Davis v. East Baton Rouge Parish School Board Brief for the United States

    c

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II.

III.

IV.

CONCLUS

1. None Of.the Other Plaintiffs Subjectively 
And Objectively Sought A Change In
Their Employment ...............................

2. Some Rejected Offered Opportunities...........

3. The Pay Differentials Do Not Vary Greatly
Because Job Progression At MAS Is Set Up 
On An Industrial Union Rather Than On A 
Craft Union Basis...............................

4. Computation Of Back Pay. . .May Well
Prove To Be An Adventure In Speculation. . . .

The District Court Was Not Justified In 
Limiting The Back Pay Award For* Plaintiff 
Warren To A Beginning Point In 1968. . . -

The Continuation Of The Job Classiricauion 
Seniority Standard Is Not Mandated By 
Business Necessity ........................

The District Court Erred In
p c c- f v- t_ q l i n c f P 3 a j n 
Jobs At McLean .

iffs To Transfer To Road
. 65

ION 66

ii
f



TABLE OF AUTHORITIES

Cases

Bowe v. Colgate-Palmolive Co., 489 F.2d 896
(7th Cir. 1973).....................................

Bowe v. Colgate-Palmolive Co., 416 F.2d 711.
(7th Cir. 1969).........- ..........................

Bush v. Lone Star Steel, 373 F.Supp. 526
(E.D. Tex. 1 9 7 4 ) ................. .......... • • • •

Cypress v. Newport News General •& Nonsectarian
Hosp. Ass 'n. , 375 F.2d 648 (4th Cir. 1.96/) . . . .

Diaz v. Pan American Airways, Inc., 346 F.Supp.
1301 (S.D. Fla. 1972). . . ........................

Duhon v. Goodyear Tire & Rubber Co., 494 F.2d 017 
(5th Cir. 1974)............. ................. * * -

Griggs v. Duke Power Co., 420 F.2d 1225
(4th Cir. 1970)............................ .. • • •

Griggs v. Duke Power Co., 4 01 U.S. 424 (.19 71) .

Head v. Timkin Roller Bearing Co., 486 F.2d
870 (6 th' Cir. 1973). ........................... • -

Franks v. Bowman Transportation Co., 435 F.2d
390 (5th Cir. 1974). . ........................ • •

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

Jones v. Leeway Motor Freight, Inc., 431 F.2d
245 (10th Cir. 1970) . . . . .  .................  ■

Lea v. Cone Mills Corp., 301 F.Supp. 97
(M .D .K .C . 1969), aft'd in pertinent part, 483 
F .2d 86 (4th Cir. 1971).......................... .

Local 189, United Papermnkers and Paperworkers, 
AFL-CIO v. United States, 416 F.2d 980 
(5th Cir. 1969).............

51

51

61

53

61

54, 

4 7

51

51

51

53

53

47,



Long v. Georgia Kraft Co., 2 FEP Cases G58
(N.D. Ga. 1970). . . . . ..........................  65

Moody v. Albemarle Paper Co., 474 F.2d 134
(4th Cir. 1973).....................................  50, 51, 52, 58

Pettway v. American Cast Iron Pipe Co., 494
F . 2 d 211 (5th Cir. 1 9 7 4 ) ............ ............. 50, 51, 59, 64

Robey v. Sun Record Co., 242 F.2d 684
(5th Cir. 1957).................................... 59

Robinson v. Lorillard Corp., 444 -F.2d 791 (4th
Cir. 197.1), cert. den. 404 U.S. 1006 (1971). . . . 47, 51, 61, 64-

Story Parchment Co. v. Patterson Parchment
Paper Co., 282 U.S. 555 (1931) ....................  59

Sprogis v. United Air Lines, Inc., 444 F.2d
1194 (7th Cir. 1971) .. ..........................  61

United Sheet Metals Workers, Local 36, 416
F.2d 12 3 (8th Cir. 1969) ...................... .. . 53

United States v. C. & 0. Ry. Co., 471 F.2d 582
(4th Cir. 1972), cert. den. 411 U.S. 939 ......... 63

United States v. Bethlehem Steel Co., 446 F.2d
652 (2nd Cir. 1971).'.............................. ' 65

Young v. Edgcomb Steel Co., No. 73-2347 (4th
Cir. July 11, 1974)................................ 56

Statute

Title VII of the Civil Rights Act of 1964,
42 U.S.C. Section 2 000e et seg..................... 47

I

iv

k
■



IN THE

UNITED STATES COURT OF APPEALS 

FOR TIIE FOURTH CIRCUIT 

NO. 74-1750

PATRICK T. HAIRSTON, et al.,

Appellants,

v.

MCLEAN TRUCKING COMPANY, 
INTERNATIONAL BROTHERHOOD OF 
TEAMSTERS, WAREHOUSEMEN AND 
HELPERS OF AMERICA, LOCAL 391; 
and MODERN AUTOMOTIVE SERVICE, 
INC. ,

Appellees

On Anneal From The United States Dj^trict^Cgurt _ < _
For T h e District Of Horth_Carolijia^Winst^

BRIEF FOR PLAINTIFFS-APPELLANTS

STATEMENT OF ISSUES

1. Whether the district court erred in denying the hack 

pay claims of all class members except plaintiffs Hairston and

Warren?
2. Whether the district court erred in limiting the hacK 

pay award for plaintiff Warren to 19.68?



-2-

c 1 a s 

ment

cl as:

3. Whether the district court 

ification seniority provision 

of affected class members at M

erred in 

to govern 

AS?

continuing the 

the upward move-

4 . Kl-iether 'the district court erred in limiting affected 

3 members mho were employees of HAS to consideration for

-road driving positions at McLean.vacancies in over-the



-3-

STATEMEFT OF TUB CASH

This is an appeal by the plaintiffs below, appellants 

herein, from certain portions of the January 23, 1974 Judg­

ment .(A. I pp. 90-99— ■‘ ) of the United States District Court for 

the Middle District of North Carolina, raising issues concern­

ing the relief entered in favor.of the plaintiffs in an action 

brought under Title VII of the Civil Rignts Act o .l 196-:-, 42 

U.S.C. Section 2000e et sea., after the district court found 

that the "defendants have intentionally engaged in and are 

engaged in unlawful employment practices" .as described in the 

Findings of Fact and Conclusions of Law entered September 4, 

1973 (7̂. 1 pp. 52-39) .

The appellees herein, defendants belov.' are: (1) McLean

Trucking Company, a North Carolina corporation (hereinafter 

"McLean"); (2) Modern Automotive Services, Inc., a North 

Carolina corporation and a wholly ov/ned subsidiary of McLean 

(hereinafter "MAS"); and (3) the International Brotherhood of 

Teamsters, Chauffeurs, V.sre.oousomen and HeIperc of America, 

Local 391 (hereinafter "Local 391").

— 'Vne printed appendix consists of three separate volumes 
designated "I", "II"/ and "III." Citations to the parts of the
record reproduced in the appendix will be "A.I", "A.II", or
"A.Ill" followed by the page of the appendix at which those 
parts appear. Appendix page numbers are centered at the top^ 
of the page. Other numbers are the page numbers of the original 
documents.



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-V-



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-6-

class are those Negroes now employed, or who have at any 

time in the past been employed, or who may hereafter seek 

employment, in the tire department of the maintenance depart 

ment of MAS" (A.II 459).

Judge Ward, before whom the case was submitted for 

decision redefined the class as:

(a) In regard to discrimination practiced by 
McLean in not hiring blacks for over-the- 
road truck driving jobs, the class includes 
all blacks now employed, or who were employees 
on or after July 2, 1965, either at MAS, or
at McLean's terminal in Winston-Salem, provided 
such persons were hired prior to October, 1967, 
the date McLean began hiring black over-the- 
road drivers.

(b) In regard to the discrimination and segre­
gation practiced by MAS in confining blacks to 
the garageman and janitoria1 classifications, 
the class includes all blacks now employed, or 
who were employees on or after July 2, 1965, at 
MAS, provided such persons were hired prior to 
April 1, 1970, the date the collective bargain­
ing contract for the maintenance employees and 
the memorandum of understanding for the janitors 
permitted garagemen and janitors to transfer 
into other departments at MAS.

(A. I 00) .

The case was tried before Judge Stanley in June,1971 

who died before rendering a decision on the merits. There­

after the parties agreed by stipulation to submit the case 

before Judge Hiram II. Ward for decision on the record. The 

parties were given the opportunity to present oral argument 

before Judge Ward on November 30, 1973.



-7-

On September 4, 1974 Judge Ward entered Findings of
3/

Fact and Conclusions of Law (A.I 52-89 ). Judge Ward found

(1) unlawful discrimination by McLean in its admitted practice 

of refusing to hire blacks as over-the-road drivers prior to 

October, 1967; (2) unlawful discrimination by MAS in its

admitted practice of hiring blacks into only the garageman 

and janitorial classifications prior to May, 1969; (3) MAS and

McLean must be treated as a single employer for the purpose 

of this case because of their use of a single hiring hell, 

and the coordination of employment regulations exemplified by 

the no-rehire and no-transfer rules when taken in conjunction 

with the discriminatory practices of the two employers; and (4) 

that the policies and practices [i.e. seniority provisions] set 

forth in the collective bargaining agreements and memoranda 

of understanding between MAS and Local 391 acted as a deterrent 

to members of the class as ultimately defined and perpetuated the

prior racial hiring and assignment.

The practices found to be unlawful were also round to be 

"intentional" within the meaning of Section 706(g) of the Act.

Conclusions of Law No. 0, A.I 87.

On January 23, 1974 Judge Ward entered a judgment in
_4/

favor of the plaintiffs (A. I 90-99' ). The judgment provided,

^Thc Findings of Fact and Conclusions of.Law are 
reported at 62 F.R.D. 642, 651-669.

The Judgment is reported at 62 F.R.D. 642, 669-673,
_4/



-8-

inter alia, that affected class members'at MAS could transfer 

to helper positions in the formerly all-white departments 

based on company seniority but that their promotions within the 

new departments would be governed by classification seniority. 

Lay-offs would also be governed by company seniority.

Affected class members at MAS were also given the option of 

► to McLean with full company seniority but only

to cver-the-road driver jobs.

Back pay was denied to all members of the class as re­

defined except two of the plaintiffs on the grounds that (1 ) 

rone of the other plaintiffs subjectively and objectively 

sought a change in their employment; (2 ) some rejected offered 

opportunities; (3) pay differentials at MAS do not vary 

greatly since job progression is set up on an industrial union 

basis rather than on a craft union basis; (4) computation of 

the back pay claims might prove to be an adventure in specula­

tion; and (5 ) the cost of administration in relation to any 

foreseeable return. Findings of Fact Los. 24 and A.i 6 -r

70; Conclusions of Law Ko. 10, A.I 87-89.

Back pay for Warren and Hairston was assessed against

McLean and MAS only, each being required to pay one half of 

the amount (A.I 89).

Costs, reasonable attorneys' fees and expenses were 

awarded in favor of plaintiffs, one third each as to MAS,

McLean and Local 391 (A.I 97).



Subsequent to the entry of the judgment Local 391, on

February 1, 1974, moved for reconsideration and to reopen the 

record. This motion was denied on April 18, 1974. See 62 

F.R.D. 642, 674-676.

On May 20, 1974 plaintiffs filed their notice of appeal 

from the January 23, 1974 judgment insofar as it (1) denies 

back pay to all affected class members except plaintiffs 

Hairston and Warren (A.I 98); (2) limits transfer to McLean

for MAS affected class members at MAS to vacancies in over- 

the-road positions only (Id. 93); (3) limits the back pay

award for plaintiff Warren to a time beginning in 1968 (Id.

1 0 2 ); and (4) provides for the continuation c; : 1 t 1 C'.l 1.ion

seniority for the upward movement of affected class members at 

MAS who transfer to formerly all white departments (A. I 93-94)

II. Statement of the Facts.

1. Background Facts

The plaintiffs are seventeen black employees or former 

employees of MAS. At the time the complaint was filed, all 

resided in Winston-Salem, Forth Carolina, and worked at the 

tire recapping department at MAS. The dates on which plaintiff 

commenced their employment encompass time both before and after

the effective date of the Title VII (A.Ill 613). They are or 

were members of Local 391.



-10-

15cLoan oocrates as a motor common carrier in the 

eastern, southern and midwestern parts of the United States.

It is a North Carolina corporation with its principal place or 

business in Winston-Salem. It has three categories of employees 

(1 ) general office,—  (2) over-the-road drivers, and (3)

terminal employees.

The over-the-road drivers and the terminal employees wotk 

under separate contracts. The over-the-road drivers transport 

freight between terminals, usually by tractor-trailers. .Lnc,\ 

perform the long haul work and receive compensation, basically 

for the miles they drive (A.Ill 616). They are not assigned 

regular routes, nor do they work regular hours. This unit 

constitutes a recognized bargaining unit by the National Labor 

Relations Board, and it operates under a collective bargaining 

contract. The National Master Freight Agreement and the 

Carolina Freight Council Over-The-Rcad Supplemental Agreement 

cover the drivers at the Winston-Salem terminal (A.1 54).

The terminal employees work under a collective bargaining 

agreement which is termed the city cartage contract. McLean 

divides its city cartage employees into three major classifi­

cations: (1 ) switchers or (2 ) checkers, who handle freight on

the terminal's dock, and (3) city drivers, who haul goods from

— -^The court held that this case does not concern itself 
with employees in the general office (A.I 54). However, the
co_ u r t  relied on the statistical evidence about the racial 
staffing in the general office to further support plaintiffs 
claim. See A.I 57-58.



-li­

the terminal to the customer. These workers constitute a 

separate “bargaining unit recognized as such for collective 

bargaining purposes by the National Labor Relations board.

The Winston-Salem employees are covered by the National Master 

Freight Agreement and the Carolina Freight Council City 

Cartage Supplemental Agreement. They work regular hours and 

shifts, and receive compensation on a per hour basis (Jjg3.) .

MAS is a North Carolina corporation with its principal 

place of business in Winston-Salem. McLean formed MAS in 

1 9 4 7 as a wholly-owned subsidiary in order to have a firm to 

service its equipment. MAS business consists mainly of repair, 

maintenance, and service of tractor—trailer units end ocher 

automotive equipment, along with selling and providing parts 

for such equipment; its principal customer is McLean, although 

it will provide service and sell parts to other parties (A.I 

54-55).

In its operations MAS utilizes the fo1lowing departments, 

automotive, unit rebuild, body, paint, trailer, parts, service 

lane, tire recapping and janitorial. It classifies its 

employees as mechanics, helpers, clerks, garagemen, or janitors 

A H  janitors work in the janitorial department. All garagemen 

work either in the service lane or the tire recapping depart­

ment, which is the only classification in those two depart­

ments . The garagemen perform work similar to that c.one in a



-12

filling station, e.g., fueling equipment, changing oil and 

filters, replacing light bulbs, washing equipment, and 

changing tires. In the remainder of the departments the 

employees are classified as mechanics, helpers, and clerks. 

They do reoair and maintenance work or fill stock orders 

(A. I 55-55).

The court found that while MAS

r cVc 3 bu s inesses, they do to som

'll. O CLs. Thus, the off icers and

capacities 

order to a

comoanies sometimes serve both companies, albert in different

officers of each company eo work tcg^i-nsr in 

p-ca their common purposes, such as formulating 

arcs and coordinating maintenance work with 

ds. Personnel records are kept by McLean for both 

There is a joint recreational program j-or both

■ H s_.

M cLcm n s .. c 

comoanies.

com. ran res I a5}

Lo^al 391 is the baroaining representative for trie Wins con- 

Salem over-ths-road drivers and terminal workers at McLean and 

for the employees at MLS. Local 391 has its offices in 

Greensboro, north Carolina. Blacks constitute fifteen to 

twenty per cent cf its membership (A.I 55).

Tie maintenance emplovees at MAS were first organised in 

1955. Since 1953, the bargaining for maintenance, as well as



-13-

road and terminal employees, has been conducted between multi- 

employer and multi-union representatives. The janitors, who 

also belong to Local 391, are covered by a memorandum of 

understanding entered into between MAS and Local 391 and based 

upon the results of the maintenance contract negotiations

(A. I 56) .

2 . Work Force At MrLejjn_And_ Its Admitted Pract.ice_Of
Refvsing To Hire Blacks As Road Drivers

As of November,1970 McLean had 701 terminal employees 

classified as road drivers, city drivers, switchers, and 

checkers. The racial breakdown as to each classification was

as follows

Road driver

City driver

Checker

Switcher

Tot a_l 

4 7 9“ 

60 

.141 

21 

701

6 /
White

46S

60

107

18

653

Black

O3?

0

34 '

_3

46

(A.I 58; Plaintiffs' Exhibit No. 9, pp. 9-13).

The court found that while blacks have worked beside 

whites at the Winston-Salem terminal as switchers and checkers, 

no black has ever held the job of city driver. See A.Ill 646. 

Miles Carter, Field Employment Manager for McLean, testified

“ ^The total also includes two American Indians, 
(Plaintiffs' Exhibit No. 9, pp. 9-12)



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Aqxo pue ' suaxpqx/AS ' sxoqooqo 'sx qeqq-soaAox'diuo xouxuuxa.i 

auxsop Aoqq qx uaAXup qo qoC aqq xio Bux£>pxq uoq suoxqeoxqxperib 

aAeq sqoexq aiuos pue 'qoC xoAxup Aqxo e _xoq pxq ueo qoop 

aqq uo fiuxquo/A saaAoxduiq • • d ' 9 1 * oq qxqxqxq .sqqxquxepa

•suaAXJcp Aqxo qoepq Aue uaoq j o a au seq auaqq oBpoq:AOuq

sxxi oq qeqq pue 2961 oouxs ueoqon qqxA\ xrooq seq oq qeqq



-15-

Question : “Is it your testimony that until around
1967 you had a practice of not consid­
ering blacks for road driver positions?"

Answer: "That is right."

(A. Ill 896).

McLean's intentional practice of refusing to hire blacks

as road drivers was abandoned in 1967 only after a series of

meetings with EEOC and the Post Office Department (Id. 845).

The first black road driver hired and assigned to the Winston-

Salem terminal was around October, 1967. Blacks had applied

for positions as road, drivers prior to 196/; all of them had

been rejected for the ostensible reason that they were not 
_7 /qualified.

All of the plaintiffs and other black employees of McLean 

and MAS hired before 1967 were denied the opportunity solely 

because of their race to be employed as road drivers because 

of I-lcLean's overt practice of refusing to hire blacks and 

because of the no—rehire and no—transfer policies of McLean 

and MAS. See 7m  III 845-846.

—  Plaintiffs' Exhibit No. 9, deposition of Brenegar, 
Employment Manager at McLean, pp. 10—11. Not reproduced in 
the appendix.

No special skills are required for over-the-road drivers.
In fact, McLean prefers to train its road drivers. It is one 
of the few companies having a driver's training school for its 
truck drivers. All drivers, regardless of their past 
experience, nust attend the school. The only driving experience 
necessary is to have driven a vehicle, including a car, during 
the four seasons for a period of one year (A.I 63).



-16-

Cnly in 1967 did McLean start making an affirmative 

effort to recruit blacks for ovcr-the-raod jobs. It advertised 

in naoers circulated predominantly in the black community/ 

contacted urban leagues, and requested help from its employees 

(A . I 59) .

The court found that in 1965 McLean had a reputation in 

the black community of Winston-Sdlem of not hiring blacks to 

drive trucks, and MAS nad a reputation or giving the good joos 

to whites. At the time of the trial in 1971, the reputations 

of the two companies had improved (A. I 59 ) .

3 Uor't Force at MAS And Its Admitted Racially 
Discrinfnatory Hiring Practice

All of the departments at MAS except service lane, tire 

recapping and janitorial have at leasu two or more different 

job classifications. The only classification in the tire 

recapping and service lane departments is garageman and the 

only classification in the janitorial department is janitor.

The racial composition of employees in the various

departments at MAS as of December, 1969 was as follows
8/

0/■The hourly wage rates for the various 
as of December, 1969 were as follows:

Mechanic A) Automotive, Unit Rebuild, 
Mechanic 3) Body, Paint

job classification

Hourly Rate 
$4.03 
3.88

Trailer
Trailer

Mechanic .A) 
Mechanic B)

Trailer 3.93
3.78

Trailer Helper) Trailer 3.73



-17-

Department Total Vvh i t e Black

Automotive 52 52
Unit Rebuild 15 15 —
Body 7 7
Paint 2 2 —
Trailer 43 43 —
Parts 17 17 —
Service Lane 37 22 15
Tire Recapping 20 3 17
Janitor 6 ■ — 6

(A.III 595; 603-615).

The racial composition of employees by department, job 

classification and the hourly rates for each job classification

as of November, 1970 was as follows:
Hourly

White Black Rate
Automotive )
Unit Rebuild ) Mechanic 
Body )
Paint )

40 . $4.53

Trailer ) Mechanic 33 4.43

Parts
Journeyman 8 4.33
Helper 1 0 3.88

8/Cent'd . Hourly Rate

Parts Man A ) 
Parts Man 13 ) Parts $3.83

3.68

Garageman ) Tire Recapping and 
) Service Lane

3.64

Janitor 2.72



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09 cy qonxy 39X1X9
Axunon

-81-



-19-

resigned to enter into a disability 
situation. You will note, in referring 
to the seniority list that you have, 
that there is a break in employment 
from June 11 - a break in employment 
in terms of adding additional people 
to the tire recapping plant - from 
June 11, 1950, until May 13, 1963. I 
cannot attest as to hiring practices or 
standards prior to May 30, I960. During 
.1963, when the work load at the entire 
tire recapping plant dictated a higher 
availability of production man-hours, I 
met with Hr. J. P. McEachin - that's 
spelled M-c-E-a-c-h-i-n - to discuss 
whether or not we would continue hiring 
all Negro employees in this area."

Question: "That is 1963?"

Answer: "Yes. And it was my specific recommenda-
v tion to Mr. McEachin at that time that

we begin a program of integrating pro­
duction employees in this area of 
responsibility. Mr McEachin did not 
disagree with my position in terms of 
the reasons stated during out conversa­
tion. He did point out to me, however, 
that the approximately ten people - I 
believe there's one or two people off 
the seniority list that was there at 
that time - but the approximately ten 
or eleven people that were employed in 
the tire recapping plant worked as a 
very closely-knit group. As a group, 
their production per man-hour was not 
equaled by any other group or department 
in the maintenance complex."

Question: "When you say maintenance complex, would
that be all of MAS?"

Answer: "MAS, Yes. These men, by association, by
attitude, seemed to exude great pride 
in their accomplishnients . They worked 
as a team. The absentee rate in that

n



-20-

area was comparatively long among 
production employees, by department, at 
MAS. The exception to this was a couple 
of employees - Joe Ceasar was one; I 
forget the other - who had serious 
physical ailments. Mr. Ceasar ultimately 
had to retire because of his heart condi­
tion. These men also, as a group, 
participated in company programs of 
solicitation to a higher degree than any 
other group. The other programs of 
solicitation - the only programs of direct 
solicitation - on the property, which you 
might say are sponsored by the company,
Red Cross Bloodmobile and United Fund.
After consider "- and omitting a portion - 
"I considered Mr. KcEachin's suggestions 
that, if possible, we maintain a Negro 
production force with the thinking that 
we might retain the continuous pride in 
workmanship, pride in company association, 
which had been indicated across the years."

"After reviewing in detail various 
reasons offered by Mr. McEachin, I con­
curred with his suggestion. This is why 
from May 13, 1953, through May 25, 1969, 
we continued to hire only Negro employees 
in the tire recapping plant."

Question: "Is it your testimony, Mr. Park, that at
least between 1963 and 1969, that you 
considered blacks - only considered blacks - 
for the position in the tire recap depart­
ment as garagemen?"

Answer: "The answer would have to be yes."

(A.Ill 761-764).

Park further testified that although he was not associated 

with MAS until 1960, the racial composition of the various 

departments were substantially the same in 1955 as they were in 

November, 1970 (A.Ill 798-799).

ti



-21-

Frcn July 2, 1965, to December, 1969/ rĴ S hired 2o ncrf

envoi oyees in departments other than tire recapping and
n /janitorial; all of tnem were white. No blacks, including 

the plaintiffs, were offered the opportunity to fill vacancies

in these departments.

The oractice of MAS of employing blacks only in the tir< 

recapoir.e department continued until May, 1969— almost four

year

7 Pi T P» 'yea

after the effective date of Title VII and more than a 

:r this lav;suit was filed. The first white was hired

into the tire recapping department.on May 26, 1969 (A. Ill

763; 613).

~ q}“ p v ‘ • V'i Q

Since the early 1960 ’s, MAS hud a policy of not posuing 
12/

gob vacancies. 3 cl XT G■isult of no-pcsting policy, the black

11/
nu
Ur.

tor.otrve 
it Rebuild

(A.Ill 
K

MAS po: 
entire 
helper 
infra,

B 
T i 
Pa
cL ; 
> /

sailer 
rts 
-625),

13
5
2
2
4

lore have been two exceptions to that rule. In 1970 
.2 an evening for a tire truck delivery job to the 
ck force. MAS posted notice about mechanic’s 
job - done on a one time basis (A.I 61, n.4). See 

32-46 , section 8 , Individual plaintiffs.



-22-

employees had no knowledge of any job openings in the other 

departments at MAS, except on a perchance basis. The court 

below found that this practice deprived the black community 

of Winston-Salem of information about job vacancies in the 

all-white departments at MAS (A.I 60-71).

5. Joint Hiring Procedure

McLean and MAS have a joint hiring operation. McLean 

does the initial screening and testing of applicants. The 

personnel office where these operations take place is located 

on McLean's property and staffed with McLean employees. The 

personnel files for both McLean and MAS employees are kept in 

that office. The same application form is used for both McLean 

and MAS. The form has the heading "McLean Trucking Company, 

Winston-Salem, Worth Carolina, Application for Employment." 

After a person passes the screening and testing process, he is 

referred to a department supervisor at either MAS or McLean for 

final approval. MAS and McLean signervisors make the final 

decision in hiring their employees but have no control over 

who is referred to them for hiring (A.I 61).

The officials who interview applicants testified that they 

refer applicants to specific jobs on the basis of work orders 

from the departments at McLean and MAS and on the basis of an 

applicant's request. If no job openings exist at the time, the 

interviewer places the application in piles, differentiating



-2 3-

between those applicants who have special skills and those who 

do not. No attempt is made to demarcate between potential MAS 

employees or potential McLean employees. One interviewer 

testified that he refers an applicant to a particular job 

based on his' evaluation of the applicant’s interest, education, 

and past experience. He said that he never gave an applicant 

an option of taking a particular job. He said it was incon­

ceivable that a person would be cjualifiod for more than one 

position at either McLean or MAS. Another interviewer stated 

that if two jobs were open at the time, he would ask an 

applicant about his job preference and would give him the 

choice of which job to take. (A.I 62; see also plaintiffs’ 

Exhibit 9 and 16).

The application form also has a space for listing job 

preferences. However, the interviewers do not explain the 

different job categories at MAS or McLean to the applicants.

^ • Hi ring .St andards at MAS And McLean

Since the mid-1950's, MAS has required that new employees 

meet certain qualifications. They must have a high school 

education or its equivalent, be twenty-one years old, not be 

related to another employee, and have had no previous employ­

ment with either MAS or McLean. MAS also requires that the 

applicant obtain a minimum score on a Wonderlie test, which 

measures mechanical aptitudes kills and motor dexterity. The



-24-

minimun score needed on the commercial tests given is the 

national cutoff or a lower score, as determined by the test 

maker (A.Ill 584-590; 760; 898). The only employees needing 

a special skill are the ones assigned to the trailer depart­

ment,' in which case they must know how to weld (A.Ill 760). 

Otherwise, the qualifications are the same for every other 

position at MAS.

Aside from numerical differences in the test scores or ago

of the indivi cu at, the general qualifications

road or termiii a 1 job at McLean are about the s

588-590. ho special skills are required for t‘

fact, McLean prefers to train its over-the-roa

It is one of the few companies having a driver

hose jobs. In

for its truck drivers. All drivers, regardless of their past 

experience, must attend the school (Id. 860). The program lasts 

three weeks and includes classroom and road driving training.

The only driving experience necessary is to have driven a 

vehicl 

drivir

during the four sea

gxDGm ionc0 need not

is needed, or in fa

B e s t r 5 c t i 0 0n E:
•’c! an aiL Cl i'bib i. s suit Of:

a. Contract Provisions

To a limited extent, the collective bargaining con­

tracts covering employees at McLean and MAS determined their



-25-

mobility between jobs at the companies. The contracts them­

selves neither permit nor prohibit an employee from seeking 

another job position. However, the contracts do afj.ect. 

mobility in that they contain seniority provisions which affect 

bidding and layoff rights and other valuable rights an employee 

may accumulate via longevity at a particular position (A. I

12-13) .

At least since 1964, all three of Local 391's contracts 

with McLean and MAS have seniority provisions. The over-the- 

road supplement, the city cartage supplement, and the main­

tenance contracts all provide for company seniority measured 

from the last date of hire with the company. Company seniority
13/ , „

is used for determining vacation rights only. The over t e~

road supplement provides for terminal seniority for McLean

drivers determined by the length of employment at the terminal
14/

for purposes of bidding on runs and for layoffs and recalls.

The April 1, 1967-March 31, 1970 city cartage supplement for

terminal employees (switchers, checkers, local or city drivers)

had two types of seniority: terminal seniority which governed

vacation rights and classification seniority which governed

promotions and layoffs— 7 . Under the April 1, 1970-June 30, 1973 
collective bargaining agreements.

13/See Plaintiffs1 Exhibit 29, Article 5, Section 2, p.10 
(the June 1, 1967-March 31, 1970 maintenance contract).

*1 4 /See Plaintiffs' Exhibit 27, Article 5, Section 2, p.59 
(the April 1, 1967 to March 31, 1970 over-the-road contract).

1 5 /  . _ . . • ~ .r I n..t ’bi J. no a v f- ■? r» ] r» 4 0 T TO „ 50 — 61.—  See Plaxntins



-26-

classification seniority was eliminated and promotions and 

demotions were governed by terminal seniority

Under the maintenance agreement covering MAS employees

there are two types of seniority in addition to company 

seniority. One is departmental seniority which is the

length of time spent in 

other is classification

17/
a particular department. The

seniority which is the length of

t ime in 

partment.

a particular classification within a particular de~ 
18/

Under the maintenance contract classification

seniority is used for selection of shift, workweek prefer­

ence. As vacancies in higher classifications within a depart

went occur, preference is given to the employee in the next

lower job who has the greatest classification seniority.

Departmental seniority is used for layoff and recall. In 

the event of layoff, an employee who had fully exhausted his 

departmental seniority could use any departmental and classi­

fication seniority he acquired in another department to bump
19/

back into that department. In the event MAS promoted an

employee in a particular department into a higher classifica-

16/

95-98.
See Plaintiffs' Exhibit No. 30, Article 42, pp.

>OG £.£. Plaintiffs' Exhibit No. 29, Article 5, § 1.
18/ — Id.

19/id . at pp. 10-13.



-2 7-

tion within that department were given the right to bid on 

the opening ahead of new hirings. The seniority provisions 

governing promotions did not affect plaintiffs in any way 

because there was only one job classification in the tire 

recapping department.

8 . No Rehire Rn .1 e

McLean and MAS had, until enjoined by the court on 

January 2 3, 1974, two rules that prevented job movement be­

tween and within the two companies. The first one was the 

no-rehire rule. Both companies had a policy of not rehir­

ing an employee who had quit his job. Neither McLean nor 

HAS would hire back one of its former employees nor hire a 

former employee of the other (A.III. 587 (Para. No. 3); 

838-839). The court found that while the rationale of the 

rule appeared to concern mostly the experience McLean has 

had with its over-the-road drivers, the rule was applied 

to all departments of.McLean and MAS (A.I 65, Finding No.

17).

9. No Transfer Rul.e

McLean and MAS had a policy, also enjoined by the court, 

which prevented transfers between the two companies and be­

tween different departments within the same company. As 

with the no-rehire rule, nothing in the collective bargaining 

contract mandated this position taken by the companies

(A.I 65, Finding No. 18).



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uioxq suoxqcxAop qons qqfixa saoi[s pioosi oqi, "oquu xoqsucxq-ou 

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(99-59 ‘PI)

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poxaAOo sqoC oqq uooMqaq xaqsuExq qou pqnoo ooAoqdiua ue ' snqq 

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-qxqxqoxd Aox [od e paq s ®  puc ueaqow '0961 qsEOq qG uioxq



-2 9-

drivers comprise an entire department and a single classifica­

tion, the exception to the rule di.d not apply to them. It did,

however, permit transfers within departments under the city
2 0/

cartage and maintenance agreements.

At least beginning with the 1964 contract, employees 

under the city cartage contract could transfer within that de­

partment between classifications. For example, a person could 

transfer from being a switcher to a city driver job. In 1960 

McLean posted a notice at the terminal requesting applications 

for the position of city driver. (A.Ill)

In the 1960's an employee at MAS could transfer within 

his department to different classifications. However, until 

1964 the employee would lose his seniority if he, for example, 

moved from a helper classification to mechanic in his depart­

ment. Inter-departmental transfers were not permitted, and 

further job openings were not posted. After 1964 an employee 

could move within his department to a different classification 

and retain his departmental seniority so that in event of a ,

layoff, an employee can exercise his full departmental senior­

ity to bump back into a lower classification he previously 

held in that same department.

Since the only classification in the tire recapping and

2 0/
Various reasons were assigned by officers of McLean and 

MAS for the no-rehire and no-transfer policies and each reason 
was rejected by the court below as a basis to deny relief in 
this case. See (A.I 66-67 ).

. j

j

m



-30-

service lane departments is that of garageman, and the only 

classification in the janitorial department was janitor, an 

employee had no place to move in those departments. The no­

transfer rule prevented him from moving to another department 

in m a s or to another job or department at McLean (Id.)

In 1970 MLS and Local 391 agreed to a contract provision 

under which garagemen (tire recapping and'service lane employees) 

at MLS were given the opportunity to bid on vacanc.it.,: in helper 

positions arising at MAS before the company could hire off the 

street. That provision, Article 5, Section 2 or the April. 1,

1970 to June 30, 1S73 contract provided (Plaintiffs' Exh. 32):

(c) Job Vacancy and Promotion

When the company mates a 
classification within a 
men by seniority in the

promotion to a higher 
department, qualified 
next lower classifica­

tion of that department will be given the op­
portunity for promotion ahead of new h ir ing s .

Where there is a need for an additional helper 
in any department covered by this Agreement, 
any employee classified as garageman who is 
qualified as set out in Article 23, Section 4, 
or 6 (b), shall have the right to bid for such 
work. The senior qualified employee bidding 
shall be awarded the work, but he shall become 
junior in the new department, for all purposes, 
except he shall, have Company seniority for 
fringe benefits.

If any qualified employee refuses a promotion into 
a higher classification when offered by the em­
ployer, he shall not thereafter be eligible for 
promotion during the term of this agreement.

In event the Company and Local 391 could not agree on



the garageman's qualifications, a qualifications committee was

set up to determine the qualifications, if necessary. Shift 

and workweqk preference under the new provision was based on 

an employee's departmental seniority. Employees retain their 

old departmental seniority, and in event of a layoff, they 

could exercise that seniority to bump back into their old de­

partment, if they had acquired .enough seniority within the old 

department to do so. See Plaintiffs' Exh. No. 32, Section 2(a),

p. 1 1 .

New employees hired directly into job classifications at 

MAS other than garageman or janitor were not required to appear 

before the qualifications committee (A.Ill 577). A Vice Presi­

dent of MAS testified that the plaintiffs Hairston, Henry, Kim-

ber, Warren (no longer employed), Brown, Caldwell, Landrum,

Grier and- Olstead were qualified for helper positions in depart­

ments other than the trailer shop and that Olstead, because of 

his previous experience as a welder, had potential to move into 

the trailer shop (A.Ill 765). MAS, through Park, admitted that

these plaintiffs based on their "recorded pre-employment" (Id.) 

were qualified even without the necessity of appearing before 

the qualifications committee.

Before MAS established its current day hiring standards 

in the early 1960's all of the employees except the garagemen 

had been given the opportunity to move into higher paying classi



-32-

fications. Park further testified that black garagemen and jani

tors were not given this opportunity because MAS and Local 391 

were engaged in "lengthy meetings" about an apprenticeship pro­

gram for garagemen and that these meetings had been going on 

over a period of nine years (A.Ill 804-807). None of the white 

emplovees had been required to go through apprenticeship pro—

gr See Plaintiffs' Exh. Nos. 29, Article 40, and

32, Article 40, p . 62.

10. Plaintiffs 1 Employment at MAS 

The court below summarized plaintiffs' employment with 

MAS in Findings Nos. 24, 25 and 26 (A.I 63). This summary ap­

parently was the basis on which the court concluded that except

for nairston Wax're: no evio ,~as presented 'others

subjectively or objectively sought a xn

and some even rejecte 

detailed statement of

. offered opportunities 

plaintiffs’ testimony

ii

their employment 

(A. I 8 8 ). A more 

therefore neces­

sary .

Before dealing with the individual testimony of the 

plaintiffs we set out here several undisputed facts that bear 

on the back pay issues before the Court:

(A) None of the plaintiffs were offered the opportunity 

to move out of the tire shop prior to January, 1970 when the 

tire delivery job was posted (See A.Ill 753; 1007-1012).

(b) Between July 2, 1965 and December, 1969, 26 white 

employees were employed in the automotive, unit rebuild, paint,



-33-

trailer and parts departments (A.Ill 603-615). None of the 

plaintiffs were offered these opportunities even though the 

vice president of MAS had knowledge that cit least some of the 

plaintiffs had the "indicated potential" to move into these 

departments (A.Ill 765).

(C) Plaintiffs had no way of knowing when vacancies 

occurred in other departments because notices of vacancies were 

not posted.

(D) The no-rehire and no-transfers policies of MAS and 

McLean were a complete bar to any efforts on the part of the 

plaintiffs to seek upward movement at MAS or re-employment in 

any job at McLean.

(E) MAS admitted that it intentionally made and kept 

the tire department all black from 1963 until May 1969, the 

later date being almost four years after the effective date of 

Title VII (A.Ill 761-763).

(F) Plaintiffs could not file a grievance with com­

plaining about racial discrimination because the president of 

Local 391 testified that there was no contractual provision on 

which to base such a grievance (A. II 548). A non-discrimination' 

provision was included in the maintenance contract until the 

1970-73 contract. Compare Plaintiffs' Exh. No. 29, p. 55 and 

Plaintiffs' Exh. No. 32, p. 6 c Article 37.

Prelow E. V7vnecoff

Wynecoff has been employed in the tire department since



-34-

Juno 11, 1950 (A.Ill 595 [Tire Recapping Roster]). In about 

1962 (A. II 179) lie asked his supervisor about the opportunity 

to transfer to the tire delivery job after the white employee 

then holding the job left. Ills supervisor told him that lie could 

not transfer out of the tire shop (A .'II 171-174; 183).

Wynecoff also testified that he and plaintiff Allen talked 

with the president of Local 391 , Ralph Durham, in .1970 about- 

transferring out of the tire shop. Durham told Wynecoff he 

would talk with Ehrliardt. Durham reported to Wynecoff that 

Ehrhardt said it was not possible to transfer out of the tire 

shop (A.II 176-177; 187-188). Wynecoff had lost interest be­

cause of age (45) in the tire truck delivery job when it was 

posted for the very first time in 1970 (A.Ill 179). Wynecoff 

signed up for the helper's job posted in 1970 but he did not 

appear before the qualification committee (A.II 180). Although 

Wynecoff wanted the helper's job, he was not enthusiastic about 

it if it required working the night shift or being off Tuesdays 

or Wednesdays instead of Saturdays and Sundays (A.II 192).

Elmo Fries

Fries started with MAS on July 8 , 1949 and was one of the 

original employees in the tire shop— (A . II 196). At the time 

of trial, he had about twenty-two years at MAS. Two white

2 1/
Fries "came along with the equipment" from MAS's 

predecessor in interest (A.II 202).



-35-

persons started at HAS on the same day as Fries, Thompson and 

Petrov, doing the same kind of work. Petrov eventually retired 

but Thompson who was still employed had been promoted to a super­

visory position (-fi.il 197). Lewis Naylor, also white, at one time 

also worked with.Fries (A.II 199-200). Naylor was employed on 

June la, 1954 and on July 13, 1956 was transferred to the trailer 

department (A.II 609). As of 1969, Naylor was an A mechanic, 

earning $3.93 per hour whereas Fries, still a garageman,' was 

earning $3.64 per hour (A.Ill 602). Fries applied neither for 

the tire delivery job nor the helper's position (A.II 203-204). 

tries was employed prior to the "current day" hiring standard 

of i-.AS (a . Ill 765-766). Had Fries applied for and been assigned 

to the v_ire delivery position, he still would have been assigned 

to the tire, recapping department. When James Odel Shore, white, 

had this position in 1969, it was assigned to the parts depart­

ment (A.Ill 612); and the notices posted in January and Febru­

ary, 1970 stated than this job was being assigned to the tire 

recapping department and would constitute a separate seniority 

list (A.Ill 1007, Para. 2).

Robert C, Klmber

Kimber was employed in the tire shop on May .13, 1964 

(n.il 20o; A.Ill 613). In 1966 or 1967 he asked his supervisor 

about transferring to the.tire delivery job but was told he 

could not transfer (A.II 203 [135]). At this time the tire 

delivery job was in the parts department (A. Ill 612).



-36-

In .1967 or 1968— when Park and Ehrhardt mot with the 

black employees to reprimand them because they were not properly 

performing their jobs, the black employees advised Park and E'ni- 

hardt that they felt that they were not being treated fairly be­

cause they were black and because they were stuck in dead end 

jobs.” In response to this concern, Kimber1s uncontradicted 

testimony is that Park stated "The sarnie qooi is open that you 

camethrough when you came in" and "if we don't like it, ... we

knew what we can do" (A.II 212). MAS presented no evidence to 
24/the contrary.'

Kimber admitted that Park told him that he would not

lose his seniority if he had taken the tire delivery job (A.II 

p;i9 ). But then this job had been assigned to the tire recap­

ping department and would not involve transfer to another de­

partment (A. Ill 1007).. Moreover, Park had stated that he had 

considered the reason given by Kimber for. refusing the tire

--— Kimber testified the reprimand meeting took place in 
1967; Ehrhardt testified this meeting took place in 1967 or 
.1968 (A. Ill 867-868).

23/Ehrhardt was also at this meeting. When asked whether• 
ho recalled black employees had stated to him that they felt 
they were stuck in dead-end jobs because they were black, 
stated "1 do not recall such a statement," (A.Ill 867).

2 4 / Compare 
c a l l e d  a s  a w i t n e s  
Simmons, a w i t n e s s  
i t  was  p o s s i b l e  t o

the testimony of Rigsby Satterfield (A.II 462) 
s for McLean to rebut the testimony of Roy L. 
for the plaintiffs that Satterfield had said 
earn $18,000.00 as a road driver (A.II 145).



-37

delivery job "good and sufficient"(A.Ill 749-750).

Kiirber applied for the helper's job after it was posted
25/

subsequent to April 1, 1970. He did not appear before the 

cualifications committee when requested to do so (A.II [150-151]) 

However, Park testified that timber was already qualified for the 

helper's position (A.Ill 765).

Dewello C . Counts

Counts was initially employed at MAS on May 11, 1954 

(A.Ill 595). He never asked any official about the opportunity 

to transfer out. of the tiro shop (A.-II 241 [168]). Counts is 

the onlv plaintiff who testified that he never wanted a job 

other than that of garageman (A.II 244 [171]).

Loo  D.__Cannon

Cannon was employed in the tire recapping department on 

March 3, 1950. After serving a prison term for about eight 

months in 1953, he was re-employed on May 11, 1954 (A.II 251;

A.Ill 613). He testified about two white'employees, Naylor and 

Manning, who at one time were working with him, but who were sub­

sequently transferred to other departments at MAS (A.II 247- 

248). Cannon retired on March 3, 1970 (A.II 252), and about 

a month later blacks in the tire shop were, for the time, given 

the opportunity for other jobs. Cannon testified that he had

fL-v Garagemon were given the opportunity to bid for helpers 
positions for the first time under the April 1, 1970 - June 30, 
1973 collective bargaining agreement.



-38-

never applied for a road job but that he had "seen times when 

he wanted one"(a.II 254-255). Cannon's entire career with MAS 

was during the period of time when MAS was openly engaged in rac­

ially discriminatory practices.

Willie Neal, Jr.

Peal was employed on June 6 , 1958 (A.II 260). Peal's un­

contradicted testimony is that in 1969, he saw the tire delivery 

truck setting idly and told Park he would like the job if it was 

available. Park told him "there is no way you can drive it be­

cause vou're already working for the Company"(A.II 263). Neal 

then expressed his concern about wanting to grow as the company 

grew, but Park told him "hell, that's just the Company policy.

"he don't transfer" (A.II 263-264).

lifter the notice about the helper. position was posted, 

in 1970, Neal spoke with Durham, president of Local 391. Durham- 

told ileal he would not qualify for the position if he failed to 

sign the notice (A. II 267-268). Neal further stated that lie 

did not bid for the helper's position because the notice did 

not state the department it was in (A. IT. 267-268).

Neal did not attempt to bid for the tire delivery job 

because he was told that he could not return to the tire re­

capping department if he took the job and found out that he

could not do it (A.II 281).

In response to questions by Judge Stanley about "how 

the cornuany had treated [him] wrong," Neal testified that on



-39-

ono occasion he was told he could not transfer to the tire de­

livery job and on another occasion he was told that he could. 

He further stated that he didn't want to take the job with the 

possibility of losing his 12 years of seniority if he did not 

prove successful on the job and end up being forced to leave 

or being fired (A. II 283-284). He further stated that other 

employees [whites] had been on the tire delivery job and when 

their health declined, they returned to their old jobs, but 

MAS would not assure him that he would get similar treatment.

On cross-examination Neal denied that he had failed to

apply for the helper's position because he might have to work 

Saturdays and Sundays. He testified that as far as he was con­

cerned "five days is just five days"(A.II 289). His main reason 

for not bidding for the helper's position is that he would not 

get the benefit of his full company seniority and that he would 

have to start in a new department as the "bottom man"(A.II 289- 

290), and would have to stay in the helper's position for two

years before he could move up.

Richard A. Landrum, Sr.

Landrum was employed by MAS on September 30, 1963 (A.II 

2 9 3 ). lie testified that he never had any in-depth discussion 

with any official of MAS because of the 1967 or 1968 meeting 

with Park and Ehrhardt when transfers were discouraged and 

plaintiffs were told they could not transfer (7i.II 296-297). 

lie did not apply for the tire delivery job because he did not



-40-

believe that he was physically capable of doing the job (A. II 

298-299). He also did not apply for the helper's job. If Lan­

drum had applied, he would have been subject to review by the 

qualification committee, even though Park testified that Lan­

drum was already-qualified for a helper's position in any other 

department except the trailer department (A.Ill 7S5).

Josep?i P . Jack'son

Jackson was employed on January 20, 1957 (A.II 324-325). 

He made no efforts to try to transfer out of the tire shop be­

cause ''a few of the fellows" that he ̂ worked with had tried to 

transfer; 'they didn't get any results from it" so he didn't 

try (A.II 325). He did not apply for the tire delivery job be­

cause it was not costed until after the lawsuit was filed (A.II.

an a a ?

Bobby L. Grier

Grier was employed by HAS on June 22, 1964 (A.Ill 595).

In 1957, Grier discussed the matter of the opportunity of blacks 

transferring with the president of Local 391. The vice presi­

dent simply told him that MAS did not allow inter-departmental 

transfers (A,II 339-340).

Grier did not apply for the tire delivery job because he 

does not know how to drive (A.II 340). He applied for the 

helper's position, but a union representative told him he did not

have to take any additional tests because he was already quali­

fied (A. II. 340-341). then Grier learned that MAS had set up 

an apprenticeship program at Forsyth Tech and that persons coming



-41-

out of that program were being hired into helper's positions, 

ho again contacted Local 391 and apparently Local 391 

intervened (A.II 341-342). Grier did not appear before the 

qualifications committee, even though he was specifically re­

quested to do so (A.II 349-350), but Park testified that Grier 

was already qualified for the helper's position (A.Ill 765).

Robert_L. Henry

Henry was employed by MAS on July 22, 1963 (A.II 354).

His employment had been specifically solicited by MAS (A.II 

345-355). There were two openings at the time he was employed,

1 t1C 0 X* CC 0p ping -1 -J-d C MAS and the dock at McLean. The interviewer

encouraged him to take the?. tire recaprDing department (Id.).

Henry d ?. d not• nnolv for t h e t i r e deliver'7' vacancy because

he did not think $.09 more per hour was enough money for driving 

a truck on the road, being away from home and doing a] 1 the 

work by himself (A.II 356-375). He did not apply for the

helper's position because he did not want to lose his seniority 

(Id. 366), Henry further testified that he had not specifically 

requested the opportunity to move out of the tire shop but he 

was present when this matter was discussed with the president 

of Local 391 and that he "just took it for granted that there 

wouldn't be any use"; he didn't believe in "bumping his head 

against a stone wall" (A.II 356). In 1947 Henry had applied

for a road driver job (A.II 362) but this was during the time



-42-

when McLean had a practice of refusing to hire blacks for this 

position. By the time of trial he was no longer interested in 

a road job because he was then 42 years old (A. II 367).

Henry stated in his deposition taken in 1970 that he was 

not then interested in another job but he also further testified 

that if he had been given the opportunity to "build the seniority 

that [he has] now, he would have taken it (A.. II 366).

W il hi am N. CaIdwe !Q

Coldwell was emp 1 oye<1 on May 13, 1963 (A . II 371). He did 

not apply for the tire delivery job because he saw no advantage 

for the $.09 difference (A. II 373). He did not apply for the 

mechanic's helper job because he wasn't interested in it, but 

he was interested in a position in unit rebuild (engine room)

(A. II 374; 376; 378). Caldwell had not indicated his prior 

experience with engines because the application requested in­

formation only about the immediate past three employers (A. II 

374). Caldwell affirmatively disclaimed that the possibility 

of working on Saturdays and Sundays played any part in his 

decision not to apply for the mechanic's helper job (A. II 380- 

381). In fact, shortly before trial he had been shifted from 

his Monday through Friday garageman's schedule (A. II 380).



43-

t i re r e  ca­p p i ; ig and s e r v

COu r a g e d Bro' ...rtj from j___

Br own It
i . ta: 1 1 i  f y o u do

da v s yo u O (C g o i n g t o V

g o i n g  t o g e t / t h e  s âme

Brov,rp f-e s t  i f i e d D L'

W ilero3 t h e  su b  j c c t  rra t t e

sh o p wa s di.3 cu[S S €1(3 mV1

C lint on Brown

Brown was employed on S e p t e m b e r  12, 1966 (A. H  383;

A III 595). There were several jobs open-dock at ^cLean and

,ice lane at HAS. The interviewer dis- 

ra taking the dock service lane jobs by telling 

do to the dock/ . . . you don't know which

off; you don't know what shift you're 

3 the service lane" (A. II 335-386), 

about a meeting vJith officials in 1967

of advancement for blacks' m  the tire 

group was told they could not transfer

because it was against company policy (A. H  386). arown 

testified about a meeting of a group of the plaintiffs with the 

president of Local 391 on an occasion in 1970 where the subject 

matter of transfers, among other things was discussed, e.nu 

president told the group that it was against company policy to 

allow transfers (A. II 386-387). lie recalls however that the 

plaintiff had raised the issue of transferring and he told them 

he would speak with an appropriate official. Tne President 

later reported back to the group only to relay the message that 

it was against company policy to allow transfers U d - )•

Brown did not apply for the tire delivery job because he 

was already earning $6 ,0 0 0.0 0-$7 ,0 0 0 . 0 0 per year and the job



-44-
did not pay much more than that, whereas over-the-road drivers 

were earning $15,000-$16,000 per year (A. II 388); further 

hG ,aw no future in that job (Id.). At trial Brown affirmatively 

stated that lie was interested in a road driving position (A. II 

390 ), or any job other than garageman (A. II 397).

jamos Olstead

01stead was employed on January 6 , 1954 (A. II 399). Prior 

to his employment at MAS Olstead had completed a welding course 

at New York Trade School. Thereafter he had worked at Bethlehem 

Steel (New Jersey), Gary Tank Corporation (Now York) over a 

bout eight and one half years doing welding and 

4U0). Olstead had discussed
period of aboi

shop work (A. II
r- r.' y\ "1 r'i 'i rt <~» V —

perionce with the interviewer at the time he applied (A. II 

400-401).
In the summer of 1970, two years after this suit was filed, 

Olstead was offered a position in the trailer shop at an in­

crease of $.79 per hour. He was told that if he took'the job, 

he would have to go to the bottom of the seniority roster and 

for bidding purposes he would have "to work at night or what­

ever was left over" (A. II 401-402). Olstead declined the 

offer because he didn’t know what effect the acceptance would 

have on this lawsuit and he did not relish the idea of working 

at night and being away from his family (Id.). The fact that



-4 5-

he may have ha cl to work weekends in no way influenced his de 

cision to decline the offer (A. II 403); nor did the possibility 

that he may have had to buy his own tools (A. II 408-409).

Between the time of Olstead's employment i.n January , ldo4 

and the offer in 1970 at least twenty-one whites had been hired 

into the trailer department. Three or these had advanced above 

the helper's classification (Wassum, Wagner and Worsham) (A.

Ill 609-510). In less than three years Worsham had advanced to 

Iv e hiohest osv position as Trailer mechanic h at the rate of

$3.93 per box r; whereas Olstead was earning only $3.64 per hour

(A. Ill 602).

•.an L. Cut lire 11

Cuthrell was employed on August 14, 1957 (A. II 165).

There is nothing -in the record about' why Cuthrell did not apply 

either for the tire delivery job or the helper s position, -se 

A. II 165-169.

W i H i e C. Allen,' Jr.

/illen was employed on December 9, 1953 (A. II 99 j ) , he

left voluntarily in October, 1969, but after this action was 

filed. lie never asked about transferring out of the tire shop, 

but he is one of the plaintiffs who Park stated had potential 

for the helper's position (A. II 765). All spoke with the 

^resident of Local 391 and was advised it was against company



-46-

policy to transfer (A. Ill 1006).

Thcodore R . Warren

Warren was granted back pay by the court below because the 

court found he had been discriminated against because of the 

refusal of MAS and McLean to permit him to become a road driver 

(A. I 88 ). The only issue in this appeal as to Warren is

the 1968 date allowed by the court from which back pay is to

begin to run.

Warren was employed on June 22, 1964 (h. Ill 595). He had 

truck driving experience prior to his employment (A. II 117- 

118). The charge Warren filed with EEOC on May 31, 1967 stated 

that he haa asked for an over—the—road job as early as 

September, 1965 and had been told there were no openings. [See

Plaintiffs'- Exhibit No. 1], When he made further efforts in 

1968 he was told the same thing; he then requested the opportunity 

to fill out an application, but was told the only way lie could

get a driving job was to resign his job at MAS and re-apply.

He eventually did resign, he was not given any consideration be­

cause of the non—rehire policies of MAS and McLean. Warren 

had also tallied with the president of Local 391 in 1967 about 

a road driving position (A. II 544). Between 1965 and 1970 

McLean hired well over 75 white over-the-road drivers. (See

A. Ill 617; 622-625).



ARGUMENT

I

THE REASONS ASSIGNED BY TIIE DISTRICT 
COURT IN CONCLUDING THAT ONLY TWO OF 
THE NAMED PLAINTIFFS WERE ENTITLED TO
b a c k p a y a r e n o t j u s t i f i e d o n t hi s
RECORD AND ARE NOT SUPPORTED BY APPLICABLE 
LEGAL PRINCIPLES.

A. The Record Clearly Demonstrates That Plaintiffs And Other 
BlacAs Suffered Economic Loss Because Of The Admitted 
Racial Hiring Practices Of NAS And McLean.

Section 706(g) of Title VII, 42 U.S.C. Section 2000e-5(g) 

provides that

If the court finds that the respondent has 
intentionally engaged in or is intentionally 
engaged in an unlawful practice charged in 
the complaint, the court iuay enjoin the 
respondent from engaging in such practice, 
and order suet affirmative relief as may he 
appropriate . . . with or without hack pay.

"Intentionally" as used in Section 706(g) has been construed

to require only that the defendant meant to do what he dicl,

that is, his employment practices were not accidental. Robinson

v. Lori Hard Corp., 444 F.2d 791, 796 (4th Cir. 1971), cert.

dismissed, 404 U.S. 1006 (1971); Local 189 United Papermakers

and Pap°n,'n^ffi-s. AFL-CIO. CLC V- United States, 416 F .2d 980,

Cir. 1969), cert., denied, 39 7

Duke Power Co., 401 U.S. 4 2 4



-40-

Not onlv was the unlawful racial discrimination practiced 

aaainst all the plaintiffs and other blacks here "not 

accidental;" it was encaged in purposely and deliberately.

Leonard Park, vice-president of MLS, met with the supervisor 

of the plaintiffs in 1963, two years before the effective date 

of Title VII, to discuss whether MLS "would -continue" to hire 

blacks only for the tire recapping department. The supervisor 

recommended that MLS should. Park "concurred" notwithstanding 

Vj-: :■ specific recomrnendation that MLS "begin a program to integrate 

production emoloyeos in this area of responsibility (.A. Ill 761-

-  y  a . \> m

xkll of the plaintiffs were hired into the tire recapping 

deT"S'‘tment at a time when MLS had an admitted practice of

discrimination

■t—  U  O  I V  :

P a r k  f u r t h e r  t e s t i f i e d  t h a t  t h e  d e c i s i o n  was

'the spring o f  IS0.^0 t o  b e g i n  a p r o g r a m  o f

h i r i n g  C a u c a s i a n  e m p l o y e e s  i n  t h e  t i r e  r e c a p p i n g  p l a n t  i n  an 

e f f o r t  t o ,  i n  seme way,  b r i n g  a b o u t  an i n c r e a s e  i n  p r o d u c t i o n  

p e r  m an -h o u r  t r e n d i n g  t o w a r d  h i s t o r i c a l  levels" (A.Ill 763).

The clear implication of this testimony is but for the decline 

in the production and workmanship of the plaintiffs, MAS would 

have continued its admitted racially discriminatory hiring

practices weli bevono May, 196S.

Once the plaintiffs were hired their employment future 

with MAS and with McLean was foredoomed because of the no-rehire



-49

and no-transfer policies. Janitors and garagemen were the 

lowest paying -jobs in the bargaining unit at MAS (A. Ill G02). 

Until 1970 all of the blacks at MAS were in these two jobs. 

There were no advancement opportunities because garageman 

was the only classification in the department (A.Ill 613).

The plaintiffs could not transfer to any other departments at 

MAS under any circumstances. Nor could they leave MAS and

seek employment with McLean. Plaintiff Warren tried this route

and was rebuffed by the no-rehire policy (A. II 120-122; A. III. 

838-839). They sought the assistance of Local 391 but to no 

avail (A.II 548).

The picture at McLean was no less dismal. Until October, 

1967, more than two years after the effective date of Title 

VII, McLean had an admitted practice of refusing to even 

consider black applicants for over-the-road driver gobs (A.Ill 

896). That practice was abandoned only because of pressure 

from federal contract compliance officers (A.Ill 845; 872-873) 

The economic loss to the plaintiffs is manifest from the 

record: they took home less income than their white contem­

poraries. They were locked into a dead-end job classification 

Until the tire delivery job was posted in early 1970 (see 

plaintiffs' exhibit 20 and 21, A.Ill 1007-1002) there simply 

were no advancement opportunities at all. Even then the tire 

delivery job was only a singular advancement opportunity



-50-

because theretofore the tire delivery job was in the parts 

department but in 1970 it was transferred to the tire recapp­

ing department and was to be a separate job on a separate
26/seniority roster. ' The fact remains however that plaintiffs 

took home less income than their white contemporaries as■ the 

direct result of the admitted racial hiring practices of MAS 

and McLean.

B. None Of The Reasons Stated By The District Court Justify
A Denial Of Back Pay.

Section 706(g) of Title VII, 42 U .S .C ..Section 2000e-5(g) 

provides the district courts with the power to frame appropriate 

remedies for employment discrimination "with or without bade 

pay." The district courts do not, however, have uncontrolled 

and unreviewable discretion in exercising this choice. On the 

contrary, that exercise of discretion must serve the remedial 

purposes of Title VII and conform to standards announced by 

this Court and other courts of appeal. Moody v. Albemarle Parer 

Co., 474 r.2d 134, 14 (4th Cir. 1973), petition for rehearing 

en banc denied July 22, 1974; Pettway v. Arno.-rican Cast Iron Pine 

Co. , (ACIPCO) 494 F .2d 211, 251-253 (5th Cir. 1974); Head v . 

Timken Roller Bearing Co., 486 F.2d 870, 876-877 (6 th Cir. 1973)

26/
Compare the parts department seniority roster of 7/1/69 

(A.Ill 612)(Odell Shore) with Plaintiffs1 Exhibit 20 (A.Ill 
1007).



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qoxxqsxp e 'll A oi;qx£ ux paxpoq.ua Aoxpod 
XeuoxssaxPuoo 50.0x4 s 0 4 4 pue pxna.e Aed qoeq 

e  3 0  0XIX4GU Axoqesuaduioo 044. 3 0  asneoag

4 2 4 4  s i  ' *03 xocTej d x x G ’tXoqxH - a Apoow ux 

p o o u n o u u e  4 x n o x x 3  s x q q  ux p x e p u e q s  6 u t u x o a o £> a q q  '(8Z.6T *.xx3

U4Z) I06--S06 '960 PS*J 60v ' * 0 3 OATXouqnA-oqeLqcn *a 0.003

-10-



presented here. The I-'oody principle supported by all these

authorities requires a back pay award in this case unless

this Court finds "special circumstances that would render such

an award unjust." V.Te turn next to the reasons advanced by the

court below for denying back pay.

Tho district court stated five reasons' for limiting back

pay to only two of the named plaintiffs (A.I 87-89): (1 ) none

of the other plaintiffs subjectively and objectively sought a

change in their employment; (2 ) some rejected offered
♦

opportunities; (3) pay differentials do not vary greatly 

because job progression is set up on an industrial union basis 

rather than on e craft union basis; (4) computation on the bad

pay c 1 a iiv. s r. i GV p .V O V G ‘CO P G an a o v

the cost of a C rd. n is t r a t ion in re]
27/return.

27/The court mentioned good faith of the employer 
(A.I £3) but apparently did not rely on this as a reason. To 
the extent that the court may have relied on good faith of 
the employer, booed disposes of this reason. 474 F.2d at 141.

Jl J. ie ecu_■ l. a1 s o made referenc
err.plo v oes but to th .1: ex tent the
thp tes tir.ony of rk suific j . cntl;
0 1 r . j. 

O  V-ead / Caldwol - / Prov.ri, Kiml.-)— x-i
we 1 1 a s Jxairston C i 11u Vvarren . II

as



-53-

] . None o f  t h e  O t h e r  P l a i n t i f f s  S u b j e c t i v e l y  And
O b j e c t i v e l y  S o u g h t  A C h ange  I n  T h e i r  Em ploym ent .

T h i s  r e a s o n  a s s i g n e d  b y  t h e  c o u r t  i s  w i t n o u t  b a s i s  i n  t h e  

r e c o r d .  G iv en  t h e  a d m i t t e d  r a c i a l l y  d i s c r i m i n a t o r y  h i r i n g  

p r a c t i c e s  MAS and M cLean ,  c o u p l e d  w i t h  t h e  n o - t r a n s f e r  and  n o ­

r e h i r e  p o l i c i e s ,  i t  w ould h a v e  t o  b e  c o m p l e t e l y  f u t i l e  fo.u unv 

o f  t h e  p l a i n t i f f s  o r  members o f  t h e i r  c l a s s  t o  h a v e  a c t i v e l y  

s o u g h t  a t r a n s f e r .  C o u r t s  h a v e  h e l d  t h a t  an  a c t i o n  w h i c n  i s  

f u t i l e  i s  n o t  a p r e r e q u i s i t e  f o r  r e l i e f .  J o n e s  v .__Leev.’a y  _Motcr

Freight, Inc., 431 F.2d 245, 247 (10th Cir. 1970); United

States v. Sheet Metal Workers, Local 3G, 416 F.2d 123, 132

(8th Cir. 1969); Lea v . Cone Mills Corp., 301 F .Supp„ 97, 102

(M.D.N.C. I960), aff'd in pertinent part, 403 F .2d 86 (4th 

Cir . 1 9 7 1 ) cf. Cvnress v, Newport Mew’s Gon.oral and Lon-

s cc t a pin n Ho s p . A ss ' n . , 37 5 F . 2 d 64 8 , 653 (4 t.h Cir. 1967). 

Although these cases are factually distinguishable from the 

instant case in that the courts wore not addressing issues 

relating to bach pay, the principle discussed is equally 

applicable to claims involving back pay.

In spite of the absolute futility of any efforts to 

transfer to better paying jobs some of the plaintiffs did try. 

Prior to the time the tire delivery joh v/as posted in early 

1970, Kimbar (A.II 208), Neal (A.II 263), Wynecoff (A.II 171- 

174) sought this position and were reminded of the no-transfer

When Park met with the plaintiffs in 1967 or 1960 hepolicy.



— -U -

;oqmade it perfectly clear when some o f  the plamtifrs rais< 

concern about the dead-end nature o f  their j o b s  that i f  " r h o y

did not lire it, they co 

cane in" (P. .II 212 / .

uid co through the same door they

P r i o r  t o  t he implementation o: the "current day" hiring

stara3aicd in che 03̂ IT.lv 1960's all of the employees at I-'PS

exceotX. th e gar aC 0:0-a (which included at that time JccksOj*,

Corncs , Cut■ * Vel eal, Cannon, Fries and Wynecoff (A.Ill 765-

760) worb £ £> £ a **iv and personally contacted about advancement

opportUD.lu ]| it c (/:• *III 804-806). Hot a single black, either

gara •;r:. or ”1 £;nito.v t was contacted at that time for the simple

roPc t-, OJ- ; 3nd Local 391 wore involved in "rather lengthy

raee t.in'JS to doitei -;~T'.ine qualifications about an apprenticeship

progra;m (P>.III 805-.SQ6). YThile HAS . and Local 391 ware involved

in 1 ;se 1err.jtl*; *,7 *'-U•stings ail of the white employees who were

hired bafore tire "current day" hiring standards had been given

the CIjpor tun?.h' js to demonstrate that they met those standards

and u e Oi 1 U O en XI1ne opportunitv to promote to the better paying

job:s (A. .1. -i_L O O4-r: 01S). This procedure is not unlike a similar

sit'»i r» ■ Cltier. nc 'O 0!A v,w Her Court in Griegs v. Duke Power Co. ,

42 0 1',2c i.22 0 v *-rth Cir. 1970). There Duke Power had given

pre f em o d cif.pioy nt opportunities to white employees whose

ecuC Cition<ii >bor, V'•< >-. j —curds were no greater than their black con-

ter.noraric s. Th -J £ Court required Duke Power to extend those



-55-

same opportunities to similarly situated blacks. 420 F.2d 

at 12 35-12 37.

2. Some Rejected Of 

Until 1970, -over four 

the Ret, there simply ware 

reject. Quite tho reverse 

plaintiffs were rejected.

fared Opportunities, 

years after the effective date of 

no opportunities for plaintiffs to 

was true: efforts made by the

/it the time the tire deliv< 

1970 the position had been tram 

ment into the tire recapping ce; 

It paid only $.09 more per hour 

and provided no further advance: 

Grier could not drive and did nc 

it would have toon useless for : 

340). Kimbar did not apply for 

sidcred "good and sufficient" (7i 

apply because he believed that h 

perform the job (Ji .II 298-299). 

because he was not interested in 

other jobs, particularly in the 

374). Wynecoff, who at one time 

rejected had lost interest in it 

Cannon was about ready to retire

ary job was offered in early 

5ferred out of the parts depart 

paratent (A.Ill 10007-1012). 

than plaintiffs were earning 

•ant opportunities (Id.), 

t have a driver's licence so 

im to apply for this job (A.II 

the job for reasons Park con- 

•III 749-750). Landrum did no 

e was physically unable to 

Caldv.’oll did not want the job 

it, but he was interested in 

unit rebuild department (7i.II 

wanted the job and had been 

because of his acje (A. II 179) 

when the job was posted (7i.II

2 52). In Ccuni the only plaintiff who affirmatively



-56-

stated that he had no interest whatsoever in moving out of 

the tire department (A.II 244).

After the mechanic's lie].per position was posted Kimber 

(A.II 251) and Grier (A.II 340-341) applied for the position, 

hut were repaired to appear before a Qualifications committee 

a requirement not instituted before 1970. None of the whites 

who were employed in the better paying departments were required

to be scrutinized by a qualifications committ­ee ; c e A . 1 1 1  577.

It seems absolutely unreasonable to require Kindoor and Grier 

as we 1.1 as Brown, Caldwell, Olstead, Landrum and Henry to 

appear before the committee when Part had already determined 

they had "indicated potential" to move into the helper's 

position in all but the trailer department (A.I.i.I /o 5) • C_r. 

Young v. Kd.gcorab Steel Co., No. 73-2 347 (4th Cir., July 11, 1974 

And the plaintiffs who’were hired prior to the "current day" 

standard should have been given the opportunity to demonstrate 

their potential to do other jobs as this Court required che 

defendant to do in Griggs v. Duke Power Co., 425 F .2d at 1236-7 

with respect to those blacks hired before Duke instituted its 

test and high school requirements. Moreover, the court below 

noted that if all the white employees at MAS did not meet the 

"current day" hiring standards, there will be a strong presump­

tion against the validity of those standards, i.f applied to the 

plaintiffs (A.I 85-86).



-57-

Olstead was offered a position in the trailer shop in 

1970. He refused the offer because this lawsuit had been 

filed and ho: did not know what effect his acceptance would 

have on his case (A.II 401-402). But MAS tailed completely 

to offer any explanation why Olstead was not offered the 

number of vacancies filed by whites in the trailer department 

between 1965 and 1970(A.Ill 609-610). But the explanation is 

simple: during this period of time the "blacks only" policy

still obtained in the tire recapping department where Olstead 

was employed. The refusal by Olstead of this offer, if not 

justified, goes only to the question of the amount of his 

back pay award but it certainly is no basis for denying back 

pay completely. The sane holds true of other blacks who may

have refused offers in 1970.

3. The Pay Differentials Do Not Vary Greatly Because 
job Progression At MAS Is .Set Up On An Industrial 
Union Rather Than On A Crart Union Basis.

The. reason the court relied on the industrial union versus 

the craft union distinction is unclear. Whatever the rationale, 

it is completely without merit. Nor is it clear what "special 

circumstances" are caused by the fact that the "pay differential 

do not vary greatly". What matters is the existence of a 

racially defined disparity in income opportunities, for reasons 

repugnant to Title VII regardless of whether an industrial 

union rather than a craft union is involved. The fact remains



-58-

ic5 solely because they were black.

denying back •02'.' to plaintiffs there, stating "perhaps unlike

the tobacco 2ndustrv involved in Robinson [444 P.2d 791], the

paper inch at::v is justified in requiring that its employees

possess a ce:‘tain degree of training and experience." 4 FEP

Cases at 570 This argument was rejected by this Court in

Hood-', 4 77 T 2 d 1 3 4 , albeit sub silentio, and the similar argu-

rent must b- 3jected here.

4 - Cc:T.cv.f at ion Of Bad: Pay. . .May "veil Prove To Be 
/- ave..v cur e Xii  ̂oeo ula L n on *

Implici -3 iv; this reason is the recognition that plaintiffs

and H a i r s t o n  have suffered e c o n o m i c a l l y

because of tVn unlawful practices of tlio cl0‘conoants, But t -1 L~ l

defendants. .additionally, it should be noted that the court-,

t  r  r ''i i c  i ̂  :* only on the over-the-road job (A.I 89), failed to

consider tbs, oconcm.ic loss plaintiffs suffered as a result or

the racialii- discriminatory effect of the no-transfer policy

as this pel:;cv affected plaintiffs' inability to transfer to

J  C O S  at . —  ; , fpVio  nrou;Th32it based on the speculative nature or

computing b:3Ck n:v must be rejected by this Court.

Th.e ba:=i= rule that precludes the award of speculative



-59-

result of the wrong, but does not apply to damages which are 

attributable to the wrong and are uncertain only in amount.

S t o r y  Pa r c h m ent  C o .  v. P a t t e r s o n  P a r c hmont Paper C o . , 282 U .S .

555, 562 (1931); Robey v . Sun Record Company, 242 F.2d 684, 

689-90 (5th Cir. 1957).

In Johnson v. Coodyear Tiro & Rubber.Co., 491 F.2d 1364, 

1380 (5th Cir. 1974) the court has specifically applied this 

rule to Title VII back pay:

"We nr c n o t u nmi n d f u l t h a t i n  many
i n s t a n cc-s p i•Oy i n g e n t i t; ] c-nc u t  t o  b a c k
p a y  v:i..11. b e b a s e d on probe: b i l i t i c s .
Howavc:r d i f f ! J, c u l t  t h  e u l t i m a t e  r e s o l u -
t  i o n , d;i O, Q  £* •{mX11 clt e e s  mu s t b e  c o m p e n s a t e d
f o r  t h e Vj>a I n! V.7f u l s t r  i c tu  r e s p r e v e n t i n g
this ascension to a more economically 
viable job.

Th e a pp 1 i c ab i. 1 i t y o f this rule to Title VII cases was further

underscored by the Fifth Circuit in Pettway v. ACIPCO:

It does not follow? that back pay claims based 
on promotions cannot be awarded. Unrealistic 
exactitude is not required. This Court made 
this principle clear in Drennan v. City Stores,
Inc., 479 F .2d 2 35, 242 (5th Cir . 1973),
involving the Equal Pay h c t :

The d e fendan t 's ob j cct.ion to the formula
used to compute back pay are numerous. .
V.hile the mechanics of computing back pay 
are difficult and alternative figures might 
have been used by the trial court in 
fashioning a remedy, whatever difficulty of 
ascertainment exists v-as due to the dis­
criminatory wage structure maintained by 
the defendant. In such cases, it suffices 
for the trial court to determine the amount of



-60-

b a c k  w a g e s  " a s  a m a t t e r  o f  j u s t  and r e a s o n a b l e
1 £ or enc e , " Anderson v . Mt._Clemens Pottery
Co., 328 U.S. 680, 687-688, 6 6 S.Ct. 1187 
1192, 90 L . E d .  1515 (1946). " D i f f i c u l t y  o f  
a s c e r t a i n m e n t  is no l o n g e r  c o n f u s e d  w i t h  
r i g h t  t o  r e c o v e r y , "  M i t c h e l l  v .  Hl t c h e l l  
T r u c k  L i n e ,  I n c . ,  286 F,2d 721 a t  /2 5-/26
(5th Civ. 1961) and Hodgson v._R.icy Fashions,
Inc., 434 F .2d 1261 at 1262-1263 (5th Cir., 
3970). Since no single wage scale could be 
ascertained for women or men at Loveman's, 
and because the formula used by the trial 
court was reasonably calculated to compensate 
the discriminatees for their losses, we 
decline to require a more precise calculation 
in this case. id. at 242,

Lilcew i  s  e , i:n B.owe. V C C o 3 g n t o - P y\ 1 o l  i v e jCo. , sirpi
A 16 P O A, 4V.I 71 1, .l. a C t..d w i t h  t h e .impo s s x b i.. l i t y o f

d e t e r min i n g 'ckO J c; t e o f  p a y  o f  t h e pici i n t  i f JT. 1 Ci X. w_>
b e c a u s e o f t h e convpl e x i t i e s  o f t h e j o b b i d d ■i no;'-x * j
p r o c e du r C t t h e c o u r t o r d e r e d b a c k p a y a w ard S cX t
■ the m mum r a t e  v ■ i c h  t h e  p i a i n t i f f  c o u l d h a v e

o a r n e d - 4 3 6 F . 2 d a t 721.

There for(O - / in comput intX.
■f Q back pay awa:r d two

princ ip ie 3 are lua id: il) vmrcv■a li:stic exa ctituae
j. s not 3:■equired, (2 ) uiace1:• tadnties i n determining
what an emp3.ovee would liave ear ned but for the
discr im i.nation, should be re sol ved aga J.nst the
disc.rinn.nating employe.1r . Ji bn;;on_y. Goodyei n r
T i r e & 1lubber _Cq. , suHil' 431 i .2d cl t 1380, n.
491 F .2ci at 1330, n . 5.j <■

4 9 4 F .2d at 260-261.

In the instant case the district court did not ju•u lrm.i i.

t h e ard o: back pay 3aecause o f  t h e  - p o s s i b l e  d i f f i c u l t y  o f

calculation but completely denied bade pay to all but two

members of the affected class, 

least, some other class member 

discrimination; yet the court

No one would doubt that 

s lost substantial wages 

below deprived all class

, at 

due t o  

mem bers



-61-

(excc.pt Hairston and Warren) of a.ll compensation - for the

certain as well as the uncertain loss.. This plainly was error.

Judge Justice in a recent opinion in a Title VII case

closely analogous to this one clearly articulated this principle

"In attempting to allocate among the parties 
the burden of remedying many years of dis­
crimination in employment/ however, the court 
must choose between placing the burden on the 
company and union or placing the burden on the
wron ged employe
pay is nccessar
of employment d
own loss. j\ ba
case compels th
betw eon the com
hand , and the w
the former shot

Bu <h v. I.one Star Steel,

197 4).

b . Cost s Of h draini

The court did not el

the court was concerned a'

computing the award. Plot

thi s ground is untenablc ■

the matter of computation

Rules of Civil Procedure.

4 4 4 F . 2 d 791 (4th Cir. 19

Lin as,Inc A 4■ / * 34 F .2 d 1194

U . s . 99.1 (1971); Diaz v. '

>upp. 1301, 1309-10 (S.D. Fla. 1972). The costs of the masted

should be borne by the defendants.



• -62-

II

THE DISTRICT 
IN LIMITING T 
PLAINTIFF WAR

COURT WAS NOT JUSTIFIED 
EE BACK PAY AWARD FOR 
HEN TO A BEGINNING POINT

IN 1968.

Plaintiff Warren was one of the two plaintiffs awarded 

back pay by the district court. The court allowed Warren back 

pay from 1968 on the grounds that it was at this time that he 

had made his desire known to get an over-the-rcad driving job 

(A. I 102) .

Warren was employed by NAS on June 22, 1964 (A.Ill 535).

At that time McLean had an admitted policy of refusing to 

consider blacks for over-1hc-road jobs (A.Ill 896), That 

policy remained in effect until October, .196 7 when McLean 

abandoned its admitted practice in response to pressure from 

federal contract compliance offices. It would have been 

completely futile for Warren to have requested an over-the-road 

driving job between July 2, 1965 and October, 1967 for the 

simple reason that he would not have been considered for a 

road job solely because he was black.

Additionally, Warren filed a charge with the Equal Employ­

ment Opportunity Commission in May, 1967 complaining about his 

inability to get a job as a road driver. He stated in that 

charge (Plaintiffs' Exhibit No. 2) that he had applied for a 

job as early as 1966. Therefore, there was evidence before the



court that Warren had at least indicated an interest in a

truck driving job as early as 1966.

The record also demonstrates that Warren did take steps 

in May, 1967, albeit a charge to EEOC, to indicate his interest 

in an over-the-road job. This charge was filed prior to the 

time that McLean abandoned in October, 1967'its admitted 

practice of refusing to hire black drivers. It is therefore 

submitted that the beginning point for back pay for Warren skou 

be iTulv 2, 1955. See Pettway v. American Cast Iron Pipe Co.,

4 94 P .2d 2 55-2 56.

Ill

TMF CCNTIRru'.TiOT or THE J(33 ClL S SIFICLTION
SEP ICRITY STUP.D.4RD IS MOT MANDATED BY
BU 5lb US 3 i:;ECE3SITY.

IL i s w O-11 cstahlie•nod r.hd L cap 1 oyixient practices which

P£ireetuate into the present the effect of past discrimination

based cn race, unless just if .Led by busine ss

unlawful undor Sect ion 703 cf Tit 1 e VII, 42

2 , since it serves "to limit, segregate, or

in ways "which deprive or tend to deprive ii

onporton ities because of race. R ob in s on XT "

4 4 4 r.2u 791 (4th Cir. 1971), cert. dismissed 404 U.S. 1006 

(] 971) ; United SLates v , .Chesaoeakc & Ohio Rv. Co. , 471 F .2d 

582 (4th Cir. 1972) cert. denied 411 U.S. 939 (1973) .

Business necessity means "an overriding legitimate, non-racial



64

business purpose." Robinson v . Lorillard, 444 F.2d at 797, 

citing with approval, Local 189, United Pnperir.akers ancl Pnpor- 

worlcrs, API,-CTO , CLC v. United States, 416 F.2d at 939.

I1AS offered no reason, business or otherwise, which 

mandates the continuation of the classification seniority 

standard where, as here, it is clearly demonstrated that this 

standard perpetuates past discrimination; Park testified that 

there are no jobs or series of jobs at HAS which an employee

must perform in order to be qualified to do other kinds of jobs 

(A.Ill 766). The only requirement is that an employee meets 

current day hiring standards (A.Ill 766). Park further testi­

fied that there is no definite progression period from the 

helper classification to journeyman (A.Ill 767). Park, when

asked what standards, if any, are employed in determining when 

an employee is deemed qualified to move from the helper's 

position to journeyman, stated "That's an .interesting question." 

(A.Ill 767-768).

Here a system of promotion based on plant seniority coupled 

with job residency requirements based upon the minimum tenure 

required to gain the skill and proficiency of a given job 

classification would insure the safe and efficiency operation 

at MAS. This approach would provide for the promotion of 

black employees relatively unhindered by past overt acts of 

cliscriminat.ion. local 3 39, United Papormakcrs and Paperworkers



-65-

v. united States, 416 F.2d 980 (5th Cir'. 1969); Long v.

;tat

980 (5 th Cir

SOS 658 (N.D

446 F . 2 u 652

IV

t h e d i s t r i c t c o u r t e r r e d
IK RESTRICTING PLAINTIFFS TO .TRANSFER 
TO ROAD JOBS AT McLELK.

Ls part of the relief granted below the court allowed 

plaintiffs to transfer from ILLS to McLean but limited transfer 

to only read driver jobs (A. I 92 ).. Whatever the opportunity

blacks at McLean may have had to the jobs at McLean (switcher,

river or road driver) it is clear that b3 acks

0 cl t y l o s o S C.TV.C / > r* f ' v~ 1 o c*•v* • • _ • v '  - -  - -  ■ ........... -  • - One job

local or city driver—  was all white and had

. least l.1352 . See Plaintiff s' Exhibit K o . 16,

a c jvrio wen; Li

classifica tic-n-- 

been so since ai 

p. 32. Given the admission by MAS that the plaintifrs were 

hired into the tire recapping department solely because of 

their race, equity, based on the facts in this case now 

demands that they be given the opportunity i:or advancement at 

McLean for all jobs and not just tne road jobs.



66-

CONCLUSION

WHEREFORE, for the reasons stated above, plaintiffs 

respectfully pray the court to reverse the decision in the 

court below insofar as it denies back pay to all members of 

the affected class except two of the named plaintiffs; limits

Laintiff 'Warren; continues the 

T standard for upward mobility at MAS; 

Fer of affected class members to over- 

. plaintiffs pray that the case be 

remanded to the court below for appropriate relief on these 

matters. Plaintiffs also requests costs of this appeal.

R e s p e c t f u l l y  s u b m i t t e d ,
/ \
/ \ ! b

T  / H  n  a - ..

the 3d <?i c: v p <3 y award of

c1 a ssification senior

and restr1 cts the tra:

the -road jobs at McLe

ROBERT BELTON 
JONATimN WALL ii S 
J  . L £ V Ojl\ t\! j - j C ir i x'lb j < J v o 
Chambers, Stein, Ferguson & Lannii 
Suite 730 East Independence Plaza 
951 South Independence Boulevard 
Charlotte, North Carolina 28202

JACK GREENBERG 
MORRIS J . BALLER 
10 Columbus Circle 
New York, New York 10019

A t t o r n e y s  f o r  P l a i n t i f f s - A p p e l l a n t

or COUNSEL

C h a m b e r s ,  Stein, F e r g u s o n  & 
b a n n i n g

Charlotte, North Carolina 28202



Brit

for

two

rr.T?TTFTCATE OF SERVICE

The undersigned certifies that copies of the foregoing 

,f for plaintiffs-Appellants have been served on counsel 

each of the parties separately represented by serving 

; a ch of .said brief on:copra

V?. P. Sand ridge, Esq.
p. O. Drawer 84
V,’ in st on - s a 1 era, N . C . 2 7102

Hugh J. Beins, Esc.
"3 p  *> \r - .  y  4. . • > C ^ -  - '  (O  r.' ^  "

W i i s n i n c: ton, D . C . 2 C 015

This loth cay of August, 197:.

Claude M . Hamrick, Esq. 
2225 Wachovia Building 
Winston-Salem, N.C. 2/301

R e nn D r urn, E s q .
206 Pepper PuiIcing 
W in ston-Sa 1 era, N.C. 2 7 .1.01

Rcbp-.-ctfuilly s u b m i t  t o
4  J r\

/ /' ) , p
/ i t— p

V 1 \ ! / ° S .  /•' /" T/ 1 / / /? p <. i'H i\ / / ( £■'/

c c* r h (

/ C o u n s e l for P l a i n t i f i-hop_ Hants



r

IN 'THE

.

FOR THE FOURTH CIRCUIT 

EG. 74-1730

IRS TON, et al . ,

PrftricJtT* U - ' r'-vVo

ov-’

■ O'

;rNT I

j .

Cnar Lc

3 0 7 a 3 L J r i f :  a- :' c o F 1 Ct ?. -
th Indapender.ee Boulevard 
i:e, Noi th Carolina 28202

10
■ • . N gw " fork 10 . 9

Attorneys for Appellants