St. Regis Paper Company v Roberts Brief for Plaintiffs Appellees

    IN THE

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 79-2394

ST. REGIS PAPER COMPANY, et al.,
Defendants-Appellants, 

-  v . -

FRED ROBERTS, et al. ,
Plaintiffs-Appellees.

On Appeal From The United States District Court 
For the Middle District of Florida, 

Jacksonville Division

BRIEF FOR PLAINTIFFS-APPELLEES

EARL M. JOHNSON
625 West Union Street 
Jacksonville, Florida 32202

REESE MARSHALL
201 West Union Street 
Jacksonville, Florida 32202

BENJAMIN KYLE
1248 West Edgewood Avenue 
Jacksonville, Florida 32208

ALGIA R. COOPER
121 1/2 South Monroe Street 
Tallahassee, Florida 32301

JACK GREENBERG 
CLYDE E. MURPHY

10 Columbus Circle 
Suite 2030
Nee York, New York 10019

ATTORNEYS FOR PLAINTIFFS-APPELLEES



IN THE

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 79-2394

ST. REGIS PAPER COMPANY, et al.,

Defendants-Appe Hants, 
-  v .  -

FRED ROBERTS, et al.,

Plaintiffs-Appellees.

CERTIFICATE OF INTERESTED PERSONS

The undersigned, counsel of record, certifies that the 
following listed persons have an interest in the outcome of 
this case. These representations are made in order that the 

Judges of this Court may evaluate possible disqualification 

or recusal.
1. St. Regis Paper Company, a corporation; Interna- 

A
tional Association of Machinists and Aerospace Workers, 

AFL-CIO, and Local Union 1248; International Brotherhood of 
Electrical Workers, AFL-CIO, and Local Union 982; United 
Paperworkers International Union, AFL-CIO, and Local Union 

1 649, Appellants.



2. Fred Roberts, Cuthbert Johnson, John W. Andrews, 

Jospeh Butler, James C. Green, Tony Neal, Jr., Lovett Rauler- 

son, John W. Clark, Willie Jernigan, individually and on 

behalf of all persons similarly situated, Appellees.

Attorneys for Record for Appellees
EARL M. JOHNSON 
W. BENJAMIN KYLE 
REESE MARSHALL 
ALGIA R. COOPER 
JACK GREENBERG 
CLYDE E. MURPHY



IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
No. 79-2394

ST. REGIS PAPER COMPANY, et al.,

Defendants-Appellants

v
FRED ROBERTS, et al.,

Plaintiffs-Appellees

CERTIFICATE REQUIRED BY LOCAL RULE 13(j ) (2)

Counsel for appellants believe that if the Court deems 

it necessary to probe the issues regarding the impact of 
International Brotherhood of Teamsters v. United States,
431 U.S. 324 (1977) on a previously entered consent decree 
then oral argument may be useful.

»



TABLE OF CONTENTS
Page

Statement of Issues ..................................  1

Statement of the C a s e ................................  2

Summary of Argument ................................  10

ARGUMENT
THE DISTRICT COURT CORRECTLY HELD THAT 
THE COURT HAD JURISDICTION TO CONSIDER
VIOLATIONS OF THE CONSENT DECREE ...............  12

A. The Court Has The Power To Enforce 
Its Own Orders Whether Entered By
Consent Or After Active Litigation . . 12

B. Section XVI Does Not Strip The 
Court of Jurisdiction To Enforce 
The Consent Decree, But Simply 
Limits The Ability Of The Parties 
To Petition The Court For "Other
and Further Relief." .................  13

C. Even If Section XVI Were Intended 
To Strip The Court Of Jurisdiction 
To Enforce The Decree The District 
Court's January 30, 1978 Order 
Entered Nunc Pro Tunc December 31,
1976 Extended The Court's Juris­
diction Pendente Lite Of The Contempt 
Proceedings.............................  2 3

D. The Supreme Court Decision In
Teamsters Does Not Compel Any 
Alteration Of The Seniority Provi­
sions Of The Consent D e c r e e ........... 25

Conclusion 36



11

Table of Cases

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) . . 4
Bing v. Roadway Express, Inc., 485 F.2d 441 (5th

Cir. 1 9 7 3 ) ......................................... 34
Boles v. Union Camp. 5 FEP Cases 529 (S.D. Ga.

1972)   4,31
Culpepper v. Reynolds Metal Co., 421 F.2d 888,

(5th Cir. 1970)   30
Dawson v. Pastrick, 600 F.2d 70 (7th Cir. 1979) . . 11,27,30

Dent v. St. Louis-San Francisco Ry. Co., 406
F . 2d 399 (5th Cir. 1 9 6 9 ) .........................  30

Eaton v. Courtaulds of North America, Inc.,
578 F. 2d 87 (5th Cir. 1978).....................  17,18,22

EEOC v. Longshoremen (ILA), Local 829 and 859,
9 EPD 1(10,159 (D. Md. 1975)   12

EEOC v. Plumbers & Pipefitters Local 189, 438
F . 2d 408 (6th Cir. 1971) .......................  12

EEOC v. Safeway Stores, Inc. F.2d , 21 EPD
1(30,456 (10th Cir. 1979)   11,30

Franks v. Bowman Transportation Co., 424 U.S. 474
(1976)......................................... 13,14,26,34

Gamble v. Birmingham Southern R.R. Co., 514 F.2d
678 (5th Cir. 1975) .............................  34

International Brotherhood of Teamsters v.
United States, 431 U.S. 324 (1977) . . . .  11,25,26,27,29,32

James v. Stockham Valves & Fittings Co.,
559 F . 2d 310 *5th Cir. 1 9 7 7 ) ...............  22,26,32,34,35

Johnson v. Goodyear Tire & Rubber Co., 491
F . 2d 1364 (5th Cir. 1974)   16

King Seely Thermo Company v. Alladdin
Industries, Inc., 418 F.2d 31 (2nd Cir.
(1969).............................................  10

Local 189, United Papermakers & Paperworkers 
v. United States, 416 F.2d 980 (5th Cir.
1969), cert, denied, 397 U.S. 919 (1970)- • • 4,14,15,16,17,31

Page



1 X 1

Long v. Georgia Kraft Co., 490 F.2d 557 (5th Cir.
1 9 7 1 )    31

Miller v. Continental Can Co., 12 EPD 1111, 191
(S.D. 1 9 7 6 ) ....................................... 4,31

Myers v. Gilman Paper Corp., 544 F.2d 837 (5th 
Cir. 1977), reversed and vacated in part,
556 F . 2d 758 (5th Cir. 1977) ...............  11,14,29,31,33

Oatis v. Crown Zellerbach, 398 F.2d 496
(5th Cir, 1 9 6 8 ) ................................  30

Pettway v. American Cast Iron Pipe Co., 494
F . 2d 211 (5th Cir. 1974)   14

Rogers v. International Paper, 510 F.2d 1340 
(8th Cir. 1975) , vac1d and rem'd 423 U.S 
809 (1975), new trial directed 526 F.2d
722 (8th Cir. 1975)   31

Sarabia v. Toledo Police Patrolman's Ass., 601
F . 2d 914 (6th Cir. 1979)........................ 14,28

Southbridge Plastics Division v. Local 759,
Rubber Workers, 565 F.2d 913 (5th Cir. 1978). . 11,29

Stevenson v. International Paper Co., 516 F.2d
103, 111-118 (5th Cir. 1975)...................  4,15,20,31

System Federation No. 91 v. Wright, 364 U.S.
642 (1961)   28,24

Theriault v. Smith, 523 F.2d 601 (1st Cir. 1975) . 28,29
United States v. Allegheny Ludlum Industries,

517 F.2d 826 (5th Cir. 1975), cert denied,
423 U.S. 1056 (1976)   30

United States v. Armour & Co., 402 U.S. 673 (1971) 15,16,17
United States v. Hall, 472 F.2d 261 (5th Cir.

1972)   10,12,13
United States v. ITT Continental Baking Co.,

420 U.S. 223 (197 ) ............................  16,17
United States v. Swift and Company, 286 U.S.

106 (1923)   10,12,16,17
United States v. United Shoe Machinery Corp.,

391 U.S. 244 (1968)   13

Page



XV

Page
Watkins v. Scott Paper Co., 530 F.2d 1159 

(5th Cir. 1976) ..................... 15,16,31,34,35

Statutes

Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seg...................  Passim

42 U.S.C. § 1 9 8 1 ..............................  Passim

Other Authorities
H. R. Northrup, (L. Rowan, D. T. Barnum and 
J. G. Howard, Negro Employment in Southern
Industry, Volume IV, Part 1, at 51 (1979). . . 31,32

Note On Abbreviations

R...............................  Record

R.E.............................  Record Excerpts
Transcript.....................  Transcript of Hearing on

Issue of Court's Jurisdiction 
before Honorable Charles R. 
Scott, April 4, 1979



IN THE

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 79-2394

ST. REGIS PAPER COMPANY, et al.,

Defend an ts-Appe Hants, 
-  v .  -

FRED ROBERTS, et al.,

Plaintiffs-Appellees.

On Appeal From The United States District Court 
For the Middle District of Florida, 

Jacksonville Division

BRIEF FOR PLAINTIFFS-APPELLEES 

STATEMENT OF ISSUES

1. Whether the Court has jurisdiction to consider 
violations of a previously entered consent decree.



STATEMENT OF THE CASE
On May 11, 1969, plaintiffs filed suit against the 

defendant St. Regis Paper Company (hereinafter the "Company") 

and the International Association & Machinists and Aerospace 
Workers, AFL-CIO and its Local No. 1248; the International 
Brotherhood of Electrical Workers, AFL-CIO and its Local No. 

982; the International Brotherhood of Pulp, Sulphite and 
Paper Mill Workers, AFL-CIO and its Local No. 749; the United 
Papermakers and Paperworkers, AFL-CIO and its Local No. 636 

(hereinafter referred to as the "unions"), alleging inten­

tionally discriminatory employment practices in violation of 
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e 

et seq., and 42 U.S.C. §1981.
Specifically plaintiffs alleged that the defendants 

had restrictively hired members of the affected class on the 

grounds of race and initially assigned them only to certain 
designated jobs without regard to their qualifications and on 
a different basis than they hired, promoted, transferred or 

assigned similarly situated white persons. Similarly plain­
tiffs alleged that the defendants perpetuated the initial 
racial assignments of members of the affected class by 

entering into, implementing and maintaining a system of job 
and departmental seniority provisions in the respective 
collective bargaining agreements which granted preferential 

terms, conditions and privileges of employment to white 
employees.

2



The initial proceedings conducted in this action estab­
lish without contradiction that the Union defendants estab­

lished and maintained jurisdiction units, the effect of 
which was to perpetuate the effects of the racially motivated 
hiring practices of the Company. For example, prior to 

December 24, 1968, and pursuant to collective bargaining
agreements between the Company and Pulp and Sulphite and its 
Locals 749 and 757 certain jobs or classifications were 

represented by Local 749 and certain jobs or classifications 
were represented by Local 757. Local 757's membership was 
composed of black employees and no white employee worked in

any job or classification represented by Local 757.
Prior to November 18, 1963, Local 749's membership was com­
posed of white employees and no black employee worked in a 

job or classification represented by Local 749. Similarly, 
pursuant to collective bargaining agreements between the 
Company and Machinists and its Local 1248, Electrical Workers

and its Local 982 and Paper Makers and its Local 636, certain 
jobs or classifications are represented by Locals 1248, 983 
and 636. Prior to September 9, 1968, the membership of 

Local 1248 was composed of white employees and no black 
employee had worked in a job or classification represented by 
Local 1248. Prior to May 19, 1969, Local 982's membership 

was composed of white employees and no black employee had 
worked in a job or classification represented by Local 982. 
Prior to September 12, 1966, Local 636's membership was

3



composed of white employees and no black employee had worked 
in a job or classification represented by Local 636.

Moreover, even after all of the defendants except 
defendants IBEW, and its Local 982, entered into an agreement 

under which certain lines of progression were nominally 

consolidated or merged, the defendants failed to restructure 
the lines of progression in such a way as to eliminate the 
prior discrimination, or to allow black employees to transfer 

between lines of progression without loss to their ac­
cumulated seniority.

Following extensive discovery the parties negotiated a 
settlement which the district court approved on January 28, 
1972. The consent decree extended to members of the affected 

class various relief typical of that obtained via settlementV
and/or litigation involving the southern paper industry.
This relief included application of a system of mill senior­
ity, in place of the job or departmental seniority system 

whenever employment decisions affecting the status of affected 
class members who were specifically identifiable victims of 
disparate treatment were made; the elimination of the require-

V  Stevenson v. International Paper Co., 516 F.2d 103, 111- 
118 (5th Cir. 1975); Local 189, United Papermakers & Paper- 
workers v. United States, 416 F .2d 980 (5th Cir. 1969) 
cert, denied^ 3^t U.S. 919 (1970); see also, Albemarle 
Paper Co. v. Moody, 422 U.S. 405 (1975); Boles v. Union 
Camp, 5 FEP Cases 529 (S.D. Ga. 1972); Miller v. Con­
tinental Can Co., 12 E.P.D. 1[11,191 (S.D. Ga. 1976).

4



ment that job applicants possess a high school diploma or
achieve satisfactory scores on nonvalidated personnel or
aptitude tests; wage rate retension or "red circling" for

members of the affected class transferring to more desirable
lines of progression; advanced level entry and job skipping,
as well as other provisions relating to hiring and assignment,

recruiting, training, back pay, election of union officers

and periodic reports to the court and to the attorneys for
plaintiffs. The decree also provided at section XVI.

Jurisdiction in this action for such other 
and further relief as may be appropriate con­
sistent with this Order is hereby retained 
until January 1, 1977 unless sooner modified, 
dissolved or extended. R.E. 59a.

On December 30, 1976, plaintiffs filed motions for 
contempt, for further relief, modification and extension of 
the consent decree, and for extension of jurisidction pendente 

lite and hearing. R.E. 79a. Plaintiffs alleged that the 
defendants had consistently violated the terms and frustrated 
the purpose of the decree by unilaterally altering the lines 

of progression, and refusing to allow members of the affected 
class to use mill seniority to transfer into craft positions 
in the same manner as their white co-workers had historically 

been allowed to do. Specifically plaintiffs asserted that 
the defendants were violating various sections of the consent 
decree including "section II-A (sic) of the consent decree by 

refusing to 'utilize permanently in place of job or department­

5



as well asal seniority a system of mill seniority..."; 

violations of various other sections including sections V 
(Qualifications) VIII-A, VIII-B (Training) and X (union member­
ship) of the decree. As relief the plaintiffs sought a 

modification of the decree so as to require the defendants to 
establish non-discriminatory objective job-related qualifi­
cations for craft positions; the immediate promotion or 

transfer of qualified affected class members to craft posi­
tions; as well as other modifications consistent with the 
original purpose of the consent decree as filed. In essence, 

then, plaintiffs' charged specific violations of the consent 
decree by the defendants and sought as a remedy relief in 
addition to that already provided for in the decree in order 

to resolve the inequities brought about by the defendants' 
noncompliance with the terms of the consent decree.

On July 11, 1977 plaintiffs' motion was referred to the 

Honorable Harvey E. Schlesinger, United States Magistrate, to 

make findings and a recommendation. On December 14, 1977, 
defendants filed a motion to dismiss plaintiffs' contempt 

motion arguing that the Court's jurisdiction had lapsed; 
that plaintiffs were subject to laches in filing the motion;

2/

2/ The section while incorrectly identified in plaintiffs' 
motion clearly referred to and was understood by the defen­
dants to mean section II-B:" The defendants are ordered to 
utilize permanently in place of job or departmental senior­
ity a system of mill seniority with respect to temporary 
and permanent job assignments, including promotions, 
demotions and selections for training of affected class 
employees..."

6



and that plaintiffs were attempting to unilaterally modify 
the consent decree.

On January 30, 1978, the District Court rejected the
defendants' contentions and entered an order nunc pro tunc

December 31, 1976, extending the Court's jurisdiction over
the consent decree pendente lite of the contempt proceedings.

There, the court stated the issues as follows:
...[W]hether the court's jurisdiction expired 
on January 1, 1977, so that the mere filing 
of a contempt petition was insufficient to 
extend or invoke the court's jurisdiction 
or whether the court's inherent equity juris­
diction to enforce its orders was timely 
invoked by the petition for contempt 
proceedings and the motion to extend the 
court's order. R.E. 41a-42a.
The court not only held that plaintffs' petition for 

contempt and further relief was timely filed but went on to 
hold:

Whether an order of the court is consensual 
or adversary, it is an adjudication and it 
carries the force and effect of law. When 
parties agree to a consent order, they 
recognize that they are together submitting 
themselves to the court's jurisdiction; and once 
the order is issued, it is, like any other order 
of the Court, to be complied with and faith­
fully obeyed. If it is not then like any other 
order of the Court, the Court retains inherent 
jurisdiction to see that its orders are obeyed. 
R.E. 43a.

Following the entry of the January 30, 1978 order, the 
parties alternately engaged in extensive proceedings aimed 

at completing discovery in anticipation of trial, and, 

settlement negotiations which might resolve the matter.

7



Finally on February 28, 1979, plaintiffs filed a motion 

for preliminary injunction and a motion for partial summary 
judgment for noncompliance by the defendants with a specific 
section of the 1972 consent decree. Specifically, plaintiffs 

sought to obtain preliminary relief and summary judgment on 
the question of whether the consent decree entered by the 
court on January 22, 1972 required the defendants to per­

manently utilize a system of mill seniority with respect 
to affected class employees in place of the job or depart-

3/
mental seniority system which preceded the consent decree.

The essential difference in the subject matter of the 

two motions is that the December, 1976 motion for contempt 
and further relief, while it alleged violations of the 

consent decree, sought to obtain relief not provided for in 
the decree and to exend the time period during which such 
further relief would be obtainable. On the other hand, 

the February, 1979 motion raised a single discrete issue, to 
wit: the failure of defendants to "permanently" utilize a 
system of mill seniority with respect to employment decisions 

affecting members of the affected class, as explicitly requir­

ed by section II.B. of the decree:

3/ Despite the district court's January 30, 1978 determina­
tion to consider plaintiffs' claims, the company proceeded 
to implement its interpretation of the decree when on or 
about February 22, 1979, company officials began informing 
members of the affected class that as of March 2, 1979 they 
would no longer be able to use mill seniority to prevent 
layoff or for other employment decisions.

8



II.

B. The defendants are ordered to utilize per­
manently in place of job or departmental 
seniority a system of mill seniority with 
respect to temporary and permanent job 
assignments including promotions, demotions 
and selection for training of affected 
class employees as follows:

(1) Total mill seniority (i.e. , the length 
of continuous service in the mill) 
alone shall determine who the "senior" 
bidder or employee is for purposes 
of all temporary or permanent pro­
motions, temporary or permanent 
demotions, including layoffs and 
recalls, and for training, whenever 
one or more of the competing em­
ployees is an affected class employee,...
R.E. 49a-50a.

Thus, while the permanence of the seniority provision of the 
decree is an issue in both motions, the December 1976 motion 
sought to modify the consent decree, whereas, the February, 

1979 motions merely sought to enforce it.
On April 19, 1979 the District Court, pursuant to 

plaintiffs' February 28, 1979 motions, issued an order 

upholding the court's jurisdiction to consider violations of 
the consent decree and referred plaintiffs' motions for 
summary judgment and preliminary injunction to Magistrate 

Schlesinger. The court noted with respect to the seniority 
provision, that "Nowhere is this provision or any other 
expressly limited to any term or period of time." R.E. 37a. 

Rejecting the defendants' assertions regarding the jurisdic­
tion clause the court held:

- 9 -



The jurisdictional clause speaks to the Court's 
jurisdiction to award "such other and further 
relief as may be consistent with this order."
Thus, the phrase "unless sooner modified dis­
solved, or extended" relates to the Courts' 
jurisdiction to alter the relief provided by 
the decree; not to the period of time the 
decree is to have effect. In other words, the 
court retained jurisdiction to grant additional 
relief,not embodied in the decree, for a period 
of five years. The jurisdictional clause how­
ever, in no way, effects or limits the period 
of time in which the duties and obligations 
expressed in the decree are to be carried out 
and fulfilled. R.E. 37a.

Therefore the District Court held: "The Court has jurisdic­
tion to consider alleged violations of the consent decree 
entered on January 28, 1972" R.E. 39a.

On May 10, 1979 the defendants filed a notice of appeal 

and on August 22, 1979 the record on appeal was filed.

SUMMARY OF ARGUMENT

The power of a court to enforce the terms of an injunc­
tion are unassailable. This is clearly the case even though 
the injunction was entered by consent and whether or not 

the power to enforce or modify was reserved by its terms. 
United States v. Swift and Company, 286 U.S 106 (1932).

The district court's holding corectly exercises the court's 

authority to insure that its orders are obeyed. United 
States v. Hall, 472 F .2d 261 (5th Cir. 1972); King Seely 

Thermos Company v. Alladdin Industries, Inc., 418 F .2d 

31 (2nd Cir. 1969).
Section II.B of the consent decree plainly unequivocally 

and permanently enjoins the defendants from the continued use
10



of a job or departmental seniority system whenever the 

rights of affected class members are involved. It follows 
that the defendants unilateral attempt to violate this 

provision is properly the subject of inquiry by the court in 
an effort to protect the integrity of its orders.

The Supreme Court decision in International Brother­

hood of Teamsters v. United States, 431 U.S. 324 (1977) 

does not compel any alteration or curtailment of the 
bargained-for seniority relief obtained in the consent

decree. To the contrary, both the history of discrimina­
tion in the southern paper industry as well as the well 
settled principle that the law generally encourages 
settlements argues against upsetting the reasonable 
settlement reached in this case. Dawson v. Pastrick,

600 F .2d 70, 75-76 (7th Cir. 1979); EEOC v. Safeway

Stores, Inc., ___ F.2d ___ 21 EPD 1|30,456 ( 1 0th Cir.

1979).
The district court's opinion in this case provides 

a carefully considered assertion of the court's author­
ity, and a well reasoned interpretation of the various 
provisions of the consent decree. Morever, contrary to 

the situations posed by Myers v. Gilman, 544 F .2d 837, 
on hearing, 556 F .2d 758 (5th Cir. 1977) and Southbridge 
Plastics Division v. Local 759, Rubber Workers, 565 

F.2d 913 (5th Cir. 1978) both the consent decree and 
the district court's interpretation of the decree care-

- 11 -



fully harmonize the policies of Title VII and the 
National Labor Relations Act.

ARGUMENT
THE DISTRICT COURT CORRECTLY HELD THAT THE 
COURT HAS JURISDICTION TO CONSIDER VIOLATIONS 
OF THE CONSENT DECREE

A. The Court Has The Power To Enforce Its Own 
Orders Whether Entered By Consent Or After 
Active Litigation

A court of equity may modify a decree of injunction 
even though it was entered by consent and whether or not the 

power to modify was reserved by its terms. United States v . 
Swift and Company, 286 U.S 106 (1932). This expression of 

the inherent authority of a court to enforce its own decrees 

is frequently noted throughout the case law, in civil rights 
cases generally, United States v. Hall, 472 F .2d 261 (5th 
Cir. 1972), and in cases involving the enforcement of consent 

decrees under Title VII, EEOC v. Longshoremen (ILA),

Local 829 and 859, 9 EPD 1(10,159 (D. Md. 1 975). In EEOC 
v. Plumbers & Pipefitters, Local 189, 438 F .2d 408, 414 

(6th Cir. 1971), for example, the court, after recognizing 
that 42 U.S.C. §2000e-5(i) conveyed to the EEOC the author­

ity to commence procedings to compel compliance with the 
district court's order, went on to assert:

And beyond question, the District Court had 
authority either sua sponte or on petition 
to reshape its injunction so as to achieve 
"its original and wholly appropriate purpose.
United States v. United Shoe Machinery Corp.,
H5T U.S. 244 (1^68); King-Seely Thermos Co~. 
v. Aladdin Industries, Inc., 418 F .2d 31 
(2nd Cir. 1969).

12



It follows that a court's power to reshape or modify
a previously entered consent decree or other order,
United States v. United Shoe Machinery Corp., 391 U.S 244

(1968), necessarily encompasses the inherent power to protect,
enforce and effectuate that decree when its provisions
have been violated. As the Fifth Circuit has noted:

...broad applications of the power to punish 
for contempt may be necessary, as here, if courts 
are to protect their ability to design appro­
priate remedies and make their remedial orders 
effective.

U.S. v. Hall, supra 472 F .2d at 266.

In the case at bar the consent decree expressly calls
for the permanent imposition of some forms of relief, and
the gradual phasing out of other forms. For example, the

provision with respect to mill seniority is clear and
unambiguous in its statement of duration:

The defendants are ordered to utilize 
permanently in place of job or departmental 
seniority a system of mill seniority with 
respect to temporary and permanent job assign­
ments, including promotions,~demotions and 
selection for training of affected class 
employees... R.E. 49a. 4/

Moreover, the use of mill seniority and seniority carryover 
under the "rightful place" doctrine is designed to give 
victims of discrimination the incentive to transfer by remov-

4/ The mill seniority relief obtained by the affected 
class is fully consistent with the aims of Title VII and has 
been regularly approved and/or employed by the Supreme 
Court as well as this Circuit. Franks v. Bowman Trans-

13



ing a major disincentive to such transfer, i.e., the loss of

accumulated seniority. Thus a provision allowing a

discriminatee to use his accumulated mill seniority enables the
discriminatee to obtain sufficient seniority in a new unit to

permit him or her to effectively compete for advancement and

provides protection against the threat of layoff to which the
discriminatee would otherwise be exposed because of prior 

5/
discrimination.

It follows that a time limitation such as five years 
would emasculate the remedy, as it would remove the protec­

tion of members of the affected class against demotion or 
dismissal where they sought the more desirable positions 
in other bargaining units. Moreover there is no support in

1/
portation Co., 424 U.S. 474 (1976); Local 189, United Paper- 
makers and Paperworkers v. United States, 189, 416 F .2d 980 
(5th Cir. 1969) reh'g denied per curiam 416 F .2d 980 (5th 
Cir. 1969) cert, denied, 397 U.S. 919 (1970); Pettway v . 
American Cast Iron Pipe Co., 494 F .2d 211 (5th Cir. 1974); 
Myers v. Gilman, supra; Sarabia v Toledo Police Patrolman's 
Assn., 601 F .2d 914 (6th Cir. 1979).

5/ In the case at bar one member of the affected class 
used his mill seniority to obtain a promotion and transfer 
into the maintenance department as a carpenter earning 
$9.60 per hour. However as a result of the defendants' 
unilateral action in terminating the use of mill seniority 
by members of the affected class, this class member was 
unable to use mill seniority when the department was faced 
with company imposed layoffs. In addition because of 
the provisions of the collective bargaining agreement the 
affected class member was prevented from going back to his 
old job. Consequently, the affected class member was forced 
to accept an entry level position.

14



the case law for the proposition that the use of mill seniority 
should be so limited.6/

The defendants have argued here and in the court below 

that the "four-corners" doctrine, see United States v.
Armour & Co., 402 U.S 673 (1971), is determinative for any 

interpretation of the consent decree. However, rather than 

apply this doctrine correctly, the defendants seek to distort 
its meaning so that (1) the decree is not read with 
any internal consistency; and (2) the decree is removed from 

the context of the remedies.

6/ The defendants cite this Court's opinion in Stevenson 
v. International Paper Co., 516 F .2d 103, 113, 118 (5th Cir.
1975) for the proposition that the relief obtained in a 
decree under Title VII is properly limited in duration.
However the defendants omit to mention three salient points;
(1) the overall duration of a consent decree or order was 
not at issue in Stevenson, supra, but rather the adequacy of 
relief previously obtained; (2) the quoted section of the 
opinion, Id. at 113, deals specifically with "Red Circling", a 
form of reTief which in the present case is explicitly limited 
in Section VI of the decree so that it either expires after 
one usage; expires if the affected class member is permanently 
assigned to a higher paying job; or expires if he waives 
promotion four times; and (3) while the court explicitly 
points out that the employer has a legitimate interest in 
limiting such relief it goes on to indicate that these 
limitations "... cannot be considered in a vacuum ... but 
must be viewed in light of the entire remedy offered. See 
also Watkins v. Scott Paper Co., 530 F.2d 1159 (5th Cir.
1976) , wherein the Court observed, "The rule, adopted by 
this Court in Local 189, United Papermakers and Paperworkers 
v. U.S., ... and recently endorsed by the Supreme Court in 
Franks v. Bowman, ... is that blacks discriminated against 
must be given such remedial relief as to enable them to 
achieve their "rightful place" in an employer's employment 
hierarchy".

15



In United States v. ITT Continental Baking Co., 420 U.S

223, 238 ( 1975) the Supreme Court, interpreting its decision
in Armour, supra, held:

Since a consent decree or order is to be con­
strued for enforcement purposes basically as a 
contract, reliance on certain aids to construc­
tion is proper as with any other contract. Such 
aids include the circumstances surrounding the 
formulation of the consent order, any technical 
meaning words used may have had to the parties, 
and any other documents expressly incorporated 
in the decree. Such reliance does not in any 
way depart from the four-corners' rule of 
Armour. 7/
Here the district court properly considered the situa­

tion which rise to the decree in the first instance. Focus­
ing particularly on the bargained-for relief obtained by both 

parties, the Court expressed an acute awareness of the 
appropriate breadth of that relief. In addition, the court's 
interpretation exhibits its consideration of the underlying 

legal context for the type of relief embodied in the decree. 
Thus, properly considering the concepts of "mill seniority" 
and "rightful place" the court made its interpretation of the 

decree within the context of opinions of this Court such 
as Local 189, United Papermakers and Paperworkers v. United 
States, 416 F.2d 980 (5th Cir. 1969); Watkins v. Scott Paper 

Co., supra; and Johnson v. Goodyear Tire & Rubber Co., 491

7/ Similarly, the defendants' assertion that a court may 
not modify a consent decree, as such a decree is to be viewed 
as a contract and not a judicial act (see Joint Brief of All 
Appellants p. 14) is wholly without merit and was specific­
ally rejected by the Supreme Court in United States v .
Swift Co., supra.

16



F.2d 1364 (5th Cir. 1974), which make plain the purposes and 

extent of relief in Title VII cases.
Similarly the court below was required to interpret the 

consent decree in light of prevailing law in the Circuit at 

the time the decree was entered. As such Local 189, would 
certainly have provided the most appropriate legal context 
for understanding the breadth and purpose of the provisions 

of the decree. Also, at the time the decree was entered the 
district court was required to make a finding that the relief 
provided therein was fair, adequate and reasonable. Certainly

that determination would also have been made pursuant to the
Court's admonition in Local 189, that "... blacks previously
discriminated against must be given remedial relief as to

enable them to achieve their rightful place."
In Eaton v. Courtaulds of North America, Inc., 578 F . 2d

87 (5th Cir. 1978) this Court carefully considered the

Supreme Court's holdings in United States v. Armour Co.,
supra, 402 U.S at 681-82 and United States v. ITT Continental
Baking Co., supra, 420 U.S at 238 and held that while "if

possible" courts are required to anlayze an agreement without

resort to extrinsic considerations:
Where amgibuities exist in the language of a 
consent decree, the court may turn to other 
'aids to construction,' such as other 
documents to which the consent decree refers, 
as well as legal materials setting the con­
text for the use of particular terms.

17



Eaton v. Courtaulds of North America, Inc., surpa 578

F.2d at 91.
As was the case in Eaton, supra, the district 

court was required to construe section XVI of the decree in 

the light of other portions of the agreement whose language 
specifically referred to terms. It follows that the 
interpretation offered by the district court is the "natural 

and approriate reading" since it reinforces the internal 
consistency of the decree and recognizes the logical context 
in which the relief is provided.

B. Section XVI Does Not Strip the Court of
Jurisdiction To Enforce The Consent Decree,
But Simply Limits The Ability Of the 
Parties To Petition The Court For "Other 
And Further Relief"

In both the court below and in this Court, the defen- 

dants-appellants have offered a strained interpretation of 
section XVI. While assuming the stance of one who wants only 
the "plain meaning" of the decree to be enforced, they have 

ignored the operative language of section XVI. While arguing 
that the four corners' doctrine prohibits plaintiffs or the 
Court from considering Section XVI in light of the other 
sections of the decree, from considering the underlying legal 
basis for the relief obtained by plaintiffs, or from consider­
ing the effects of the withdrawal of such relief, they nonethe­

less seek to present bogus precedent for a limitation on that 
relief and to indicate that the relief is now unnecessary.

18



Section XVI states:

Jurisdiction in this action for such other 
and further relief as may be appropriate con­
sistent with this Order is hereby retained until 
January 1, 1977, unless sooner modfied, dissolved 
or extended, (emphasis added). R. E. 591.
As the district court below held, this clause,
...speaks to the Court's jurisdiction to award 'such 
other and further relief as may be consistent with 
this order." Thus, the phrase 'unless sooner 
modified, dissolved, or extended' relates to the 
Court's jurisdiction to alter the relief provided 
by the decree; not to the period of time the 
decree is to have effect. R.E. 37a.

The defendants would have this Court read the phrase
"for such other and further relief" completely out of the
decree, and pretend that section XVI instead robs the

Court of jurisdiction to enforce the permanent injunctive
portions of the decree. However, as Judge Scott indicated

£/
below it simply "doesn't say that." Moreover, there is 

no reason for the section to be given so broad an interpre­
tation, as each section indicates its life.

For example, section II states that "the defendants 

are ordered to utilize permanently ... a system of mill 
seniority...", while section IV indicates that "the company 
shall not require as a prerequisite for hiring that appli­

cants possess a high school diploma or its equivalent" or

8/ Transcript p. 60.

19



pass a non-validated personnel or aptitude test.
Section VI indicates that an affected class member may 

use his "red circle" wage protection unless or until "(i) 
he is permanently assigned to a position paying a higher 

rate, or (ii) he waives promotion after entry of his Order 

four times," moreover the decree limits the red circle 
protection to one voluntary transfer for each member of the 

affected class. Other sections of the decree 
involving Recruiting (§VII), Training (§VIII) and Union 
Membership (X), only require that the company recruit, and 

train and that the union admit members on a nondiscrimina- 

tory basis. While these sections do not express any time 

limitation, their terms are merely consistent with the 
requirements of Title VII, §1981 and the U.S. Constitution 

and do not impose any onerous condidions that might be said 
to be "extraordinary" or antagonistic to the employer's 
"interest in reestablishing stability to his work environ­

ment." Stevenson v. International Paper Co., supra. In fact, 
in lieu of a time limitation section VII F states:

It is the purpose of this section to permit 
flexibilty in the Company's efforts to notify 
the black community of job opportunities. This 
provision is not intended to require the Company 
to use newspaper or other media advertising unless 
such advertising is necessary to accomplish the 
objective of giving broad notice to the black 
community of job opportunities.
As the district court indicated, reading the decree as 

a whole, particularly in light of the explicit language of 
sections XVI and II.B:

20



...the Court retained jurisdiction to grant 
additional relief, not embodied in the decree, 
for a period of five years. The jurisdictional 
clause, however, in no way, effects or limits 
the period of time in which the duties and 
obligations expressed in the decree are to be 
carried out and fulfilled. To read Clause XVI 
any other way would be to disregard the plain 
language of the section. R.E. 37a.

It is contrary to logic to argue as do the defendants
that the term "permanent" in section II.B means permanent

2/
for five years. Webster's New Collegiate Dictionary, G &
C. Merriam Co., 1977 defines "permanent" as "continuing or
enduring without fundamental or marked change: stable." It

is simply not supportable to suggest that the parties could
have had any other definition in mind for using the word

permanent in section II.B. of the decree. In addition, while
castigating the Court below for considering the legal
context for relief such as mill seniority, the defendants

12/argued below as they do here that there are adequate 
legal reasons for limiting the mill seniority relief. In so 
doing they grossly misstate the relation of the "rightful 
place" theory to the relief obtained in the decree and then 

go on to erroneously suggest (1) that the members of the 
affected class have reached their rightful place and (2) 
that therefore the mill seniority relief is no longer 

necessary.
In the first instance the "rightful place" theory is 

relevant in that it provides the legal context for the use

9/ Joint Brief of All Appellants at p.13. 
10/ Transcript p. 62.

21



mill seniority, discriminatees would have no incentive to11/transfer for fear of committing "seniority suicide" in 
the event of layoffs. Thus, the defendants' notion that once 

a member of the affected class has used his mill seniority 
and/or red circle protection to transfer or promote he has 
reached his rightful place, is not only absurd it also fails 

to adequately consider the fact that without the continued 
use of mill seniority the affected class member cannot hope 
to maintain his position. For example in the case at bar one 

affected class member was demoted to entry level status for 
exactly this reason.

The defendants' view presupposes that in every case 

where an affected class member has transferred to a new 
department or new line of progression, from which blacks were 
previously excluded, that he now has sufficient job or 

department seniority to protect his new position. Moreover, 
while the defendants proudly extoll the fact that several 
affected class members have been promoted under the terms of 

the consent decree they fail to indicate that only a handful 
have reached the most desirable assignments to the maintenance

of the term mill seniority in the decree. See Eaton v.
Courtlauds of North America, Inc., supra. Absent

11/ James v. Stockham Valves & Fittings Co., 559 F .2d 310 
(5th Cir. 1977).

22



department. And, significantly, it is these men who 

face the most severe threat in that the loss of their mill 
seniority may mean unemployment.

C. Even If Section XVI Were Intended To Strip The 
Court Of Jurisidction To Enforce The Decree - 
The District Court's January 30, 1978 Order 
Entered Nunc Pro Tunc December 31, 1976 
Extended The Court's Jurisdiction Pendente Lite 
Of The Contempt Proceedings

On January 30, 1978 the District Court entered an Order 
denying the defendants' motion to dimiss the contempt 
proceedings and furher ordering:

Plaintiffs' motion for extension of jurisdiction 
over the consent decree pendente lite of the 
contempt proceeding, is granted nunc pro tunc 
December 31, 1976. R.E. 43a.

There, notwithstanding the defendants' arguments to the 
contrary, the district court held that the motions for 

contempt and further relief were timely filed and that "the 
Court retains inherent jurisdiction to see that its orders 
are obeyed." R.E. 43a.

The issues underlying the present appeal, i.e., the 
breadth of section II.B. and section XVI were likewise 
expressly raised by plaintffs' motion for contempt and 

futher relief. That is, while the threatened March 2, 1979 
layoff of affected class members prompted plaintiffs'

12/

1_2/ See Plaintiffs' Motion for Contempt for Further Relief 
... It can hardly seem accidental that the principle 
effect of defendants' reading of section II.B, the elimina­
tion of Blacks from the maintenance department was also an 
underlying cause of the December 30, 1976 motion.

23



motions for summary judgment and preliminary injunction,
the expressed purpose of those motions was to obtain an
order (1) indicating "the continuing obligation of the

defendants to abide by the provisions of the Consent Decree
mandating the permanent use of mill seniority when membersIV
of the affected class compete for employment positions"

and (2) ordering the defendants "to utilize a system of mill
seniority for purposes of all temporary and permanent job
assignment, including promotions, demotions,layoffs, recalls,

and selection for training of affected class emolyees as11/provided in Section II.B of the Consent Decree..."
Thus the issue raised by plaintiffs' present motion 

could have been heard under the grant of jurisdiction in the 
court's January 30, 1978 Order as the mill seniority issue 
was expressly raised in plaintiffs' motion for contempt which 

the court held was timely filed.
Plaintiffs' Motion For Contempt... explicitly alleged:

b) The Company has violated section II-A (sic) 
of the consent decree by refusing to "utilize 
permanently in place of job or departmental 
seniority a system of mill seniority with 
respect to temporary and permanent job assign­
ments, including promotions, demotions and 
selections for training of affected class 
employees... R.E. 80a.

13/ See Plaintiffs Motion for Partial Summary Judgment. 
£7 2229.

14/ See proposed Order Sustaining Plaintffs' Motion for 
Preliminary Injunction. R. 2225.

24



Moreover the company's response to plaintiffs' motion
interposed essentially the same defense, i,e., that section
XVI terminates all the relief of the decree, as they put

1 5/
forth in their brief.

It follows that no new issue was raised by plaintiffs 

February 28, 1979 motions. Rather, following the breakdown 
of settlement discussions, and the apparently imminent layoff 
of many of the most industrious members of the affected 

class, plaintiffs sought an immediate determination of the 
one issue included in the motion for contempt which would 
sustain the gains made by the affected class members and 

prevent the unilateral abrogation of the consent decree by 
the defendants.

D. The Supreme Court Decision In Teamsters Does 
Not Compel Any Alteration of the Seniority 
Provisions of The Consent Decree

In International Brotherhood of Teamsters v. United 

States, 431 U.S. 324 (1977 ("Teamsters") a suit brought 

by the Government under Title VII, the Supreme Court held 
that Section 703(h) accorded a narrow immunity to a bona fide 

seniority system even though that system perpetuated pre-Act 

discrimination. The Court held that where conduct prohibited 
by Title VII has not entered into the establishment, negotia-

15/ See, defendant company's Answer to Motion For Contempt 
and Other Relief: Counter-Motion to Declare Consent Order 
dated January 28, 1972, dissolved and terminated, and 
Motion to Dismiss Motion for Contempt.

25



tion of maintenance of a seniority system, such system is 

immune under §703(h) of Title VII of the Civil Rights Act of 

1964. However, where a discriminatory purpose did enter into 
the establishment, negotiation or maintenance of a seniority 
system, it is not shielded by the limited immunity granted by 

§703(h).

Nowhere does Teamsters hold, as the defendants suggest,
that the permanent implementation of mill seniority rather

than job or departmental seniority is "contrary to current
± 6/

law under Title VII." In fact, the Court in Teamsters 
reaffirmed its earlier holding in Franks v. Bowman Transpor- 

ation Co., 424 U.S. 747 (1976), that §703(h) does not bar 
the award of retroactive seniority relief. Id_. , at 347.
See also James v. Stockham Valves & Fittings Co., 559 

F.2d 310 (5th Cir. 1977). The Court in Teamsters, supra, 
made plain that its opinion did not invalidate those Title 
VII cases wherein retroactive seniority was allowed, pro­

vided that the bona fides of the seniority system could not 
be established.

Concededly, the view that §703(h) does not 
immunize seniority systems that perpetuate the 
effects of prior discrimination has much 
support. It was apparently first adopted in 
Quarles v. Phillip Morris, Inc., 279 F.Supp.
505 (E.D, Va.). The court there held that "a 
departmental seniority system that has its

16/ See Joint Brief of All Appellants p. 35.

26



genesis in racial discrimination is not a bona 
fide seniority system." Id_. , at 517 (first 
emphasis added). The Quarels view has since 
enjoyed wholesale adoption in the Courts of 
Appeals. See e.g.f Local 189, United Paper- 
workers v. United States, 416 F.2d 980, 987- 
988 (CA 5); United States v. Sheet & Metal 
Workers Local 136, 416 F.2d 123, 133-134 n.20 
(CA 8); United States v. Bethlehem Steel Corp. ,
4 46 F . 2d "652, 6"S8"-6"S9 (CA 2)'; United States v .
Chesapeake & Ohio R. Co., 471 F .2d 582, 587-588 
(CA 4). Insofar as the result in Quarles and 
in the cases that followed it depended upon 
findings that the seniority systems were them­
selves 'racially discriminatory' or had their 
'genesis' in racial discrimination," 279 F.Supp. 
at 517, the decisions can be viewed as resting 
upon the proposition that a seniority system 
that perpetuates the effects of pre-Act 
discrimination cannot be bona fide if an 
intent to discriminate entered into its very 
adoption.

Teamsters, supra, 424 U.S at 347, n.28.
When the parties to this lawsuit agreed to settle rather 

than litigate the issues raised by plaintiffs' lawsuit, the 

defendants gave up their right to litigate the issue of 
whether or not there was pre-Act and/or post-Act discrimina­

tion or whether the seniority system was bona fide in exchange 

for avoiding the uncertainties and burdens of further 
litigation. Likewise, the plaintiffs waived their right to 
litigate the issues that they raised as well as a substantial 

portion of the back pay they might have obtained, in exchange 
for a negotiated settlement. Thus the parties settled the 
evidentiary issues raised by Teamsters, and unlike judgments, 
settlements are not subject to attack under Teamsters. See 
Dawson v. Pastrick, 600 F .2d 70, 76 (7th Cir. 1979). See

- 27



also Sarabia v. Teledo Police Patrolman's Assn./ 601 F .2d 
914, 919 (6th Cir. 1979).

If however the Court in Teamsters had held that retroactive 

seniority relief was no longer available under Title VII then 
the defendants' argument might be said to be analogous to the 
cases they cite. However, Teamsters only established an 

additional evidential burden which defendants would have had 
to meet in order to prevent plaintiffs' relief from impacting 
on the seniority system.

The case at bar is in no way analogous System Federation 
No. 91 v. Wright, 364 U.S. 642 (1961) or Theriault v. Smith,
523 F.2d 601 (1st Cir. 1975). In System Federation No.

91 v. Wright, supra, the parties entered into a consent 

decree enjoining the defendant railroad and railroad labor 
unions from discriminating against the plaintiffs and their 

class by reason of their refusal to join or retain membership 
in any labor organization. The decree was entered at 
a time when the Railway Labor Act barred a union shop. 
Subsequently, the act was amended to permit a contract 

requiring a union shop. As a result of that explicit and 
substantive change in the law the Supreme Court held that 
the continuing enforcement of the provision no longer 

served to further the objectives of the Act and therefore 
held that the lower court had erred in refusing to so 

modify the consent decree.

28



Similarly in Theriault v. Smith, 523 F .2d 601, 602

(1st Cir. 1975), the Court of Appeals held that the consent
decree was based on an interpretation of the law that the

Supreme Court held to be invalid.
That decree contained the undertaking that 
'Defendant beginning August 1, 1974 will, pur­
suant to 42 U.S.C. §602(a )(10) and 42 U.S.C.
§606(a) grant AFDC benefits ... to otherwise 
eligible women ... on behalf of their unborn 
children.' As the Court made clear in [Burns v .]
Alcala, [420 U.S 575 (1975)] the referenced 
provisions do not authorize such benefits.
Defendant is therefore precluded from granting 
such benefits under their authority.
The essential distinction between the effect of Teamsters 

on the instant case, and the situations posed in System 
Federation No. 91, supra, and Theriault, supra, is that 
Teamsters, supra did not invalidate the type of relief 

obtained in the Consent Decree. Rather, the Court in 
Teamsters, supra, merely clarified the proof required before----------  — —  y y

a court could impose that remedy.
Because all the parties to this litigation, the plain­

tiffs, the company and the unions, voluntarily entered into a

17/ The defendants' citation of Myers v. Gilman Paper Corp., 
5T4 F . 2d 837 (5th Cir. 1 977) reversed and vacated in part,"
556 F .2d 758 (5th Cir. 1977), and Southbridge Plastics 
Division v. Local 759, Rubber Workers, 565 F .2d 913 (5th 
Cir. 1978) is even more far afield. The principal difficulty 
in both those cases was that the settlement agreements were 
imposed over the vigorous objection of the unions that were 
party defendants to the actions. In the case at bar all of 
the necessary parties agreed to the seniority relief embodied 
in the consent decree, and cannot now be heard to complain 
that they were not represented.

29



consent decree, there was never a determination as to
whether or not St. Regis' seniority system was bona fide.

However, the defendants would have this Court assume at this
late date that the seniority system was bona fide and that
therefore mill seniority relief was inappropriate. Such a

determination would be inappropriate for several reasons.
First, as this Court has consistently held:
... it is clear that there is great em­
phasis in Title VII on private settlement 
and elimination of unfair practices without 
litigation.

Oatis v. Crown Zellerbach, 398 F .2d 496, (5th Cir. 1968);
Culpepper v. Reynolds Metal Co., 421 F .2d 888, 891 (5th
Cir. 1970). See also U.S. v. Allegheny Ludlum Industries,

517 F.2d 826, 846 (5th Cir. 1975), cert. denied, 423 U.S.
1056 (1976); Dent v. St. Louis-San Francisco Ry. Co., 406
F.2d 399, 402 (5th Cir. 1969). Moreover, as the Tenth

Circuirt held in EEOC v. Safeway Stores, Inc., ___
F . 2d ___ 21 EPD 1130,456 p. 1 3,59 5-6_( 1 0th Cir. 1 979):

A Consent Decree would be worthless if it could 
be attacked on the ground that had the Court 
made a particular determination, such relief 
would then not be statutorily available.

See also Dawson v. Pastrick, 600 F .2d 70 (7th Cir. 1979).

Similarly, there is no basis whatever for assuming that any 
court might reach a determination that the defendants' senior­

ity system was bona fide or racially neutral. The defendants' 
employment policies and practices were at the time this 
lawsuit was filed indistinguishable from those throughout

30



the southern paper industry which have regularly been found 

to be discriminatory, see, e.g. , Watkins v. Scott Paper 
Co., supra; Stevenson v. International Paper Co., 516 F .2d 

103, 111-118 (5th Cir. 1975); Long v. Georgia Kraft Co., 480 
F.2d 557 (5th Cir. 1971); Local 189, United Papermakers & 
Paperworkers v. United States, 416 F .2d 980 (5th Cir. 1969),

cert, denied, 397 U.S. 919 (1970); Boles v. Union Camp, 
supra; Myers v. Gilman, 10 FEP Cases 213 (S.D. Ga. 1974); 
Miller v. Continental Can Co., supra; Rogers v. Interna­

tional Paper, 510 F.2d 1340 (8th Cir. 1975), vac'd 
and ren'd, in light of Albemarle Paper Co. v. Moody, 423 
U.S 809 (1975), new trial directed 526 F .2d 722 (8th Cir. 

1975).

Finally, the documented history of the southern paper
industry makes plain the discriminatory impact of the

seniority system when combined with the discriminatory
hiring policies generally in effect throughout the industry:

Since, however, Negroes were before 1960 almost 
universally denied entry into many lines of pro­
gression, they did not have the opportunity to 
exercise seniority nearly as broadly as did 
whites. Thus, a white worker with much less 
mill seniority than a Negro would be working 
while the Negro was unemployed because the white 
employee had had an opportunity to move up a 
progression and there to exercise occupational 
seniority. Moreover, long-service whites could 
also exercise mill seniority at the base-rate 
jobs. Thus whites had two bites at the seniority 
apple on a proportionally much larger basis than 
did Negroes.

31



H. R. Northrup, (L. Rowan, D. T. Barnum and J.C. Howard, 
Negro Employment In Southern Industry, volume IV, Part

I, at 51 (1979).
18/

Unlike the situation posed by Teamsters, historically 

virtually all the workers locked into undesirable jobs in 
the southern paper industry were blacks. Defendants com­
pletely ignore this fact and urge that the collective bar­

gaining agreements protect all the workers. However, it 

is abundantly clear that whites in the paper industry were 
never prevented from accumulating seniority in the desirable 

lines of progression.
This fact undercuts any notion that the Court below 

failed to consider the impact of its decision on the collec­

tive bargaining agreements or the policies of the National 
Labor Relations Act. On the contrary, the Court below 
repeatedly questioned the parties on the effect his ultimate 

decision would have on the collective bargaining agreements. 

Tr. 81-86; 87-88; 94-96.
11/Moreover, whatever "competing interests" that 

may be said to exist between the NLRA and Title VII were

18/ This Court's recent opinion in James v. Stockham Valves 
& Fittings Co., supra, 559 F .2d at 310, makes plain that 
Hthe totality of the ~circumstances in the development and 
maintenance of the system is relevant to examining" the 
bona fides issue.
19/ See, Joint Brief Of All Appellants p. 35.

32



fully harmonized when all of the parties agreed to the 
consent decree. In fact the company's chief counsel con­

ceded as much during the hearing before Judge Scott:
Hr. Farmer: There's no question, I think,

that all the parties would agree that, during the 
period of the consent decree, when it was effec­
tive, that it superseded any conflicting provision 
in the collective bargaining agreement. Tr. 88.
Thus, this situation is not analogous to Myers v. Gill- 

man, supra, as here all the parties agree that if the mill 

seniority provisions of the decree remain in effect, then 
they would continue to override the collective bargaining 
agreement. This was part and parcel of the settlement 

reached by the parties in this case. Moreover, mindful 
of the potential conflict in this area the District Court 
continually questioned the parties on the impact his 

decision would have on the collective bargaining agreement. 
And, it was not until he was satisfied that the consent 
decree explicitly overrode the collective bargaining 

agreement that he dropped this line of inquiry.
The District Court's opinion, after properly weigh­

ing the context in which the consent decree was approved; 

attempting to construe sections II.B, and XVI in the light 
of other portions of the agreement, and the competing 
interests of all the effected parties, properly held with 

respect to section II.B, that, "Nowhere is this provision or 
any other expressly limited to any term or period or time." 
R.E. 37a.

33



In Bing v. Roadway Express,Inc., 485 F .2d 441, 450 (5th 
Cir. 1973), which this Court recently quoted in James v . 
Stockham Valves & Fittings Co., supra, 559 F .2d at 356, this 
Court held:

Thus the rightful place theory dictates that we 
give the transferring discriminatee sufficient 
seniority carryover to permit the advancement 
he would have enjoyed, and to give him the

protection against layoffs he would have had 
in the absence of discrimination.

See also, Franks v. Bowman Transportation Co., supra, 424
U.S. at 760 n.21.

Thus while the consent decree agreed to by the parties does 
not guarantee that all the members of the affected class will 
reach their rightful place, the relief it provides certainly 

contemplates an effort to make whole past victims of dis­
crimination by facilitating their attempt to reach their 
rightful place during the remainder of their work lives.

Watkins v. Scott Paper Co., supra, Gamble v. Birmingham 
Southern R.R. Co., 514 F .2d 678, 683 (5th Cir. 1975).
Moreover, the guarantees that the consent decree does 

offer are that a discrete group of men who were denied the 
opportunity to accumulate seniority in lines of progression 
which were open to their white counterparts would finally 

have the ability to compete on an equal basis. Absent the 
use of mill seniority members of the affected class solely 
because of their race would once more be exposed to demotion

34



and layoff while their white peers, solely because of their 
race, would continue to fully exercise their seniority for 
the same purposes.

This decree, with its permanent implementation of 
mill seniority is fully consistent with the demands of 
Watkins v. Scott Paper Co., supra, and other cases in 

that the relief was limited to a discrete number of em­
ployees, and only minimally affected the seniority system of 

the plant. To assert as to defendants that after almost a 
guarter century of discrimination that five years of mill 
seniority is sufficient, not only violates the express 

provisions of the decree, but also flies in the face of 
reason. As this Court has repeatedly recognized, carry­
over seniority is essential not only so that discriminatees 

may transfer to the more desireable jobs in lines of pro­

gression and bargaining units that were previously closed 
to them, but additionally so that they can hold onto those 
jobs once they are obtained James v, Stockham Valves 

& Fittings Co., supra.

J

35



In the cae at bar the need to give force or effect 
to the natural and appropriate language of the consent 
decree is no less compelling.

CONCLUSION

For all the foregoing reasons, this Court should 
affirm the Decision and Orders of the District Court, 
of April 19, 1979.

Respectfully submitted,

' I  '  .

1 ■ ■ v//

EARL M. JOHN§ON^.^ "
^ 625 West Union Street

Jacksonville, Florida 32202
REESE MARSHALL

201 West Union Street 
Jacksonville, Florida 32202

BENJAMIN KYLE
1248 West Edgewood Avenue 
Jacksonville, Florida 32208

ALGIA R. COOPER
121 1/2 South Monroe Street 
Tallahassee, Florida 32301

JACK GREENBERG 
CLYDE E. MURPHY

10 Columbus Circle 
Suite 2030
Nee York, New York 10019

36



CERTIFICATE OF SERVICE

The undersigned certifies that copies of the foregoing 
Brief for Plaintiffs-Appellees have been served on counsel

for all the parties this 3rd day of March 1989 by first 
class mail postage preapid, addressed to:

Guy Farmer
Farmer, Shibley, McGuinn & Flood 
1120 Connecticut Avenue, N.W. 
Washington, D.C. 20036
William L. Durden 
Kent, Sears, Purden & Kent 
870 Florida First National 
Bank Building

Jacksonville, Florida 32202
Michael A. Roberts
St. Regis Paper Company
633 Third Avenue
New York, New York 10017

Joseph S. Farley, Jr.
Mahon, Mahon & Farley 
350 East Adams Street 
Jacksonville, Florida 32202
Elihu I. Leifer 
Terry R. Yelling 
Sherman, Dunn, Cohen & Liefer 
1125 15th Street, N.W. 
Washington, D.C. 20005

Louis P. Poulton
1300 Connecticit Avenue
Washington, D.C. 20036



Edward Booth
Arnold, Stratford & Booth, P.A. 
2508 Gulf Life Tower 
Jacksonville, Florida 32207

Benjamin Wyle 
Linda Bartlett 
110 East 59th Street 
Suite 1014
New York, New York 10022