James v. Stockham Valves & Fittings Company Plaintiffs' Reply Brief

    DISTRICT CCUR'IN THE UNITED STATES 
FOR THE NORTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 
NO. 70-G-17S

PATRICK JAMES, et ai.,
Plaintiffs,

- vs
STOCKHAM VALVES AND FITTINGS COMPANY, 
e t a 1 .,

Defendants.

PLAINTIFFS’ REPLY BRIEF

DEMETRIUS C. NEWTON
Suita 1722 - 2121 Building 
23.21 Eighth Avenue North 
Birmingl\am, Alafcama 35203

JACK GREENBERG 
BARRY L. GOLDSTEIN 
JOHNNY J. BUTLER 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

JOSEPH F. HUDSON
3 909 30 th A ve n u e
Gulfport, Mississippi 39501

Attorneys for r'j.o .i.n hr - .*_s



I N  D E X

Page

Note on Form of Citations

INTRODUCTION

A * IT IS UNLAWFUL FOR STOCKHAM TO IiMFOSE
REQUIREMENTS OR QUALIFICATIONS ON BLACKS 
FOR PROMOTION TO JOBS FROM WHICH THEY HAD 
PREVIOUSLY BEEN EXCLUDED OTHER THAN THOSE 
REQUIREMENTS OR QUALIFICATIONS IMPOSED ON 
THEIR WHITE CONTEMPORARIES ..............  2

B. THE STATISTICAL EVIDENCE INTRODUCED BY
STOCKHAM'S EXPERT. DR. GWARTNEY.. DOES 
NOT IN ANY WAY REFUTE PLAINTIFFS' CLEAR 
EVIDENCE OF RACIAL DISCRIMINATION.......  10

C. THE COURT CLEARLY HAS JURISDICTION OVER THE
UNION DEFENDANTS PURSUANT TO BOTH TITLE VII 
AND §1981 AND THE COURT SHOULD HOLD THE 
UNIONS LIABLE FOR ENGAGING IN DISCRIMI­
NATORY AND UNLAWFUL PRACTICES..........  2 3

CONCLUSION 30

- l -



NOTE ON FORM OF CITATIONS

"cx

The following citations are used in this brief:

exhibit introduced by Stockham

"PI. Br." — Plaintiffs Post-Trial Brief

"Pi. Prop. Findings" - Plaintiffs Proposed Findings of Fact

" PX. - exhibit introduced by the plaintiffs

"St. Prop. Findings" - Stockham's Proposed Findings of Fact

"St. T. Br." - Stockham's Post-Trial Brief on 
Testing

"T. - Testimony of

"U. Br." _ Unions' Post-Trial Brief

"U. Prop. Findings" 

"UX

Unions Proposed Findings of Fact 

exhibit introduced by the Unions

- ii -



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 
NO. 70-G-178

PATRICK JAMES, et al.,
Plaintiffs,

- vs -
STOCKHAM VALVES AND FITTINGS COMPANY, 
et al.,

Defendants.

PLAINTIFFS' REPLY BRIEF

INTRODUCTION
The evidence presented by plaintiffs and detailed in 

their proposed findings and brief demonstrates a straight­
forward pattern and practice of discrimination. The plaintiffs 
proved discrimination in the form of segregated facilities, 
job assignment, promotional policies, training, etc. The Court 
is already burdened with substantial post-trial briefs and pro­
posed findings and the plaintiffs do not intend to repeat, once 
again, in this reply brief, the evidence proving discrimination.



In essence, the plaintiffs' reply to the voluminous post-trial 
briefs and proposed findings produced by Stockham is plaintiffs' 
brief and proposed findings previously filed with this Court.

However, the plaintiffs will herein brief several 
issues which they have not fully briefed previously: (A) "dis­
parate treatment"; (B) the utility of Dr. Gwartney's statistical 
analysis; (C) the Court's jurisdiction over the union defendants 
and the liability of the union.

A. IT IS UNLAWFUL FOR STOCKHAM TO IMPOSE REQUIREMENTS 
OR QUALIFICATIONS ON BLACKS FOR PROMOTION TO JOBS 
FROM WHICH THEY HAD PREVIOUSLY BEEN EXCLUDED OTHER 
THAN THOSE REQUIREMENTS OR QUALIFICATIONS IMPOSED 
ON THEIR WHITE CONTEMPORARIES

Stockham characterizes the plaintiffs' "Disparate
Treatment" argument as "an effort to conjure up any impediments
to employment testing". [St. T. Br. at 67] The plaintiffs are
innocent of any "conjuring" since their argument is soundly

1/based on Griggs v. Duke Power Company, the EEOC's Guidelines 
on Testing Procedure, closely analogous civil rights decisions, 
a nd a proper interpretation of Title VII. If any one is guilty 
of "conjuring" it is the Company": "conjuring" up new procedures, 
testing and educational, after the passage of Title VII, which

1/ 420 F.2d 1225, 1230-31, 1236-37 (4th Cir. 1970) aff'd
in pertinent part, 401 U.S. 424 (1971).

2



serve to do covertly what Stockham had previously done overtly —
V

segregate Blacks into certain jobs.
The practical import of the disparate treatment argument

is simple. A company which has previously excluded Blacks from
jobs on the basis of race, may not now exclude those Blacks,
who had been subject to the discrimination, on the basis of
some criteria other than that applied to whites during the period
of discrimination. The Company may apply new criteria to Blacks

3/
who were not subject to the discriminatory practices.

Decisions involving racial discrimination in voter 
registration and teachers' dismissals, which have, in effect, 
ruled that disparate treatment is unlawful, are indistinguishable 
from the facts before this Court.

In Louisiana v. United States, 380 U.S. 145 (1965), the 
Court considered whether a "citizenship" test, which did not 
itself discriminatorily prevent the registration of Blacks, could 
permissibly be instituted when Blacks had previously been denied 
the opportunity to register. The Court held that since whites 
who were already registered did not have to take the test, then 
it could not be applied to Blacks who had previously been dis-

2/ One month after the effective date of Title VII, Stockham 
introduced the use of the Wonderlic Test. [Ans. to Interrog.
No 28, PX18] Also the Company instituted an educational re­
quirement for the apprentice program, [PX38; T. Given 279-83] and 
has recently instituted, at least on an experimental basis, a more 
sophisticated testing program, the Tabaka Tests.
3/ Of course, this assumes that the criteria have no "adverse
impact", or if they have adverse impact they meet the proper re­
quirements. See Griggs v. Duke Power Company, 401 U.S. 424 
(1971)

3



criminatorily denied the right to register, supra at 
155-56.

The Fifth Circuit in a series of similar voting cases
established the "freezing" principle.

"This Court has construed . . . the term
'freezing' as keeping in effect, at least tem­
porarily, these requirements for qualification 
to vote, which were in effect, to the benefit 
of others, at the time Negroes were being dis­
criminated against". United States v. Duke.
332 F.2d 759, 769 (1964).

See also United States v. State of Mississippi, 339 F.2d 679 
(5th Cir. 1964); United States v. Ward, 349 F.2d 795 (5th Cir. 
1965); United States v. Lynd, 349 F.2d 785 (5th Cir. 1965); 
United States v. Ramsey, 353 F.2d 650 (5th Cir. 1965); United 
States v. Palmer, 356 F.2d 951 (5th Cir. 1966).

Black teachers who have been dismissed during the inte­
gration of a school district confront similar problems as black 
workers in industry who have been restricted to low-level jobs. 
Courts have recognized that these black teachers should not be 
compared with new applicants for hire, but rather should be 
evaluated on the same basis as other teachers in the system. 
Singleton v. Jackson Municipal Separate School District, 419 
F .2d 1211 (5th Cir. 1970)(en banc); North Carolina Teachers 
Ass'n v. Ashboro City Bd. of Education, 393 F.2d 734 (4th Cir. 
1968); Wall v. Stanley Bd. of Education, 378 F.2d 275 (4th Cir. 
1967); Chambers v. Hendersonville City Bd. of Education, 364 
F.2d 189 (4th Cir. 1966); Rolfe v. County Bd. of Education of 
Lincoln County, Tenn., 391 F.2d 77 (6th Cir. 1968); Moore v.

4



Bd. of Education of Chidester School District No....59, 448 F.2d
709 (8th Cir. 1971). The Fourth Circuit logically reasoned,

"[w]hite teachers who met the minimum standards 
and desired to retain their jobs were not re­
quired to stand comparison with new applicants 
or with other teachers in the system. Conse­
quently, the Negro teachers who desired to remain 
should not have been put to such a test."
Chambers, supra at 192.

Similarly, white workers who have promoted to jobs now 
covered by the Tabaka Tests do not have to take the tests to 
remain on these jobs, and, of course, they did not have to take 
the tests to originally qualify for the jobs. Accordingly, 
black workers who previously were denied access to the jobs 
solely on account of their race should not be forced to pass a 
"qualification" obstacle which their white contemporaries oxd 

not have to pass.
The principle inherent in the voting and school teachers 

cases is apparent: "neutral" standards or criteria may not be 
instituted to hinder the advancement of a minority group to the 
place or status which they would have attained but for previous 

discrimination.
This is a well-established principle for the application

of fair employment laws.
"Under the Act practices,procedures, or tests 
neutral on their face, and even neutral in 
terms of intent, cannot be maintained if they 
operate to 'freeze1 the status quo of prior 
discriminatory employment practices." Griggs 
v. Duke Power Company, 401 U.S. 424, 430 (1971).

This general principle logically applies to "disparate treatment .
In fact, the Fourth Circuit in Griggs held the application of new

5



testing and educational requirements to be unlawful because
by instituting these requirements, the Duke Power Company was
treating Blacks and whites differently. Griggs v. Duke Power
Company. 420 F.2d 1225, 1230-31, 1236-37 (4th Cir. 1970) aff’d

4/
in pertinent part, 401 U.S. 424 (1971).

Stockham tried to, as it had to, distinguish Griggs.
[St. T. Br. 72-73] The Company argues that the Duke Power tests, 
unlike the Stockham tests, had an adverse impact and were not

Vjob-related. A finding of disparate treatment requires no 
determination that the requirement will disqualify more Blacks 
than whites (i.e., have an adverse impact). A common sense 
analysis of the rule makes this apparent. For years whites

6/
promoted into jobs for which the Tabaka Tests are now required 
while Blacks were either excluded or severely limited in their 
opportunity to promote into these jobs. If any Blacks are now 
disqualified from these jobs on the basis of the tests then they 
are being treated unfairly and adversely in comparison to their 
white contemporarties.

Stockham's argument that the tests used by Duke Power 
were not "job-related", as determined by the Supreme Court, misses 
the point; the Fourth Circuit held that the tests were valid under * 6

4/ See also Watkins v. Scott Paper Co., F.Supp.
6 EPD *[8912 at 5864, 5889 (S.D. Ala. 1973).
5/ For this argument we will assume these contentions are
true since they are on their face irrelevant.
6/ See PI. Br. at 39, fn. 46.

6



Title VII but nevertheless held that the test could not be used 
in a disparate manner. Similarly, this Court should hold, whether 
or not it finds the Tabaka tests valid under Title VII, that 
they may not be .used disparately.

The unlawfulness of "disparate treatment", clearly in­
dicated by judicial decision, as discussed supra, is fully

Vsupported by EEOC Testing Guideline 1607.11. The Supreme Court
has held on numerous occasions that courts should pay great
deference to the regulations or guidelines of the commission or

8/
agency charged with implementing the pertinent statute. In 
Griggs the Supreme Court applied this principle to the EEOC 
testing guidelines, although not the disparate treatment guide­
line specifically, supra at 433-36; Cf. Phillips v. Martin 
Marietta Corp., 400 U.S. 542, 545 (Marshall concurring). The 
Courts of Appeals have consistently followed EEOC guidelines. 
United States v. Georgia Power Company, 474 F.2d 906, 913 
(5th Cir. 1973); Pettway v. American Cast Iron Pipe Company,
494 F .2d 211 (5th Cir. 1974); Riley v. Bendix Corp., 464 F.2d 
1113 (5th Cir. 1971); Bartness v. Drewys U.S.A.. Inc., 444 F.2d 
1187 (7th Cir. 1971). When the administrative guideline is con­
sistent with the purpose of the statute, as it is here,

7/ This Guideline is set out in plaintiffs' brief on pp.
39-40.
8/ Udall v. Tallman, 380 U.S. 1, 16 (1965); United States
v. City of Chicago, 400 U.S. 8 , 10 (1970); Trafficante v. 
Metropolitan Life Inc., 409 U.S. 205, 210 (1972); Mourning v. 
Family Publications Service, 411 U.S. 356 (1973); NLRB v.
Boeing Co., 412 U.S. 67 (1973).

7



then the Court should follow the guideline.
The Company advances one last argument why the Court 

should not rule Stockham's use of the Tabaka tests as unlawful 
disparate treatment: that the jobs from which Blacks were 
excluded have changed during the 1960s and 1970s and new re-

9/quirements are necessary. [St. T. Br. 69] The Company only 
provides conclusionary statements and does not detail any 
specific need for the drastic increase in requirements for pre­
viously all-white jobs. [Id.] Statements by Company supervisors 
clearly dispose of this argument.

Despite the supposed need for the Tabaka Tests the 
Company at least until the date of trial never used the tests in 
any way in the selection process. The Company imaginatively in­
terprets Mr. Adamson's testimony to indicate that the tests were 
used in the selection process. [St. T. Br. 46-47] This is just 
wrong as the following selections from Mr. Adamson s testimony 

reveal.
Q. Mr. Adamson, does anybody who has any

responsibility for promotion at the Company 
to evaluate an employee's Tabaka scores as a 
judge of his abilities or in anyway use those 
scores in a determination of whether he'll 
get the promotion?

A. Not to my knowledge in anyway, sir.

9/ Thus, it must be inferred that the Company seeks to
justify the use of these tests under the businsss necessity 
rule. Of course, the defendant has a heavy burden to meet in 
order to justify a discriminatory policy on the basis of business 
necessity. See Pettway v. American Cast Iron Pice Co., supra 
at 245-47; United States v. Jacksonville Terminal Company, 451 
F .2d 418, 451 (5th Cir. 1971) cert, denied 406 U.S. 906 (1972).

8



Q. It hasn't been used yet?

A. No, sir.

Q. As far as —
A. No, sir.

Q. As far as you know, they have just been used 
to accumulate data?

A. They have not been used in employment 
has not been used in transfer; and it 
been used in promotion.

; it 
has not

Q. So, as far as you know, they are just 
used now to accumulate data which has 
accumulated in the log, is that true?

being
been

A. Yes, sir, I told you this earlier.

Q. Okay. And there's no exception to that that 
you know of?

A. No sir, none that I know of.

Q. Okay.
A. And I'm responsible for it. I think I would 

know it. [T. Adamson 626—67; See also 623-24, 
634, 642-43 and see T. Tabaka 1541-42].

Moreover, a Company superintendent, Mr. Ferrell Burt, 
did not perceive any difference which the use of testing made 
in the selection of qualified personnel from 1965 through 1971. 
[T. Burt 1646-50]

9



B. THE STATISTICAL EVIDENCE INTRODUCED BY
STOCKHAM'S EXPERT, DR. GWARTNEY, DOES NOT 
IN ANY WAY REFUTE PLAINTIFFS 1 CLEAR 
EVIDENCE OF RACIAL DISCRIMINATION

The Company through Dr. Gwartney made attempts through
various indices to "measure" discrimination, or rather the lack
thereof. Dr. Gwartney did not study any of the employment practices
at Stockham; he was simply given certain data by Stockham.

Dr. Gwartney did not study the following: that Blacks were
10/

excluded from the formal training programs at Stockham;. [T.
Gwartney 2020-21] that Blacks were assigned on the basis of race
to certain jobs,which were generally in the lower-paying job

11/classes; [Id.] that the seniority system at Stockham had a "lock-
in" effect which clearly inhibited Blacks from transferring out
of the lower-paying production departments into which they were
traditionally assigned and into departments which offered train-

12/
ing and higher-paying jobs; [T. Gwartney 2027] that the Company

13/maintained unlawful tests and educational requirements;

10/ Bl.acks were excluded from the apprenticeship program
until April, 1971. [See PI. Prop. Findings, pp. 56-60]
11/ All the jobs at Stockham were rigidly segregated, as
admitted by Stockham supervisors until 1965; the evidence demon­
strates that the segregation of jobs, except for token exceptions 
remains. [See Pi. Prop. Findings, pp. 33-55]
12/ It is now commonplace that a seniority system like
Stockham which is based on previous segregated job assignment is 
unlawful. See Pettway v. American Cast Iron Pipe Co., 494 F.2d 
211 (5th Cir. 1974) [Pi. Br. Section II]
13/ Dr. Gwartney is "uninterested" in tests. [T. Gwartney 2032]
Of course, unlawful testing is a major Title VII issue and is a 
considerable issue in this action. It is interesting that Dr. 
Gwartney did not investigate testing at Stockham even though one • 
of the articles relied on by Dr. Gwartney in his testimony re­
ferred to discriminatory testing in private employment.
[T. Gwartney 2119-21]

10



[T. Gwartney 2031-32] and that the Company regularly excluded
14/

Blacks from on-the-job training programs. [T. Gwartney 2073-74]
Dr. Gwartney's testimony is based on a faulty assumption:

"Employment discrimination is not something 
that we can directly observe. . . .  11
[T. Gwartney 1870]

The Courts have disagreed with Dr. Gwartney: a "lock-in" seniority
system, unlawful tests, subjective use of discretion among white
supervisors which serves to exclude or' limit black advancement,
and segregated or nearly-segregated initial assignment policies,

15/
etc., are all directly observable employment discrimination 
practices.

While the discrimination in employment may be directly 
observable the exact economic measure of that discrimination may 
be difficult to determine. See Pettway v. American Cast Iron 

Pipe Co., supra at 260-61. The Fifth Circuit has made it 
clear that any doubts as to the amount of back pay should be 
resolved in favor of the discriminatee rather than the lawbreaker. 
Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1380 (5th 
Cir. 1974); Pettway v. American Cast Iron Pipe Co., supra at 260-61; 
Baxter v. Savannah Sugar Refining Corporation, 495 F.2d 437, 445 

(5th Cir. 1974).

14/ See Pi. Prop. Findings at 60.
15/ See PI. Br. Sections II-IV, for a description of the
unlawful practices.

11



Stockham by use of testimony of an economist Dr. Gwartney, 
resolves difficulties in the "measure" of economic harm against 
the discriminatees; the Company further disregards the applicable 
judicial decisions by then arguing that the results of its approx­
imation of the "measure" of discrimination indicate that, in fact, 
there is no discrimination.

Plaintiffs' statistics are not "manipulative" such as Dr.
Gwartney's. Rather, plaintifffs' statistics simply describe
factual situations in numerical terms: in June, 1965 not one black
worker of the 505 Blacks who were still working as of August,

16/
1973 was in JC7 or above; in June, 1968, there were still no 
Blacks (at least of those Blacks working as of August, 1973)

17/
working in JClO-13; until May, 1971 there was not one black
foreman; [PX 11; T. Marsh 879-80] no Black has finished the
apprentice program at Stockham, nor was a Black even enrolled in
the apprentice program until April, 1971; [PX 12a] no Blacks was
selected for any of the training programs for supervisors intil 

18/
1970. [See Plaintiffs' Prop. Findings, Section VIII, paras. 
34-50] The Fifth Circuit's remark that ”[n]othing is as emphatic 
as zero" is certainly applicable to this action. United States

16/ 154 or 92% of the 162 whites who were still working in
August, 1973, were in JC7 and above in June, 1965. [PX 1; PL 
Prop. Findings pp. 34-35]
17/ 85 whites were working in JClO-13 in June, 1968 who
were still working there in August, 1973.
18/ The number of Blacks in these supervisory training, and
high-paying positions has improved only marginally. [See P.
Br. 33-34]

12



v. Hinds County Board of Education, 417 F.2d 852, 858 (1969).
While these statistics were emphatic in themselves, plaintiffs 
did not, as defendant Company repeatedly asserts, rely solely 
on the statistics; the plaintiffs repeatedly demonstrated the 
various unlawful practices engaged in by the defendants by

19/
testimony, example and statistics.

Dr. Gwartney's faulty underlying assumption and his dis­
regard for the application of judicial definitions of discrimina­
tory practices makes the statistical analysis he prepared irre­
levant at best and misleading at worst.

Dr. Gwartney used four factors to "evaluate" discrimi­
nation at Stockham: (1) comparison of relative earnings at
Stockham with local, regional and national labor markets and with 
the federal government; (2) relative changes in the earnings of 
employees from 1965 to 1972; (3) relative earnings of employees
recently hired; and (4) regression analysis. [See St. Br. p. 34] 

The first point, the comparison of employment at Stockham 
to labor markets and to the government is both plainly irrelevant 
and misleading. The labor market figures, derived from census 
data, include everyone who had any ($1 or more) earnings. [T.
Gwartney 2100] Black unemployment is almost twice as great as

20/
that of whites. Clearly the disparity in average earnings

19/ See Pi. Br. and Prop. Findings, passim.
20/ In 1960 black unemployment was 2.1 times white unem­
ployment. In April, 1972 it was still 1.8 times greater than 
white unemployment. See U.S. Census Bureau, Statistical Abstract 
of the United States (Washington, D.C.: 1972), p. 221.

13



between Blacks and whites in the labor markets was partly due to
the general problem of refusal to hire Blacks, which is not at
issue in this action, and partly due to discriminatory oppor-

21/
tunities within firms, which is at issue. However, Dr. Gwartney
does compare employment at Stockham to another firm - the United

22/
States government.

Dr. Gwartney labelled the United States government as
generally recognized as a "low discrimination firm". [T. Gwartney
1908-09] Dr. Gwartney reasons that since the disparity between
black and white earnings at Stockham was somewhat lower than the
dispartiy in the Federal government (only for blue collar workers,)
then this indicates that Stockham doesn't discriminate. Even if
Ty.g ignore the non—sequitor in this reasoning, the whole concept
falls on the basis of a faulty assumption — that there is real
equal employment opportunity in the federal government.

Unfortunately, as Senator Williams, a chief sponsor of
23/

the Employment Opportunity Act of 1972, stated

2 1/ The greater amount of Black unemployment obviously increases
the disparity between blacks and whites in labor markets; a second 
factor and the only one that is comparable to the issue here is the 
disparity in "firms".
22/ We will ignore
employment to private

the difficulties 
employment.

in comparing government

23/ This Act amended Title VII, providing, inter alia, for
private litigation against the federal government. 42 U.S.C. 
§2000e-16. The reason for this amendment was the failure of 
the government to achieve equal employment opportunity.

14



"equal employment opportunity in the federal 
Government is still not a reality for all of 
its workers.

Some of the relevant statistics tell the 
story all too clearly. For example, minorities 
represent 19.4 percent of the total employment 
of the Federal Government, but their concen­
tration in grades GS-1 through GS- 8 indicates 
that their ability to advance to the higher 
levels has been severely restricted." =~z/
118 Cong. Rec. 4492 (1972)

At most, Dr. Gwartney's method of comparison may be 
interpreted to mean that the economic results of discrimination 
is somewhat less at Stockham than in some private firms and maybe 
in the federal government. This is of no significance. The 
Fifth Circuit has plainly held that even if an employee in "good 
faith" intended a policy of no discrimination if, in fact, the 
practices discriminated then the employer violated Title VII and 
is responsible for back pay. Johnson v. Goodyear Tire & Rubber 
Company, supra at 476; Pettway v. American Cast Iron Pipe Company, 
supra at 251-63; Baxter v. Savannah Sugar Refining Corporation, 
supra at 442-43. The argument advanced by Stockham is not even 
one of "good faith" - just that they may be a little less guilty 
than some.

The second method used by Dr. Gwartney was the relative 
change in earnings of black and white workers employed at 
Stockham during 1965 and 1972. Dr. Gwartney assumes that since 
earnings of Blacks increased more than earnings of whites, that

24/ See"Analysis of Federal Employment," 118 Cong. Rec.
4492-93 (1972).

15



this indicates that Stockham did not discriminate since 1965. 
There are just numerous problems with this analysis.

Actually there is little relative improvement in earnings 
of Blacks compared to earnings of whites from 1965 to 1972. In 
1965, according to Dr. Gwartney, Blacks earned on the average 
$4,720 or $961 less than the $5,681 earned.by whites; in 1972 
blacks earned $ 6,937 or $979 less than the $7,916 earned by

2 Vwhites. [CX 19] Dr. Gwartney, however, reads these stark 
figures as indicating no (or less?) discrimination because the 
black earnings as a percentage of white earnings rose from 83.1% 
in 1965 to 87.6% in 1972.

Even this small change in relative earnings should be in­
terpreted carefully. In 1965 it is admitted by Company managers 
that the Company engaged in a complete and utter job segregation. 
[See Pi. Prop. Findings, pp. 33-35] Obviously when you begin 
from a system of total job segregation, any tokenism will result
in some relative improvement. Of course, Title VII requires

26/
affirmative relief and not just mere tokenism. Moreover, the 

small relative change in earnings at Stockham is due, to a sig-

25/ In CX19, Dr. Gwartney transforms the 1965 dollars into
"constant" 1972 dollars. Besides showing the inflation in the 
country since 1965, this transformation indicates that back pay 
should be calculated in constant 1974 dollars.
26/ "This Court [the Fifth Circuit] has always recognized the
importance of granting full relief in Title VII cases. E.g., 
United States v. Georgia Power Co., supra, 474 F.2d at 927;
Voqler v, McCarty. 451 F.2d 1236, 1238-39 (5th Cir. 1971)." 
Pettway v. American Cast Iron Pipe Co., supra at 243, n.82.

16



nifant extent, to the hiring of whites for the first time into
laborer positions and not to any real black advancement into

27/
higher-paying jobs. See Pettway v. American Cast Iron Pipe 
Company, supra at 228.

The third criterion relied on by Dr. Gwartney involved 
the comparison of earnings of recently hired workers (those hired 
since 1965). Dr. Gwartney purports to find less earnings dis­
parity with this group of employees than with older employees;
Dr. Gwartney infers that this indicates that Stockham has not dis­
criminated since 1965. This argument falls on both the appli­
cable legal principles and the facts.

Dr. Gwartney's refusal to analyze the various forms of 
discrimination repeatedly ruled unlawful by courts causes serious 
difficulty with his analysis. Stockham engages in several dis­
criminatory practices which logically affect longer-term employees 
more than recent employees: (1 ) the "lock-in" effect of the
departmental seniority system is a serious inhibition to older 
employees transferring departments because the longer-service 
employees stand to lose more departmental seniority, job security 
and pay than do new employees; (2 ) the institution of the 
Wonderlic Test in 1965 and the high school education requirement 
for the apprentice program restricted the advancement of Blacks 
hired prior to 1965 into jobs which they had previously been

2 7/ For example, Mr. Otto Carter, the Superintendent of the
Grey Iron Foundry indicated that it was not until 1968 - 1969 
that whites were first hired in the laborer positions in that 
foundry. [T. Carter 653-54; D. Carter 17, PX63]

17



contemporaries had freely moved without having to take the Won—
derlic Test or have a high school diploma; [See Section A, supra]
and (3 ) the institution of an age limit of thirty for entrance
into the apprentice program directly excluded the long-service
black employees who had previously been excluded on the basis 

28/
of race.

Accordingly, the slightly smaller disparity in earnings 
between recently hired black and white employees as compared to 
the older employees is a function of the very nature of the dis­
crimination practiced at Stockham and is not a function of any 
significant amelioration of Stockham1s harsh discriminatory 
practices.

Moreover, the disparity in the departmental placement and 
earnings between Black and white workers has remained sub­
stantial since 1965. Stockham continued to overwhelmingly assign 
white employees hired after 1964 into the predominantly white 
maintenance departments and the Blacks into the predominantly 
black foundry departments. [See P. Br. 10-11]

The following chart clearly indicates the continued 
gross disparity in earnings between Blacks and whites. [PX 95; 
Appendix D. to Pi. Br.]

excluded from solely on the basis of race and to which their white

28/ The Company incredibly argues that the plaintiffs have
not shown that the age requirement has no adverse impact on Blacks. 
[St. Br. 85086] Obviously if, as here, Blacks are for many years 
excluded from an apprentice program and then an employer, as 
Stockham did, institutes an age requirement for this lily-white 
program, then that requirement is going to perpetuate the exclusion 
of certain Blacks (those who are too old). Pettway v. American 
Cast Iron Pipe Company, supra at 250.

18



MTIMRER AVE. RATE GROSS/REG. HRS .
YEAR B w B W B W
1965 106 31 3.17 3.91 3.97 4.47
1966 70 13 3.14 4.10 3.96 4.46
1967 25 20 3.18 3.80 3.93 4.40
1968 36 18 3.11 3.64 3.90 4.30
1969 72 24 3.10 3.68 3.76 4.18
1970 28 34 3.07 3.80 3.69 4.16
1971 125 77 3.07 3.56 3.68 3.96
1972 100 70 3.00 3.32 3.37 3.65
1973 273 127 2.89 3.19 3.16 3.44TOTALS AND 835 414 3.03 3.49 3.56 3.87AVERAGES



Dr. Gwartney's final method of comparison is regression
analysis: an attempt to isolate the effect of various factors
on earnings. Dr. Gwartney determined that race (considered alone)
influenced earnings - Blacks had lower earnings than whites.
[See, e.g., DX34] However, when other factors were included into

29/
the analysis, the effect of race on earnings was diminished.

Of course, the regression analysis, the analysis of the 
effect on earnings-of various "factors", depends for its use­
fulness upon the appropriateness and reasonableness of the 
definition of the factors evaluated. Here again, Dr. Gwartney s 
failure to review the employment system (and discrimination 
practices) at Stockham creates fatal flaws in his analysis. The 
factors "skill level" and "merit rating" were the major variable 
which "explained" the disparity between the earnings of Blacks 
and whites as a result of causes other than discrimination.

This analysis, is a sham, no matter how unintended. Both 
these factors, themselves, are based on discrimination.

29/ According to Dr. Gwartney, only one factor, seniority,
indicated an increase in the effect of race on earnings. Of 
course, in a system based on seniority one would expect that 
seniority would be an important and crucial factor in determining 
earnings. Interestingly, this factor, the only one used by Dr. 
Gwartney in his regression analysis which had a direct relation­
ship to the employment system at Stockham, was the single factor 
which when analyzed with the racial factor increased the 
"adjusted" dispartiy in earnings between Blacks and whites.

20



job class an employee worked. If an employee worked in job
class 10-73 he had "skill", if he did not then he lacked "skill".

is
[T. Gwartney 2117] This analysis, apart from being simplistic,/absurd
because of one overlooked fact: Blacks have been systematically

30/
excluded from jobs in job classes 10-13.

What a wonderful tautology! Blacks are excluded on the
basis of race from jobs in job classes 10-13; an analysis is then
made which defines"skilled" employees as those who are in job
classes 10-13; the analysis concludes that Blacks do not earn as
much a s whites, not because of their race, but because they are 

31/
not "skilled".

The use of the factor "merit rating" is almost, but not 
quite,as misleading as the use of the factor "skill level". Dr. 
Gwartney's figures which he used for his regression analysis 
indicate that Blacks averaged a 71.-3 merit rating whereas whites 
averaged 79.3. [DX 55] When the merit rating factor is used to 
to adjust the earning disparity between Blacks and whites, the 
result indicates that some of that difference is the result of 
"merit" as revealed by the ratings and not by discrimination.

"Skill level" was determined solely on the basis of the

30/ Until 1965 company managers admitted to total job segre­
gation; of course, no "black" jobs were in job class 10-13. [See 
PI. Prop. Findings, Section VI] This practice, except for some 
tokenism continues. In 1973 221 whites were in JC 10-13 and only 
6_ Blacks. Only 2 . 6% (not the 5% referred to in the Stockham's 
Post-Trial Brief) of workers in JC 10-13 were Black. [PX 94, 
Appendix E]
31/ Moreover, Blacks have been discriminatorily excluded from
the training programs which prepared workers for the more skilled 
jobs. [Pi. Prop. Findings 56-60]

21



But the question which Dr. Gwartney did not answer was 
whether racial bias accounted for the lower black merit scores 
Dr. Gwartney admitted both, that

32/

"[it] was simply not the focus of my study as 
to whether or not there were a bias on the 
basis of race in terms of merit rating. . . . "

and that,

"if your statement were true that there is, 
you know, blacks randomly at least score 
lower because of having lower rating and 
merit rating is positively influencing earn- 
ings, that this factor would tend to reduce 
the adjusted black-white earnings ratio."
[T. Gwartney 2157-58; 2160-61]

It is noteworthy that Mr. Tabaka refused to rely on the 
merit ratings as a basis for his evaluation of testing at 
Stockham because he realized the possible bias in such ratings. 
Mr. Tabaka's refusal was justified - the ratings which he super­
vised indicated that, for all practical purposes, black and white 
workers were rated equally. [PX 32] Thus, the professionally 
supervised ratings resulted in an equal evaluation of Blacks and 
whites; whereas, the unsupervised ratings resulted, as Courts 
have regularly perceived (See fn. 32, supra). in Blacks being 
evaluated substantially lower than whites.

32/  ̂ This is a very pertinent question. Courts have re­
cognized that discretion cn the part of a white supervisory 
staff is a "ready mechanism" for discrimination. See Rowe v. 
General Motors Corp.. 457 F.2d 348, 359 (5th Cir. 1972).
Until May, 1971, there was not one black foreman (foremen 
prepare the merit ratings). [PX 11; T. Marsh 879-80] In fact, 
discriminatory use of supervisory discretion is an issue in this 
action. [See Pi. Br., Section III]



C. THE COURT CLEARLY HAS JURISDICTION OVER THE UNI§§/ 
DEFENDANTS PURSUANT TO BOTH TITLE VII AND §1981^^
AND THE COURT SHOULD HOLD THE UNIONS LIABLE FOR 
ENGAGING IN DISCRIMINATORY AND UNLAWFUL PRACTICES

The defendant Unions, Local 3036 and the Steelworkers, do
not contend that there were no unlawful employment practices at
Stockham; rather, they contend that (1) the Court does not have
jurisdiction over the defendant unions because of the failure of
the plaintiffs to expressly name the unions in the original charge
to the EEOC, and (2) that, in any case, the unions should not be
held liable for the discriminatory policies at Stockham.

The defendant Unions base their jurisdictional argument
on the fact that plaintiffs did not expressly name the Union
defendants in their original charge to the EEOC, dated October

34/5, 1966. [PX. 56; See U. Br. at 4-5] The Unions state that
plaintiffs received their Notice of Right to Sue letters in
February 1970 and that this was prior to the filing of plaintiff
James' amended charge, which specifically named the Unions, on June 

35/
1970. Thus, the Unions conclude that, since the plaintiffs did

33/ The Union defendants are also liable pursuant to duty
of fair representation, 29 U.S.C. §§151 et seg., National Labor 
Relations Act. However, Title VII and §1981 plainly are 
sufficient bases for liability.

34/ Plaintiffs have consistently asserted that this Court
has jurisdiction over the Unions pursuant to Title VII, §1981 
and 29 U.S.C. §§151 et_ seg. See para. 2 of the Pre-Trial 
Order.
35/ This action was filed in March, 1970 within thirty days of
the receipt of the Notice of Right to Sue letter.

23



not request a second Notice of Right to Sue letter based 
specifically on the amended charge, the Court has no juris­
diction. This argument is a misapplication of the appropriate 

36/
law.

The defect in the exhaustion of the EEOC proceedings, if, 
in fact there was a real defect, was one of form, which did not 
in any way adversely affect the substantive or procedural rights 
of the defendant unions.

The original charge filed by the plaintiffs detailed, as 
one might expect, practices which the complainants thought were 
discriminatory. [PX 56] The plaintiffs alleged, inter alia, that 
the "Company has a dual line of promotion"; the Unions' argument 
would be obviated if the complainants had added the words "which 
are established or maintained by the collective bargaining agree­
ment entered into by the Steelworkers and Local 3036".

Courts have not required laymen, unassisted by counsel,
37/

to file charges which meet the standards of pleadings. The 
charges should be read in a reasonable manner by both the EEOC 
and the Courts to include matters "reasonably related" to the 
specifics which are alleged. See Sanchez v. Standard Brands, Inc. , 
431 F.2d 455 (5th Cir. 1970).

36/ The prerequisites to a Title VII suit are the filing of a
charge with the EEOC and the receipt of a statutory right to sue 
letter. McDonnell-Douglas v. Green, 411 U.S. 792, 798 (1973); 
Alexander v. Gardner-Denver Co., 39 L.ed2d 147, 157 (1974). See
Beverly v. Lone Star Lead Const. Co., 437 F.2d 136, 140 
(5th Cir. 1971) .
37/ See infra for a discussion of Love v. The Pullman Company,
404 U.S. 522 (1972).

24



The EEOC gave the'October, 1966, charge a reasonable 
interpretation: that the practices complained of by the plaintiffs 
included allegations of unlawful union conduct. Accordingly, 
the EEOC investigation included Union activities. [PX 55] Mr. 
Erdreich in response to the EEOC investigation supplied a state­
ment of the union position on March 20, 1967. [PX 60; PX 55] The
EEOC served a copy of their February 26,. 1968 Decision to the

38/
Local 3036 president, with a copy to counsel. [UT 1] Finally,
the EEOC sent a Notice of Right to Sue letter to the plaintiffs

39/
which listed both Stockham and Local 3036 as respondents. [See 
Exhibit "B" to Amended Complaint]

The policy behind the requirements that a charging party 
file with the EEOC and receive a Notice of Right to Sue is to 
encourage the use of the conciliation process. See cases cited 
in fn. 36, supra. Clearly, there was ample opportunity for all 
the defendants to conciliate this action. As described above the 
Unions were aware of the charges before the EEOC, participated in 
the investigation and received a copy of the EEOC decision.

38/ The EEOC did not find reasonable cause to believe that
Local 3036 had violated Title VII; however, a finding of reason­
able cause is not a prerequisite to suit. McDonnell-Douglas v. 
Green, supra at 798-99; Alexander v. Gardner-Denver Co., 
supra at 158, n.8 .

39/ Judge Pointer has clearly held that an international union,
need not be named in the charge to the EEOC in order to be pro­
perly before the Court in a Title VII action. Terrell v. United 
States Pipe and Foundry Co., 7 EPD [̂9055 (N.D. Ala. 1973).

25



Moreover, on September 10, 1971 Judge Lynn ordered that
40/

this case be referred to the EEOC for conciliation. The case 
ramined with the EEOC for conciliation for almost two years, until 
plaintiffs motion to set aside the stay of proceedings, which was 
unopposed by defendants, was granted on June 26, 1973.

The defendant Unions rely on a dry and technical argu­
ment to defeat this Court's jurisdiction under Title VII; the 
Supreme Court in similar situation strongly rejected this type 
of formalistic reasoning.

"The respondent makes no showing of prejudice 
> to its interests. To require a second 'filing'

by the aggrieved party after termination of 
state proceedings would serve no purpose other 
than the creation of an additional procedural 
technicality.

Such technicalities are particularly in­
appropriate in a statutory scheme in which lay­
men, unassisted by trained lawyers, initiate 
the process." (footnote omitted) Love v. The 
Pullman Company, 404 U.S. 522, 526-26 (1972).

Under the Love standards the procedural "defect" raised by 
the Unions is devoid of substance. Since the Unions were in­
cluded in the initial investigatory and decision process, the 
Unions were expressly named in an amended charge and the Unions 
were parties to the action when it was remanded to the EEOC. See 
also Local 179, United Textile Workers v. Federal Paper Stock
Company, 461 F.2d 849, 850-51 (8th Cir. 1972); Norman v. Missouri

41/
Pacific Railroad, 414 F.2d 73-85 (8th Cir. 1969).

40/ Of course
named in an EEOC

, as of this time the Unions had been specifically 
charge filed by plaintiff James. [PX 57]

41/ The Eighth Circuit suggested that if joinder of additional
parties was warranted the appropriate administrative procedure could 
be complied with on remand, Id. Of course, plaintiffs herein 
cured any possible defect in administrative procedure shortly 
after filing suit.

26



Finally, the plaintiffs have an independent right of
42/

action against the Union defendants pursuant to §1981. Caldwell
v. National Brewing Co., 443 F.2d 1044 (5th Cir. 1971) cert.
denied, 405 U.S. 916 (1972); Sanders v. Dobbs Houses, Inc., 431
F.2d 1097 (5th Cir. 1970), cert, denied 401 U.S. 948; see also
Alexander v. Gardner-Denver Co., supra at 158 & n.7, 9.

The Unions further contend that they should not be found
liable simply because they signed an unlawful and discriminatory
contract. The Unions further buttress this argument by pointing
out that they attempted to remove discriminatory sections from 

43/
the contract.

42/ This Court is fully aware of the applxcabxlxty
so plaintiffs will not further brief the matters. See 
Alpha Portland Cement Company, Civ. Action No. 73-611 
Opinion) (N.D. Ala. Nov. 14, 1973).

0 -F f O l Q l
Reese v. 
(Memorandum

However, it should be noted that the Supreme Court 
has granted certiorari on the question of whether an EEOC 
charge tolls the statute of limitations for a §1981 action. 
Johnson v. Railway Express Agency, Ing,., petition granted 
on June 3, 1974.
4 3/ There is some dispute as to the extent of these attempts.
Stockham maintains that there was "no serious proposal made by 
Local 3036 during the 1970 contract negotiations". St. Prop. Findings 
p. 158. (Stockham ignores the 1967 negotiations). The Unions 
maintain that in the 1967, 1970, and 1973 negotiations they re- . 
quested plant-seniority provisions. Unions' Prop. Findings, p. 3.
The Unions also maintain that they requested a Joint Apprenticeship 
program, job posting, and elimination of tests. Unions' Br. p. 8 . 
Stockham does not suggest any findings on these matters. See 
Plaintiffs' Proposed Findings, pp. 31-33, 57.

The plaintiffs suggest that the resolution of these dis­
putes does not affect the basic liability of the Unions but the 
allocation of the liability between the parties. See, infra.

27



It is plain that the collective bargaining agreements 
signed by the Unions contain discriminatory seniority provisions 
which unlawfully limit the promotional opportunities of Blacks. 
While it is true that, beginning in 1967, the Union attempted 
during the negotiation proceedings to alter the discriminatory 
provisions, these attempts may not be used by the Unions to in­
sulate themselves from all liability.

The Unions - interpret Johnson v. Goodyear Tire & Rubber
Company, 491 F.2d 1364 (5th Cir. 1974) as supporting their position
The Unions interpretation is mistaken. They rely on one sentence
of Johnson which they read out of context; the Fifth Circuit
noted that the union was

"more than a passive participant in the con­
tractual arrangements which furnished a sub­
stantial contribution to the discriminatory 
results evident here." Id. at 1381-82.

However, it is clear that the Fifth Circuit found the union
liable because it was a signatory to the unlawful contract and not
because the Court scrutinized union's positions during the
negotiation process.

"The Union's liability was based on the fact 
that it is a party to the collective bargaining 
agreement which contained the provisions re­
quiring departmental seniority.

* * * *

Common sense demands that a union be held 
to the natural consequences of its labors in 
negotiating a collective bargaining agreement .

Guided by the facts of this case it would 
be difficult to fasten liability on one party 
to the labor contract which was a substantial 
cause of the discriminatory employment practices 
and grant total immunity from such liability to 
the other party." (footnotes omitted) _Id. at 1381.

28



Moreover, the Court quoted with approval the Fourt Circuit's
explicit language: Id_. at 1381-82, n.57

"The rights assured by Title VII are not 
rights which can be bargained away - either 
by a union, by an employer, or by both acting 
in concert. Title VII requires that both 
union and employer represent and protect the 
best interests of minority employees. Despite 
the fact that a strike over a contract pro­
vision may impose economic costs, if_ a_ dis­
criminatory contract provision is acceded to 
the bargainee as well as the bargainor will 
be held liable." Robinson v. Lorillard, 444 
F.2d 791, 798 (4th Cir. 1971) (emphasis 
added by the Fifth Circuit).

Thus, as clearly stated in Johnson and Robinson the 
union's negotiation position may not be used to defeat liability 
if, as here, the union is party to an unlawful contract. See 
also Bush v. Lone Star Steel Company, 373 F.Supp. 526, 536 (E.D.
Texas 1974).

However, while the negotiation positions taken by the 
unions may not result in removing all liability, they may pro­
perly be considered in allocating the burden of liability among the 
defendants. Bush v. Lone Star Steel Company, supra at 537;
United States v. United States Steel Corporation, 371 F.Supp.
1045, 1060 n.39 (N.D. Alabama 1973); Sabala v. Western Gillette,
372 F.Supp. 1142, 1155-56 (S.D. Texas 1973); See Johnson v.
Goodyear Tire and Rubber Company, supra at 1382 (remand to the 
district court for a distribution of back pay among union and 
company according to the "principle of equity").

29



C O N C L U S I O N

The plaintiffs have not attempted to refute each of 

the myriad "facts" set forth by Stockham; rather the plaintiffs 

rely on their original brief and proposed findings which detail 

the evidence relating to each pertinent issue.

However, there are several recent opinions and one 

factual matter which plaintiffs would like to call specifically 

to the Court's attention.
In their brief, plaintiffs requested the court to order 

strong affirmative relief in the form of goals and timetables.

PI. Br. 34-35. The Fifth Circuit in three, recent unequivocal 
opinions has strongly approved this form of relief. Franks v. 
Bowman Transportation Company, 495 F.2d 398, 418-20 (1974);
NAACP v. Allen, 493 F.2d 614, 618-22 (1974); Morrow v. Crisler,
491 F.2d 1053, 1056-57 (1974) (en banc).

Similarly, three recent Fifth Circuit opinions follow the 

earlier decisions of Johnson and Pettway which mandate that 

district courts award back pay when employment discrimination 
and resultant financial harm are demonstrated. Baxter v .

Savannah Sugar Refining Company, supra at 442-44; Franks v.
Bowman Transportation Company, suora at 421-22; Duhon v. Goodyear 
Tire & Rubber Company, 494 F.2d 817, 819 (1974). See Pi. Br. 

44-46.
In their proposed findings Stockham asserts, on the basis 

of Mr. Adamson's testimony, that Stockham maintained differential

30



cut-off scores for Blacks and whites on the Bennett Mechanical
Comprehension test for qualification for the apprentice program. 
The plaintiffs in their proposed findings ignored this testimony 
by Mr. Adamson because it was so incongrous and incredible for 
several reasons.

Firstly, Mr. Adamson's testimony conflicted with the
testimony of other Stockham supervisors.

Mr. Given answered under oath, dated January 10, 1974,
plaintiffs' first interrogatories. Interrogatory 29(d) requested
what the passing score was for any test used for "promotion",
advancement, or transfer". [ PX 17] Mr. Given's answer was
"[P]assing score is ambiguous. . . .  A good score would be to

44/
answer 75% of the questions correctly." [PX 18] There was no 
mention of any lower score for Blacks in the answer to the 
interrogatory. [Id.]

Mr. Edward Glenn was the supervisor of employment from 
January, 1969, to February, 1970; during this period Mr. Glenn 
administered the Bennett Test1 in the manner in which he had been 
instructed by Mr. Adamson. [T. Glenn 926-27, 929-30, 935-36]
Mr. Glenn testified unequivocably that there was no dual scoring

43/

4 3/ Mr. Adamson testified that the lower score for Blacks was
put into effect in 1968 or 1969. Blacks were required to score 35, 
while whites were required to score 45. [T. Adamson 572-73] This
dual scoring system would have remained in effect until April, 1971 
when all testing at Stockham was halted.

44/ There are sixty questions on the Bennett Test.
[T. Adamson 570]

31



system for the Bennett Mechanical Test. [T. Glenn 933 35]
Secondly, Mr. Adamson's testimony is incongrous in 

light of clear evidence.
In 1969 Stockham reviewed their training programs.

A general report was approved on September 25, 1969 and a 
special report on apprentice training was issued at a later 
date. [PX 38, 43] Neither of these reports mention any con­
sideration of or recommendation for a dual scoring system. [Id.]

In addition to the Bennett Mechanical Test an employee 

had to attain a specific score on the Wonderlic Test. [T.

Adamson 579] Mr. Adamson testified that he never considered 
establishing a dual scoring system for the Wonderlic; [T.
Adamson 582-83] Although Mr. Adamson, stated that he made 

such consideration for the Bennett.

It is clear that the first Black did not enter the 
apprentice program at Stockham until April, 1971, when the 
Company halted all testing. [PX 12, 12a; See T. Given 283084]

Finally, Mr. Adamson's assertion that Stockham established 

a special policy to assist Blacks to enter the apprentice program 

just does not conform to the Company's lack of any program

32



to terminate the 

or their effects, 

program.

continuing discriminatory employment practices 

or of course, of any affirmative action

Respectfully submitted,

DEMETRIUS C. NEWTON
Suite 1722 - 2121 Building 
2121 Eighth Avenue North 
Birmingham, Alabama 35203

JACK GREENBERG 
BARRY L. GOLDSTEIN 
JOHNNY J. BUTLER

10 Columbus Circle 
Suite 2030
New York, New York 10019

JOSEPH P. HUDSON
1909 - 30th Avenue
Gulfport, Mississippi 39501

Attorneys for Plaintiffs

33



CERTIFICATE OF SERVICE

This is to certify that I served a copy of PLAINTIFFS' 
REPLY BRIEF upon counsel for defendants, Benjamin L. Erdreich, 
Esq., Cooper, Mitch & Crawford, 409 - 21st Street, Birmingham, 
Alabama 35203 and John J. Coleman, Jr., Esq., Bradley, Arant, 
Rose and White, 1500 Brown-Marx Building, Birmingham, Alabama 
35203, by mailing copies of same in the United States mail, 
postage prepaid on the 29 day of July, 1974.

Attorney for Plaintiffs