James v. Stockham Valves and Fittings Company Brief for Plaintiffs-Appellants

    '"j/?'* - t  (?)

. foiit • / ' { /

IN THE UNITED STATES COURT OP APPEALS 
FOR THE FIFTH CIRCUIT 

No. 75-2176

jlJ^' 7 '  t**1PATRICK JAMES, et al.,
Plaintiffs-Appellants,

t
. jol .

-vs-
A

STOCKHAM VALVES AND FITTINGS COMPANY, 
et al.,

Defendants-Appellees.
5 7 V , ,

r s ^

On Appea] From The United States District Court 
For The Northern District Of Alabama

BRIEF FOR PLAINTIFFS-APPELLANTS , 5 v



Page
J. Clerical, Timekeeper, Sales

and Guard Positions..........................  41
K. Black Employees Have Suffered

Economic Harm ...............................  42
ARGUMENT .....................................    44

I. THE DISTRICT COURT ERRED IN FAILING 
TO AFFORD FULL INJUNCTIVE RELIEF 
FROM THE MAINTENANCE OF SEGREGATED 
FACILITIES, A DISCRIMINATORY 
SENIORITY SYSTEM AND THE DISCRIMINA­
TORY SELECTION OF EMPLOYEES FOR JOBS,
TRAINING PROGRAMS AND SUPERVISORY
POSITIONS ......................................  44
A. The District Court Should be 

Ordered to Enter an Injunction 
Barring the Company from Main­
taining Segregated Facilities
or Programs ................................  44

B. The District Court Should be 
Directed to Enter an Order Which 
Remedies the Discriminatory Job
Assignment and Seniority Practices ........  45

C. The District Court Should be 
directed to Enter an Order 
Which Would Provide for an 
Affirmative Action Plan Designed 
to Remedy the Discriminatory 
Selection and Training Practices
for Craft and Supervisory Positions ........  51

II. THE DISTRICT COURT ERRED IN FAILING 
TO FIND THAT STOCKHAM1S TESTING
PROGRAM WAS UNLAWFUL ...........................  54
A. It Was Unlawful for Stockham 

to Have Imposed Testing Re­
quirements on Blacks for 
Promotion to Jobs From Which 
They Had Previously Been 
Excluded Other Than Those 
Requirements Imposed On Their
White Contemporaries .......................  54

B. The Wonderlic Test and the High 
School Education Requirement Had 
An Adverse Impact On Black 
Employees, Were Not Validated 
and Consequently Were Unlawfully
Used .......................................  57

iv



Page
III. THE DISTRICT COURT ERRED IN FAILING 

TO FIND THAT STOCKHAM'S UNLAWFUL 
EMPLOYMENT PRACTICES CAUSED BLACKS 
ECONOMIC HARM AND IN NOT AWARDING
BACK PAY ..........................................  61

IV. THE PROCEDURE OF THE DISTRICT COURT 
IN ADOPTING IN THEIR SUBSTANTIAL 
ENTIRETY THE PROPOSED FINDINGS OF 
FACT AND CONCLUSIONS OF LAW OF
DEFENDANT STOCKHAM IS SUSPECT .....................  68

CONCLUSION .................................................  70

Appendix A, Plaintiffs' Synopsis of 
the Court's Opinion

Appendix B, Testimony of Company
Managers and Supervisors 
and Colloquy Between the 
Court and Counsel Con­
cerning the General 
Allocation of Jobs by Race

Appendix c. PX 94
Appendix D, PX 91
Appendix E, EEOC Guideline
Appendix F, PX 95

29 CFR § 1607.11

v



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

No. 75-2176

PATRICK JAMES, et al.,
Plaintiffs-Appellants 

-vs-
STOCKHAM VALVES AND FITTINGS COMPANY, 

et al.,
Defendants-Appellees.

CERTIFICATE REQUIRED BY FIFTH CIRCUIT 
__________LOCAL RULE 13 (a)___________

The undersigned, counsel of record for Plaintiffs- 
Appellants, certifies that the following listed parties 
have an interest in the outcome of this case. These repre­
sentations are made in order that Judges of this Court may 
evaluate possible disqualification or recusal pursuant to 
Local Rule 13(a).

1. Patrick James, Howard Harville, and Louis Winston, 
all plaintiffs.

2. The class of black employees of Stockham Valves 
and Fittings Company, whom the plaintiffs re­
present .

3. Stockham Valves and Fittings Company, defendant.

i



4 United Steelworkers of America and Local 3036
thereof, defendants.

Attorney for Plaintiffs-Appellants

- ii -



TABLE OF CONTENTS

Page
Certificate Required by Local Rule 13 (a) ..................  i
Table of Contents .............................  iii
Table of Authorities ......................................  vi
Note on Abbreviations .....................................  x
Statement of Issues Presented for Review .................  xi
STATEMENT OF THE CASE 1
STATEMENT OF FACTS 3

A. An Overview of the Parties and the
Operations ....................................  3

B. An Overview of the Discriminatory
Practices .....................................  6

C. Segregated Facilities and Programs ...............  8
D. The Job Assignment and the Departmental

Seniority System ..............................  12
1. The Job and Pay Structure ....................  12
2. Departmental Seniority Structure .............  14

E. The Racial Allocation of Jobs at
Stoekham ......................................  16

F. The Racial Staffing by Departments
and by Jobs Within Departments ................  21

1. The Predominantly Black or White
Departments ...............................  23

2. The "Racially Integrated"
Departments ...............................  29

G. Training Programs for Hourly Paid
Jobs: Apprentice and On-the-Job ..............  31

H. Training Programs for Supervisory Jobs
and the Selection and Recruitment
of Supervisors ................................  34

I. Employee Testing Practices .......................  37

- iii -



TABLE OF AUTHORITIES
Cases:

Page
Albemarle Paper Co. v. Moody, 43 UoS.L.W. 4880, 40, 55, 57

9 EPD 10,230 (June 25, 1975)................  59, 60, 62
Anderson v. City of Albany, 321 F.2d 649 (5th Cir.

1963).... 45
Barnett v. W. T. Grant Co., 9 EPD 5[ 10,199

(4th Cir. 1975) ..............................  48, 58
Bolten v. Murray Envelope Corp., 493 F.2d 191

(5th Cir. 1974)   45
Brown v. Gaston County Dyeing Machine Co., 457 
F .2d 1377 (4th Cir.), cert. denied,
409 U.S. 982 (1972)   49

Buckner v. Goodyear Tire & Rubber Co.,
339 F. Supp. 1108 (N.D. Ala. 1972),
aff'd per curiam, 476 F.2d 1287 (1973)........  44, 53

Carter v. Gallagher, 452 F.2d 315 (8th Cir.
1971), cert. denied, 406 U.S. 950 (1972) . . . .  60

Chambers v. Hendersonville City Bd. of Educ.,
364 F . 2d 189 (4th Cir. 1969) ................  57

Duhon v. Goodyear Tire & Rubber Co.,
494 F .2d 817 (5th Cir. 1974) ................  59

Franks v. Bowman Transportation Co., 495 
F .2d 398 (5th Cir. 1974), Cert. granted
on other grounds, 43 U.S.L.W. 3515 (1975).... 51, 53, 59

Gamble v. Birmingham Southern Railroad Co.,
No. 74-2105 Slip Opinion (5th Cir.
June 16, 1965)................................  45, 61

Goldie v. Cox, 130 F.2d 695 (8th Cir. 1942) . . .  58
Griggs v. Duke Power Co., 401 U.S. 424 (1971) o . 8 , 55, 56

57, 59, 60
Griggs v. Duke Power Co., 420 F.2d 1225 

(4th Cir. 1970), aff'd in pertinent
part, 401 U.S. 424 (1971) ....................  56

In re Las Colinas, Inc., 426 F.2d 1005
(1st Cir. 1970), cert. denied, 405 U.S. 1067 . . 69

vi



Page

Johnson v. Goodyear Tire & Rubber Co.,
491 F .2d 1364 (5th Cir. 1974) ..............  48, 60, 61

Local 189 v. United States, 416 F.2d 980 
(5th Cir. 1969), cert denied, 397
U.S. 919 (1970) .......................... .. 48

Louis Dreyfus & Co., v. Panama Canal Co.,
298 F.2d 733 (5th Cir. 1962)................  69, 70

Louisiana v. United States, 380 U.S. 145 (1965). 56
Mid-Continent Petroleum Corp. v. Keen,

157 F .2d 310 (8th Cir. 1946)................  58
Moody v. Albermarle Paper Co., 474 F.2d 134 

(4th Cir. 1974), vac. & rem., 43 U.S.L.W.
4880, 9 EPD 51 10,230 (June 25, 1975)........  59

Moore v. Bd. of Educ. of Chidester School
Dist. No. 59, 448 F.2d 709 (8th Cir. 1971) . . 57

Morrow v. Crisler, 491 F.2d 1053 (5th Cir.
1975) (en banc) ............................  53

Morrow v. Crisler, 479 F.2d 960 (5th Cir.
1973), aff1d en banc, 491 F.2d 1053 (1974) . . 60

NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974) . . 53
North Carolina Teacher Ass'n. v. Ashboro City

Bd. of Educ., 393 F.2d 734 (4th Cir. 1968) . . 57
Pettway v. American Cast Iron Pipe Co., 46, 47
494 F .2d 211 (5th Cir. 1974) ..............  49, 52, 61

Railex Corp. v. Speed Check Co., 457 F.2d 
1040 (5th Cir.), cert, denied, 409 U.S.
876 (1972) ..............................  59

Roberts v. Ross, 344 F.2d 747 (3d Cir. 1965) . . 69
Rolfe v. County Bd. of Educ. of Lincoln County

Tenn., 391 F.2d 77 (6th Cir. 1968)..........  57
Rogers v. Int'l Paper Co., 510 F.2d 1340 49

(8th Cir. 1975) ............................  52, 59, 60
Rowe v. General Motors Corp., 475 F.2d

348 (5th Cir. 1972) ........................  49, 51, 58

Vll



The Severance, 152 F.2d 916 (4th Cir. 1945) . . . .  6.9
Singleton v. Jackson Municipal Separate School
District, 419 F.2d 1211 (5th Cir. 1970 (en banc) . 57

Tanker Hygrade No. 24, Inc. v. The Dynamic,
213 F .2d 453 (2d Cir. 1954) ..................  69

United States v. Bethlehem Steel Corp.,
446 F . 2d 652 (2d Cir. 1971) ....................  48, 49

United States v. Bethlehem Steel Corp.,
444 F . 2d 652 (2d Cir. 1971) ....................  49

United States v. Duke, 332 F.2d 759 (5th Cir. 1964). 56
United States v. El Paso Natural Gas Co.,

376 U.S. 651 (1964) ............................  69
United States v. Forness, 125 F.2d 928 (2d Cir.),

cert. denied, 316 U.S. 694 (1942) ..............  69
United States v. Georgia Power Co., 474

F.2d 906 (5th Cir. 1973)........................  39, 60
United States v. Jacksonville Terminal Co.,

451 F.2d 418 (5th Cir. 1971), cert.
denied, 406 U.S. 906 (1972) ..................  49, 60

United States v. Local 189, 301 F. Supp. 906 
(E.D. La.), aff'd 416 F.2d 980 (5th Cir.
1969), cert. denied, 397 U.S. 919 (1970)........  48

United States v. Lynd, 349 F.2d 785 (5th Cir. 1965). 56
United States v. Palmer, 356 F.2d 951

(5th Cir. 1966) .......... ...................... 56
United States v. Ramsey, 353 F.2d 650

(5th Cir. 1966) ................................  56
United States v. State of Mississippi, 339

F .2d 679 (5th Cir. 1964)........................  56
United States v. United Carpenters' Local 169,

457 F .2d 210 (7th Cir. 1972) ..................  49
United States v. United States Steel Corp.,

5 EPD H 8619 (N.D. Ala. 1973) ..................  51

Page

- viii -



United States v. Ward, 349 F.2d 795 (5th Cir. 1965)
Volkswagon of America v. Jahre, 472 F.2d

557 (5th Cir. 1973) ..............................
Vulcan Society v. Civil Service Commission,

360 F. Supp. 1265 (S.D. N.Y. 1973),
aff'd, 490 F .2d 387 (2d Cir. 1973) ................

Ward v. Apprice, 6 Mod. 264 (1705) ................
Witherspoon v. Mercury Freight Lines,

Inc., 457 F .2d 496 (5th Cir. 1972) ................

Statutes and Other Authorities:
28 U.S .C. § 1291 ..................................
29 U.S.C. §§ 151 et seq.................... ..
42 U.S.C. § 1981 ..................................
42 U.S.C. §§ 2000e et_ seq. , Title VII of

the Civil Rights Act of 1964 (as amended 1972) . . .

29 C.F.R. § 1607.11 ..............................  54,
9 Wright & Miller, Federal Practice and
Procedure § 2578, at 707 ..........................

118 Cong. Rec. 4492 (1972) ..........................

56

6 8 , 69

58
58

44

1

2
2

passim

Appendix E

70
64

Page

ix -



Note On Abbreviation

The following abbreviations are used in the 
brief:
"Stockhara" or "Company" .............. .. . . Stockham Valves and 

Fittings Company

"Steelworkers" ....................... .. . . United Steelworkers 
of America

"Local 3036" ......................... .. .. Local 3036, Steel- 
workers

"Union" .............................. .. .. Local 3036 and the Steelworkers

"PX" ................................. . .. Plaintiffs' exhibit

"DX" ................................. . .. Stockham's exhibit

"UX" ................................. . .. Union's exhibit
H i p  I t . . . Transcript of trial 

testimony

"D" .................................. . .. Deposition

"Op." ................................ ... March 19, 1975 opinion 
of the district court

x



STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

1. Whether the district court erred in concluding that 
defendants did not maintain an unlawful departmental seniority 

system?
2. Whether the district court erred in concluding that 

Stockham did not unlawfully discrimin^je...in the assignment 
or selection of employees to hourly paid jobs, or in the 
assignment, selection or recruitment of employees for training 
programs, or salaried positions?

3. Whether the district court erred in concluding that 
the testing and educational programs were lawful?

4. What affirmative relief is necessary and appropriate 
to remedy the discriminatory effects of the unlawful practices 
of the defendants on the plaintiffs and the class of black 
employees whom they represent?

xx



STATEMENT OF THE CASE

5 ^

A

This case of racial discrimination in employment comes here 
on appeal from a final judgment of the United States District 
Court for the Northern District of Alabama entered or^kMarch 19, 
1975. The appeal presents important and often litigated questions 
concerning the determination of racial discrimination and the 
appropriate remedy for that discrimination. This Court has 
jurisdiction of the appeal under 28 U.S.C. § 1291.

On October 5, 1966,'-tihe named plaintiffs, Patrick James,
Howard Harville and Louis wUnston, black men who were employed
at Stockham at that time, filed charges of discrimination with

■the EEOC. (3417a-19a; 107a) A broad spectrum of allegations of 
discrimination v/ere levelled against Stockham, including, inter 
alia, maintaining segregated facilities, denying blacks job 
advancement, training and promotional opportunities, staffing 
jobs on a segregated basis, excluding blacks from clerical and 
supervisory jobs, and using discriminatory testing and educa-

J j  . .tional requirements. (Id..) The EEOC rendered a decision
finding that there was "reasonable cause" to Relieve that 
Stockham engaged in discriminatory practices ahd issued the 
plaintiffs a notice of right to sue in February, ^1970. (4133a-37a)

Plaintiffs filed this suit as a class action on behalf of 
similarly situated black workers under Title VII of the Civil

1/ On June 8 , 1970, Patrick James filed an amended charge of 
discrimination with the EEOC which added Local 3036 and the 
Steelworkers as respondents. (3420a)

1



Rights Act of 1964, 42 U.S.C. §§ 2000e et s«[.( 42 U.S.C. § 1981 
and 29 U.S.C. §§ 151 et seq. ("the duty of fair representation"), 
on Marcl\ 16, 1970 .J The complaint alleges a pervasive and total 
pattern orraclal discrimination ranging from segregated 
facilities to the exclusion of blacks from.jobs, training and 
supervisory positions. The defendants generally denied these 
allegations.

On September 10, 19 70«Sthe district court referred the ^ ̂  ̂  
matter to'the EEOC for conciliation. The matter remained 
in conciliation until June 1973 when the district court granted 
plaintiffs 1 motion to set aside the order staying the matter 
for further EEOC proceedings. After the matter was reinstated-^ 
on the active docket, full discovery was expeditiously under­
taken. Pa pre-trial conference was scheduled, and trial was held

»■ ■ a i— in y

for 15 days from February 4, 1974,through February 22, 1974.
The court requested all parties to submit post-trial briefs,

proposed findings of fact and conclusions of law, and requested
oral argument. On March 19, 1975,the district court rendered

— •— .................................— -------------------- ................ ....................................

'final judgment. The district court found that Stockham
maintained segregated facilities, including cafeteria, bath-

_2 /)oms and locker facility, but engaged in no other form of /

2 / The district court found that the Conciliation Agreement 
entered into between the EEOC and Stockham two weeks before trial 
effectively resolved the issue of segregated facilities and 
accordingly entered no injunction barring the Company from main­
taining segregated facilities. However, the district court 
awarded the plaintiffs counsel fees for their work Which con­
tributed to the integration of Stockham's facilities because 
the lawsuit had a "therapeutic role" in bringing about the con­
ciliation agreement. (260a)

2



x Jdiscrimination. Specifically, the court found that Stockham 
has "at no time" made job assignments on the basis of race, and
that its promotional, transfer, seniority, testing and educa­
tional requirements and selection procedures for supervisory,

.4./apprentice and clerical positions were non-discriminatory.
Plaintiffs filed their timely notice of appeal on April 16, 1975, 

Plaintiffs moved this Court to correct or modify the record 
on appeal to include the post-trial briefs and proposed findings 
of fact and conclusions of law submitted by the parties after 
the district court had refused to include these documents in 
the record on appeal. Judge Simpson issued an Order granting 
the plaintiffs' motion on May 28, 1975. (273a-74a)

STATEMENT OF FACTS
A. An Overview of the Parties and the Operations

The named plaintiffs are black workers who have each worked
-5/ ,many years at Stockham. ' Patrick James,)a veteran of World

3/ The Opinion and Judgment of the Court comprise 160 pages.
For the convenience of the Court the plaintiffs have reduced the 
Opinion to its outline form, see Appendix A. The plaintiffs have 
also included in Appendix A a compilation of the number of find­
ings of fact and conclusions of law which the district court 
"adopted" from those proposed by Stockham.
4/ Apart from an award of counsel fees to plaintiffs for the 
"therapeutic role" the lawsuit played in integrating the facilities 
at Stockham, the court granted judgment for the defendants. How­
ever, the court with no explanation ordered that the "existing" 
age and educational requirements may not be imposed as "uncondi­
tional" requirements for entrance into the apprenticeship program. 
(259a-60a) and
5/ The plaintiffs brought this case on their own behalf/on behalf 
of similarly situated black workers. The district court found that 
this is an appropriate class action and that the class "consists of 
all black hourly production and maintenance employees currently 
employed by Stockham and all black .persons who bave been so employed 
at Stockham from July 2 , 1965, to the date of trial." (239a)

3



War II, a high school graduate and a graduate of Booker T.
Washington Business College, has been employed at Stockham since 
1950.j Like other blacks Mr. James was relegated to a laborer's 
yjob upon hire; and twenty-four years later he is still working 
as a laborer/. (632a, 638a-39a, 641a, 643a, PX 15, p. 6 8) ̂ lowcrrc] 

I ffarville. was employed ^n"‘I946 and worked until 1970 on the all­
black job of arbor molder in the Grey Iron Foundry. (851a)

^  Louis Winston was hired into a laborer's job in the all-black 
galvanizing department in 1964. (1373a) In 1965, Winston
was transferred to the electrical department as a laborer, the 
only job which blacks were assigned in that department. In 
1971 he became one of the first blacks to be enrolled in the 
apprentice program. (See infra at 32 )

The defendant Stockham Valves & Fittings Company is incor­
porated under the laws of Alabama and is engaged in the manu­
facture of cast iron and malleable fittings, and bronze, iron, 
steel ar.d butterfly valves. (110a ) Its various product lines 
are manufactured at one facility in Birmingham. The plant is
ivided into twenty-two seniority departments. Some departments

2_/
produce the basic materials and molds for Stockham's products

6 / The job requires that workers spend a considerable portion 
of their working day on their knees on the hot molding floor.
(857a-58a; 910a-lla) Mr. Harville was forced to retire on medical 
disability; at present Mr. Harville receives a medical disability 
pension from Stockham of $40.00 per month. (900a )
7 / Except for steel the Company manufactures raw materials 
into finished products. (.S-.ee .generally 4125a-26a)

sitr 4

j,y.i -



(e.g. Grey Iron Foundry, Bronze Foundry, Malleable Foundry), 
other departments assemble, finish and machine products (e.g. 
Tapping Room and Valve Machining and Assembly), and another 
group of departments perform maintenance functions (e.g. 
Electrical Shop, Machine Shop, Valve Tool Room, Construction). 
(116a-20a)

The workforce at Stockham's Birmingham facility has been
_ 8_ /

approximately 56% black from 1966 through 1973. (2946a-47a
3335a-42a)

Black White Total % Black

1966 1 , 0 0 2 760 1,762 56.9

1969 1,055 780 1,835 57.5
1973 1,298 995 2,293 56.5

It is clear that the percentage of blacks in the workforce 
exceeded the percentage of blacks in the Birmingham area. 
Likewise it is clear that the Company hired blacks for cer­
tain positions which are, not surprisingly, the hard, dirty, 
menial production jobs; whereas the Company hired, recruited 
and trained whites for the skilled, maintenance, clerical and

8 / The district court found that "[h]istorically, approx­
imately two-thirds of Stockham's employees have been black." 
(101a, 137a) The entire workforce has been considerably 
less tnan 2/s biacx although the production ana maintenance 
workers are approximately 2/3 black, see fn. 9 , infra.

5



-2/supervisory positions*
The defendant Unions, the United Steelworkers of America

("Steelworkers") and Local 3036, Steelworkers,are the bargaining
unit representatives for the production and maintenance hourly
employees at Stockham's Birmingham facility.

B . An Overview of the Discriminatory Practices
The practices of racial discrimination at Stockham have

to be viewed within the context of entrenched and presistent
segregation of facilities and opportunities at Stockham. At
one time the Company segregated just about every activity

the the the
imaginable, from/entrance gates and/pay windows to/bathroom 

the
and/locker-room. (see infra at 8-10) Of course, jobs were 
also staffed on a segregated basis as is forthrightly testified 
to by E. Reeves Simms, who was the personnel manager from 1950- 
1970 :

9 / The racial stratification of job opportunities is generally 
revealed by the Company's own classifications on its EEO-1 forms 
for 1966, 1969 and 1973. (2946a-47a; 3335a-42a)

1966 1969 1973
Occupations ' B W B W B W
Officials & Managers 1 1 0 1 1 132 6 168
Professionals 1 22 2 29 4 51
Technicians 1 2 1 1 2 1 5 31
Sales Workers 0 1 0 1 0 1 1
Office & Clerical 5 193 8 205 18 189
Craftsmen (skilled) 
Operations (semi-

0 162 0 158 4 185

skilled) 854 260 890 213 926 293
Laborers 115 0 218 0 291 38
Service Workers 25 0 25 2 1 44 29
Total 1 , 0 0 2 760 1,055 780 1,298 995

6



10/
"Q. . . .  Now, Mr. Sims, this general rule

which we have discussed about their being 
black jobs and white jobs at the Company, 
is that written down anywhere?

A.
Q.

A.

Q.

A.

No, sir.
How was it enforced, or how was it put 
into practice?
It was in practice when I came to Stockham 
and —
Would you just say it was a custom?
Yes, sir, custom." (footnote added) (331a)

11/

The segregation of facilities and the denial of equal job 
opportunity was maintained after 1965, both overtly and by
employment practices which continued the effects of the past

12/
racial allocation of jobs. First, the Company maintains a 
departmental seniority system which restricts transfer. Second, 
there was no posting of job openings. Third, the foremen in 
each department have substantial discretion to fill jobs,and this 
discretion has been used to continue the racial allocation of 
jobs within departments. Fourth, the Company excluded blacks 
from its formal and informal training programs for skilled and

10/ Mr. Sims had testified earlier that as a general rule (he 
could recall no exception) blacks were assigned to one set of 
jobs and whites were assigned to another set until 1965.
(305a-06a)
11/ see also Appendix "B" to this brief which includes testimony 
by company managers and supervisors concerning the racial alloca­
tion of jobs. Despite this direct testimony and undisputed 
statistical evidence, the district court found that Stockham "at 
no time" assigned employees to jobs by race. ( 140a )
12/ See infra at E-J.

7



supervisory positions until 1970-71, and thereafter admitted
only a token number of blacks. Fifth, the Company in August
1965 instituted the Wonderlic Test for transfer, promotion and
hire without any attempt to validate the test and without

12/requiring the incumbent employees to take the test. Sixth, 
the Company instituted age and education requirements for 
admittance to the apprenticeship program which have the effect 
of excluding or limiting black enrollment. Seventh, the Com­
pany has continued to limit black promotion from the hourly 
workforce to salaried positions: supervisory, clerical and
technical. Eighth, the Company, while regularly recruiting 
for its management program at the predominantly white colleges 
in the area, has never recruited at the predominantly black 
colleges.

Although these practices will be analyzed separately, they 
interrelate and above all, when these practices are taken to­
gether with the history of total segregation at Stockham, they 
make it perfectly clear to both the white supervisory staff 
and the black workers that there was a specific "place" for 
blacks at Stockham.

C . Segregated Facilities and Programs 
In 1965 Stockham maintained a system of total segregation

1 3 / The Company halted the use of the Wonderlic Test after the 
decision in Griggs v. Duke Power Company, 401 U.S. 424 (1971). 
In 1973 the Company hired a consultant to develop another test­
ing program for Stockham. Although tests were developed and 
were being given to employees, they were not as of the date of 
trial being used to select employees for jobs, see infra at
39-40.

8



employee identifica-14/which even extended to entrance gates,
15/tion numbers and pay windows. All the toilet facilities

built prior to 1965 were divided into "colored" and "white"
15/  . ±2/ areas. (3449a-50a; 4123a) similarly, the cafeteria

18/
and the bathhouse for the hourly employees

1 4/ Partitions divided two entrance gates to the Company; blacks 
entered on one side and whites on the other side. (284a) in 
1965, plaintiff Harville was physically prevented from entering 
a gate marked "white" by a plant guard. When Harville reported 
this event to his foreman, a Mr. Snyder, he was told that he 
did not have any business going through that gate. (859a-860a)

The particularly racist nature of partitioned entrance gates 
struck the Stockham Board of Directors as being contrary to Title 
VII and these partitions were removed by order of the Board in 
mid-1965. Peculiarly, the Board did not have the same reaction 
to the partitions segregating the bathrooms, the cafeteria and 
the bathhouse. (3455a-57a)
15/ The Company assigned employees identification numbers by- 
race until 1969: all white hourly employees had numbers beginning
with 3000 and continuing upwards; all black hourly employees had 
numbers which ranged from 300 to 2999. (4124a-
25a) During the period in which black and white employees had 
separate identification numbers, the Company paid employees in 
cash which was disbursed through pay windows. There were separate 
pay windows for employees with badge numbers 300-2999, i.e. 
black employees, and employees with badge numbers 3000 and up, 
i.e. white employees. (4123a-4124a)
16/ There were six bathroom facilities with adjoining separate 
rooms or with one room which was partitioned. See 10-11, infra.
17/ The cafeteria contained two serving lines, one on each side 
of the partition. (3436a-37a; 4122a)
18/ The bathhouse was divided by a partition running east-west; 
each side of the partition contained locker, shower and toilet 
facilities. The lockers on the north side were assigned solely 
to black employees and on the south side solely to white 
employees. (4123a)

9



11/
were partitioned into segregated areas.

These segregated facilities lasted until the eve of trial.
The persistence by which the Company clung to segregation is 
amply illustrated by their practice of removing the partition 
in the cafeteria each year (including 1973) for a labor day 
picnic and then reinstalling the partition after the picnic.

(466a, T. 1043-44)
On January 21, 1974, Stockham entered into a "conciliation

agreement" with the EEOC concerning certain segregated facilities.
' (1420a-142la; 3902a-3908a) Stockham agreed to remove the partitions i.
the cafeteria, bathhouse and in five toilets, and to reassign
the lockers in the bathhouse. (3902a-3908a)

The conciliation agreement also affected the YMCA program
21/

at Stockham. The program was established in 1918 solely

2 0/

19/ Although the signs demarcating "white" and "colored" areas 
were removed in 1965, the partitions remained and the custom Oi. 
segregation continued. A Company manager, Mr. Sims, testitie 
that an overwhelming majority of blacks_continued to eat on one 
side of the cafeteria and the overwhelming majority of whites 
continued to eat on the other side. (282a-283a; 1101a-10l2a;
4123a)
20/ The agreement was rather peculiar in timing and in the 
procedure by which it was entered. The conciliation agreement 
developed from charges filed in 1970 by a Mr. Darden and a 
Mr. Williams, who complained that they were unlawfully dis (1419a_ 
charged and that Stockham maintained segregated facilities. \

' 1420a, 1435a-1436a) The agreement was only between EEOC and 
Stockham; the charging parties were not even informed of the 
Agreement, nor did they participate in the negotiations.
(1435a) Neither the plaintiffs nor their attorneys were_ 
informed about the Darden-Williams charges or the negotiations 
concerning the removal of the segregated facilities. (
21/ The YMCA program sponsors activities such as athletics 
bible classes for the employees. (3430a-3432a, 3435a,
1471a-1472a) These activities were once totally segregated.

and
(Id.)

10



for employees and derives its support from Stockham. (207a)
Until December 1973 there were two segregated Boards which22/
made suggestions concerning the activities of the YMCA. In the con­
ciliation Agreement the Company agreed to create one integrated 
Board. (3902-3908a) However, the conciliation agreement
failed to terminate one set of segregated bathrooms - a women's

23/
bathroom in the Dispensary.

The black employees at Stockham had repeatedly attempted
to end these degrading practices of segregation. The members

2A/of the Union's Civil Rights Committee ("CRC") have repeatedly

22/ The Company actually integrated the Boards a month before 
they entered into the Conciliation Agreement. (4].22a)
The present Board consists of eighteen employees, nine 
white and nine black. (Id..)
23/ The court found that there were no "racially discrimina­
tory practices" concerning this women's bathroom. (208a)
This is contrary to the evidence in the record.
Briefly, the undisputed facts are as follows: (1) Stockham
maintains a dispensary at the plant which provides medical and 
dental care for employees; (2 ) there are seven women who work 
in the dispensary as receptionists, dental hyqenists or nurses 
(297a-298a; 2853a-2858a); (3 ) there are two women's bathrooms located 
side-by-sxde for these seven individuals (296a-297a); (4) there
are two black women and five white women who work in tne dis­
pensary (2853a-2858a); (5) the two black women, as testified to 
by a black nurse, have lockers in and use one bathroom while 
the white women have lockers in and use the other bathroom.
(2853a-2 958a)
24/ In 1965 the Steelworkers ordered Local 3036 to establish a 
Civil Rights Committee. (PX 6 8 , D. Robbins 6 8) Through an 
informal understanding officials of the Company agreed to meet 
with the CRC of Local 3036. In 1970, a joint Company and Union 
Civil Rights Committee was established under the collective 
bargaining agreement. (3132a; I329a-l330a)
Any action proposed by the union members of the CRC had to be 
approved by the Company officials before any corrective action 
would be taken.

11



requested that the partitions which segregated the cafeteria,
bathhouse and toilets be removed. (3454a; PX 6 8 ,
D. Robbins 52-53) Furthermore, the plaintiffs listed the
segregated facilities as discriminatory practices in their EEOC
charge. The EEOC found "reasonable cause" in a decision issued
in 1968 that Stockham's facilities were segregated. (4l33a-4l34a)
Yet, the Company refused to integrate its facilities until 1974.

D . The Job Assignment and the Departmental 
Seniority System
1. The Job and Pay Structure

Stockham divides its hourly production and maintenance jobs
into twelve job classes which run from job class ("JC") 2 through
13. (PX 24, Appendix C) The pay rate for each job is based on

25/
the job class in which it is located, although merit raises

26/
and incentive earnings may result in differentiation of 
earnings within job classes.

While non-incentive workers are paid a straight hourly 
rate there is a range of pay for each job class. For example, 
as of June 10, 1973, for JC 2 the pay range was $2.85 to $3.30

25/ The job class for each job is established by developing job 
descriptions in accordance with a system set forth in a "Job 
Evaluation Manual." Prime elements of the job, e.g. "responsi­
bility," "manual skill," etc., are each assigned numerical values; 
the total point value of the job determines its job class, and 
accordingly its pay rate. (4125a-4l26a)
26/ A disproportionate number of the employees on incentive are 
black. Approximately 70% of the black employees are on an incen­
tive program, as compared to 31.7% of white employees (125a; 3852a- 
53a) It should be noted that no job which is classified m  
the top four job classes, JC 10-13, is on an incentive program.

12



per hour, while the range for JC 13 was $3.66 to $4.47 per
22/hour. ( 3l90a-3198a) When he is first assigned to a

job an employee begins at the low-end of the scale, e.g. $2.85
per hour for JC 2. Within each job class there are specific
gradations or steps of pay; to receive a pay raise within a
job class an employee must obtain a predetermined score under
a "merit rating system" and be approved for the raise by his 

2-2/supervisor. ( 126a-12 7a) All employees receive merit ratings
from their foremen every six months, even though incentive

29/
, workers are not eligible for merit raises.

There are two types of incentive programs: direct and
30/

indirect. (See 123a-25a) An incentive worker is guaranteed

27/ The pay range for the job classes from 1965-1973 are in the 
record, PX 35.
28/ Each employee is rated twice a year; if he has a high enough 
rating he is awarded a merit raise, at least once a year even 
though his supervisor does not recommend him for a raise.
(PX 85, D. Bagwell 22; 126a)
29/ The foreman makes the rating by completing a form which lists 
several general work characteristics. As an example, the foreman 
is asked to rate an employee from "poor" to "exceptional" on 
"quantity of work." (137a); 3728a is an example of a ratmq 
form). An employee in the Personnel Department then quantifies 
the completed form according to a chart which assigns points to 
each category. (128a ) As might be expected, the overwhelm­
ingly white supervisory staff rated white employees substantially 
higher than black employees. See infra at 49 . The defendant's 
expert testified that in 1973 blacks averaged 71.3 while whites 
averaged 79.5 on merit ratings. (3971a; It should be noted 
that a merit rating becomes part of a worker's personnel file 
and is a factor considered in promotion and training selection.
(PX 85, D. Bagwell 25; 3353a-3355a)
30/ The indirect incentive worker, unlike the direct incentive 
worker, does not receive incentive pay on the basis of "his pro­
duction." (1460a) Rather, his pay is calculated on the basis 
of the production of direct-incentive workers for whom he pro­
vides a service. (1460a-1462a)

13



a On the2l/
certain hourly wage depending on his job's JC.

basis of the incentive program established at Stockham, a
direct incentive worker's pay averages approximately 25% above
his base incentive rate, ( 124a ) ; indirect incentive workers
average something less than that amount. (1481a-82a)

2. Departmental Seniority Structure
At least since 1240 Stockham has maintained a departmental

seniority system. ( 130a) The jobs in the plant are divided
31/into twenty-two seniority departments which have determinative

12/promotion and regression consequences for the bargaining
unit employees. The basic seniority provision in the collective
bargaining agreement has remained unchanged in substance and
was in effect at the time of trial. Other factors being equal,
departmental seniority determines promotions, lay-offs and
recalls. Accordingly, a worker who transfers departments is
now, and always has been, a new employee for purposes of promotion

3A/and regression in the new department.

3 ]/ For example, the incentive rate for JC 2 is $2.85 per hour, 
while it is $3.29 per hour for JC 9. ( 3l90a-3l98a) _ An
indirect incentive worker is guaranteed a slightly higher rate 
than a direct incentive worker in the same job class. ( 124a)
32/ The seniority departments are set out by stipulation of 
the parties, 3725a-3727a.
3 3 / As used in this brief, "regression" is a short form for the 
movement of an employee(s) during a reduction-in-force and lay­
off? in other words, the term refers to the process by which 
employees are laid-off from a job, department, and the plant.
14/ lee. 1964 Agreement, 3093a-3094a; 1967 Agreement,
3119a? 1970 Agreement, 3145a? 1973 Agreement,
317 3a-3l74a.

14



Prior to June 10, 1970, if a worker transferred departments,
he immediately lost all seniority in his old department.
(3096a; 3121a) Consequently, if there was a reduction-
in-force he would be among the first employees laid-off.

In 1970, this harsh requirement was slightly modified. An
employee had eighteen months after transfer to decide if he
wanted to return to his old department. If within that time he
decided to return he would be permitted to re-enter his old
department within twenty-four months of his transfer with his

35/
accumulated seniority. (3l48a-3l49a)

A further modification was instituted by the 1973 collec­
tive bargaining agreement. If after eighteen months an employee 
elected to remain in the department to which he transferred, 
then he was allowed to retain his seniority in his old department 
solely for lay-offs, but only until he had been in the new 
department as long as he had been in the old department. If 
during this period he was laid-off, 'he was permitted to return

Jlfi/to his old department with his accumulated seniority.

(3177a-3l78a)
Under both the 1970 and 1973 Agreements, the basic features 

of Stockham's seniority system remained unchanged: (1) an
employee who transfers departments forfeits his accumulated

35/ If he elected to stay in the new department he lost his 
accumulated seniority in his old department.
36/ The Union from 1967 through 1973 had been negotiating for 
major revisions in the departmental seniority system, see 
infra at 61, n. 157.

15



seniority at some point; (2 ) an employee who transfers depart 
ments is a new employee for all promotion and regression pur­
poses in his new department; and (3) a departmental employee 
has the first opportunity to promote to all vacancies within 
his department.

E . The Racial Allocation of Jobs at Stockham
The evidence is uncontroverted that at least until 1965

Stockham assigned jobs on a racial basis. The plant manager,
personnel manager and a superintendent testified that the racial

32/
allocation of jobs was the "general rule," that they could
not recall a single exception prior to 1965 to the general rule

3 ft/of segregated job staffing, and that it was a "custom" to
33/staff jobs on a segregated basis at Stockham. In addition,

the statistical evidence clearly confirms the segregated
practices. The plaintiffs introduced an exhibit, PX 1, which
listed the jobs in which "current employees," i.e. those employed
as of September 1973, were working as of June 1965, June 1968,

40/ As of June, 1965,
November 1970 and June 1973. /in the several hundred hourly-

3 7 / Sims (Personnel Manager), 305a-306a, 3568a-69a ,
Carlisle (Superintendent) 3607a.
38/ Burns (Plant Manager) 3679a-3680a; Sims, 305a-306a.
3 9 / Sims, 331a. This testimony as to segregated staffing of 
jobs, as well as relevant colloquoy between Counsel and the 
district court is set out in Appendix "B."
4 0 / px 1 was compiled from forms ("McBee forms") in each employee' 
personnel file which detail the work history of the employee, in­
cluding his race, job, job class level and "payroll" department.
Some payroll departments are identical to seniority unit department 
Other seniority unit departments may include more than one payroll 
department; however, payroll departments are not divided between 
seniority departments. (PX 80 contains a stipulation between the 
Company and the Plaintiffs detailing the payroll and seniority 
departments.)



paid job categories, there was not one in which both a black
and white were working. (2887a-2936a) Furthermore, a half-dozen
company managers and supervisors testified that jobs within
departments were segregated and that the segregation, in many

41/
cases, continued well after 1965.

Not surprisingly, the segregated staffing of jobs resulted 
in blacks generally being placed in the lowest-paying jobs at 
Stockham. The following chart lists the job classes whites and 
blacks who were working as of September 1973 held in June .1965,
June 1968, November 1970 and June 1973 { 2887a-2888a, see fn. 9 supra)

INCENTIVE WORKERS
42/Job Class June 1965 June 1968 Nov. 1970 June 1973

B W B W B W B W
B9 0 5 0 1 0 1 1 2 22

B8 0 47 2 53 4 60 18 1 1 1

B7 0 4 18 1 23 1 70 9
B6 25 0 34 0 47 0 64 0

B5 134 0 214 1 235 1 279 1 1

B4 2 1 1 72 1 82 0 109 5
B3 89 0 80 0 94 0 102 4
B2 58 0 2 1 1 32 1 157 15

TOTALS 32 7 57 441 58 517 74 801 177

40/ (Continued)
The plaintiffs in preparing pxl placed each worker for 

whom they had a McBee form (i.e. every worker employed as of Septembe 
1, 1973) in the job that he was working as of four dates, June 
1965, June 1968, November 1970 and June 1973. The results are 
recorded in PX 1, which lists the jobs by payroll department.
Al/ See e.g. Sims, 325a (Tapping Room); Carter, 911a-9l6a- (Grey 
Iron Foundry including the Ductile Foundry); Waddy, 1056a-1057a 
(Brass Foundry); Waddy, 1060a-1064a (Brass Core Room); Burt 1672a 
(Shipping, Receiving and Dispatching); Vann, Il30a-ll38a (Valve 
Machining and Assembly); Pugh, 1227a-1228a, Sims 3l0a-3l5a 
(Malleable Foundry); see Robbins, President of Local 3036, I308a-1309
(Valve Tool Room)
42/ "B" indicates an incentive pay rate.

17



NON-INCENTIVE WORKERS
Job Class June 1965 June 1968 Nov. 1970 June 1973

B W B W B W B W

13 0 46 0 55 4 77 1 144
12 0 9 0 7 0 9 3 34
1 1 0 10 0 9 0 14 0 22

10 0 5 0 14 0 14 2 30
9 0 24 2 34 3 42 9 52
8 0 2 1 4 3 6 7 7
7 0 2 1 5 2 1 1 24 24
6 2 9 16 1 1 19 8 27 25
5 103 3 108 1 129 5 143 9
4 8 0 1 1 0 15 1 40 1

3 31 0 43 1 45 0 56 5
2 34 0 59 3 61 2 190 14

TOTALS 178 1 1 0 239 144 281 189 502 36 7
These charts plainly illustrate the allocation of lower-paying 

jobs to blacks. First, in 1965 not one of the 502 black workers 
who were working as of September 1973 was in a job located in 
job class 7 and above, as compared to 154 or 92% of the 167 white 
workers who were working in job class 7 and above. Secondly, 
the persistent disparity in earnings opportunity continued after 
1965 with only slight improvement in the employment position of
blacks (2887a-2936a)

The Average Job Class For Black 
And White Incentive Workers

BLACKS WHITES
June 1965 3.94 7.95
June 1968 4.50 7.78
Nov. 1970 4.50 8 . 0 1

June 1973 4.35 7.15

18



The Average Job Class For Black 
And White Non-Incentive Workers

BLACKS WHITES
June 1965 4.04 10.74
June 1968 4.02 10.35

June 1970 4.25 10.51

June 1973 3.90 10.23
The plaintiffs corroborated the job class analysis which

resulted from the McBee forms (PX 1) by doing a job class analysis
(and also earnings analyses, see infra at K ) from the payroll

43/
register of the Company dated September 2, 1973 (PX 15). The
continued disparity in earning positions of blacks and whites
is fully demonstrated by the analysis of the September 2, 1973

44/
register, (3815a)

43/ The plaintiffs placed the payroll register for that date,
(PX 15), which contains earnings, seniority and job class data 
for each employee on computer tape and ran that information in 
order to obtain comparisons in earning and seniority data between 
whites and blacks. (See 3765a-3855a) The plaintiffs submitted the 
working tapes for these charts to the Company and, after the 
Company reviewed the tapes for mechanical errors, reworked the 
tapes to correct those errors pointed out by the Company. (1827a)
44/ NON-INCENTIVE WORKERS - 9/02/73
JC 2 3 4 5 6 7 8 9 10 1 1 12 13 Total

#B 12 8 38 47 91 28 22 6 5 2 0 2 2 371
#w 15 4 2 12 23 26 10 53 26 23 31 141 366

INCENTIVE WORKERS — 9/02/73
JC B2 B3 B4 B5 B6 B7 B8 B9 Total

#B 209 138 105 263 68 69 18 2 872
#w 17 4 4 9 0 9 106 29 178
For the convenience of the court, PX 94 is attached hereto as 
Appendix "C." It should be noted that PX 94 includes 30 individuals 
in JC 1; these individuals were listed in the hourly payroll 
register as either clerks or apprentices and, as such, are not in 
a particular job class. ( 5.82a ) They are not included in the
above tables.

19



non-incentive workers was 3.90 compared to 10.23 for white non­
incentive workers; (2 ) the average job class for black incentive 
workers was 4.15 compared to 7.19 for white incentive workers;
(3) of the 366 white non-incentive workers> 274 or 75% were in 
JC 9 or above, compared to only 11 or 3% of the 371 black non­
incentive workers; of the 178 white incentive workers, 135 or 
76% were in the two highest incentive job classes, 8 and 9, com- 
pared to only 20 or 2% of the 872 black incentive workers.(Appendix C 

The jobs to which blacks were assigned were also the most
menial and most unpleasant in terms of heat and dust. Laborer

46/
jobs at Stockham were reserved for blacks. (2946a-2947a;3335a-3342 
see also PXl) Blacks filled the laborer positions even in depart­
ments (Electrical, Pattern Shop, Valve Tool Room, and Tapping 
Tool Room) which were otherwise staffed by white employees,

The disparity is startling: (1) the average job class for black

4.5 / The district court wrongly discounted the evidence of dis­
criminatory job class assignment on the basis of its faulty 
finding that there was no correlation between job class and 
earnings. (143a ) Of course, this argument simply falls by
its own weight when non-incentive workers are compared since 
there is a direct and determined relationship between job class 
and earning rate for non-incentive workers, see supra at 12-3. 
Also, there is a relationship between job class and earnings for 
incentive workers as well, although there is greater variability 
depending on the particular incentive program and the individual 
worker, see supra at 13-4.

Moreover, the racial disparity in job class is mirrored 
by a pronounced disparity in actual earning rate and gross 
earnings between blacks and whites, see infra at 42-3.
46/ The number of laborers as illustrated by the Company's 
EEO 1 Forms (2946a-2947a; 3335a-3342a) is as follows:

1966 1967 1968 1969 1971 1972 1973
White 0 0 0 0 14 30 38
Blacks 115 118 131 12 8 12 3 204 291

20



see infra at 28. A company superintendent readily admitted
that the hottest dirtiest and dustiest departments at Stockham
jjj-g the foundries: Grey Iron/ Malleable and Ductile. (945a — 946a)
Of the 586 hourly employees in these departments as of September

42/ 48/
1 9 7 3 , 551 or 94% were black. (PX 91, 3765a-66a)

F. The Racial Staffing by Department 
and by Jobs Within Departments

The racial allocation of jobs at Stockham has resulted in
the racial staffing of departments and in racial staffing within

and white employees in each seniority department as of September

4 7/ Also it is important to note that the jobs in JC 11 13 in the 
foundries are "white only" jobs, see infra at 25-7. The district 
court found despite the plain evidence in the record that blacKs 
were not assigned to hotter, dustier or dirtier jobs them whites. 
(1 2 2a)
48/ PX 91 is attached hereto as Appendix "D." On PX 91 the 
"seniority departments are numerically designated; the numerical 
code is set out in PX 80, 3725a-3727a. Departments listed as 23-26 
on the printout, PX 91, refer to hourly -payroll departments 
which are not in the bargaining unit, but which were included m  
the September 2, 1973 hourly payroll register. These departments
are as follows:
No. on PX 91-97 Hourly Payroll Dept,. PayrolOio^

2 3 Employment (Industrial) 7(3

4 9/ The district court did not make any finding of fact per sj|. 
concerning the racial staffing of departments, but simply found, 
without further explanation, that blacks work in every department. 
(138a) This finding ignores the disproportionate racial depart 
ment assignment and the segregation of jobs within departments.
50/ The source for this listing is PX 91, Appendix "D" hereto, 
see fn. 48, supra.

The chart below indicates the number of black

50!/1973, and the number of white and black employees who were

24 Plant Protection and Personnel 71
72 
7525

26

Services
Medical
Y.M.C.A.

21



still employed as of September 1973, by department as of June 1965.51/

52/ 53/ 1 9 7 3 % b 1 9 6 5  o/cB
No. Seniority Depts. R  w R  TaT 1 CkfZNo. Seniority Depts. B W 1973 B W 1965
14 Galvanizing 15 0 1 0 0% 9 0 1 0 0%
04 Coreroom & Yard 76 1 99% 24 0 1 0 0%
03 Grey Iron Foundry 2 92 16 95% 92 0 1 0 0%
1 1 Final Inspection 52 4 93% 16 0 1 0 0%
01 Malleable 259 19 93% 88 4 96%
02 Brass Foundry 59 8 8 8% 30 1 97%
17 Shipping 56 8 8 8% 22 0 1 0 0%
12 Foundry Inspection 56 9 8 6% 25 0 1 0 0%
18 Dispatching 2 7 7 79% 4 0 1 0 0%
20 Brass Core Room 1 1 3 79% 1 1 0 1 0 0%
15 Tapping Room 151 45 77% 53 16 77%
13 Valve Finishing Insp. 20 18 53% 8 4 6 7%
2 1 Construction 15 18 45% 5 6 45%

6 Valve Machining & Assembly 70 171 2 9% 76 36 68%
10 Foundry Repairs 12 55 18% 4 10 2 9%
09 Machine Shop 8 50 14% 3 9 2 5%
08 Electrical 2 19 1 0% 1 7 1 2%
05 Pattern Shop 3 37 8% 1 7 1 2%
07 Valve Tool Room 1 17 6% 0 5 -
16 Tapping Tool Room 2 30 6% 0 1 1 -

.5 y The source for this listing is PX 1 , see fn. 40 , supra.
32/ The "No." refers to the numerical designation of the depart­
ments on P>r 91-97, see fn. 48, supra.
53/ The departments purchasing (22) and metalurgical (19) have 
been left off the chart because they are relatively insignificant 
—  respectively they have seven (7) and three (3) employees. 
(Appendix D)

22



For the purpose of the following discussion the plaintiffs 
have classified the departments into three categories: pre-

54/dominantly "black," predominantly "white" and racially integrated. 
However, all have one fundamental similarity - there is a tradi­
tion of racial assignment of jobs within each department. The 
precise employment pattern in each seniority department is not
detailed here; rather, examples of the discriminatory practices

33/
in each category of departments are set forth.

1. The Predominantly Black or 
White Departments

The following departments are staffed predominantly with 
black employees: Galvanizing, Coreroom and Yard, Grey Iron
Foundry, Final Inspection, Malleable, Brass Foundry, Shipping, 
Foundry Inspection, Dispatching and Brass Cove Room. As of 
September 1973, there were 903 or 72% of all blacks in the 
hourly workforce in these departments, compared to only 75 or 
13% of the whites. (Appendix D)

The following departments are predominantly staffed with 
white employees : Tapping Tool Room, Valve Tool Room, Pattern
Shop, Electrical Shop, Machine Shop and Foundry Repairs. As of 
September 1973, there were 208 or 36% of all whites in the hourly 
workforce in these departments as compared to 28 or 2% of all 
blacks . (IcU )

54/ The departments classified as predominantly "black1 or "white" 
have at least 80% of the predominant race in that department.
55/ A detailed evaluation of the racial staffing of jobs in 
departments may be undertaken by a close review of PX 1.

23



since 1965. On the one hand, of the 162 employees who were hired
since 1965 (working as of September 1973) 147 or 90.7% working
in the predominantly white departments are white; on the other
hand, of the 695 employees who were hired since 1965 (working as
of September 1973), 624 or 89.8% working in the predominantly

56/
black departments are black.

The basic pattern of staffing in the predominantly black 
departments has been straightforward: the few jobs in the high-
paying job classes are reserved for whites and the remaining

57/jobs are filled by blacks. For example, all the jobs in

The overt racial staffing of these departments has continued

56/ The following charts indicate the departments in which 
employees hired since 1965 were working as of September, 1973:

Predominantly
White

Departments
B W

Tapping Tool Room 2 17
Valve Tool Room 0 9
Pattern Shop 2 26
Electrical Shop 1 13
Machine Shop 4 3 7
Foundry Repairs 6 45

Totals 15 147
These figures are derived from PX 
the composition of each seniority 
race and date of hire. See also

Predominantly
Black

Departments
B W

Galvanizing 8 0
Coreroom and Yard 49 1
G. I. Foundry 218 16
Final Inspection 30 4
Malleable 181 15
Brass Foundry 34 8
Shipping 41 8
Foundry Inspection 37 9
Dispatching 23 7
Brass Core Room 3 3

Totals 624 71
93, (3769a-3819a) which analyzes 
department bv, inter alia, 
335a-336a, 472a-473a, 911a.

57/ In the few years prior to trial, some whites have begun to 
be assigned to jobs in the lower job classes. (316a, 914a-915a 
1229a) .

24



the ten predominantly black departments at or above job class
5§/

9 have always been filled by white employees.
Box floor molder (large), has the highest job class (12)

in the G. I. Foundry. At all times since 1951 at least 5-6
59/

employees have held this position, but never a black. (906a-
90'fe) At least six white employees who were hired since 1965 have
become box floor molders or were placed in training programs to

£lQ/become box floor molders (large) . ('3732a-3749a, 925a-928a
The job of craneman, JC 12, in the Grey Iron and Malleable

£1 /Foundries has always been filled by white employees. (922a,

58/ The jobs in JC 9 and above in these departments are as fol­
lows : box floor molder (large), JC 12, G. I. Foundry; Craneman,
JC 11, G. I. Foundry and Malleable Foundry; ductile iron melter,
JC 12, G. I. Foundry; oven operator, JC. 13, Malleable Foundry.
59/ On the last day of trial, Stockham announced that a black 
employee, Willie Lee Richardson, would be placed on the apprentice­
ship program for box floor molder (large). (2674a-2676a) Mr. 
Richardson had been employed by Stockham for over nine years, 
during which time he only missed 8 days of work. (2882a)
60/ Mr. Wells, who does not have a high school education, was 
hired as a craneman learner on September 28, 1965, and sub­
sequently became a box floor molder on September 15, 1969. (3732-49a) 
Mr. Earnest Alverson, Jr., who does not have a high school educa­
tion, was hired as an apprentice molder on October 11, 1965, and 
subsequently became a craneman learner, April 27, 1966, and then 
a craneman, April 19, 1971. (Id.) Mr. Carlisle was hired at
age nineteen on August 23, 1971, and on June 26, 1972, became an 
apprentice molder. (Id.) Mr. Kilpatrick v/as hired on October 
28, 1966, as a box floor molder learner, and on May 4, 1970, 
became a box floor molder. (jtd.) Mr. Russell was hired at the 
age of twenty-one on July 28, 1969, as an apprentice molder, and 
on August 27, 1973, became a box floor molder. Mr. Naylor was 
hired at the age of nineteen and he became on July 29, 1968 an 
apprentice millwright, on June 3, 1970, a box floor molder learner, 
and on September 18, 1972, a crane operator. (Id.)
61/ A few weeks prior to trial the company began to train a black 
as a crane operator. ( 92 3a)

25



924a, 1227a-28a) It is the normal practice for the Company to 
train its crane operators by placing them in the crane with an 
experienced operator. (921a-922a, 1567a-1568a) At least seven 
white employees who were hired since 1965 have received some train­
ing as crane operators in the Grey Iron Foundry or the Malleable 

62/
Foundry. (924a-928a, 1574-1575a) Furthermore, there were black 
employees who not only had greater seniority than the whites who 
were trained as craneman, but blacks also were working in jobs 
which provided on-the-job training and experience for operating a 
crane. (1559a-1566a) Nevertheless, the Company skipped over these 
blacks arid trained whites for the job of craneman.

The ductile iron melter, a JC12 position, is the only 
63/ " M /

position in which a white has been placed in the Ductile Foundry.
Oven operator, the only JC 13 position in the Malleable 

Foundry, has never been worked by a black employee. (1228a, 3198a) 
However, a white employee hired in April 1967 has worked and 
been classified as an oven operator. (3750a-52a; 1229a)

62/ Mr. McConnell was hired into the G.I. Foundry on October 7, 
1971, and became a crane operator on August 28, 1972. (3758a-63a)
Mr. Parsons was hired into the G.I. Foundry on March 24, 1971, and 
became a crane operator on August 30, 1971. (Id_. ) Mr. Hayes, who
does not have a high school education, was hired into the G.I. 
Foundry on January 18, 1972, and became a crane operator on June 10, 
1973. (Id.*) Mr. Mowery was hired on March 12, 1968, and on March 12,
1973, he became a crane operator in the Malleable Foundry.
(3750a-53; see 1239a)
63/ There is one white employee who works part-time on other jobs 
in the Ductile Foundry. (914a-915a) Moreover, when the Ductile 
Foundry, which is located in the G.I. Foundry seniority unit began 
operation around 1969, the Company placed a white employee from 
outside the G.I. Foundry in the job ahead of all the black workers 
in that department. (915a-916a)
64/ The first black, a Mr. Hill, who was hired in 1961, was 
placed on the job on January 17, 1972. (3755a—3757a) Frank Sorrow,
a white employee who was hired on August 6 , 1973, and who did not nave a high school diploma, became an iron melter in September 
1973. (3764a, 1591a) -26-



Of course, all these white employees who were hired since
1965 and who were promoted and/or trained for these jobs were
considerably junior in seniority to many black employees in the

£5/Grey Iron and Malleable Foundries.
The basic pattern of segregated staffing in the predominantly 

white departments is as obvious as in the predominantly black 
departments. In these six departments blacks have historically 
been relegated to laborer, serviceman, clean-up or oiler jobs^
(JC 2-4) , while whites have entered the departments as learners 
or apprentices and have progressed to job class 10-13 jobs. 
(321a-322a; PX 1-2887a-2936a; PX 93-3769a-3814a)

Plaintiff Winston's employment history is a good example
of the pattern of discrimination in these departments. On
January 1, 1965, Winston was transferred to the Electrical Shoo

67/
as a laborer, JC 2. Winston has continually received excellent

68/
personnel ratings. ^1275a—1276a) In fact Winston's performance

65/ In the G. I. Foundry there were 107 blacks who were hired 
to 1966 and who were working as of September 1973, while 

in the Malleable Foundry there were 89 such blacks. 3769a 3814a)
-66/ These jobs are not on any incentive program. (PX 1)
Szj/ At that time, the Electrical Shop contained a laborer's 
position, an apprentice position and jobs in JC 10-13. (PX 1)
£&/ In late 1965 his first foreman, Mr. Warner, wrote the 
following in his file (1384a)

"Louis has been doing a good job. He 
helps out whenever he is needed. He 
gets along well with the other men. He 
needs little supervision. He's always 
on the job, has a good attitude and 
carries out instructions."

27



was so exceptional that his supervisor, after Winston made the
request (1388a), recommended that his job grade be changed

69/
from JC 2 to JC 3. Yet, despite Winston's acknowledged ex­
cellent work record, the Company brought white employees into 
the Electrical Shop who had less seniority than Winston and 
trained them to become electricians. (I395a-1396a) it was not
until October 1971 that Winston was selected for the apprentice-

70/
ship program for electricians. ( 2944a-2945a)

The employment history in the Valve Tool Room is similar to 
that of the Electrical Shop. The job of serviceman, JC 2, has 
always been filled by a black, (.1306a-l308a) whereas the other 
jobs in the Valve Tool Room, which range from JC 9-13, and

J Vapprentice, remained all-white until April 1971. (1254a,
1309a) The Company has trained 3 or 4 whites as machinists 
through the on-the-job training program in the department since

fie/ Winston's foreman, Mr. McDermott wrote on Winston's personnel 
report that:

"It's my opinion this man should be re­
classified from Job Class 2 to Job Class 3.
This man assists in, one, charging motors 
throughout the plant; two, installation of 
jobs such as pulling wire in conduit and 
overhead; three, waters batteries and checks 
conditions of same; four, marks and stops the 
spare motors in the shop; five, assembly of 
motors in the shop." (i396a)

70/ The Company never selected a black for an apprentice program 
until April 1971, see infra at 31.
2 V  The only black who has worked in the Valve Tool Room in a 
job other than serviceman is Francis Smith who in 1971 became 
an apprentice machinist. (1254a,1309a) in April 1971 the 
machinist learner position, JC 9, paid $2.91 per hour, whereas 
Francis Smith, the black employee who was placed in the apprentice 
program, started April 1971 at $2.80 per hour. (PX 35; 1259a-1262a)

28



1965. (1309a-14a)
2. The "Racially Integrated" Departments

22/The integrated departments reflect the traditional pattern 
of "vertical segregation." Mr. Sims testified to this traditional 
segregation when, referring specifically to the Tapping Room, 

he said:
"Q. But, in fact, blacks did not fill the 

traditionally white jobs prior to '65, 
is that true?

A. True.
Q . And that was irrespective of the depart­

mental seniority of the black employee, 
isn't that true?

A. Yes, Sir." (328a, see also 324a-325a)
The white employees in these departments generally are

allocated the jobs with greater earning potential, i.e., in the
73/

higher job classes. This is amply illustrated by the largest

72 / The racieilly integrated departments, where at least 2 5% of 
each race is in each department, are the following: Valve
Machining & Assembly, Valve Finishing Inspection, Tapping Room 
and Construction.
■jjJ  The following chart illustrates the average hourly earning 
rat® of black and white employees in those departments and their
respective average seniority: (PX 91 - Appendix D)Average Average

Hourly Rate Senior Year
Department B W B W B W

Valve Machining & Assembly 70 171 3.76 4.25 1964.06 1965.45
Valve Finishing Inspection 20 18 3.69 3.57 1963.45 1966.83
Tapping Room 
Construction

151 45 3.79 4.05 1964.49 1965.04
15 18 3.54 4.08 1962.00 1966.5C

Except for the Valve Finishing Inspection (where the black average 
earnings are slightly higher than those of whites and where whites 
average considerably less seniority than blacks), whites earn sub­
stantially more and have less seniority than blacks. Whites earn 
$ .4 9  more per hour in Valve Machining and Assembly, • 2.6 more per 
hour in the Tapping Room, and $.54 more per hour in Construction.

- 29



1A/of these departments, Valve Machining and Assembly. Generally,
25/the higher-paying maching operations are staffed by whites,
25./

while the lower-rated jobs in assembly are staffed by blacks.
Similarly, the jobs in the construction department are allocated
in a manner which places the whites in the best jobs for both

77/
earnings and training.

74/ The department includes machining and assembly operations 
for brass, iron, butterfly, steel, and wedgeplug valves. (118a)
75/ For example, brass machine includes a service mechanic,
JC 13, which has always been filled by a white employee (1130a, 2887a 
2936a), an automatic screw machine ooerator who has always been 
a white employee (1131a, 2887a-2936a,PX3) and approximately 30-35 
machine operators in JC 8 , an incentive job. A few blacks, three 
or four, now hold positions on this formerly white-only job.
(Il3la-ll32a; 2887a-2936a; PX 1, 5) All of the servicemen and 
laborers, JC 3, are black. (Il32a-1133a)
76/ All of the jobs in brass Valve Assembly except for repair­
man are JC 5 or below. (1127a-1128a) Until at least Fall 1973, 
all these jobs except repairmen have been filled by blacks. 
(1127a-1128a, 3769a-3814a)
77/ All of the five or six laborers in the department are black, 
(1645a) while all 9 employees in JC 9 and above are white (PX 94- 
Appendix C) Moreover, there are three employees in an apprentice 
program and five in learner positions, of wnom only one, a 
learner, is black. (1643a-1644a)

- 30 -

«



G . Training Programs for Hourly-Paid Jobs:
Apprentice and On-The-Job

The apprentice and on-the-job training programs are im­
portant to Stockham, since it, like most companies, is re-

78/
quired to train employees for skilled jobs. In keeping with 
the policy of segregating job opportunity, the Company ex­
cluded blacks from the apprenticeship program until April 1971,

23/and then enrolled only a token number of blacks. As the 
following chart indicates, only 6 out of the 1 0 1 of the em­
ployees selected by the Company for the apprentice program since 
July 2, 1965 are black (2944a-2945a):

78/ The district court, based on testimony by Mr. Hammock, 
manager of the Alabama State Employment Service in 
Birmingham, found that there were few black craftsmen 
in the area whom Stockham could hire. (139a) However, 
the court inexplicably ignored the testimony by the same 
witness that there are few white or black craftsmen avail­
able to companies and that most individuals who become 
craftsmen receive training on-the-job or as apprentices 
from their employer. (1496a-1498a)

Similarly, superintenaants testified that workers had 
to be trained by the Company for skilled positions. (1506a- 
07a, 1557, 1567a-1568a, 1637a) The Company maintains appren­
tice programs for the following crafts: Millwrights,
Pattermakers, Machinists, Electricians, Box Floor Molders, 
Carpenters, Heat Treaters and Blacksmiths. (375a ) The 
Company also trains employees for skilled jobs through 
on-the-job training programs.

79/ The district court found that blacks have "never" been 
excluded from craft positions and that the apprentice 
program has "never" been restricted to whites. (193a)
This finding is as plainly contrary to the evidence as 
the Court's finding that Stockham "at no time" maintained 
a policy of assigning jobs on a racial basis.

31



Year: '65
(post 7/2)

' 66 '67 ' 6 8 '69 ' 70 ' 71 ' 72 ' 73 Total

Whites: 4 8 6 7 12 17 10 14 17 95
Blacks: - - - - 3 1 2 6

The supervisors of departments containing craft jobs re-
on/commend employees for the apprentice program. (1074a-76a)

The employees who are recommended by the craft department 
supervisors must then be approved by an Apprenticeship Com­
mittee composed of three Company superintendants. (1073a-1076a)
The Apprenticeship Committee routinely approves the supervisors' 

81/
recommendations. (1076a-1077a)

The "paper" qualifications for admission to the apprentice­
ship program have varied from July 2, 1965, through to the 

' 82/
present. In A.ugust 1965 the Company instituted the use of

80/ The selection of apprentices is not subject to the collec­
tive bargaining agreement and an employee may not file a 
grievance concerning the Company's apprentice selection. 
(1075a-1076a; 1261a) Local 3036 has negotiated, unsuccess­
fully, for a joint Union-Company procedure for the 
apprenticeship program. (1080a-1081a)

81/ An employee may request the supervisors to consider him for 
an apprenticeship program by filing a "timely application", 
see infra at 50 n.129. However, it is not necessary for an 
employee to file a timely application in order to be con­
sidered and selected for the apprenticeship program. (1075a)
In fact, only 38 out of the 101 selected for the apprentice­
ship program between July 2, 1965, and December 31, 1973, 
filed timely applications. (DX 64; see 198a)

§2/ The apprentice program is a 9000 hour program involving
on-the-job training and some classroom work.(PX 38, section,4; 
1327a see 194a) An apprentice is paid according to the 
number of hours he has spent in the program. (194a; DX 59)
Even with a "credit of hours" an employee who has Dee 
Stockham for a number of years may well have to take 
short-term loss in pay in order to enter the program, 
which may provide a substantial obstacle to entrance. 
I3l5a-I3l9a; see 194a)

32



the Wonderlic Test for selection of employees to the apprentice- 
83/

ship program. An employee had to score at least an 18 on the
Wonderlic Test in order to be considered for the apprenticeship 

84/
program. (733a, 3709a-10a) In 1969 the Company established a 
committee to review the training programs at the plant; a sub­
committee on the apprentice programs was also created. (1024a, 
1141a, 332la-28a) The work of this sub-committee resulted in two
additional "paper" requirements for admission to the apprentice
program: (1) a high school diploma or G.E.D.; and (2) a 30-year

85/
age limit. The sub-committee did not make any attempt to
validate the high school diploma requirement, nor, in fact, did
the sub-committee even inquire as to the existence or effect of

86/
the previous educational requirement (grade school). (1147a-1148a) 

As previously discussed in Section F, supra, blacks have 
been denied access to on-the-job training programs for crane 
operator, box-floor molder and machinist in the Valve Tool Room.

83/ In addition, the Bennett Mechanical Test has been adminis­
tered since 1953 to employees who are being considered for 
the apprentice program (PX 18, Ans. to Interrog. No. 29;3048a-49a)

84/ Stockham ceased using the Wonderlic and Bennett tests in 
April 1971. ( 216a) The use of employee testing is dis­
cussed fully, infra section "I" .

85/ See the Training Manual established by the sub-committee,
PX 38, rules 2.1 and 2.2; compare a pre-1969 apprentice 
contract, PX 36, with a post-1969 apprentice contract,
PX 37. (Compare 3268a with 3261a-62a; see 196a, 1141a). These
requirements may be waived in the discretion of the Appren- 
tiseship Committee. (196a-97a; 1141a-42a)

8W Despite the court's finding to the contrary (196a)
evidence as introduced by the Company's own expert was 
uncontroverted that fewer blacks proportionate to whites 
had high school diplomas. See infra at 57.

33



jobs by race, blacks have been denied opportunity to train
£2/on-the-job for other skilled positions.

Similarly, consistent with the Company's custom of allocating

H . Training Programs for Supervisory Jobs and
the Selection and Recruitment of Supervisors

Along with its policy of reserving the better hourly-paid
jobs for whites, Stockham, as would be expected, maintained

8 8/
until May 1, 1971, an all-white supervisory workforce. As
the following chart demonstrates, only a token number of blacks

89/
have been selected as foremen since 1965 (2 937a-4 la ; see 2 0 0a)
Year: •165 166 

(post 7/2)
'67 ' 6 8 ' 69 ' 70 '71 '12 ' 73 Total

Whites: 8 4 3 6 7 4 18 8 12 70
Blacks: - - - - - 3 1 1 5

Of the approximately 1 2 0 foremen at the 1Company, there are only
5 blacks. (2937a-41a; 200a) There are no black supervisors in

87/ E.g., blacks have been denied on-the-job training as 
welders, (1772a-73a)

8 8/ (PX 11 (2937a-41a, 1037a-38a. The assistant secretary of the
YMCA, who supervises no employees, has always been black (T.1018) (The secretary of the ymCA has always been white.) The 
assistant secretary of the YMCA is the one black "manager" 
listed by the Company on their EEO-1 forms, 1966-69, see 
fn. 9 , supra.

89/ The district court stated that there was a "relatively low 
turnover rate among supervisory personnel." (199a ) This 
certainly does not apply to the foreman level where well 
over one-half of the foreman force of 1 2 0 was promoted 
since July 2, 1965. (See 2Q0a)

34



90/the levels above foreman.

The Company regularly promotes employees from the hourly
ranks to supervisory position. ,(2937a-41a) There are no specific
written standards for the selection of supervisors (See
3528a) The superintendent responsible for the department in
which the vacancy for a supervisor occurs first selects several
candidates and then reviews the candidates with the pertinent

JL3/Company manager (I016a-17a; see 199a)
In staffing its supervisory positions the Company relies 

heavily on training programs which it has developed for employees 
in the hourly workforce and for new employees. However, it is 
not necessary for an employee to go through one of the training 
programs in order to become a supervisor (3516a-17a)

The Personnel Development Program ("PDP") was designed in 
1958 for the purpose of identifying and developing front-line 
supervisors from the hourly workforce.

9 2 y
The program was used sporadically until 1969. Prior to 1969 
thirty-two employees, all of whom were white, completed the program

90 / The Company employes six general foremen and approximately
twenty-seven superintendents. (3527a-30a)
There is not now, nor has there ever oeen, a oiacK general 
foreman or superintendent at the Company, (id.).

91 / An employee may request consideration for a supervisory
position by filing a timely application, see infra at 50 n. 129 
but it is rare that this is done successfully. Of the 
seventy-five employees selected for foremen positions 
from 1965-1973, only two filed timely applications (see 200a) •

92/ There vere three "classes" in the PDP from 1958-1969 - in 
1960, 1962 and 1966. (189a) .

35



and became supervisors. (476a-477a) Since 1970, fourteen 
employees have been selected for the PDP each year. ( 189a)
The employees are selected by supervisors. (PX 62, D. Adamson 
14). Of the 56 employees selected since 1970, only 10 have been 
black. (477a)

The Company has maintained two programs for training new 
employees, including college-trained individuals, for supervisory 
and technical positions: the Organizational Apprentice Program
("OAP"), operated from 1950 to 1969, and the Management Training 
Program ("MTP"), operating from 1969 to the present. (191a)

From 1950 to 1969 there were approximately 150 persons who 
were hired into the OAP; approximately 40-50 of these persons 
became foremen. (3495a-96a) In addition, approxi­
mately twenty employees from within the plant were selected for 

93/
the OAP; approximately 10 of these persons became foremen. (Id.) 
Not one black was ever selected for the OAP. (363a, 748a)

In 1969 the training committee revised the OAP and renamed
94/

it the Management Training Program. Like the OAP, the MTP has 
largely been filled with persons recruited from outside the 
Company. There have been approximately 50 management trainees

93/ The new employees were recruited by the Company, mainly on 
college campuses, see infra at 37, or were recommended
by "friends" of the Company. (3499a) The em­
ployees selected from within the plant were musically 
chosen on the basis of supervisory recommendations.
(3518a)

94/ It is noteworthy that the Committee which revised the super­
visory and apprentice training programs never considered the 
fact that up to that point no black had ever been enrolled 
in any Company training program, nor did it consider the con­
comitant need to recruit blacks for these programs. (1027a-28a)

36



enrolled in the program; all but one have been white. (478a-79a) 
Hie all but total exclusion of blacks from the OAP-MTP 

programs has resulted in part from the discriminatory recruit­
ment policies of the Company. Stockham regularly sends re­
cruiters to college campuses particularly to Auburn,

95/
Alabama, Tennessee, Georgia Tech., and Samford. (480a, 753a-754a 
3499a-3504a; PX 62, D. Adamson 22-23). Despite Stockham's 
persistent need for college-trained employees, the Company has 
never recruited at the predominantly black colleges in the vie ini 
of Birmingham - Tuskegee, Alabama A & M, Alabama State, Tennessee 
State or Miles. (Id.)

ty

I. Employee Testing Practices

Within a month after the effective date of Title VII,
Stockham instituted a massive testing program based on the

96/
Wonderlic Personnel Test. (3048a-49a) This testing 
program applied to all new hirees, interdepartmental 
transfers, promotions, and selection for apprentice and clerical

95/ Of course, these colleges were once all-white and, 
until recently, only had a scant black minority.

96/ The district court stated that Stockham went to a more 
comprehensive testing program in the middle 1960's 
because it began expanding and the "selection problems 
become more difficult." (210a) This finding flies 
in the face of the record. From 1966 to 1969 the total 
employment increased by only 73 workers from 1762 to 
1835; from 1971 (when Stockham stopped employment testing) 
to 1973 the total employment increased by 320 workers, 
from 1976 to 2296, (see fn. 9, supra, (2946a-47a, 3335a-42a)

37



jobs. From August 1965 until October 7, 1966, Mr. Adamson,
who was responsible for test implementation at the Company,
graded the tests and assigned passing scores for the various
jobs and training programs according to the scores suggested
by Wonderlic Associates. (740a, 211a)

The procedure was formalized by a memorandum issued on
October 7, 1966, by Mr. Herbert Stockham, President of the
Company. (730a, 3909a-10a) The memorandum established "passing"
scores for each job at the plant by job class; however, if an
employee was in the same department as the job for which he was
being considered, he did not have to achieve as high a score as

98/
an employee who was seeking transfer from another department. 
(211a) A score of 18 and 20 was necessary in order to be
considered for an apprentice program and a clerical position, 
respectively. (2 1 2a)

No company employee associated with the design or the use 
of the Wonderlic test had any professional testing experience,

97/

9 7/ The Wonderlic test was used i_n addition to the testing 
program that Stockham had previously maintained. The 
Company previously used a clerical test to screen employees 
for clerical positions and had since 1953 used the Bennett 
Mechanical Comprehension Test as a selection device for 
apprentice programs. In addition, the Company had used the 
services of a psychologist since 1940 to evaluate indivi­
duals for "key" management positions. (2 1 0a)

98/
JC

Minimum scores required 
for departmental employees

1-5 0
6 - 8 8
9-13 15

Minimum scores required for 
non-departmental employees 

5 
15 
19

38



nor did the Company undertake any validation study. (see 
405a-407a, 3048a-49a) The Company ceased using em­
ployment testing, including the Wonderlic, in April 1971.

The massive implementation of the Wonderlic Test concurrently 
with the effective date of Title VII had an adverse impact on 
black promotional and training opportunity and served as one
of the means by which blacks were locked into the inferior jobs

99/
to which they were traditionally assigned by Stockham.

In early 1973 the Company hired Mr. Tabaka, a management 
consultant, to review the jobs at the plant in order to imple­
ment testing procedures where appropriate (216a, 3196a)

-LUO/In April 1973 he submitted a proposal to Stockham. (PX32, 3195a-3250c
Tabaka purported to validate the use of tests for certain jobs101/
by the use of a concurrent criterion study. (216a) Although
the Company has given the test to employees, it has not., at the 
time of trial, used the tests in any way in the selection

99/ The district court found that the evidence did not esta­
blish an adverse impact. (212a-215a) See Argument II,
B infra.

1 0 0/ Mr. Tabaka’s proposal did not cover supervisory, clerical 
or other salaried jobs. In addition, Mr. Tabaka excluded 
approximately 86 job titles "because their specific job 
aptitude requirements did not appear to be measurable by 
pencil and paper tests." (3196a) Of course, the 
Company had previously sought: i_u measure the job aptitude 
of these jobs from 1965 to 1971 by a "pencil and paper" 
test - the Wonderlic.

101/ The Company is collecting data concerning employee per­
formance and test scores, possibly in order to perform 
a "predictive" validity analysis later. Mr. Tabaka testi­
fied that a predictive validity analysis would be more 
useful than the "concurrent" study, (2667a) for a 
description of the"concurrent" and "predictive" methods 
see United States v. Georgia Power Co., 474 F.2d 906, 912-13 
(5th Cir. 1973).

39



process. Since the Tabaka test have not been used in the
selection process at the time of trial, and since the issue of

10/the use of the Tabaka tests clearly has to be remanded to the 
district court for consideration in light of the Supreme Court's

......  104/opinion in Albemarle Paper Company v. Moody, plaintiffs will

102/

102/ Mr. Adamson, the Company official responsible for employee 
testing, was most emphatic on this point:

"Q. . . . Mr. Adamson, does anybody who has any responsibility
for promotion at the [C]ompany evaluate an employee1s 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.
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; it has not been 
used in transfer; and it has not been used in promotion.

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

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.

(829a-30a; See also 826a-27, 837a, 854a-46a)
The district court, despite this absolutely plain testimony, 

found that the Tabaka tests "are actively considered in selection 
decisions"; but the lower court also found that no employee had 
been disqualified on the basis of the Tabaka tests. (222a)

1 0 3 / The tests, if used, would have a substantial adverse effect 
on blacks, see PX 20, Ans. to Interrogatory No. 15, 3064a-65a)

1 0 4/ Nos. 74-389 and 74-428, decided June 25, 1975, 43 U.S.L.W.
4880, 9 EPD § 10,230. The citations in this brief refer to the 
Slip Opinion.

40



not set out here the detailed facts concerning the proposed 
test used.

j. Clerical, Timekeeper, Sales and Guard Positions 
The Company's racial allocation of job opportunities ex­

tended to clerical, timekeeper and guard positions. The Company 
has regularly employed approximately 2 0 0 office and clerical 
personnel since 1965. Until approximately 1965, as Mr. Sims 105/
testified, the Company excluded blacks from clerical positions,
and has since 1965 selected only a small number of blacks for 

106/
these positions:
Year ' 6 6 '67 ' 6 8 '69 ' 71 ' 72 '73

W 193 191 2 0 0 205 184 188 189
B 5 5 6 8 14 12 18

Despite the fact that the Company frequently transfers
hourly production employees to clerical positions, in 1973 only
8 .6% of the clerical workforce was black, even though approximately

107/
67% of the hourly production employees were black.

The Company similarly has historically reserved timekeeper 
and guard positions for white employees; since 1965 only a

mo/
token number of blacks have moved into these job positions.

105/ "Q. . . .  But there may have been one or two blacks [working
as clericals] in '65?

A. Yes.
Q. Would there have been more than one or two?
A. I don't believe so. We began hiring black clerical 

folks soon after '65." (411a-14a; see also 1671a-72a)
106/ The chart is taken from the company's EEO-1 forms, PX 13,
45. The data for 1970 is missing because the Company could not 
locate the EEO-1 form for that year. Approximately 75-100, or 
one-half, of the clerical positions are salaried and are not 
covered by the collective bargaining agreement. (1670a; cf.
2 0 1a)
107/ Of course, the Wonderlie Test was a severe obstacle to black 
promotion to clerical positions, see supra at 37-39.
108/ The Company employs twenty-two non-union salaried timekeepers.

41



The sales workforce at Stockham is all-white.
K . Black Employees Have Suffered Economic Harm 

The denial of equal job opportunity to black employees 
and the Company's relegation of black workers to the lower job 
categories has had an adverse effect on the earnings of black 
workers.

The gross disparity between the average job class of black 
and white incentive and non-incentive workers is fully set forth

110/ ill/supra at 17-20. The average hourly earnings rate of black 
employees as of September 1973 was $3.83 or $.37 less per hour 
than that earned by white employees (PX 91-Appendix D). Similarly,

white employees averaged approximately 1 2 .8% more in gross earnings
than black employees during the period from January 1, 1973,

112/through September 1, 1973. The disparity in pay rate or gross

109/

1 ns/ (Continued)
While hourly employees are frequently transferred into these 
positions, there have been only two blacks who have worked at 
timekeepers: the first black was selected in the 1960's and
the second black was selected in 1973. (417a-18a; 1676a-77a:
see 995a-394a) The entire guard force at the Company was all 
white until 1965 or 1966. (3550a) As of June
1973, there were 2 5 v/hite plant guards and only 7 black guards; 
all three of the sergeants are white. (2935a)

109/ There are twenty-two employees in the sales department at 
Birmingham, all of whom are white. (1402a-04a)
Stockham has 46 salesmen located around the coum.ry, one of wnom 
is stationed in Birmingham. (Td.; see 205a)

1 1 0/ As of September 1973, the average hourly standard earning 
rates, excluding overtime and incentive earnings, were $3.08 for 
blacks and 3.63 for whites. (PX 91, attached as Appendix "D")
112/ This rate was calculated by dividing the gross earnings by 
hours worked; consequently, the rate takes into account incentive 
and overtime earnings.
112/ Blacks averaged $4,138.02 for this period while white averaged 
$4,668.77. (PX 91 -Appendix D)

42



earnings is in no way the result of blacks having less seniority 
than whites; in fact, black employees as of September 1973 had 
an average hire date towards the end of 1963 (1963.96), while 
white employees had an average hire date towards the middle of 
1965 '(1965.63) . (Id.)

43



ARGUMENT
I.

THE DISTRICT COURT ERRED IN FAILING 
TO AFFORD FULL INJUNCTIVE RELIEF FROM 
THE MAINTENANCE OF SEGREGATED FACILI­
TIES, A DISCRIMINATORY SENIORITY SYSTEM 
AND THE DISCRIMINATORY SELECTION OF 
EMPLOYEES FOR JOBS, TRAINING PROGRAMS 
AND SUPERVISORY POSITIONS

A . The District court Should he Directed to Enter an Injunction 
Barring the company from Maintaining Segregated Facilities 
or Programs
Stockham maintained a deliberate policy of segregating its 

employees in practically every conceivable manner. (See, supra, 
at 8-11) Despite the passage of the Civil Rights Act of 1964 and 
repeated requests by black employees and union members of the civil 
Rights Committee, Stockham obstinately persisted in retaining 
partitions which segregated bathrooms, bathhouse and cafeteria 
until 1974 (Id.)

The district court denied an injunction because the issue of
segregated facilities was "effectively resolved" by a conciliation
agreement entered into by Stockham with the EEOC on the eve of

113 /
trial, in a matter entirely separate from this action (256a)
See supra at 10-13) „ First, the court's conclusion that the con­
ciliation agreement resolved the segregation of all the facilities 
was contrary to the evidence. 'Two women's bathrooms, which existed 
side-by-side in the dispensary remained segregated. The two black 
women who worked in the area used the facilities and lockers in one 
bathroom, while the five white women in the area used the facilities 
and lockers in the other bathroom. (See, supra at 11, n. 23; Contra

313/ There is no question that the segregation of facilities violates 
Title VII. Witherspoon v. Mercury Freight Lines, Inc., 457 F.2d 496
(5th Cir. 1972); Buckner v, Goodyear Tire & Rubber Company, 339 F. 
Supp 1108 (N.D. Ala. 1972) aff'd per curiam 476 F.2d 1287 (1973).

-44-



208a)
Secondly, as the Court has repeatedly stated,a precipitous 

attempt to comply with the law just before trial is no justification 
for denying injunctive relief for "[sjuch actions in the face of 
litigation are equivocal in purpose, motive, and permanence.
Gamble v. Birmingham Southern Ra ilroad Co., No. 74-2105 Slip Opinion 
at 6065 (5th Cir. June 16, 1965). Thirdly, the plaintiffs are 
entitled to an unequivocal, judicially imposed order which will 
finally terminate all segregation at the plant and which will bar 
all such practices in the future. The injunction should require the 
posting of notices which will plainly inform all employees that aljL. 
facilities and all programs at Stockham are integrated. Bolten_j/. 
Murray Envelope Corp., 493 F.2d 191, 196 (5th Cir. 1974); See also, 
Anderson v. City of Albany, 321 F.2d 649, 657 (5th Cir. 1963).

B . The District Court Should be Directed to Enter _an_0rdei_
Which Remedies the~~Discriminatory Job Assignment and 
Seniority Practices
The district court's failure to afford relief from the dis­

criminatory job assignment and seniority practices at Stockham resulted 
from a basic erroneous finding of fact which was compounded by a
mistaken application of the appropriate law.

The district court found that Stockham "at no time assigned 
employees to jobs on the basis of race. (140a,244a) This basic 
finding is just plainly contrary to the evidence which includes the 
repeated admission by company supervisors and managers that there 
was a "custom" or "general rule" of assigning employees to jobs by 
race} ^ the repeated admission by company supervisors that jobs

114/ See supra at 6-7, Appendix "B".

-45-



thewithin departments were staffed on a segregated basis, 
examples of particular jobs which were staffed on a segregated

115/

basis, and the undisputed statistical evidence that in 1965 no
117/

job was staffed by both black and white workers. In addition,
the evidence, statistical and testimonial, plainly indicates that
the company continued to assign employees to jobs on the basis of 

118/
race after 1965 “ (See supra at 24 ) The racial allocation of
jobs has led to a staffing of some departments predominantly with

n  q/
black employees and other departments with white employees.

Moreover, the district court determined that the plaintiffs had 
not established "racial stratification in pay, jobs and departments. 

(188a, 246a) This again is directly contrary to the evidence which 
demonstrates the clear racial stratification of workers by pay rate, 
average earnings and gross earnings. (See supra at 42-3)

II

115/ See supra at 16-17.
116/ See supra at 25-30.
117/ See supra at 16-17.
118/ The district court ignored all of this uncontroverted evidence.
Rather the lower court stated that plaintiffs "essentially" based 
their case on "simplistic" earnings statistics which demonstrated that 
blacks earned less in gross and per hour than whites. The district 
court dismissed this evidence on the basis of the testimony or an 
economist who testified for the company. This testimony is dis­
cussed infra at 62-8. (242a)

2ig/ On the one hand, in September 1973, 903 or 72% of all blacks 
Tn the hourly workforce were in the ten predominantly black depart­
ments, while only 28 or 2% of the blacks in the workforce were in 
the six predominantly white departments. On the other hand, 75 or 
13% of the whites were in the predominantly black departments,
■while 208 or 36% of whites were in the predominantly white depart­
ments. Compare Pettway v. American Cast Iron Pipe Company, 494 
F.2d 211, 227 (5th Cir. 1974).

-46-



It is now clearly established that a departmental seniority
120/

system when coupled with discriminatory assignment practices 
12l/is unlawful. However, the district court held that the depart­

mental seniority system at Stockham does not "prohibit" transfer or
122/

"lock" blacks into departments. (132a, 246a) The district court 
misapplied appropriate legal standards in reaching this conclusion. 
Until June 10, 1970, if an employee voluntarily transferred depart­
ments he would immediately lose all his accumulated seniority and 
be treated for promotion and regression purposes as if he had just 
been hired, supra at 14-6. The minor modifications made in the 
departmental seniority system in 1970 and in 1973 still require a 
transferring employee to forfeit, at some point, all his accumulated 
seniority, and treat a transferring employee as a new employee for
promotion and regression purposes in his new department, supr a_ ^t 

123/
15-6.

120/ It is important to note that the racial allocation of jobs by 
department has continued through 1973, supra at 24. See Pettway, 
v. ACIPCO, supra at 218 (formal policy of racial allocation of jobs 
ended in 1961 but lingered until 1963).

l?.l/
and

Pettway v. American Cast Iron Pipe Company, 
cases cited therein. See Albemarle Paper Co.

at 224 n. 
v. Moody, supra

33
at 3 .

122/ Apparently, the court assumed, at least for its analysis of the 
departmental seniority system, that there was discriminatory depart­
mental assignment.
123/ Even with these modifications, the seniority system was con- _ 
siderably harsher for the transferring employee than the_system which 
was declared unlawful in Pettway v. American cast Iron Pipe Co., 
supra at 223. (A transferring employee there always retained his  ̂
accumulated seniority for transfer back to his original department.) 
It is also true that under Stockham's departmental seniority system, 
employees in a department would be considered for a departmental 
vacancy prior to any employee outside the department.

47-



This is precisely the type of seniority system which the
courts have consistently condemned as "freezing" victims of racial
assignment into the departments they were assigned by asking them to

m /  . 125/commit "seniority suicide" by transferring. Moreover, the
system further "locks" employees into departments by not providing
any "rate retention" and accordingly requiring transferring employees
to take a short-term pay cut in order to earn potentially greater

126/
earnings in the future.

Also, the Company in August 1965, during the period when 
Stockham admittedly allocated jobs by race, instituted a massive 
testing program which for the first time required all interdepart­
mental transferees to attain a certain score on the wonderlie. (See
supra at 37-8.) Moreover, as of October 7, 1966, the company graded 
the tests in a manner which systematically gave employees within a 
department (by requiring lower scores for them) an advantage over 
employees from other departments. (Id.) Accordingly, the use of
the Wonderlic contributed to locking blacks into certain departments.

If blacks have been discriminatorily assigned to particular 
departments, departmental seniority may not be used to "freeze those 
black employees into a discriminatory caste." Johnson v. Goodyear Tire 

& Rubber Co., 491F. 2d 1364, 1373 (5th Cir. 1974). This Court has often state

m /  Barnett v. W.T. Grant Co., 9 EPD p. 10, 199, p. 7898 (4th 
Cir. 1975).
125/ Local 189 v. United States. 416 F.2d 980, 988 (5th Cir. 1969) 
cert, denied 397 U.S. 919 (1970), see fn. 121, supra.
126/ United States v. Local 189, 301 F. Supp. 906, 919, 923 (E.D.
La. 1969), aff'd 416 F.2d 980 (5th Cir. 1969); United States v .
Bethlehem Steel Corporation, 444 F.2d 652, 661 (2nd cir. 1971).

-48-



the appropriate relief, which is catalogued in Pettway:
"Therefore, the district court should issue an 

injunction requiring: (1 ) the posting of vacancies
plant-wide; (2 ) the selection of 'qualified' per­
sonnel for the vacancies on the basis of plant-wide 
seniority; (3) transferring members of the class 
shall retain their plant-wide seniority for all pur­
poses including promotion, lay-off, reduction-in-force, 
and recall; (4) advance entry into jobs for which 
an employee in the class is 'qualified' or for which 
no specific training is necessary; (5) red-circling 
of members of the class; (6) establishment of specific 
residency periods in lines of progression where the 
Company has established pre-requisite training as a 
'business necessity'" (footnotes omitted) Id. at 127/ 
248-49.

In addition, it is necessary for relief to be fashioned which
will eliminate the traditional pattern of discriminatory allocation
of jobs within departments. See supra at 25-30. This traditional
practice has been maintained by continued overt discrimination and
by the use of supervisory discretion. This Court has repeatedly
recognized that supervisory discretion is a "ready mechanism for
discrimination against Blacks";when that system results in a racial
disparity in job opportunities then the courts have held that the

128/
system violates Title VII.

127/ It is necessary for the red-circling remedy to include incentive 
earnings. See e.g. , United States v. United States Steel Corpoi .i'-j.onf 
371 F. Supp 1045, 1063 (N.D. Ala. 1973); Rogers v. international.
Paper Company, 510 F.2d 1340, 1355 (8th Cir. 1975).
228/ Rowe v. General Motors Corp., 457 F.2d 348, 358-59 (5th cir. 
1972); United States v. Jacksonville Terminal Company, 451 F.2d 418, 
449 (5th Cir. 1971) cert, denxed 406 U.S. 906 (1972); United States 
v. Bethlehem Steel Corp., 446 F.2d 652, 655 (2nd Cir. 1971); Brown 
v. Gaston County. Dyeing Machine Co., 457 F.2d 1377, 1382-83 (4th cir. 
T972) cert, denied 409 U.S. 982 (1972); United States v. United.
Carpenters' Local 169. 457 F.2d 210, 215 (7th Cir. 1972).

49-



Perhaps the most outrageous selection practice at Stockham 
occurs within the departments. The foreman is supposed to assign 
the "oldest" employee in the department to a vacancy "as far as 
practical." (PX 24, § XIII, 4(b), 3176a; 328a-31a) But the fore­
man is the sole judge of what is "practical." (329a-3la) When the 
determination for promotion so regularly goes against senior black 
employees in each department, the court must conclude that the foreman 
excluded black employees from promotional opportunities in a discrimi­
natory manner. This is especially true in a company like Stockham, 
where blacks have consistently been relegated to a certain place - 
whether in the cafeteria or on the job.

Blacks have similarly been restricted from clerical, timekeeper, 
guard and sales positions as a matter of policy. This policy has been 
continued by the subjective selection process in a manner compara­
ble to the discriminatory assignment of employees within depart-

129/
ments.

129/ It is no defense to the gross disparity in selection of employees 
that the employees "are not totally dependent upon their supervisors 
for promotion and transfer consideration" as the district court 
infers. (246a, n.2) Apparently, the district court is referring 
to the "timely application procedure." (149a-46a) ' This procedure 
was first instituted on an informal basis m  1965, i,e., it was not 
put in written form or placed in the collective bargaining agreement 
until 1970. ( 30Ia-02a); (compare PX 23, Section XIII, 4 (a) 3l45a-3l47a

PX22, Section XII, 3119a-22a) Under this procedure, an employee re- 
cruests his foreman to make out an application for him for a particular 
job; the employee neither fills out the form nor receives a copy (916a-l>) 
Importantly, an employee does not have to fill out a timely appli­
cation to be considered for a job; (9330a-34a) a foreman is obligated 
by the collective bargaining agreement to select the oldest qualified 
employee whether or not he fills out a timely application. (PX 21, 
Section XII, 4(b); PX 22, Section XII, 4(b); PX 23, Section XIII,
4(b); PX 24, Section XIII, 4(b)) In practice the timely application 
procedure has not been widely relied upon, see fns. 81 and 91 ,
supra.

-50-



Objective selection criteria should be developed
121/and reporting provisions drawn which would insure compliance

132/
with non-discriminatory selection guidelines.

C. The District Court Should be Directed to Enter an Ordep
Which Would Provide for an Affirmative Action Plan Designed, 
to Remedy the Discriminatory Selection and Training Practices_ 
for Craft and Supervisory Positions
The same discriminatory practices which denied blacks advance­

ment within departments and to clerical, guard and timekeeper 
positions have denied blacks training and advancement to craft and 
supervisory positions: a past practice of total exclusion from these

131/ . ^positions combined with the exercise of supervisory discretion.
The foremen in the craft departments select employees for the 

apprentice program, although foremen from other departments may 
recommend employees. (1073a-l076a) Since the craft jobs, except for 
box floor molder and heat treater, are in the predominantly white 

departments, black employees begin at a substantial disadvantage.
(See PXl, 2887a-2936a)

The district court concluded as a matter of law that the

130/

230/ see, e.g., Rowe v. General Motors corporation, supra.
131/ see, e.g., Franks v. Bowman Transportation Company, 495 F.2d 398, 
T21 (Sth'cTrT 1974) cert. granted on other grounds 43 USLW 3515 (1975); 
United States v. United States Steel corporation, 5 EPD [̂8619 pp. 782 0- 
22 (order issued) (N.D. Ala. 1973j.
132/ See also, § C infra for an affirmative action program.
333/ The first black was selected for the apprentice program in April 
1971 (2 944a-45a) and the first black was selected as a foreman on May 1 
1971. /2937a-4la) Blacks have been selected for only 6, or 3% of the apprentice positions since 1965, and blacks have been all but excluded
from on-the-job training programs, see supra at 31-4.

134/ see the charts on pages 32 and 34, supra., for the continued 
exclusion of blacks.

-51-



relatively small number of blacks in the craft positions was due
"not to any discriminatory practices at Stockham but due instead to
the absence of qualified blacks." (248a) This conclusion is
not based on the evidence, which demonstrates that the company has
an extensive apprentice program for craft positions as well as an
extensive on-the-job training program. Moreover, Company supervisors
testifed that Stockham had to train workers for skilled positions.
(1506a, 1537a, 347a~348a, 1637a) Finally, the manager of the Alabama
State Employment Service in Birmingham testified that there were few

137/
skilled craftsmen, black or white, seeking work with companies. 
(1496a-1498a)

335/

. 135/ The court found that blacks filled 10 or 5/ of the approximately 
200 craft jobs [those in JC 10-13]. (139a) According to the latest
detailed figures in the record, as of September 1973, blacks filled 
6 or 2.2/ of the 227 craft positions (PX 94- Appendix C)
136/ In addition to the overt exclusion of blacks and subjective 
supervisory selection practices, blacks have been restricted from 
entering the apprentice program by three "paper" requirements which 
were added to the selection process. From 1965 until 1971 applicants 
for the apprentice program had to score 18 on the Wonderlie test in 
order to be considered, supra at 38. Since 1969, applicants had to
have a high school diploma or equivalent, impart from the clearly 
unlawful "disparate" treatment, see Argument II,A infra, both the 
Wonderlic and the high school diploma requirements had an adverse 
impact and were not validated. See Argument II,B infra.

Moreover, an age requirement, a maximum of 30 years old, was 
added in 1969. Since blacks had previously been excluded from the 
apprenticeship program,this requirement is clearly discriminatory.
See Pettway ,v. American Cast Iron Pipe Company, supra at 238-239; 
Rogers v. international Paper Company, supra at 1351-52.
137/ Mr. Hammock further testified that it was the usual practice 
for companies to train employees for skilled positions. (1496a-98a)

-52



Blacks have been all but excluded from the Company's training
programs for supervisory positions as well as from supervisory

138/ . . _positions. The district court having found that blacks participated

in the Personnel Development Program (189a), that at least one black 
had participated in the Management Training Program (192a), then con­
cluded, without any explanation, that there has been no discrimination 
in the selection of employees for these supervisory positions. (190a, 192a 
The Court entered no conclusion of law concerning the Organization 
Apprentice Program (to which no black had ever been admitted), nor did it 
make "any finding on the total racial composition of these programs: only 
10 or 3.3% of the 294 enrollees in these programs through 1973 were 
black, see supra, at 35-7. Similarly, only 5 of the 120 front-line 
supervisors are black, supra at 34.

Strong affirmative relief is required to remedy the effects of 
Stockham's discriminatory denial of training for and promotion to 
craft and supervisory positions. This relief should provide goals and 
timetables for the training and promotion of qualified blacks until 
the discriminatory effects of Stockham's selection practices have been 
terminated. Franks v. Bowman Transportation company, supra at 418-20; 
NAACP v. Allen, 493 F.2d 614, 618-22 (5th Cir. 1974); Morrow v. Crisler, 
491 F.2d 1053, 1056-57 (5th Cir. 1975) (en banc); Buckner v. Goodyear 
Tire and Rubber Company, supra at 1125.

In addition, Stockham should be directed to recruit at predomi­
nantly black colleges. Stockham has regularly recruited at predomi­
nantly white colleges but has ignored the numerous black colleges in 
the area, see supra at 37.

338/ For a description of the selection procedures for selection of 
foreman and for employees for the Company's supervisory training 
programs, CAP, PDP, and the MTP, see supra at 35-7.

-53-



II.

A.

THE DISTRICT COURT ERRED IN FAILING 
TO FIND THAT STOCKHAM'S TESTING PRO­
GRAM WAS UNLAWFUL

Tt Was Unlawful for Stockham jtojl^^lxsgosed Tes-ting Require 
k— 4-c fnr promotion to Jobs From YJhich They I lad ^

Excluded Other Than Those Requirements imposed
On Their White contemporaries.
in August 1965, practically contemporaneously with the effective

date of Title VII, the company instituted a massive testing program 
based on the Wonderlic Personnel Test ~  Until 1965 blacks had been
excluded from the top job class, apprentice and clerical positions 
for which high passing scores on the Wonderlic test were required,

see supra, St. of Facts F G, J.
The plaintiffs argued before the district court that a com

pany which had previously excluded blacks from jobs on the basis 
of race could not lawfully continue to exclude those blacks who 
had been subject to the prior discrimination on the basis of some 
criteria other than that applied to whites during the period of 
racial allocation of opportunity. Of course, this argument is 
equally applicable to the high school education requirement for 
entrance to the apprentice program which was instituted m  1969 
and to the test battery prepared by Mr. Tabaka which has not yet 
been used in employee selection, see supra at 39-40.

The district court rejected plaintiffs' argument as a matter 
of law and specifically rejected the EEOC Guideline on "disparate 
treatment" on which plaintiffs had relied—  (255a), even though

The extent and chronology of Stockham's test used is described 
supra at 37-41*
140/ 29 CFR § 1607.11. The Guideline is attached hereto as
Appendix "E".

54-



II

it did pay lip-service to the well-established principle that 
guidelines interpreting a statute promulgated by an enforcing

„ HI./agency "are entitled to great deference." The lower court con­
cluded that the "guideline is inconsistent with the plain language 
of the statute permitting utilization of job-related aptitude tests.

(255a) .
However, "the plain language of the statute" does not so read.

Title VII provides that it is not an unlawful practice to use a
" . . .  professionally developed ability test 
provided that such test, its administration or 
action upon the results is not designed, intended 
or used to discriminate because of race. . . . "
42 U.S.C. § 2000e-2 (h)

This statute is no blanket endorsement of any "job-related test.
as the Supreme Court has just clearly held. Albemarle paper_ Com_pa_nv

342 / . . . . .v. Moody, supra, at 18. Moreover, the Supreme Court specifically
referred to the disparate treatment guideline with approval when 
the Court observed that the issues of job relatedness take on special 
importance when white incumbent workers [as at Stockham] are not 
required to take the test battery, id. at 27.

Furthermore, the principle inherent in prohibiting disparate 
treatment, that "neutral" standards may not be instituted to hinder 
the advancement of a minority group to the place which they would 
have attained but for previous discrimination, is a basic principle

34l/ The Supreme Court recently applied this principle to the EEOC _ 
testing guidelines. Albemarle paper Co. v. Mood^, supra, Slip Opinion 
at 24; see Griggs v. Duke Power company, supra at 433-34.
142/ The Supreme Court held that even if an employer meets the 
burden of demonstrating that its tests are "job related, the^ 
plaintiff may show that the tests are a "pretext" for discrimination.

-55-



guiding the application of Title VII. Griggs v. Duke Power Company.,.
143/ . ^  ̂ .supra, at 43 0. For years ■whites were promoted to jobs for which

neither the Wonderlic (nor the proposed Tabaka tests) were required,
while blacks were either excluded or severely limited in their
opportunity to advance. If any blacks are now disqualified from
these jobs on the basis of these tests then they are being treated
unfairly and discriminatorily in comparison to their white contem-

m /poraries.
Finally, decisions involving racial discrimination in voter 

registration and teachers1 dismissals have ruled that disparate
treatment is unlawful. In T.ouisiana_v.«, UnjLt.gd—Si2i.£.*L/ 380 U.S. 145,
155-56 (1965), the Supreme Court held that a new registration require­
ment, which was not by itself discriminatory, may not be imposed

145/
because whites had previously not had to meet the requirement.
Courts have regularly recognized that black teachers who are being 
integrated into a unitary school system should not be evaluated on

143/ The Fourth Circuit in Griggs held that the application^of^new_ 
testing and educational requirements were unlawful because in insti 
tuting these requirements, blacks and whites were being treated 
differently. 420 F.2d 1225, 1230-31, 1236-37 (1970) affj_d imper­
tinent part, 401 U.S. 424 (1971).

144/ For this reason there is no need to prove "adverse impact,
T/e., that blacks do not score as well as whites on a test, c_f. 
opinion of the lower court at 151. Of course, the Company may apply 
new selection criteria to blacks who were not at the plant during the 
period of discrimination, provided those criteria meet the standards 
established by Albemarle Paper Co.
145/ This Court in a long line of cases has adopted the principle that 
It is proper to "freeze" the requirements to vote. United States v._ 
Palmer, 356 F.2d 951 (1966); United States v. Ramsey, 353 F.2d 650
(1966) ; United States v._Lvndl 349 F.2d 783 (1965) ; United States v.»
Ward, 349 F.2d 795 (1965); ynit-eU states v. State of MissxssipBl,
339 F.2d 679 (1964); United States v. Duke, 332 F.2d /59, 769 (1964).

-56-



the same standard as new applicants but rather should be
evaluated on the same basis as their white contemporaries.
Singleton v. Jackson Municipal Separate School District,

146/
419 F.2d 1211 (5th Cir. 1970) (en banc).

In conclusion, the Court should rule that the use of 
the Wonderlic test is unlawful and should direct the district 
court to enjoin the further use of selection criteria, in­
cluding the Tabaka tests and the high school education re­
quirement, in a racially disparate manner.
B. The Wonderlic Test and the High^ffchool Education Require­

ment Had An Adverse Impact on ]̂Tack ~STn>l0 7 0.3s.
Validated and. Consequently We^_Un lawfully Used._
Since Stockham made no attempt to validate either the

Wonderlic test or the high school education requirement, the
law is clear that these selection criteria are unlawful if
they have an "adverse impact." Albemarle Paper Company v.
Moody, supra at 18; Griggs v. Duke Power Co., supra at 432.

The district court found that the high school education
requirement had no adverse impact on blacks (197a); yet, the
district court, when discussing factors that account for
greater earnings by whites than blacks, found that there is
a definite higher percentage of whites than blacks with a
high school education: 61.51% of the white hourly workers
(448 out of 728) as opposed to 50.1% of the black hourly
workers (774 out of 1546) . (178a) These figures clearly

146/ See also, North Carolina Teachers Ass'n, v. Ashboro City 
Bd. of Educ., 393 F.2d 734 (4th Cir. 1968); Chambers v. 
Hendersonville City Bd. of Educ., 364 F.2d 189 (4th Cir. 1969) 
Rolfe v. County Bd. of Educ. of Lincoln County, Term., 391 
F.2d 77 (6th Cir. 1968); Moore v. Bd. of Educ. of Chidester 
School District No. 59, 448 F.2d 709 (8th Cir. 1971).

-57-



demonstrate that blacks are adversely affected by the addition
147/

in 1969 of the high school education requirement.
The district court rejected plaintiffs' clear evidence,

which was unrebutted by any evidence presented by Stockham,
that the Wonderlic test had an adverse impact on blacks.
(212a-14a; 253a) The evidence of the racial impact of the
Wonderlic came from several sources. First, Dr. Joan Haworth,
a statistician who testified as an expert on Stockham's behalf,
testified on cross-examination that in a computer study done
at Stockham's request she found that blacks scored lower than

348/
whites on the Wonderlic. ( 1880a ) Secondly, the evidence is

147/ The district court concluded as a matter of law that "there 
is no significant difference between the percentage of black and 
white employees at Stockham possessing high school educations." 
(251a-52a) The lower court does not discuss "significance." As 
Chief Judge Brown emphatically phrased the reach of Title VII,
" [t]he degree of discrimination practiced by an employer is un­
important under Title VII. Discriminations come in all sizes 
and all such discriminations are prohibited by the Act." Rowe 
v. General Motors Corporation, supra at 354. See also Barnett 
v. W. T. Grant Co., 9 EPD 51 10,199, p. 7898 (4th Cir. 1975) (the 
lower court here relied in part on the district court's decision 
in Barnett which was reversed).
141/ The court discredited the testimony because the study 
was "incomplete." ( 214a ) However, Stockham could have
requested Dr. Haworth to complete the study; as has long 
been recognized by courts in common law,

"[I]f very slender evidence be given 
against him, then, if he will not produce 
his books it brings a great slur upon 
his cause."

Ward v. Apprice, 6 Mod. 264 (1705); Mid-Continent Petroleum 
Corp. v. Keen, 157 F.2d 310, 315 (8th Cir. 1946) ; Goldie v.
Cox, 130 F.2d 695, 719 (8th Cir. 1942); See also Vulcan Society 
v. Civil Service Commission, 360 F.Supp. 1265, 1270 (S.D.N.Y. 
1973), aff'd 490 F.2d 387 (2nd Cir. 1973).

-58-



crystal clear that there were very few blacks in the jobs
149/

for which high Wonderlic scores were required. Thirdly, 
Wonderlic Associates undertook a massive, nation-wide study 
which concluded that there was a "stable differential" in 
black and white scores on the Wonderlic test: blacks scored
approximately eight points lower than whites. (,212a)
Fourthly, the results of this study were corroborated by
experts for both plaintiffs and defendant who testified
that intelligence tests, like the Wonderlic, tend to have
an adverse impact on blacks. (2309a, 2614a-2615a) Fifthly,
courts have repeatedly found, as Judge Thornberry phrased

151/
it, that the Wonderlic is "race-oriented." Franks v. Bowman 
Trans porta t .ion Company , supra at 412.

Evidence which is less substantial than that presented 
by the plaintiffs has been routinely accepted by courts as 
sufficient proof of "adverse impact," which casts the burden

149/ An employee, in order to be considered for a clerical 
position, had to score a 20, for apprenticeship an 18, and 
for JC 9-13 a 19. In 1971 there were 14 blacks and 184 
whites in clerical positions; while the Wonderlic was being 
administered, there was NO black apprentice; and there were 
but a few blacks in JC 9-13 jobs.

1 5 0/ see Moody v. Albemarle Paper Company, 474 F.2d 134, 138 
N. 1 (4th Cir. 1974).

151/ Albemarle Paper Company v. Moody, supra; Griggs v. Duke 
Power Company, supra; Rogers v. International Paper Company, 
supra; Duhon v. Goodyear Tire & Rubber Co., 494 F.2d 817 (5th 
Cir. 1974).

-59-



on the defendants to demonstrate a "manifest job relation—
152/ship." In order to have supplied further evidence, the

personnel files of thousands of active and inactive employees
would have had to be searched to locate Wonderlie test forms,153/
since the company maintained no log of test scores. (824a)

It is unnecessary to develop the detailed facts concern­
ing the proposed use of the Tabaka tests (see supra at 38-40) 
since the company did not use them in the selection proceaure 
prior to trial, and the court should remand the question of 
the use of the test to the district court to consider in light 
of the standards established by Albemarle Paper Co. v. Moody. 

(See also Argument II, A)

152/ Griggs v. Duke Power Co., supra at 430; Morrow v. Crisler, 
479 F.2d 960, 961-62 (5th Cir. 1973) aff'd en banc, 491 F.2d 
1053 (1974); United States v. Jacksonville Terminal_Cq_w supra
at 456; United_States v. Georgia Power .Company., 474 F.2d 905,
931 (5th Cir. 1973) (II.S. education); Johnson v. Goodyear .Tire 
& Rubber Co., supra at 1371 (II.S. education) ; Ropers v. JOp^epy 
national Paper Co., supra at 1349; Carter v. Grailaghp p, 452 
F .2d 315, 323 (8th Cir. 1971) cert. denied 405 U.S. 9:>0 (1972);
153/ Onefurther point on test scoring needs to be clarified.
The district court, without any discussion, credits the 
incredible testimony of Mr. Adamson that in 1969 or 1970 the 
company established a lower passing score for blacks than wmt~s 
on the Bennett test. (215a-16a)

First, the testimony conflicted with testimony of other 
Company witnesses which the lower court even referred to in 
colloquy with counsel, see 840a. M r . Given , tflre personnel 
manager, stated under oath in answer to interrogatories that 
"[p]assing score is ambiguous . . .  a good score would be to 
answer 75% of the questions correctly." There was no mention 
of any lower score for blacks. (3048a-49a) Mr. Glenn, who 
was under Mr. Adamson's supervision and administered the test 
as Adamson directed, testified unepuivocablp that there was no 
dual scoring system for the Bennett test. (1091a-1093a)

Secondly, Mr. Adamson's testimony is incredible in light 
of clear evidence. Two reports on training programs were pre­
pared in 1969-1970 and neither mentioned any considerations or 
recommendations of a dual scorinq system. ( 3T266a-71a, 3 3 Ĵ_a '
The first black did not enter the apprentice program_until April 1971, 
when the company halted use of the Bennett test, *t*^4 4a-4ba)



III.

THE DISTRICT COURT ERRED IN FAILING 
TO FIND THAT STOCKHAM'S UNLAWFUL EM­
PLOYMENT PRACTICES CAUSED BLACKS EC­
ONOMIC HARM AND IN NOT AWARDING BACK 
PAY

THe unlawful practices of Stockham which excluded or severely 

limited blacks from opportunity to promote to many higher-paying 

jobs, to enter training programs and to advance into salaried posi­

tions resulted in clear economic harm to the class (PX91-97:3765a-3857

Blacks, on the average, earn substantially less than whites. See 
154/

supra at 42-3. The Supreme Court recently concluded, as this^

Court has for several y e a r s ^  that where an employer and union

54/ The figures which detail the disparity m  average and gross 
earnings between blacks and white hourly workers actually under­
estimate the total economic harm suffered by black workers, sir 
they do not include lost earnings resulting from discrimina­
tory selection practices for salaried positions and the 1 ^ “ ® 
economic loss resulting from pension plans based on gioss earn a g 
(PX 25-27). See Pettway v. American Cast_Iron Pipe Company, supra
at 263.
155/ See, e.g. Johnson v. Goodyear Tire & Rubbep_Cpmpany, supra 
7t i r7fiT* Pettwav v. American Cast Iron pipe_Companv, supra at
251-53.
156/ The Union defendants are liable for back pay because they are 
parties to a discriminatory collective bargaining agreement. |£fi_ 
T^ucnn V. coodvear Tire & Rubber Company, supra at 1381 82. Ho 

there is a possible question as to the burden or allocati 
î  abilitv. See Gamble v. Birmingham Southern Railroad Compapy, 

supraat 6069. this regard the plaintiffs note that district
//rt findings (Op. 27) concerning the negotiation positions tauen 
by the Union and the Company are not supported by the evidence. See 
PX87 (3754a), PX52 (3369a-71), PX54 (3414a); 446a-48a, 1320a-29a, 

1336a, I360a-6la, I367a-69a, 1396a. However, the plaintiffs will
not detail the facts concerning the contract negotiations since it 
is assumed that this will be done by the Union.

-61-



have engaged in unlawful practices which result in economic loss 

to blacks, then back pay is an appropriate remedy which should 

ordinarily be awarded to fulfill the two paramount statutory 

purposes of Title VII: to end discrimination in employment and

to compensate the victims of discrimination, Albemarle Paper Co^ 

v. Moody, supra at 9-16.
The district court relied principally on the testimony of

Dr. Gwartney, an economist who testified on behalf of Stockham,

in concluding that "Stockham offered equal opportunities in earn- 
157/ings" Tl74a-86a) Because of the lower court's extensive reliance 

on Dr. Gwartney's testimony, it is necessary to place that testimony

in perspective.
It is essential first to examine what Dr. Gwartney did not

study: (1) the racial assignment of blacks to one group of jobs
158/

and whites to another group; (2) the opportunity for training, 

or the method by which employees were selected, 2144a, 2l49a-50a 

nor even how many employees entered training programs, 2150a

157/ The district court accepted all of Dr. Gwartney's testimony 
Ima assertions without any critical comment or analysis (174a-86a)

158/ Dr. Gwartney stated in reference to the racial allocation of 
iobs: "I mean that's not what my study was about" ( 2143a ). It
is important to note that Dr. Gwartney had information concerning 
the job class of the positions to which employees were initially 
assigned, but he chose not to study that data (2161a)

62-



2241a; (3) the "lock-in" effect of the seniority system, 2153a;

(4) unlawful employment tests or educational requirements, 2152a-

54a, 2241-43;- C5) whether Stockham had, at any time, a policy

of excluding blacks from certain jobs, 2 2 0 0a; (6 ) whether there
159/

was any racial bias in supervisor ratings.

Rather, Dr. Gwartney decided to study discrimination in earn­

ings at Stockham by indirect methods since, according to his own

statement, "[e]mployment discrimination is not something that we
1!EQ/

can directly observe . . . (1992a). Dr. Gwartney used

four methods to "evaluate" discrimination at Stockham: (1) a com­

parison of black-white 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 recently hired employees; and (4) regression 

analysis of various earning factors (174a~86a).

The first method, a comparison of earnings at Stockham with 

various labor markets and to the government is both irrelevant and

159/ Although Dr. Gwartney admitted that racial bias by supervi­
sion would have an adverse effect on the earnings of blacks 
(2281a-83a)

1 0 0/ of course, discrimination in employment is something which 
may be directly observed as this Court has done many times with 
respect to seniority systems, racial allocations of jobs, super­
visory discretion, testing, educational requirements, etc. See 
Argument I, II supra.

-63-



misleading. The second method compares the relative change in

black-white earnings from 1965 to 1972. Actually, there was

little improvement in earnings of blacks compared to whites from 
162/

1965-1972. Even the small relative change in earnings has to 

be carefully interpreted within the framework of the employment 

practices at Stockahm. Clearly, when you begin with a system of 

total job segregation as existed at Stockham in 1965, any tokenism 

will result in some relative improvement.

161/

161/ The labor market figures, derived from census data, include 
anyone who earned more than $1. ( 2.222a ) . Since black unemployment
is almost twice as great as whites, the disparity in earnings in the 
labor markets is partly due to discriminatory denial of employment 
(not in issue here) and partly due to discrimination within firms.

Dr. Gwartney's interpretation of the comparison with the fed­
eral government was based on his labelling the government a "low 
discrimination firm" ( 2030-3la ) . Unfortunately, this analysis is
based on the faulty assumption that there is real equal employment 
opportunity in the federal government. In fact, Congress amended 
Title VII in 1972 in order to attempt to terminate the widespread 
discrimination in the federal government. See e.g;. 118 Cong. Rec. 
4492 (1972) .

Dr. Gwartney's argument at best is that Stockham may be a little 
less guilty than some in offering equal earnings opportunities —  
an argument not borne out by the actual practices of discrimination 
at Stockham.

162/ According to Dr. Gwartney's figures, blacks earned $4,748 or 
$965 less than whites in 1965; in 197 2 blacks earned $7,030 or$984 
less than whites ( 182a) . Dr. Gwartney (and the lower court) read 
these stark figures as indicating no (or less?) discrimination be­
cause black earnings as a percentage of white earnings rose from 
83.1% in 1965 to 87.6% in 1972 (Id.).

-64-

H



Dr. Gwartney's third method compares the earnings of re-
163/

cently (since 1965) hired black and white workers. Dr.

Gwartney finds less earnings disparity in this group than with 

older employees and infers, as does the lower court, that Stockham 

has not discriminated after 1965 ( 183a ). Of course, the evidence

in the record indicates that Stockham has discriminated somewhat 

less after 1965, but that Stockham by no means halted discrimina­

tion. Furthermore, the types of discrimination which Stockham

practices (which Dr. Gwartney did not study) would effect older
164/

employees more than young employees.

Dr. Gwartney's final method is a "regression analysis:" a 

statistical method which attempts to isolate the effects of var­

ious factors on the phenomenon under study, in this case "earnings."

163/ PX 95, attached hereto as Appendix "F", clearly indicates that 
for workers employed as of September, 1973, blacks hired in each 
year since 1965 earn substantially less than their white contempor­
aries .

164/ E_.cj. , the lock-in effect of the seniority system which caused 
employees to lose their accumulated seniority; the institution of 
the Wonderlic Test from 1965-1971; the institution of the age and 
high school education requirements. The slightly smaller earnings 
disparity between recently hired as compared to long-term black 
and white employees is a function of the very nature of the dis­
crimination practiced by Stockham and is not a function of any 
significant amelioration of Stockham's harsh discriminatory 
practices.

-65-



(See 183a-84a). Dr. Gwartney determined that race, when 
considered alone, influenced earnings —  blacks had lower

earnings than whites. ‘(See e.g. PX34, 3256a-59a). However, when oth

"factors" were included in Dr. Gwartney's analysis, the effect
165/

of race on earnings was diminished. (Id.)

Of course, an evaluation of "factors" by regression analysis 

depends for its usefulness upon the appropriateness and reasonable­

ness of the definition of the factors. Dr. Gwartney"s failure 

to review the practices of discrimination in the employment system 

creates fatal errors in his analysis. As a result, the regression 

analysis,, whether or not intended as such, is no more than a sham.

The major "factors" which were used to "show" that the dis­

parity in earnings of blacks and whites resulted from other than

discrimination were "skill level" and "merit rating." (id.)
However, both these factors incorporate discrimination. '

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

in which an employee worked; if an employee worked in a position

165/ According to Dr. Gwartney, only one factor, seniority, was 
directly related to an increase in the effect of race on earnings.
Of course, in a system based on seniority one would expect that sen­
iority would be a crucial factor in determining earnings. Interest­
ingly, seniority, the only factor which had a direct relationship 
to the employment system at Stockham, was the single factor which 
increased the "adjusted" disparity in earnings between blacks and 
whites.

66



with a JC 10-13 rating, he had "skill", and if he did not, he lacked

"skill." (2181a-82a) However, hlacks have been systematically ex­

cluded from promotion or training for jobs in JC 10-13, see 

Statement of Facts, E, F-I, supra. An analysis purporting to 

isolate the effects of discrimination by relying on this "skill 

factor" is absurd; any conclusion that blacks do not earn as much 

as whites because of disparity in "skill" and not because of racial 

discrimination falls as soon as the fundamental relationship between 

discrimination and 'Skill" is pointed out. Once this interdependence 

is recognized, any showing that earnings depend on "skill" actually 

goes to prove plaintiff's allegation of economic harm.

Dr. Gwartney's use of the "merit rating" factor is similarly

misleading. This "factor" was compiled by taking an average of

the merit ratings assigned hourly employees by their foremen in 
166/

1973. According to Dr. Gwartney, blacks averaged 71.3 and whites 

79.3 on merit ratings (3971a). When the "merit rating" factor 

is used to "adjust" racially disparate earnings, it indicates, as 

Dr. Gwartney infers, that some of the disparity results from "merit", 

not from discrimination. But the question which Dr. Gwartney did 

not answer was whether racial bias accounted for the lower black

166/ See supra at 13.

67



167/
merit scores. (See 2280a-2284a)

In conclusion. Dr. Gwartney's disregard of the actual 

practices at Stockham makes his statistical analysis irrelevant 

at best and misleading at worst.

IV
THE PROCEDURE OF THE DISTRICT COURT 
IN ADOPTING IN THEIR SUBSTANTIAL 
ENTIRETY THE PROPOSED FINDINGS OF 
FACT AND CONCLUSIONS OF.LAW OF 
DEFENDANT STOCKHAM IS SUSPECT_____

Literally scores of the proposed findings of fact and
conclusions of law submitted by Stockham were adopted verbatim

168/
or in substantially the same form by the district court. The

16,9/ . .“unfortunate practice" of trial judges of adopting findings 
and conclusions from proposals by counsel has been generally 
condemned by appellate courts, partly because it does not 
offer assurance that the trial judge went over the facts with

\<o]/ In fact, the use of discriminatory supervisory discretion is 
an issue in this case, see Argument IB, C supra. It is noteworthy 
that Mr. Tabaka, Stockham's testing expert, declined to use the 
merit ratings because of possible bias. Mr. Tabaka instituted M s  
own professionally supervised ratings that indicated, for all 
practical purposes, black and white workers received equal ratings 
(3069a-76a)

168/ As is detailed in Appendix "A" attached hereto, 478 or 92% of 
the district court's findings of fact were identical or substantially 
the same as findings proposed by Stockham; 55 or 98.21% of the 
district court's conclusions of law were identical or substantially 
the same as conclusions proposed by Stockham. Other findings of _ 
fact made by the district court were copied from the post-trial brief 
submitted by Stockham.
169/ Volkswagen of America v. Jahre, 472 F.2d 557, 559 (5th Cir. 1973)

68



the care necessary to insure that they support his decision,
partly because the proposed findings and conclusions may not
adequately reflect the reasoning process used by the judge

171/to reach decision, and partly because findings and conclusions
prepared by overzealous counsel may be one-sided or even un~ 

172/
supported.

These evils are all too plain in this case, where,

170/

as the brief points out, essential facts were left out of the
court's opinion and certain evidence presented by
Stookham was accented without discussion of plaintiffs' con-

173/
troverting evidence.

The Fifth Circuit unlike many other circuits which condemn
_L /  /

the mechanical adoption of proposed findings and conclusions, 
applies the same "clearly erroneous" standard to the setting 
aside of these findings as it does to findings prepared oy 
the trial judge himself. jL9.1^ ^ ciaen^f_^erica v. Jahre, 472 
F.2d 557 (5th Cir. 1973); Railex Corp. v._JL£e£d_C!ieck_Co^, 457
F . 2d 1040 (5th Cir.), cert, denied, 409 U.S. 876 (1972); Louis.
Dreyfus & Cie. v. Panama Canal Co., 29S F.2d 733 (5th Cir. 1862) .

170/ United States v. Forness, 125 F.2d 928, 942 (2d Cir.) 
cert. denied, 316 U.S. 694 (1942).
171/ Roberts v. Ross, 344 F.2d 747 (3d Cir. 1965).
172/ id. see also In re Las Colinas, Inc., 426 F.2d 1005 (1st Cir. 
1970), cert. denied, 405 U.S. 1067.
173/ While findings "drawn with the insight of a disinterested 
mind are . . .  more helpful to the appellate court, plaintiffs 
of course do not contest that mechanically adopted findings,  ̂
"though not the product of the workings of the district judge s
mind, are formally his . . .." United States v. El_Paso—Natural
Gas Co., 376 U.S. 651, 657 (1964).

1 7 4/ See, e.g. Roberts v. Ross, supra (mechanically adopted findings 
given less weight on review; In re Las Colinas, sugra (most searching 
examination fo? errors) : The S t ance, 152 F.2d 916 (4th 1945)
(not entitled to same weight and dignity); Tanhor Hygrade No. 24,
V .  The Dvnamic, 213 F.2d 453 (2d Cir. 1954) (more sure of judge s own-—-- L-----  _ rc\ _



In its application of the standard, however, the Fifth
Circuit does take into consideration whether the lower court
"mechanically adopted" the findings and conclusions proposed by a 

175/ 
party.

CONCLUSION
Plaintiffs respectfully submit that the judgment below 

should be reversed and that the case be remanded with directions 
to enter appropriate relief, including an award of interim 
attorneys' fees.

Respectfully submitted,

DEMETRIUS NEWTON 
Suite 1722
2121 8 th Avenue North 
Birmingham, Alabama 35203

JACK GREENBERG 
BARRY L. GOLDSTEIN 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs-Appellant

"Although the standard of review is the same, however, there 
is and should be a certain leeway in applying the standard to 
varying cases. When the findings have been drafted by the trial 
judge himself, they carry a certain badge of personal analysis 
and determination that may dissuade an appellate court from re­
versing in a doubtful case. When that badge is missing, the 
appellate court can feel slightly more confident in concluding 
that important evidence has been overlooked or inadequately 
considered -- if the evidence supporting the decision is of a 
doubtful nature." Louis Dreyfus and Cie v. Panama Canal Co., 
supra at 738; see also 9 Wright and Miller, Federal Practice 
and Procedure, § 2578, at 707.

70



Appendix A

PLAINTIFFS' SYNOPSIS OF 
THE COURT'S OPINION

Findings Of Fact Or Conclusions 
Of Law Which Are "Identical"
Or "Substantially The Same" As 
Those Proposed By Stockham \J

Outline Of Opinion With 
Headings As Drawn By Court

Substan-
Pg. of tially
Opinion Identical The Same Other —'

I. Preliminary Findings of
Fact 1

A. General Matters 1 5 2 1

B. Background Matters

(i) Stockham's History 4

(ii) Stockham's Manu­
facturing Processes 
& Product Lines 6

(iii) Working Conditions 
at Stockham 17

(iv) Stockham's Incen­
tive Pay System 19

(v) Stockham's Merit 
Rating System 22

5

7 3

4 3

19

23 24

1/ Plaintiffs counsel, attempted to carefully compare the Court's 
findings and conclusions with those prepared by Stockham. In any 
case the opinion may be compared to the proposed findings and con­
clusions of law which are in the Record.

2/ Some of the "findings" which are designated "other" were in fact 
copied from the post-trial brief submitted by Stockham.

A-l



Appendix A

Outline Of Opinion With Pg. of
Headings As Drawn By Court Opinion Identical

B. [Sic] 3/ Stockham's 
Departmental
Seniority System 26 5

Substan­
tially
The Same Other

10 12

C. Initial Assignment 
at Stockham 33 12 2 2

D. Promotions & Trans­
fers at Stockham 37 20 10

E. Job Qualifications
Essential for Certain 
Skilled, Highly 
Skilled & Craft Jobs 
—  The Critical Jobs 44

1. Craft & Highly
Skilled Maintenance
Jobs 44 26

2. Craft & Highly 
Skilled Productive
Jobs 53 15

3. Skilled Productive
Jobs 63 19

II. Findings of Fact With
Regard to Alleged Discrim­
ination Against Black 
Employees as a Class 70

3/ The errors in outline form were apparently the result of the 
district court's "adopting" Section's I and II of Stockham's 
proposed findings, but re-arranging the sub-headings without 
changing the designation. The court apparently "took" Sections 
" B " E ," Part I from Stockham's proposed findings and placed 
them after I, B of its opinion. Thus, the opinion is in outline 
form I, A, B, B . . . , and II, A, F . . .  .

A-2



Appendix A

Outline Of Opinion With 
Headings As Drawn By Court

Pg. of 
Opinion Identical

Substan­
tially 
The Same

A. Earnings of Produc­
tion & Maintenance 
Employees at Stockham 70 8

(1 ) Comparison with 
Local, Regional, 
& National Labor 
Markets 72 2 1 1

(2 ) Changes in Earnings 
of Employees at 
Stockham 77 18

(3) Earnings of Em­
ployees Recently 
Hired 70 2

(4) Adjusting for Pro­
ductivity Factors 
by Regression 
Analysis 79 9

(5) Conclus ion 82 1

Miscellaneous Find­
ings as to Earnings 2 1

F. [Sic] 4/ Stockham's Per­
sonnel Development
Program 85 11 1

G. Stockham's Management
Training Program 87 10 2

H. Stockham's Apprentice
Program 89 25 5

4/ See footnote No. 3.

Other

3

3

A-3



Appendix A

Substan-
Outline Of Opinion With Pg. of tially
Headings As Drawn By Court Opinion Identical The Same Other

I. Supervisors 95 9

J. Sales & Clerical 
Jobs 97 23 3

K. Facilities at Stockham 102

(i) General 102

(ii) YMCA 103 2

(iii) Stockham's Con­
ciliation Efforts 103 3 2 1

L. S to ckh am's Employment 
Testing Practices 106 68 4 1

M. Union Defendants 12 6 5 1

III. Findings of Fact With 
Regard to the Specific 
Allegations of Discrimin­
ation of the Individual 
Plaintiffs

A. Individual Plaintiff 
Patrick James, Jr.

B. Individual Plaintiff 
Howard Harville

C. Individual Plaintiff 
Louis Winston

IV. Findings of Facts With 
Regard to Relief Sought 
by Plaintiffs

A. Injunctive Relief

B. Back Pay

12 7 13

12 9 5

13 0 7

132

132 5 2

133 2

A-4



Append ix A

Outline Of Opinion With 
Headings As Drawn By Court

Pg. of 
Opinion Identical

Substan­
tially 
The Same Other

C. Attorney's Fees & 
Costs 134 2

D. Conelusion 143 1
412 66 41

Total Findings of Fact 519

Total Identical or Sub­
stantially the Same 478 92%

Total Identical 412 79.4%

Total Other 41 7.9%

Conclusions of Law

A. Jurisdiction 135 3

B. The Class 138 2

C. The Burden of Proof 
and use of Statistics 136 7

D. Initial Assignments, 
Promotions & Transfers 
Within Bargaining Unit 138 13 2

E. Supervisors 145 1 2

F. Clerical, Timekeepers, 
Sales & Guard Jobs 146 2

G • Apprentice Training 
Program 146 2

H. Other Training Programs 147 1

I. Stockham1s Employment 
Testing Practices

J. Union Defendants 150 1

A-5



Appendix A

Outline Of Opinion With 
Headings As Drawn By Court

Pg. of 
Opinion Identical

Substan­
tially 
The Same Others

K. Facilities 152 1 1

L. Back Pay 152 2 1

M. Injxinctive Relief 154 1

N. Attorneys Fees 154 1
42 13 1

Total Conclusions of Lav/ 56

Total Identical or Sub-
stantially the Same 55 98.21%

Total Identical 42 75%

Total Other 1 1.78%

A-6



APPENDIX B

TESTIMONY OF COMPANY MANAGERS AND SUPERVISORS 
AND COLLOQUY BETWEEN THE COURT AND COUNSEL 

CONCERNING THE GENERAL ALLOCATION OF 
JOBS BY RACE

Mr. Sims, Manager, Employee & Public Relations
305a-307a
Q. Mr. Sims, do you know of any job prior to 1965 which 

was manned by both black and white employees?
A. I can't remember one.
Q. Mr. Sims, I'm referring to your deposition which

was taken on the 6 th day of November 1973, to page(s) 
146 and 147 starting on line 17.

* * * *

Q. Now, if I may, I will read the question. The question 
was, 'was there a time, Mr. Sims, when blacks were 
initially assigned to some jobs and whites were 
initially assigned to other jobs as a general rule? 
Answer: Was there a time? Question: yes. Answer:
yes'.

A. As a general rule, yes, as a general rule. But you
asked me another question in a different context, Mr. 
Goldstein.

Q. And if we can continue then on 147, 'And did this 
practice continue until 1965? Answer: yes, sir'.
Now Mr. Sims, you say as a general rule that was true?

A. (Nodding head affirmatively).
Q. Can you think of any exceptions to that general rule?
A. Right at the present time, no.

324a-325a
Q. Now, there was also a third type of department, Mr.

Sims, and that was a department in which there were a 
substantial number of employees of both races, and I'll 
call your attention to one example of such a department 
[which] is the Tapping Room.

B-l



A. Yes, sir.
Q. And that's true, that historically, there's been a

number of black and white employees in that department?
A. Yes, sir.
Q. Isn't it also true that at 19— in 1965, there were 

jobs which were filled by whites in that department 
and jobs which were filled by blacks and had always 
been filled by people of these races?

A. Well now, there were jobs that we'll say were tradi­
tionally; always is too absolute, but traditionally, 
yes, sir.

Q. So in the Tapping Room there were jobs that were 
traditionally white and traditionally black?

A . Yes.

331a
Q. ... Now, Mr. Sims, this general rule which we have

discussed about their being black jobs and white jobs 
at the company, is that written down anywhere?

A. No, sir.
Q. How was it enforced, or how was it put into practice? 
A. It was in practice when it came to Stockham and —
Q. Would you just say it was a custom?
A. Yes, sir, custom.

Deposition of Mr. Sims, 3568a-69a______
Q. Was there a time, Mr. Sims, when blacks were initially 

assigned to some jobs and whites were initially 
assigned to other jobs, as a general rule?

A. Was there a time?
Q. Yes.
A. Yes.
Q. And did this practice continue until 1965?
A. Yes, sir.

B-2



Mr. Burns, Company Vice-President
Deposition, 3679a-80a____
A. Well, Mr. Goldstein, if you are trying to get me to 

say that prior to 1965, by and large blacks filled 
certain jobs and by and large whites filled certain 
jobs, I will agree to that, sir.

Q. Well, I am not trying to get you to say anything, Mr. 
Burns. I just want to find out what the situation is.

A. I will make that statement for you.
Q. Do you recall any jobs in which both blacks and whites 

were assigned to?
A. At what time sir?
Q. Prior to '65.
A. At this time I don't recall.

Mr. Carlisle, Superintendent
Deposition, 3607a_____
Q. Was there a time at Stockham Valves when the jobs were 

either black or white as far as the racial composition 
and staffing of the jobs?

A. I don't think we ever had jobs such as black and white. 
We had black and white people on jobs.

Q. I guess what I mean by that, wasn't there a time when 
a job would be staffed entirely by black employees or 
staffed entirely by white?

A. Yes. That is very true.

Colloquy Between Court and Counsel 
716a-717a
Mr. Coleman: Excuse me one second, Judge. I just want to
make the point again that I don't think it’s material what 
the situation was in 1946 in this case or in 1950 in this 
case or any time back in the years before there was any 
Civil Rights Act.

B-3



Mr. Goldstein: Your Honor, we feel that —  well, as a
matter of fact, one of our named plaintiff was hired 
in 1946 and what happened in 1946 in his assignment 
where he was assigned and started accumulating depart­
mental seniority had a direct effect on the situation 
after 1965.
THE COURT: Well, I believe it's undisputed that there
was a departmental seniority system in effect until very 
recently.
Mr. Coleman: The departmental seniority system, your
Honor, is one thing, but questions about alleged division 
of departments by race and jobs as such, I don't think 
I don't see any point in establishing that in 1946, if 
that's a fact in 1946 or 1950.
THE COURT: Well, I believe Mr. Sims testified already
and he was an adverse witness and I believe the situation 
about jobs by race is already clear. This is accumulative 
(sic).

1177a-1178a
Mr. Goldstein: Your Honor, we have had testimony which
amounts to being cumulative about the racial assignment 
and composition of jobs right up until 1970, '71, in
various departments.
THE COURT: Yes. It does amount to being cumulative that's
right.
Mr. Goldstein: And I think what Mr. Butler is asking is
what effect this had on the witness.
THE COURT: Weil I'll let him answer it, but I would like
for this cumulative testimony on all of these issues that 
are already so well proven; I would like for you not to 
enter them anymore because it's not necessary.

B-4



A P P E N D I X
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P x

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w H I J p S B L A C K S

«-----
YE A* 1 2 3 4 5 6 7 3 9 1 0 11 12 13 YEAR 1 2 3 4 5 6 7 8 9 10 1 1 12 13

1
1 0 3 3 1 9 3 3 .

___  -.192 5 ’ _
1

• 1936 ' 1926
_______  ... . .. 1 927 .

1
L

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... ... 1__

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1938 - 1 1*5 2 B I

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1

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5 .. - 1543 .... 5..

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1944 1 1 1 2 1 5 ^ f. 3 1
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1946

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1 2  15^7
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1

14 1^4 3 2 155b
1 .. .. 3 .... LS5 0 -. .

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11---- ------------ 1 4 5 0 ■ ■
1 9 ?

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1 2 1551

a
2 i 1

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!• — — —

1983 4 ' 1 5 5 3  
1 _ 3 . _ . 1 554 ...

1998 2 3 1555 
2 - 155 6 '..

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1

„II • ■■ -------------- 19 ------
1957 5 1557 

l . 1 5 5 cJ..
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l» — — —

1959 156 9 • 3 1 3 2

X  —  —  — ASS l
1962 1

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5 . 1562

.... . . 2 - - 11 - . - .156 2 ---
1
3 _5

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-- £1*1*----

1^64 ? 1564 1 1 1
3

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l a 3 3 . 1 _

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22 — — — - 1  $65 

1966
— 4-

1 1 1 2 7 1 9 6 6  '• 5 1 4 . 5 2 3
i

n — --
1968 1 1 i

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--1

3 3 1 51 6 
. .. 1.... 5 .. 5 . ...... 1 569 ...

l  1 
_____ 5

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1570 A 1 1

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1 1 - 1 3 .  1570 
J 3 ...15 . ........1571.

4
1 1 3 _ . 5...

2
.4 _ . 6 .__4._

1 1 \
... c

n --—
1972 7 2 1 1 5 3

7 -
"3 1 4 5 1572

. 1 . 1 2 ... 3 '••• ____ 1-57 2 ...
21
35

. 1
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v — o

— >r----
TOTAL 24 15 4 2 1 2 2 3 2 1 1 0 5 2 "i _

C - .23 31 141 3 128 33 47 91 28 2 2  6 5 2 2 2

—  6
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Y = AB

1923-LS2&.
1929
-193QU

1932
. 1 9 1 1 .

1937-lil9.
1993  

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1992  
- 1 9 9 1 .199i.
- 1 9 9 5 -  

1 996  
_19 9 X -  

1998  
- 1 9 9 9 .

1 9 53
_1251.

195 ?_iasi_

10 12

1«59
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19 56
1 0 KQ

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-------  1 3 6 9 ----- ...............- L - 1

1965 3 2
......... .......

1 967 1 4 l
a

1969 1 3 ?
- __ C _____ __  19 70 — . 4  ____

1971 1 1 -  15 i
J  -  —  1 9 2 2  .  ̂ 1 7>

1973 16 2 2 4 3 2 1 4

___IQIAL__________ A_12__ 9__ 9__9

.____ i.....--,0 r
ANC j-Cd CLASS-ENTIRE-PLAN.T______________ Q.Q.Q.2L__________ lf ̂  !'

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1523.
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19 3 7 2

. 1 5 ? 9 _ _ .........L _ 1
1 S4 0 9 ' 1 1 2 c
1 59 1 . .1_. 3 2 ? 1 1
1 99 2 3 3 1 4 1
1 5 «3 . .3. _ 7. _ 2 o
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1 C/.|j 2__ __3 . 9 - 8  ■ 2 _ 3. _______  _ _ ______ __  f
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156 7 L 2 a i 2 1 o
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2E2___ _AVE-S5iUOailY___

BLACK
2 V£ V'is. A IE . . — .. a v l -;

WHITE BLACK WHITE WHITE BLACK to hi I
! ) * —  
! ft - 01 - 1 Q 2 4Q 2.99 5C99.I

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_03-_16 _292_'_7Q-G0_ 65-36 _ - -3-53- 432.4*1i

0 A 1 ?a . .7-* nn 2 r n 4 3 T 0 6 323.
__Q5_ 37- ■a 65-05- 61 r 67 3.2d 3-33
-06--121- 70__ -.65-45- 64-06 _ - • 3-C2____ 4061.
0 7 1 7 | 4 ^ . 4 7 4 i . 0 0 4-20- ..-3~f.3rt 4 700,

_ 06 _19 _2 -63-63 68-50 - - .<6.. ■a 7 i 6 4 v j ..i
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APPENDIX f\ 9/ n
. .HOURLY ...P AYROLL .REGISTER AS Of 09-02-7.3 0001
: p A Q T .v c M
:_- _AVE-R.E0 .HRS. _ _AVE.PaES.HRS. _ GR0SS/REG.HRS. !

WHITE' ■ BLACK WHITE BLACK WHITE BLACK i

.12 70. 0 1073.5 202.9 2J..5 4.02 3.88
5 72.4 1039.2 _ 6.2_ 3.95_ 4.19

U

_ 1105.8. .1012.9 _ 42.5 _ 27..1 _ _ _3.91 _3.64 __
..112.0 1125.6 ' .0 _2.Q.S 2.89 3.94

... 1247.8 .1319.7 ... .2 _ _ 3.6 _ 4.14 3.46 _ _ o
- 960.5 1022.6 3.76
1276.6 1 ?ri0 .0 . . .9 .0 4.47 3.58

/̂Vv->

. .1-39.4. ...989.2 __ _136.9__ 64.8 _ . 4.85_ 4.17 c

. __ 1263.4..-. 1235.3._ _ .44.3__ 8.7_ ____ 4.36. 3.65
.1046.7.. .1230.3 76.9 12.8 4.40 3.60

Q

..543.3„__1123.3_______2.0____ 2,4_______ 3,19___4.12______ „ O

. . ■ . 1 0 1 6 . 0 1 2 0 5 . 2 . . 6 . 4 3 . 5 7 3 . 6 9 _
c

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... ___ 1C5 8 . 6 .  - 1 2 7 6 . 2 1 5 . f i . 2 4 . 2 8 . 3 . 4 3

.. . 1 0 1 2 . 5 - . 1 0 7 0 . 8 2 4 . 1 1 0 , 4 . 3 . 8 7 _ 4 . 1 4 L -

1 1 4 1 . 3 1 2 0 8 . 4 . 0 , 3 . 3 . 2 5 _ 3 . 4 3 _

1 3 1 2 . 9 . 1 2 6 4 . 0 . *2_ . 0 3 . 8 8 . 3 . 5 7

_____ 1C 3 1 . 3  _ 1 1 6 1 . 2 ___ _ 4 . 0 , 6 3 . 7 8 . . 4 . 3 1 p .

1 3 6 9 . 3 1 3 5 2 . 9 . . 1 1 4 . 2 .  

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' ... 1 J94 . - 1  . , 1 3 0 5 . 6 - ...... . . 2 1 0 . 0 . ___ 4 2 . 7 ___________ 4 . 3 1 __ - 3 . 6 1 .
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_________________________________________ ___________9V. S EN IL 0 IT Y DEPARTMENT . . .____ ._____________ ___________________________
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Appendix E

EEOC GUIDELINE ON "DISPARATE TREATMENT,"
29 CFR § 1607.11

Sec. 1607.11. Disparate Treatment. The principle of 
disparate or unequal treatment must be distinguished 
from the concepts of test validation. A test or other 
employee selection standard - even though validated 
against job performance in accordance with the guide­
lines in this part - cannot be imposed upon any in­
dividual or class protected by Title VII where other 
employees, applicant or members have not bean subjected 
to that standard. Disparate treatment, for example, 
occurs where members of a minority or sex group have 
been denied the same employment- transfer or member­
ship opportunities as have been made available to other 
employees or applicants. Those employees or applicants 
who have been denied equal treatment, because of prior 
discriminatory practices or policies, must at. least be 
afforded the same opportunities as had existed for 
other employees or applicants during the period of 
discrimination. Thus, no new test or other employee selec­
tion standard can be imposed upon a class of individuals 
protected by Title VII who, but for prior discrimination, 
would have been granted the opportunity to qualify under 
less stringent selection standards previously in force.



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