, my address
is 1894 Selby, St. Paul, Minnesota.

3 What is your occupation and position, Mr.
O'Connell?

 ̂ I am secretary and general counsel for
Hoerner Waldorf.

J For defendant, Hoerner Waldorf Corporation?
L Yes* I'n» secretary of Albemarle, as

well.

What is the general area of your respon- 
sibility as secretary and general counsel 
of Hoerner Waldorf?

n°b sure I understand the way 
in which this was phrased; I am in charge 
of the legal department for Hoerner Waldorf,



-836

1260.
I'm also secretary, of course, and as 
such responsible for recording the 
actions of the Hoerner Waldorf board.
Who is the operating head of New Albe­
marle, Albemarle Paper Company, a Dela­
ware corporation?
That would be Mr. Boinest. M. L.
Boinest.
Are you familiar with the facts surround­
ing the 1968 acquisition of certain 
assets of Albemarle of Virginia by Albe­
marle of Delaware?
Yes, I am.
Would you recite for us very briefly the 
chronology of events in that connection?
Well, the negotiations commenced in 
September of 1968; the definitive agreement 
was prepared and reached someplace around 
October 25, with execution as of October 
31, 1968.
And is the final agreement to which you



1

1261.
refer the document which has been 
introduced in evidence as Plaintiffs’
Exhibit No. 64?

A Yes, it is.
Q Who were the persons who participated in

the negotiations relative to this ac­
quisition on behalf of Ethyl Corporation, 
and would you give their names and 
whenever possible, their titles?

A Mr. Joseph Carter of the firm of Hart and
Williams, was representing Ethyl Corpora­
tion; Mr. C. Raymond Haley, I'm not 
exactly sure what Mr. Haley's position 
was with Ethyl at that time; Mr. Fred 
Warne was general counsel for Ethyl; 
part of the time Mr. Edmond Lee was 
assistant general counsel for Ethyl; Mr.
Hugh Baird who I believe was an assistant 
comptroller with Ethyl; these are really 
the primary people who were concerned in 
the negotiations.

Q In the negotiations on behalf of Ethyl?

-837-



-838-

A

Q

A

Q

A

Q

MR.

MR.

Yes.
Now, would you give us the same informa­
tion relative to people on behalf of 
Hoerner Waldorf?
In the negotiations, myself, Mr. Donald 
Robertson of the firm of Faegre and 
Benson; Mr. Howard Johnson; Mr. John Huske 
was involved at some points.
Do you have with you a copy of the Plain­
tiffs' Exhibit No. 64?
No, I don't.
(Exhibit handed to the witness)
Would you describe for us briefly wha t 
the purchase involved?

CHAMBERS: Your Honor, we object.
OVERRULED

CHAMBERS: May I just mention one thing;
we would like, if the Court will permit 
us, to have a continuing objection rather 
than delay the matter; we argued at the 
time this document was introduced, the

1262.



-839-

effect of the Court's earlier 
ruling in this case and the joinder 
of the parties and we think that this 
testimony here is really an attempt 
to get the Court to change its earlier 
ruling with respect to the matters 
raised by these defendants who were 
participating in the hearing that led 
to that ruling, and we think that 
this testimony is not relevant.

THE COURT: The question as I understood
it was what was involved in these ne­
gotiations and they relate to an exhibit 
which you have offered in evidence.

MR. CHAMBERS: That's correct, and it's in
_ support of the order that the Court has 
previously entered in this case and I 
wasn't just talking about this particular 
question but the earlier questions that 
Mr. Busdicker has asked the witness.

THE COURT: Did the Court's previous ruling
preclude any further evidence with

1263



-840-

MR.

THE

MR.

Q

A

1264
relation to this document which you 
have introduced in evidence?

CHAMBERS: I think that the Court's
previous ruling has shown that this 
party is a proper party defendant in 
the proceeding and I gather it's the 
purpose of this evidence to show that 
it is not.

COURT: I have no idea in the world
what the purpose is but I'm going to 
let him say.

BUSDICKER: •
Are you aware of the question, Mr.
O 'Connell?
Yes, sir. This transfer of assets related 
to certain assets which were owned by 
Ethyl Corporation, old Albemarle, and 
Interstate Bag Company. Hoerner Waldorf's 
nominee acquired only certain of these 
assets, among which was the mill at
Roanoke Rapids; there was also an



-841-

acquisition of the stock of the 
Halifax Timber Company.

Q Were all the assets of Albemarle of
Virginia acquired?

A No. Do you want me to go on?
Q Yes.
A There was a printing operation at Brown

Island that was not included, there was 
a Riverside Mill that was not included, 
there was a Vonnell Company which was 
not included, and # i believe some other 
assets that were not included; an iron­
works, offhand.

Q What was done during the negotiations and
under the agreement relative to liabilities 
of Albemarle of Virginia?

MR. CHAMBERS: Objection.
THE COURT: Well, I would assume that what

was done was incorporated in this written 
agreement, was it not?

1265.

MR, BUSDICKER: I believe that this witness



-842

has testimony relative to the effect 
of the written agreement and relative 
to the representations which were made, 
both in the written agreement and 
supplementary to it.

MR. BLANCHARD: We also object, your Honor.
We think the document speaks for it­
self.

MR. CHAMBERS: Additionally, your Honor, I
think that he is asking the witness for 
rank hearsay because this witness would 
be testifying about what others said at 
this meeting and we think that the best 
evidence of what was done is the exhibit 

itself.
THE COURT: Well, I'm inclined to agree.

I'll sustain those objections and I'll 
let you put 'his answer in the record if 

you would like.
MR. BUSDICKER: I will at this time and make

1266.

an offer of proof, your Honor, relative



-843-

to the testimony of this witness who 
will testify as to the statements made 
by a party to this proceeding which are 
confirmatory and explanatory of language 
in the agreement of purchase and sale, 
indicating that only certain designated 
liabilities were assumed, indicating 
that there was no assumption of any 
liability for monetary damages in connection 
with the Moody case. We submit that 
on the basis of this offer of proof, the 
basis for the plaintiffs' attempted 
introduction of Exhibit No. 64 is shown 
to be false.

MR. CHAMBERS: Your Honor, first of all I'd
just like to state about Mr. Busdicker's 
legal conclusion drawn from this document 
and what he proposes to show by this 
witness and I just wanted to ask if it 
would be necessary during this proffer for 
us to just object as to each question or

1267.



-844-

THE

MR.

THE
MR.
Q

A

1268.

whether the Court would consider 
that we are objecting to this whole 
line of inquiry?

COURT: No, I take it that he will
ask the witness some questions concern­
ing this feature of it as to which we 
are going to put the answers of the 
witness in the record; then when he 
reaches the end of that line of testimony 
he'll go to something else. You need not 
object in the meantime.

BLANCHARD: Your Honor, may I assume that
ruling applies to us, also?

COURT: Yes, both objections.
BUSDICKER:

Mr. O'Connell, what liabilities were assumed 
by either Hoerner Waldorf or New Albemarle 
in connection with the Moody proceeding? 
Well, I think, Mr. Busdicker, I should 
amplify an earlier answer in which I
stated what assets were acquired because



-845-

1269.
of the fact that in negotiating this 
agreement, Hoerner Waldorf and New 
Albemarle were interested only in ac­
quiring certain assets and the reason 
for seeking to acquire assets rather 
than stock was to limit liability, and 
to limit liability to that which was 
disclosed, to that which was a part 
of the ordinary course of business, to 
that which was put on the balance sheet. 
For this reason there were specific 
assets which were acquired.

In the assumption of liabil­
ities, the assumed liabilities are 
those which arose in the ordinary course 
of business, those which were specifically 
disclosed, put on the balance sheet.

With regard to pending litiga­
tion, we were concerned with two cases 
primarily, one being U.S. v. Container, 
the other one being Moody v. Albemarle,
and on both of those cases we inquired



-846-

1270.
and sought information, sought a 
disclosure as to the liability which 
was evident or which we would be 
asked to assume, and the language 
which is in the document is the result 
of the negotiations which took place 
with regard to this assumption of 
liabilities. And the concern, of 
course, was whether or not in each of 
those cases, whether there were any—  

in the case of Moody v. Albemarle 
whether or not there might be any 
claim for monetary relief and the assurance 
was not, therefore, we went along with 
and required this specific language 
setting out the type of relief sought 
in that case and we assumed that only,

THE COURT: Excuse me; can you point to
the place in your contract where the 
specific language you just referred to
appears?



-847-

1271.

A Your Honor, I think Exhibit (i).
THE COURT: Where in Exhibit (i) is

there any exclusion of liability for 
damages in this case?

A Earlier in some of the other articles,
your Honor, is the warranty that all 
liabilities which are to be assumed 
have been disclosed or reflected on 
the balance sheet. There is in thi s 
document the basis that those liabilities 
are assumed only where they are disclosed 
or reflected on the balance sheet.

THE COURT: Well, Exhibit (i) discloses
that plaintiffs have prayed that Albemarle 
be enjoined from maintaining or continu­
ing any practice of denying equal 
employment opportunities to plaintiffs 
and other members of their class and there 
is some argument to the effect that 
an injunction in such an action encompasses



A

THE

MR.
THE

MR.

A
MR.

THE

-848“

the payment of back wages.
Your Honor, the specific assurances, 
of the sellers, was to the contrary.

COURT: And that's the evidence
which you want the Court to consider?

BUSDICKER: Yes, your Honor.
COURT: As to which objection has

been sustained. And now you offer 
the proof?

BUSDICKER: Yes, your Honor. I would
like to ask the witness to explain in 
somewhat more detail the statements 
made relative to the specific statements 
and representations of the seller made 
to the contrary.
Well, specifically—

CHAMBERS: Your Honor, I'm assuming that
this is still part of the proffer of the 
company.

COURT: You are correct.

1272.

i v

A Mr. Carter, who I would say was the



-849-

1273.
leading negotiator for Ethyl Corpora­
tion, assured us with some repetition 
that there was no monetary damages 
involved under any circumstances and we 
informed him that as far as we were 
concerned we would assume the liability 
limited to that which was disclosed, 
which was the injunctive relief and the 
attorneys' fees, counsel fees.

MR. BUSDICKER:
Q Mr. O'Connell, was there any disclosure

in the financial statements of Albemarle 
of Virginia of any possibility of any 
monetary damages or accruing monetary 
relief in connection with the Moody 

. proceeding?
A There is no disclosure in the books of

account or in any document which was 
provided to Hoerner Waldorf or New 
Albemarle of any claim whatsoever for 
monetary relief or damages.



-850-

1274 „
Q Is it the position of defendant Hoerner

Waldorf and Albemarle of Delaware that 
in connection with the purchase and sale 
agreement, liability for monetary damages 
in connection with the Moody case were or 
were not assumed by Hoerner Waldorf?

A Liability was not assumed by Hoerner
Waldorf nor by New Albemarle, we have so 
informed Ethyl Corporation, all within 
the limitations of the document.

Q In connection with the representations
♦relative to this suit both as contained 

in the agreement of purchase and sale and 
as testified to having been made in the 
negotiations, did Hoerner Waldorf rely 
'upon those in its consideration of the 
contractual terms?

A We did rely on them and we so informed the
negotiators for the selling companies at 
the time.

MR. BUSDICKER: That would complete my offer



of proof on that point, your Honor, 
and if I may simply indicate that in 
addition to the offer for the purpose 
of rebutting the inference that the 
plaintiffs apparently are seeking to 
raise from this document, I believe 
that the evidence that has been 
elicited bears directly upon the 
affirmative defense raised by the de­
fendants Hoerner Waldorf and New 
Albemarle relative to plaintiffs being 
guilty of laches in this proceeding.

THE COURT: Well, I may possibly reconsider
and I will certainly want counsel to 
cover this point in your argument; for 
the time being though, I continue my 
ruling sustaining objection to this line 
of testimony.

MR. BLANCHARD: Your Honor, without waiving
our previous objection, I wonder if I

-851-

1275.

could ask Mr. O'Connell a few short



-852-

1276.
questions without waiving our ob­
jection to his testimony?

THE COURT: You want to break into the
defendant Hoerner Waldorf'S'examina­
tion directly?

MR. BLANCHARD: During the ordinary course of
events just this phase of it, which I
take it has just been concluded.

THE COURT: I'll answer one of your
questions immediately, I'll say that
I'm going to let you examine him with

•

respect to these things; I would have
t

to do that inasmuch as I indicated that 
I might possibly let it in and I wouldn't 
want you to go away from here without 
having explored it in such depth as 
you see fit to do. But it is a question 
of when.

MR. BUSDICKER: I have no further questions of
this witness, your Honor.

THE COURT: Well, going around the table,



-853-

you're next, Mr. Blanchard.

1277.

MR. BLANCHARD: CROSS-EXAMINATION
Q Mr. O'Connell, did you have occasion

to see the complaint in this action 
during the course of the negotiations 
with Ethyl Corporation?

A - I ' m  not honestly sure at this point,
Mr. Blanchard. We had several people 
who discussed, apart from the people 
who were actually negotiating, various 
things such as retirement benefits and 
so forth, so that I am of the opinion 
that I probably did see it but I can't 
conclusively state that absolutely I 
did.

Q Certainly since the acquisition of
these assets you have had a chance to 
see it on one or more occasions, the 
complaint?

A A couple of times.
Q And isn't it true, sir» that an examination



-854

either at the time of negotiations 
for the purchase of assets or at a 
subsequent date, you did see that no 
monetary damages were sought in the 
complaint?

MR. CHAMBERS: Objection.
THE COURT: Does this still relate to his

offer of proof?
MR. BLANCHARD: We think so, your Honor.
THE COURT: And it is simply in furtherance

of your stated desire to examine him with 
respect to matters which the Court at this 
time at least has said it will not con­
sider?

127 8 .

MR. BLANCHARD: Yes , sir.
THE COURT: That being so, I'll overrule

that objection., Go ahead.
A Your question, Mr. Blanchard, is have

read the claim for relief?
MR. BLANCHARD: Yes, sir.
A Yes.
Q And until amended within the last couple



of years, isn't it true that no 
monetary damages were sought?

MR. BUSDICKER: I'll object to that, your
Honor.

THE COURT: Well, I seem to detect at
least some inconsistency in- his 
position; when you were asking the 
questions he was joining in the plain­
tiffs' objections and now he apparently 
seeks to prove what you wanted to prove 
and you're objecting.

MR. BUSDICKER: Your Honor, there has never
been to my knowledge an amendment to 
the complaint and that was the only—

MR. BLANCHARD: I will withdraw that question.
Q I ask you , sir, isn't it true that as of

this date no claim for monetary damages 
has been made by the plaintiffs, to your 
knowledge?

MR. CHAMBERS: Objection.
A * (No answer)
MR. BLANCHARD:



-856-

1280.

Q In the pleadings as such?
A Correct, yes, sir.
MR. BLANCHARD: That's all.
THE COURT: Any objection to that?

Don' t the pleadings speak for them-
selves?

MR. CHAMBERS: That's correct, your Honor
THE COURT: Well, I'm going to go by

them, whatever the witness says, go
ahead.

MR. BLANCHARD: No further questions.
MR. WOODS: We have no questions, your

Honor.

MR. CHAMBERS: CROSS-EXAMINATION
Q Mr. O'Connell, is it true that since the

acquisition of the plant, Albemarle of
Delaware continued with the contract be­
tween the former Albemarle of Virginia and 

. the union defendant?
A Yes, sir.

►



You didn't renegotiate the contract?
No.
Is it also true, Mr. O'Connell, that so 
far as you know the company has continued 
basically the same personnel practices 
that have been described here in this 
proceeding as they existed prior to the 
acquisition of the company?
Mr. Chambers, I'm not involved in the 
operation of day-to-day of the Albemarle 
Paper Company and I can't, of my own 
knowledge, give you a correct answer 
either way, of my own knowledge.
You said that you were secretary of 
Albemarle Paper Company?
That's correct.
And you attend the board meetings?
That's correct.
And are you familiar with any board policy 
or decision that altered the employment 
rules and regulations?

1281.



-858-

Q So as far as you know, those policies
have been continued as they existed 
prior to the acquisition?

A Insofar as I know.
Q Now , at the time that you acquired the

company, that's the former Albemarle 
of Virginia—

A We did not acquire the company.
Q When you acquired the assets, and the

plant—
THE COURT: A portion of the assets.
A Correct.
MR-. CHAMBERS:
Q The 1968 agreement between the company

and the union had been negotiated?
A That is correct.
Q I show you a copy of Plaintiffs' Exhibit

No. 72 which is the W-2 forms of some 
of the employees for 1969-70, is that 

. the way—  I'm looking at the name of
the corporation, the corporation Albemarle 
Paper Company is known in the business

1282.



859-

i

1283.
as Albemarle Paper Company, a sub­
sidiary of Hoerner Waldorf Corpora­
tion?
Insofar as I'm aware, there's an 
abbreviation of the word "company" 
on here but that's the way it's known. 
That's the way it's known, Albemarle 
Paper Company, a subsidiary of Hoerner 
Waldorf?
That's the way in which the various 
documents are printed, I believe on 
the East Coast very few people know 
Hoerner Waldorf.
Are checks issued in connection with 
the indebtedness of Albemarle Paper 
Company of Delaware?
Pardon?
Are checks issued in connection with 
the indebtedness of Albemarle Paper 
Company of Delaware, from St. Paul, 
Minnesota, the home office of Hoerner
Waldorf?



-860-

1284.
A In other words, does Hoerner Waldorf

from St. Paul pay Albemarle's bills?
Q Yes.
A Generally, no.
Q But some of them it does?
A It would be a possibility, I'm not

aware of it but there would be a 
possibility.

MR. CHAMBERS: I have nothing further.

MR. BLANCHARD: RECROSS EXAMINATION
Q One further question. After the

closing date of October 31, 1968,
Mr. O'Connell, I don't believe the 
defendant Ethyl attempted to assert 
any control over the affairs of the 
plant there at Roanoke Rapids, to 
your knowledge?

A None.

(Witness excused)



. L

* ; * * *
»

THE COURT: Will there be any evidence
for the defendant union?

MR. WOODS: I am prepared to proceed,
your Honor.

First of all, I want to offer, 
as I said before, the cross-examination 
of the witness Bryan, on deposition, by 
Mr. Ledford.

My copy of that deposition 
is missing a few pages. I believe it 
is Exhibit No, 32. Beginning on page 
578, at line 6, and the balance of the 
page:
"Q The union proposed in the '65

negotiations that seniority 
be first by department, then 
by the plant, did it not?

"A There was a proposal in the '65
negotiations by the union, I 
can't quote it but it had to 
do with having first departmental

-861-

1286.



.1

"and then plant seniority.
"q Well, if the company had

agreed with the union to that 
proposal, would that have had 
the effect of eliminating thse 
various lines of progression?
To tell you the truth, I don't 
know what the effect of that 
would have been other than 
utter chaos in the mill. That 
was the wildest proposal in the 
whole agenda, perhaps, and I 
told them so.

"q Well, did you discuss that pro­
posal with them?

"A Very little.
"q Well, did they tell you what,

they had in mind?
"A I don't believe they did. I

can't say they didn't say something 
about it but I don't recall them

-862-

1287.

• •



-863-

1288.

"saying anything because we 
were not the least bit interested 
in that proposal. That would 
destroy our whole system of 
training and orderly progression 
and everything else.

"q On page 14 of the Plaintiffs*
Exhibit 1, paragraph 1, 'in the 
fall of '65 the company agreed 
with the uion to waive the 
high school education requirement 
for several departments in the 
case of incumbent Negro employees 
provided these Negro employees 
demonstrated sufficient aptitude 
for learning the work by qualify­
ing on a pre-employment test 
used for entrance into these 
departments. . .1"

MR. WOODS: The question is repeated and
over on the top of page 580, line 3:



-864-

I just direct your attention 
to that paragraph and now 
the question: what steps had
the union taken to assist in 
the opening of all lines of 
progression?
Well, there wasn't any proposal 
to open all lines of progression 
to Negro employees, they were 
already open to Negro employees. 
Well, what I'm really saying 
is to assist in getting the 
employees from one line of 
progression to the more skilled 
lines, just tell me what that 
paragraph means.
That paragraph means simply 
that there was a proposal through 
the union presented to us in 
negotiations concerning the use 
of pre-employment tests, that 
we let incumbent Negro employees

1289 „



-865-

MR. WOODS:

"Q

"A

"transfer into the general 
and extra board jobs into 
the lines of progression leading 
off of that without making them 
meet the same criteria as it 
applied to outside applicants.
They made a speech about how 
these people had worked with 
us a long time and couldn't 
we give them some consideration 
as opposed to people on the outside 
who never had worked for us,"
On page 581 at line 14:
Well, the union didn't have 
anything to do with the institution 
of or the composition of those 
tests given either to applicants 
or to employees, did it?
No, they didn't have anything to 
do with it except that earlier, 
as I mentioned, in that first

1290.



-866-

1291

MR. WOODS:

"validation study I was told 
that they cooperated in getting 
people to help validate the tests." 
And your Honor, turning next to

page 582, beginning at line 3,

"Q And did you and the company take 
it upon- yourselves the right, 
to ignore seniority if in its 
opinion it feels that the employee 
lacks the ability?

"A Yes, sir.

"Q And the union can discuss the 
matter with you, can't they?

"A Oh, we would discuss it with them.

"Q But in the final analysis the 
company has reserved unto itself 
the right to make the decision, 
hasn't it?

"A About what, qualifications, 
promotions?

"Q Yes, sir.



-867-

MR.

MR.

MR.

1292,

"A Well, this is subject to 
the union contract and what­
ever is contained in that 
concerning that. It's therefore 
not the same as. in an unorganized 
plant, no, sir."

WOODS: And then after an exchange, and
he doesn't want to talk about exactly what 
is in the contract without reference to it, 
we get down to page 583, line 18:

"Q
WOODS:

"A

WOODS:

Now, then, based on that. „
Section 10 of the contract - 
". . if you were considering 
a person for promotion and determin­
ed that they were of equal 
ability, the one with the seniority 
would obtain the promotion, 
would he not?
Again, I don't want to interpret 
the contract. . ."
Then, turning next to transcript



-868

MR.

1293
page 593, the whole page, your Honor;
and this is by Mr. Lowden:
Hq Subsequent to our company s

move in the summer of 1964, 
did we begin complaints about 
tests, specifically, from a Mr. 

Joe P. Moody?
"A Yes.

I
iiq as a result of Mr. Moodyfe

activities wasn't the question 
of testing Negro employees 
put on the agenda in the 1965 
negotiations?

ha x presume it was because the
part of the union agenda that 
related to this was signed by

joe P. Moody."
WOODS: And then he simply asked him

as a result of these discussions did they 
remove the requirement of a high school 
education as a qualification for incumbent



-869-

1294.
employees who were able to pass the tests 
to go from one job to another, and the 
answer, in effect, was yes.

Those are all the portions 
of Mr. Bryan's deposition which the 
union defendant desires in evidence.

It is on the basis of that 
testimony, your Honor, that we would 
contend, that we seek a finding of fact, 
that the union attempted as early as the 
1965 negotiations immediately following 
the effective date of the Civil Rights 
Act of 1964 to moderate or modify the 
seniority system at the plant and give 
more weight to plant seniority, in 
promotions and demotions in all lines 
of progression, and also sought by that 
the right to eliminate dual lines of 
progression within the departments, 
as we also sought, in effect, to moderate 
the use of tests for the the older



-870-

1295.

employees at the plant.
Your Honor, I will call

as the union defendant's first witness, 
Mr. David Mills.

proceed to that, may I inquire if any 
interested party desires to call attention 
to any of the testimony of Mr. Bryan 
alluded to by Mr. Woods as further 
explanatory or elucidating the testimony.

thing I would like to mention.
At the last part of it that 

was referred to by Mr. Woods, on page 
593, which began with the question,

THE COURT: All right, sir. Before we

MR. LOWDEN: Yes, your Honor, I have one

If Q Subsequent to the company's
move in the summer of 1964
did we begin to get complaints
about the testing tl

MR. LOWDEN: The company's move in 1964 was
to invite all the people in to take the