The American Tobacco Company v. Edgar Russell Brief in Opposition to Certiorari

    I n  t h e

i>npmit£ (Burnt ut tlu> Matted States
October Term 1975 

No. 75-1081

T h e  A m erica n  T obacco C o m pa n y ,
Petitioner,

v.

E dgar B u sse l l , et al.,
Respondents.

BRIEF IN OPPOSITION TO CERTIORARI

J ack  Greenberg  
D eborah  M. G reenberg  
O. P et e r  S herw ood  

10 Columbus Circle 
New York, New’ York 10019

J .  L e V o n n e  C ham bers

Chambers, Stein, Ferguson & Becton 
951 S. Independence Boulevard 
Charlotte, North Carolina 28202

Attorneys for Respondents



I n t h e

(Umtrl of %  MuiteZ* i ’tatrs
October Term 1975 

No. 75-1081

T h e  A m erica n  T obacco C o m pa n y ,
Petitioner,

v.

E dgar B u ssell , et al.,
Respondents.

BRIEF IN OPPOSITION TO CERTIORARI

Jurisdiction

The jurisdictional requisites are adequately set forth in 
the petition.

Questions Presented

1. Whether Section 703(h) of Title VII of the Civil Rights 
Act of 1964, 24 U.S.C. §2000e-2(h) exempts from the 
category of unlawful employment practices the applica­
tion of different standards of compensation and differ­
ent terms of employment to employees who work in 
different plants where the differences are the result of 
the employer’s intentional exclusion of blacks from 90 
per cent of the jobs in one of the plants'?

2. Whether “different locations,” as used in Section 703(h) 
of Title VII applies to two plants a) which constitute



2

a single manufacturing process, b) which are two miles 
apart, c) which are covered by the same collective bar­
gaining agreement, d) where the company has con­
tractually reserved and exercised the right to shift 
employees from one plant to another without loss of 
seniority, and e) where employees of one plant work 
at the other plant?

Statement

This case was brought pursuant to Title VII of the Civil 
Rights Act of 19641 to redress racial discrimination in 
employment at two plants of The American Tobacco Com­
pany in North Carolina.

These plants are:
1) The Reidsville branch of The American Tobacco Com­

pany, located in Reidsville, North Carolina (hereinafter, 
“Branch”), which receives tobacco from the Leaf De­
partment, blends and manufactures cigarettes from it.

2) The Reidsville Leaf Department of the American To­
bacco Company, located two miles from Branch outside 
the corporate limits of Reidsville but within Rocking­
ham county (hereinafter, “Leaf”), which processes and 
stores green leaf tobacco until needed in Branch.

Branch is organized into two departments, prefabrication 
and fabrication. Prefabrication receives tobacco from Leaf 
and blends, cuts and dries it. The fabrication department 
manufactures and ships cigarettes. Blacks have been ex­
cluded from the jobs in fabrication, which pay more than 
the jobs in prefabrication and more than the jobs in Leaf. 

Employees in Leaf are divided into two categories, regu-

1 42 U.S.C. §§2000e et seq.



3

lar and seasonal, performing substantially the same work. 
Some of the Leaf employees actually perform their work 
at Branch.

As of January 29, 1968, shortly after the complaint was 
filed, the Company employed 1814 hourly rated employees 
at Branch and Leaf, divided as follows:

Branch White Black
Fabrication ..................... 1,295 (91.5%) 120 ( 8.5%)
Prefabrication ___   58 (34.9%) 108 (65.1%)

Leaf
Regular .................    33 (31.1%) 73 (68.9%)
Seasonal .....     3 ( 2.4%) 124 (97.6%)

The average wage rates were as follows:
White Black

Branch ............................ $ 2.90 $ 2.52
Leaf .......... .... ................. 3.27 2.41

Of the twenty-six persons at Leaf occupying jobs paying 
more than $2.82 per hour, twenty-four were white and two 
were black.

The employees at Branch and the regular employees at 
Leaf are covered by the same collective bargaining agree­
ment. The employees at Branch and Leaf are on separate 
seniority rosters. An employee at Leaf who wishes to 
transfer to a job at Branch loses all his seniority. How­
ever, if the Company requests transfer of an employee from 
one plant to another the employee retains his seniority 
rights. All of the employees who, at the request of man-



4

agement, have transferred between the two plants have been 
white.

The District Court found that prior to 1963 the Company 
had overtly excluded blacks from fabrication jobs at Branch 
and that this discrimination was perpetuated by a variety 
of devices, including a departmental seniority system and 
subjective evaluation of qualifications (A10-A15).2 The 
court ordered seniority relief for black employees at Branch 
(A30-A32) but denied any seniority relief for those em­
ployed at Leaf (A32). The District Court ruled that Branch 
and Leaf are separate operations because they are two 
miles apart, different work is done at each plant and it is 
more efficient for the Company to keep the two operations 
separate. It concluded that “there is no justification in law 
or in fact for merging the two lines of seniority” as 
Branch and Leaf3 (A8-A9).

The Court of Appeals denied black Leaf employees the 
right to transfer into prefabrication jobs at Branch, inas­
much as the District Court had found no racial discrimina­
tion in hiring into those jobs (A49). It held, however, that 
black employees at Leaf who were hired before the Com­
pany eliminated discriminatory hiring in the fabrication 
department of Branch should be permitted to use their 
company seniority to transfer to that department as per­
manent vacancies occur in jobs they can perform (A48).

It is this limited grant of seniority relief for the black 
employees at Leaf, who were previously unable to obtain 
jobs in the fabrication department of Branch which the 
Company is asking this Court to review.

2 This form of citation is to pages of the appendix to the Petition 
for Certiorari.

3 Plaintiffs sought only an “opener” which would permit class 
members a t . Leaf one opportunity to transfer to Branch with 
carryover seniority.



5

ARGUMENT

This case does not warrant review on certiorari because 
the decision of the Court of Appeals is in accord with the 
express language of Section 703(h) and there is no conflict 
among the circuits on the questions presented.

The statutory provision relied upon by the Company, 
Section 703(h) of Title VII of the Civil Rights Act of 1964, 
provides in part that

it shall not be an unlawful employment practice for 
an employer to apply different standards of compen­
sation, or different terms, conditions or privileges of 
employment . . .  to employees who work in different 
locations, provided that such differences are not the 
result of an intention to discriminate (emphasis 
added).

Assuming for purposes of argument that Leaf and Branch 
are “different locations” the Company’s seniority practices 
with respect to Leaf employees are not shielded from judi­
cial alteration by Section 703(h) because the differences in 
treatment of the employees in the fabrication department 
of Branch and the employees at Leaf are the direct result 
of the Company’s intention to discriminate, viz., its refusal 
to hire black employees into fabrication jobs.

The Company contends that black employees at Leaf are 
not entitled to seniority relief which would enable them to 
transfer into fabrication jobs at Branch because the Com­
pany always hired both blacks and whites at Branch and, 
therefore, the Leaf employees were not affected by the 
discriminatory priorities at Branch. The fallacy of this 
argument is apparent. Blacks seeking work at the Company 
could not obtain jobs in the fabrication department of



6

Branch, which jobs were reserved for whites. They were 
limited to the relatively small number of jobs in prefabri­
cation or at Leaf. The fact that those who ended up at 
Leaf might have obtained black jobs at Branch, had there 
been any vacancies, in no way lessened the impact upon 
them of the Company’s discriminatory policies.4

It is equally clear that the term “different location” does 
not apply to Leaf and Branch. They are parts of a single 
integrated manufacturing process and are covered by the 
same collective bargaining agreement. Some employees 
who are on the Leaf payroll actually work at Branch. The 
Company has contractually reserved the right to transfer 
employees from one plant to another without loss of se­
niority and has, in fact, exercised this right on several 
occasions.

The seniority relief granted to Leaf employees is similar 
to that afforded victims of discrimination in other cases 
involving multiple plants performing different but related 
functions. See, e.g., Quarles v. Philip Morris, 279 F. Supp. 
505 (E.D. Va. 1968); United States v. United States Steel 
\Corp., 371 F. Supp. 1045 (N.D. Ala. 1973) (findings of 
fact and conclusion of law), 5 EPD f[8619 (decree), vacated 
and remanded on other grounds, 520 F.2d 1043 (5th Cir. 
1975). To deny such relief would be to leave victims of the 
most blatant discrimination, segregation by plant, without 
any remedy, thereby frustrating the central statutory pur­
poses of Title VII: eradicating discrimination throughout

4 In 1968 the hourly work force at Branch wa's 86% white; the 
hourly work force at Leaf was 85% black. That Branch and Leaf 
were viewed, even after 1965, as “white” and “black” plants, re­
spectively, is evidenced by the flow of job applicants. Between 
July 2, 1965 and January 29, 1968, only 77 Out of 313 applicants 
to Branch were blacks. On the other hand, all of the: 46 persons 
hired at Leaf in the same period were black, as no whites applied, 
for jobs at Leaf during that period.



7

the economy and making persons whole for injuries suf­
fered through past discrimination Albemarle Paper Com­
pany v. Moody, 422 U.S. 405, 421 (1975).

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that the Petition for Certiorari should be denied.

Respectfully submitted,

J ack  Q-reehberg  
D eborah  M. Gr een b er g  
O. P et e r  S herw ood  

10 Columbus Circle 
New York, New York 10019

J .  L e V o n n e  C ham bers

Chambers, Stein, Ferguson & Beeton 
951 S. Independence Boulevard 
Charlotte, North Carolina 28202

Attorneys for Respondents



MEILEN PRESS INC. —  N. Y. C. 219