James v. Stockham Valves & Fittings Plaintiffs' Proposed Findings of Fact

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

BIRMINGHAM DIVISION 
NO. 70-G-178

PATRICK JAMES, et al..
Plaintiffs,

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

Defendants.

PLAINTIFFS' PROPOSED FINDINGS OF FACT

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

JACK GREENBERG 
BARRY L. GOLDSTEIN 
JOHNNY J. BUTLER 
JOSEPH P. HUDSON 

10 Columbus Circle Suite 2030
New York, New York 10019

Attorneys For Plaintiffs.



table of contents

Pages

Note on Citations iv
T x • Parties 1
II. STOCKHAM'S EXTENSIVE PRACTICE OF SEGREGATION 6

A. The Segregated Facilities and Programs 6
Bathroom Facilities 6
Bathhouse 7
The Stockham YMCA, Its 
Functions and Activities 8
Water Fountains 10
Entrance Gates, Identification Badges and Pay Windows 10
Dispensary 12

B. The Attempts of Plaintiffs and 
Other Black Workers to 
Terminate These Degrading 
Practices of Segregation 13

C. Stockham1s January, 1974, Settlement 
with The EEOC Concerning 
Segregated Facilities 13

III. THE ESTABLISHMENT AND THE PROCEEDINGS OF THE CIVIL RIGHTS COMMITTEE 15
IV. THE ORGANIZATIONAL STRUCTURE AT STOCKHAM 17

A. Manufacturing Processes and 
Product Lines 17

B. Workforce 18

l



<

V.

VI.

VII.

Pages
c. Departmental Organization 19
D. Job Organization: Non-Supervisory 21
E. Job Organization: Supervisory 22
F. The Pay System 23

Non-Incentive Workers 23
Incentive Workers 25
Pension Plan 26

THE DEPARTMENTAL SENIORITY, PROMOTIONAL AND
TRANSFER SYSTEM AT STOCKHAM 27
A. The General Pattern of the

System 27
B. The Attempts by The Union

Negotiating Committee During 
Collective Bargaining to
Modify The Seniority System 31

THE SEGREGATED JOB ASSIGNMENT PRACTICES OF
STOCKHAM 33
A. The General Pattern 33
B. Predominantly Black Departments 39
C. ".Racially Integrated" Departments 44
D. Predominantly White Departments 48
E. The Limitation on Opportunities 

for Blacks to Enter Clerical, 
Timekeeper, Sales and Guard 50Positions

Clerical Employees 50
Timekeepers 53
Sales Employees 53
Plant Guards 54

F. Summary 54
TRAINING PROGRAMS: APPRENTICE AND ON-THE-JOB 56

11



Pages
A. Apprentice 56

Structure 56
The Limited Apprenticeship 

Opportunities for Black 
Employees 59

B. On-the-Job Training 60
VIII. TRAINING PROGRAMS: SUPERVISORY POSITIONS 61

A. The Organizational Apprentice
Program ("OAP") 61

B. The Management Training Program
("MTP'") ’ 62

C. The Personnel Development
Program ("PDP") 63

IX. THE DISCRIMINATORY RECRUITMENT PRACTICES AT
STOCKHAM 64

X. THE SELECTION OF SUPERVISORS 65
XI. THE UNLAWFUL TESTING AND EDUCATIONAL PRACTICES

AT STOCKHAM 67
A. Pre-August, 1965 67
B. August, 1965 - April, 1971 68
C. July 17, 1973 to present, The

"Tabaka" Tests 71
XII. BLACK EMPLOYEES HAVE SUFFERED CLEAR ECONOMIC

HARM AS A RESULT OF THE DISCRIMINATORY 
PRACTICES AT STOCKHAM 80

ill



NOTE ON CITATIONS

The following citations are frequently used in the 
Proposed Findings of Fact and Post-Trial Brief:

Brief:
"T. Testimony of.
"D. Deposition of
"PX. Plaintiffs' Exhibit
"DX. Defendant Company's Exhibit
"UX. Defendant Union's Exhibit

Plaintiffs have included, as Appendix "A" attached hereto, an 
index to the trial transcript. The index lists the witness, 
position and the pages on which his testimony is listed.

- iv -



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

BIRMINGHAM DIVISION 
NO. 70-G-178

PATRICK JAMES, et al.,
Plaintiffs,

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

Defendants.

PROPOSED FINDINGS OF FACT

I.
PARTIES

PLAINTIFFS
1. The named plaintiffs, Patrick James, Howard 

Harville, and Louis Winston are each black male citizens of 
the United States and the State of Alabama, residing in the 
City of Birmingham. Plaintiffs are or were each employed by 
the defendant Stockham Valves & Fittings Company ("Stockham" 
or "Company") at its facility located in Birmingham, Alabama



and are or were members of defendant Local No. 3036 of the 
United Steelworkers of America (" Local 3037").

2. This action may be maintained as a class action pur­
suant to Rule 23(b) (2) of the Federal Rules of Civil Procedure.
The plaintiffs have standing to represent the class. The class 
of persons represented by plaintiffs is defined as: A class of 
persons consisting of all black employees, whether currently or 
formerly employed by Stockham or who may be employed by Stockham 
in the future who have been or who may in the future be dis­
criminated against in the terms and conditions of their employ­
ment, in violation of Title VII of the Civil Rights Act of 1972
(as amended), 42 U.S.C. §1981, and/or 29 U.S.C. §§151 e_t seq.

3. Plaintiff Patrick James was hired by Stockham in 
1950. Mr. James graduated from Industrial High School, now 
Parker High School, in Birmingham in 1939. Then Mr. James joined 
the United States Army where he received training as a supply 
sergeant, and in communications. Mr. James was honorably dis­
charged in 1943 and attended Tuskegee Institute under the G.I.
Bill where he took courses in electricity. Mr. James also took 
courses in English and Math, but did not get a degree. After leav 
ing Tuskegee, Mr. James took a course in motion picture projection 
Mr. James has also finished Booker T. Washington Business 
College in Birmingham. [T. James 423]

Mr. James sought employment at Stockham on August 8, 
1950 as an electrician or alternatively as a shipping clerk.



However, he was routinely assigned like other Blacks to the 
malleable foundry as a laborer. [T. James 430]

Throughout his career at Stockham Mr. James renewed 
his attempts to move into a clerical job [T. James 499] or into 
a job in the Electrical Department. [T. James 453-455] On 
August 2, 1966, Mr. James was given the Wonderlic Test by 
Stockham for the clerical position. [T. James 35; PX 58] Mr. 
James was told that he had failed this test and was not given 
the position.

Despite Mr. James' educational background and continued 
requests for promotion, he has been kept in laboring or menial 
work for over twenty-four years. Mr. James, as previously noted, 
first worked in the malleable foundry as a laborer. [T. James 
430] In the succeeding years he has been moved around by the 
Company through a series of low-paying jobs. [T. James 430, 
436-437, 439, 441] From 1972 to the present he has worked as 
a Job Class 3 laborer in the Brass Foundry. [PX 15, p. 68;
PX 16, p. 64]

Despite Mr. James' repeated frustration in seeking pro­
motion at the Company he has continued to be a good worker. On 
Mr. James' last rating form he was rated exceptional in every 
category. [PX 81]

4. Howard Harville applied for a shipping job at 
Stockham in 1946. However, like hundreds of other black appli­
cants, he was assigned to one of the all-black jobs in the Grey

3



Iron Foundry. [T. Harville 647] During his entire 24 years
with Stockham, Harville was always employed in the Grey Iron
Foundry in the position of arbor molder. [T. Harville 648]
As an arbor molder Mr. Harville, like other Black employees
relegated to this job, had to get down on his knees on the hot
molding floor most of the time to do his job. [T. Harville
655-656] Mr. Carter, superintendent of the Grey Iron Foundry
has concurred that an arbor molder could not work standing up.
[T. Carter 707-708] Harville, now 58 years old, has been

1/medically retired from Stockham since 1972.
5. Plaintiff Louis Winston has been employed at

Stockham since 1964. Winston, a high school graduate, did not
request any specific job when he sought employment at Stockham.
Stockham, of course, assigned him to a laborer's position (Job
Class 2), in the Galvanizing Department. In 1965 Winston was

2/transferred to the Electrical Department as a laborer.

DEFENDANTS
6. The defendant Stockham Valves & Fittings Company is 

incorporated under the laws of Alabama and is engaged in the 
manufacture of cast iron valves, malleable fittings, bronze 
valves and other industrial goods. It conducts business within

1/ Mr. Harville receives a pension of $40.00 per month
from Stockham.
_2/ Mr. Winston's employment history at Stockham is des­cribed in detail in Section VI , paras. 56-62 , infra.

4



the State of Alabama and the Company also maintains facilities 
and conducts business in other states within the United States 
and foreign countries. At the Birmingham facility alone, the 
Company employs- in excess of 1,900 persons. The Company is 
an employer within the meaning of 42 U.S.C. §2000e(b), in that 
it is engaged in industry affecting commerce.

7. Defendant United Steelworkers of America ("Steel­
workers") is a labor organization engaged in an industry affect­
ing commerce and exists in whole or in part for the purpose of 
dealing with defendant Stockham concerning grievances, labor 
disputes, v/ages, hours and other terms or conditionsof employment 
of workers at Stockham. The Steelworkers has more than 100 
members and is a labor organization engaged in an industry 
affecting commerce within the meaning of 42 U.S.C. §2000e (d).

8. Defendant Local No. 3036 of the United Steelworkers 
of America is the recognized collective bargaining represen­
tative for employees at the Birmingham plant of Stockham Valves 
& Fittings Company. Local No. 3036 has over 100 members and is 
a labor organization engaged in an industry affecting commerce 
within the meaning of 42 U.S.C. §2000e(d).

ADMINISTRATIVE COMPLIANCE
9. Each of the named plaintiffs filed charges with the 

Equal Employment Opportunity Commission ("EEOC") on October 5, 
1966. Specific allegations of racial discrimination were made 
against Stockham for, inter alia, denying job advancement and

5



promotion opportunities to blacks, maintaining dual lines of 
progression, maintaining segregated facilities throughout the 
plant, having no black clerks, supervisors or foremen, using 
discriminatory testing procedures and discriminating in other 
terms and conditions of employment. [PX 56]

On June 8, 1970, an amended charge of discrimination 
was filed by Patrick James with the EEOC which included Local 
3036 and the Steelworkers as parties to the above-listed dis­
criminatory practices. [PX 57]

10. The plaintiffs received Notices of Right to Sue 
on or about February 16, 1970, and duly filed the complaint in 
this action within thirty days thereof. II.

II.
STOCKHAM'S EXTENSIVE PRACTICE OF 
____________SEGREGATION________

A . The Segregated Facilities and Programs
Bathroom Facilities

1. The toilet facilities at Stockham, except for the 
one facility built since 1965, were constructed in such
a manner, either by partition or by separate rooms, in order to 
be divided into "colored" and "white" areas. [D. Sims 27-28,
PX 61; DX 88 No. 9]

2. Until some time in 1965, there were signs marked 
"colored" and "white" designating who was to use each part of



the facility. Company supervisors instructed employees as to 
which facility they should use. [D. Sims 27-28, PX 61;
T. Harville 659]

3. Stockham to this day has not changed the construc­
tion of the toilet facilities; the divisions separating
the "colored" and "white" sides remain. [See infra. Section C, 

for description of the Agreement entered into by Stockham and 
the EEOC.]

Bathhouse
4. The main locker room for hourly employees is located 

next to the Pattern Shop. [PX 69] The room is divided by a 
partition which runs east-to-west. [D. Sims 20, PX 61] On each 
side of the partition, there are lockers, shower and toilet 
facilities. [DX 88, No. 5]

5. Lockers on the north side of the partition were 
assigned by Company officials solely to black employees; lockers 
on the south side were assigned solely to white employees.
[D. Sims 20-21, PX 61; DX 88, No. 6]

6. Consequently black employees always used the locker, 
toilet and shower facilities on the north side, while white 
employees used the locker, toilet and shower facilities on the 
south side. [Id.; T. Chatman 808-809]

7. Stockham just prior to trial entered into an agree­
ment with the EEOC to alter the segregated set-up of the 
bathhouse. (See Section C, infra.)

7



The Stockham YMCA, Its Functions and Activities
8. The YMCA at Stockham is in actuality a Company- 

sponsored employee-services program. The YMCA program, 
established in 1918,is supported entirely by Stockham. [D. Sims 
8-10, PX 61]

9. Among the activities managed by the YMCA are the 
Bull Ladle (the plant magazine), athletics, labor day picnic, 
and the cafeteria, fid.]

10. The cafeteria is used regularly by a large number 
of Stockham's employees. [DX 88, No. 3]

11. A partition, which ran east-west, divided the 
cafeteria into two parts. Each part had a serving line. The 
overwhelming majority of Blacks ate on the north side of the 
cafeteria and the whites on the south side. [T. Sims 81;
T. Gandy 1025] This partition was removed on January 26, 1974. 
[DX 88, No. 3]

12. The cafeteria at the plant is used each labor day 
for a picnic for employees. [T. Gandy 1042-1043]

13. Prior to each picnic, including the one held in 
1973, the partition in the cafeteria was taken down and then 
replaced after the picnic was held. [T. Gandy 1043-1044;
T. Given 264]

14. The actual administration of the YMCA program and 
facilities is done by Mr. Gan^y, the Secretary of the YMCA.
[T. Gandy 1022] Mr. Gandy is white.

8



15. Mr. Gandy is assisted by Rev. Guy Harrison, 
Assistant Secretary of the YMCA. Reverend Harrison is black.
Rev. Harrison is a graduate of Tuskegee Institute of Tech­
nology. [T. Gandy 1018]

16. Mr. Gandy became Secretary of the YMCA in 1960.
[T. Gandy 1014-1015] Prior to that time, he worked as a clerk 
and as a supervisor. [T. Gandy 1013-1014] When Mr. Gandy was 
placed in charge of the YMCA program Rev. Harrison had already 
worked as an Assistant Secretary of the YMCA for at least 12-14 
years. [T. Gandy 1016] The Assistant Secretary of the YMCA 
has always been Black. [T. Gandy 1018]

17. The office of Mr. Gandy is just off the side of 
the cafeteria in which the white employees traditionally eat.
[DX 88, No. 4] The office of Mr. Harrison is off the side of 
the cafeteria in which the black employees traditionally eat.
[Id-]

18. Also, there were two Boards of employees who make 
suggestions concerning the activities and programs of the YMCA. 
[D. Sims 8, PX 61] There were approximately twelve to sixteen 
members on each Board. [D. Sims 11, PX 61] As of November, 1973 
one Board was composed entirely of white employees and the other 
Board was composed entirely of black employees. [Id.]

19. As of December, 1973 defendant Stockham caused 
these two racially segregated Boards of employees to be inte­
grated into one single Board. The current Board consists of 
eighteen employees. [T. Sims 75-76; DX 88, No. 1] Prior to



December, 1973, Stockham never tried to integrate its Y Boards.
[D. Sims 11, PX 61]

20. It is undisputed that prior to 1965 all the
activities of the’ YMCA, such as athletic teams, sponsored by !
the YMCA, were segregated. [D. Sims 12, PX 61]

21. Even after 1965 there was no integration of the 
YMCA activities for some time. [T. Sims /9-80; D. Sims 13,
PX 61]

22. Prior to 1965 the "Y" building, which included the
cafeteria, had signs denoting race. These signs were removed 
in 1964 or 1965. [T. Winston 1255-56; T. Robbins 1180-81]

Water Fountains
23. Until some time in 1965, the drinking fountaxn^ at

Stockham were segregated. Signs indicated the "white" and
3/"colored" fountains. [T. Harville 659-60]

24. In 1965, Plaintiff Harville had problems with a 
white foreman because he drank on the side of the water fountain 
marked "white". [Id.]

Entrance Gates. Identification Badges, and Pay Windows
25. The totality of Stockham's system of segregation

even extended to entrance gates, identification numbers and pay window

3/ In 1967 or
the water fountain 
but reappeared. [T. 
these signs.

1968 there were "white" and "colored" signs 
in the core room. The signs were torn down, 
Harville 663-64] It is unclear who placed

on

Harville and Mitchell (white chairman of the union 
grievance committee) discussed these signs with Mr. Bishop,^ 
Baker, Mr. Snyder, and Mr. Carter. These signs were also d 
cussed in the Civil Rights Committee meetings. [T. Harville

Mr.
is-
664-65]

10



26. In two entrance gates to the plant, there were 
partitions; Blacks had to enter on one side and whites on the 
other side. [T. Sims 82; Harville 657-58]

27. In 1965, plaintiff Harville was physically pre­
vented from entering a gate marked "white" by a plant guard. 
Harville reported this to his foreman, a Mr. Snyder, who told 
him he didn't have any business going through this gate. [T. 
Harville 657-58]

28. The entrance gate partitions were removed in 1965 
by order of the Stockham Board of Directors. [D. Sims 34-35,
PX 61]

29. Until 1969 all of the black hourly employees at the 
Company had identification badge numbers ranging from 300 to 
2999. [DX 88, No. 11]

30. Until 1969 all of the white hourly employees had 
identification badge numbers which began with the number 3000 
and continued upwards. [DX 88, No. 12]

31. During the period in which black employees and white 
employees had separate badge numbers the Company paid the 
employees with cash. The cash payments were dispersed through 
pay windows; there were separate pay windows for employees with 
badge numbers from 300 to 2999 (i.e., black workers) and for 
employees with badge numbers 3000 and upwards (i.e., white 
workers). [DX 88, No. 13]

32. In 1969 the Company changed the method for assigning 
badge numbers; badge numbers are now assigned by department.

11



The first two numbers of an employee's badge number indicates 
the department in which he is working. [DX 88, No. 14]

33. In 1972 the Company began to pay its employees by 
check. Accordingly, the pay windows are no longer used. [DX 
88, No. 15]

Dispensary
34. Stockham maintains a dispensary at the plant which 

provides medical and dental care for employees.
35. In the dispensary, there was a partition which ex­

tended almost across the room; there was enough room left to 
place a desk where the receptionist sat. [D. Sims 37, PX 61]
The partition remained in the Dispensary for a substantial period 
after 1965. [D. Sims 41, PX 61; PX 55, p. 4]

36. Prior to the removal of the partition, black 
employees generally entered and waited for dental or medical 
treatment on one side of the partition and white employees 
generally entered and waited for dental or medical treatment on 
the other side of the partition. [See. D. Sims 38, PX 61]

37. Presently, there are two rest rooms in the Dispensary 
for "women" which are located side-by-side. [T. Sims 94-95]
A total of six women use these bathroom facilities. [T. Sims 
96] One of these bathrooms is for black women and the other is 
for white women. [T. Short 2744-47]

12



B. The Attempts of Plaintiffs And Other Black Workers 
To Terminate These Degrading Practices of Segregation

38. The members of the Civil Rights Committee of
4/Local 3036, repeatedly complained about the partitions which 

segregated the toilets, bathhouse, cafeteria and dispensary.
[D. Sims 32, PX 61; D. Robbins 52-53, PX 68]

39. Mr. Reeves Sims and other Company managers were 
present at these meetings, rid.]

40. The plaintiffs and other black employees listed the
segregated facilities as discriminatory practices in their charge 
to the EEOC filed on October 5, 1966. [PX 56]

41. The EEOC investigated the plant and found reason­
able cause to believe that the facilities were segregated on 
February 26, 1968. [UX 1]

C. Stockham's January, 1974 Settlement With The EEOC
Concerning Segregated Facilities
42. On January 21, 1974 the Company entered into a con­

ciliation agreement with the EEOC concerning certain segregated 
facilities. [T. Given 1298-99; DX 34]

43. The conciliation agreement grew out of charges, 
filed in 1970, to the EEOC filed by a Mr. Darden and Mr. Williams.

4/ The function and composition of the Civil Rights Committee
is described, infra, see, Section III.

It should be noted thar any complaints involving racial 
discrimination had to be brought before the Civil Rights 
Committee and could not be grieved. See Section III, para. 6 , 
infra.

13



[T. Given 1297, 1314] These two black employees charged that 
they were unlawfully discharged and that Stockham maintained 
segregated facilities.

44. EEOC did not find reasonable cause to believe that 
the charging parties were discriminatorily discharged. [T. Given 
1314]

45. The agreement was only between the EEOC and 
Stockham. The charging parties, Darden and Williams, were not 
even informed of the Agreement, nor did they participate in the 
negotiations. [T. Given 1313]

46. Neither plaintiffs nor their attorneys were in­
formed about the Darden-Wiliiams charge, or the negotiations 
concerning the segregated facilities. [T. Given 1312—1313]

47. Plaintiffs were first verbally informed of the 
Agreement the weekend before the commencement of the trial.

48. Stockham agreed to make the following alterations 
to its segregated facilities. [DX 34]

a. Remove the partition in the cafeteria;
This was accomplished on January 26, 1974;

b. Terminate dual toilet facilities in five
locations; this is to be accomplished during

5/
the plant summer shutdown;

5/ The plaintiffs do nor disagree with the proposed schedule
for the physical alteration of the facilities. Considerations 
of employee safety make it reasonable to do construction work 
at the plant during the plant shutdown. However, the plaintiffs 
maintain that the Court should issue an injunction barring segre­
gated facilities. See Post-Trial Brief.

-14-



c. Partially remove the partition in the 
Bathhouse; reassign the lockers
on a non-racial basis; a passage way between 
the two parts of the bathhouse has been created 
and employees have been informed that the 
lockers will be re-assigned;

d. Create a single integrated Y-Board in place of 
the dual segregated Boards; this was accomplished 
in December, 1973.

49. The Agreement does not remove the segregated women's 
bathrooms in the Dispensary. [DX 34]

III.
THE ESTABLISHMENT AND THE PROCEEDINGS 
_____OF THE CIVIL RIGHTS COMMITTEE__

1. In 1965 the Steelworkers ordered Local 3036 to
establish a Civil Rights Committee ("CRC"). [D. Robbins 53f
PX 68]

2. Through an informal understanding (there was no 
written agreement), the Company agreed to meet with the CRC of 
Local 3036. [D. Sims 42-43, PX 61] An informal CRC was thus 
constituted at Stockham.

3. The plaintiffs James, Harville and'Winston have 
all served on the CRC at one time or another since the 1967 
union election. [D. Sims 45, PX 61; T. Harville 691, T. WTinston 
1268] Company managers who have met regularly with the CRC are

15



Mr. Sims, Mr. Bev/ely and Mr. Given; [D. Sims 53] Other 
managers have met with the CRC on occasion. [D. Sims 54]

4. The CRC was not formalized until the 1970 Contract.
5. The CRC became active in 1967 after Robbins and

James had been elected to the positions of President and Vice- 
President respectively of Local 3036. [T. Robbins 1234—1235, D.
Robbins 52-54, PX 68]

6. The Union proposed that the CRC be formalized and 
enforced by placement in the 1970 collective bargaining agree­
ment. [T. Robbins 1204-05; PX 52]

a. The union proposed with reference to the CRC
that:

"This provision shall not affect any 
existing right to file a grievance 
nor does it enlarge the time limits 
for filing and processing grievances."
[PX 52, p. 3; T. Robbins 1204-05]

b. However, this Union position was not accepted
by Stockham and the 1970 Contract provision reads,

"that alleged Civil Rights violations 
shall not be processed through the 
grievance procedure or arbitrated, but 
shall be referred to the joint Committee 
on Civil Rights." [PX 23, Section III, 
p. 4]

7. Any action recommended by the employees on the CRC 
have to be approved by the Company members in order for any 
steps to be undertaken to correct "alleged" discriminatory
practices. [D. Sims 57-58, 63, PX 61]

8. The employee members recommended that the partitions 
in the bathhouse, cafeteria, and bathrooms be taken down;
[D. Robbins 52-53, PX 68] This was not done.

16



9. The employee members recommended that the low 
starting wages for the apprentice program be raised, so as not
to require employees to take a pay cut to enter the program;~these 
wages have not been sufficiently raised. [T. Robbins 1193-94]

10. The former Personnel Manager of the Company, Mr.
Sims, stated that "communication" was the basic achievement of 
the CRC. [D. Sims 66-67] Although he also added that Blacks 
were moved into jobs as a result of the CRC. [Id.]

IV.
THE ORGANIZATIONAL STRUCTURE AT STOCKHAM 

Manufacturing Processes and Product Lines
1. Stockham's facility in Birmingham manufactures a

wide variety of items. 
Company's product lines 
of Fact ("S. Requests")

[There is a general description of the 
in Stockham's Request for Admissions 
No. 14; this Request was stipulated to,

DX 89, No. 4]
7/2. The Company for most of its products, processes raw 

materials into finished products. [There is a general des­
cription of the manufacturing processes involved in each product 
line in S. Request No. 19 which has been stipulated to, DX 89,
No. 5]

6/ The question of "red-circling"
of the Apprentice Program are discussed Section III.

and the implementation 
in the Post-Trial Brief

7/ The Company does not make steel;steel for its steel castings. thus, it has to buy

17



3. Stockham was founded in 1903 and gradually, over 
the years, the production diversity and capacity of the Birmingham 
facility has been increased. [There is a general history of the 
Company contained' in S. Request No. 17 which has been stipulated
to, DX 89, No. 5]

B . Workforce
4. The workforce has gradually been increasing at 

Stockham since 1966. Throughout the period from 1966 to the 
present there has been more Blacks than whites employed a t
Stockham. [ PX 45]

5. The following table reflects the total number of
employees who worked in each year since 1966 [except for 1970]
and the racial composition as reflected in the Company s

8/EEO-1 forms: [PX 13; PX 45]

BLACK
1966 1002
1967 1027
1968 1045
1969 1055
1971 1058
1972 1203
1973 1298

WHITE TOTAL
760 1762
793 1820
785 1830
780 1835
918 1976

1034 2237
998 2296

8/ A summary of the EEO-1 forms is appended hereto as
Appendix "B", a cursory review of this chart reveals the dis­criminatory effects of the defendant's employment practices 
[See Section VI, infra]

The figures for 1970 are omitted because there was 
some confusion as to which of the Company's EEO-1 forms for 1970 
applied only to the Birmingham facility.

18



c. Departmental Organization
6. The Bargaining Unit, i.e., the jobs in the plant 

which are covered by the Collective bargaining agreement, is 
divided into 22 seniority departments. [PX 80]

7. The twenty-two seniority departments are set-out by 
stipulation entered into by the parties. [PX 80, pp. 6-8] The 
number of employees by seniority department and the earnings of 
both gross and average, as of 9-02-73 is set forth in PX 91.

. . .  V[This exhibit is attached hereto as Appendix "C"]
8. The seniority departments are designated in the

Agreements between Stockham and Local 3036. [see e.g., 1973
Agreement, PX 24, Section XIII, 2, p. 17] These seniority depart-

9a/ments have important promotional and regression (during a 
reduction-in-force) consequences for the bargaining unit employees. 
[See Section V, infra]

9/ The departments are identified by number 1-22; this
numerical identification is set out in PX 80, pp. 6-8. Numbers 
23-26 on the printout, PX 91, refer to hourly-payroll departments which are not in the bargaining unit.

on PX 91-97 Hourly Payroll Dept. Payroll
23 Employment (Industrial) 7024 Plant Protection & 

Personnel Services 71
25 Medical 7226 Y.M.C.A. 75

9a/ "Regression" as used in these findings and in the post­
trial brief is a short form for reduction-in-force and lay-off; in other words, the term relates to the process by which employees 
are laid-off from a job, a department, or from employment.

19-



9. In addition to "seniority departments" there are "pay 
roll departments." These payroll departments are used for
accounting purposes; they have, in themselves, no promotional 
or regression consequences for employees.

10. The hourly payroll registers, which detail the 
earnings of employees, list the workers by payroll depart­
ments. [1972 hourly payroll register, PX 16; 1973 hourly 
payroll register, PX 15]

11. The payroll departments are identified by two- 
digit numbers; these payroll department identification numbers 
are listed per stipulation in PX 80, 2-3.

12. In 1969 the Company switched from assigning 
employee badge number by race to assigning badge numbers by 
payroll departments; consequently the first two numbers of an 
employee's badge number indicate the payroll department which 
he is in. [See PX 15; PX 16]

13. There may be one or more payroll departments in
a seniority department; e.g., in the Grey Iron Foundry there
are three payroll departments, whereas in the Pattern Shop

10/there is one payroll department. [PX 80] However, payroll 
departments are not divided between seniority departments —

10/ By stipulation the parties have identified which pay­
roll departments are in each seniority department. [PX 80,
pp. 6-8]

20



an entire payroll department is in one seniority department. 
[PX 80]

11/

D. Job Organization: Non-Supervisory
14. Bargaining unit jobs are divided into job classes. 

[PX 24, Appendix C]
15. These job classes run from 2-13. [Id..] The hourly 

pay-rate an employee earns is determined in large part by the 
job class of his position. Incentive earnings and merit raises 
are other factors which determine precise pay rate.

16. The job class of each bargaining unit job is set 
forth in Appendix C to the 1973 Agreement. [PX 24, pp. 33-40] 
This Appendix also lists the pay rates for the respective job 
classes. [Id..]

17. Prior to 1973 the job classes or rates of the
various positions were not placed in the Agreements and were
not generally available to the workers. [T. Robbins 1218-19]
This listing of job levels was placed in the Agreement at the

12/
request of the Union. [Id.-]

11/ (The first set of plaintiff s' computer exhibits (PX 2-8)
compare black and white employees by payroll department.) There 
may be one small exception. On PX 80, payroll department 35, p. 7, 
was listed as being located in two Seniority Departments; however, 
on reviewing McBee forms plaintiffs' attorneys could only find 
one or two employees in payroll department No. 35 who were in the 
Foundry Seniority Department; practically all employees in payroll 
department No. 35 were in the Valve Finishing Inspection Seniority 
Department.
12/ The wage classification schedules, which indicate hourly
rates for each job class for 1965-1973 are included in the 
Record as PX 35.

21



18. Stockham established the job class ratings by first 
developing a set of "job descriptions" detailing basic job 
information. [Stip. of Fact, DX 89, No. 2] These job des­
criptions are developed in accordance with a "Job Evaluation 
Manual." [Id.*]

19. The seven elements of the job considered in 
determining an overall point value: general schooling, training 
period, manual skill, versatility, job knowledge, responsibility 
and working conditions. This overall point value is then applied 
to a set scale in order to determine job class. [Stip. of Fact,
DX 89, No. 3]

20. In addition to bargaining unit employees the Company 
employs numerous other non-supervisory, non-professional workers, 
such as time-keepers, clerks, sales workers, plant guards, and 
cafeteria workers. These groups are specifically discussed in 
Section VI, infra. Also the programs which include trainees
are discussed in Sections VII and VIII, infra.

13/
E. Job Organization: Supervisory

21. The Company employs approximately 100-120 foremen 
who directly supervise the hourly employees. [PX 11; T. Given 297]

13/ For clarity the terms "foremen" and "superintendents" are
used throughout these findings as defined above; they are not used 
interchangeably. The term supervisors refers to both foremen and superintendents.

22



22. There are approximately 27 superintendents to whom 
the foremen report and who generally supervise particular 
facilities such as the Grey Iron Foundry. [D. Sims 104-5;
PX 61]

23. The Company management structure above the foremen 
level is detailed in the Company Organization Chart. [PX 70]

24. In addition there are approximately six general 
foremen. [D. Sims 105, PX 61]

25. Supervisors and foremen are paid on a salaried 
basis; however, the production efficiency of a foreman's depart 
ment affects his pay —  as Mr. Burns termed it, this is the 
foreman1s "incentive pay" [T. Burns 1351]

F . The Pay System
26. As stated above, the job class system determines 

pay rates for bargaining unit employees. Hov/ever, there are 
several other factors which influence pay.

Non-Incentive Workers
27. For each job classification at Stockham there are 

different levels or gradations of pay for non-incentive workers 
[S. Requests and P. Response, A.l DX 51]

28. Appendix C to the 1973 Agreements lists the range 
of pay for each job class. [PX 24, pp. 33-40] For example, for 
job class 2 the starting rate or minimum pay is $2.85 and the 
top pay rate if $3.30. [301. p. 33]

23



29. A non-incentive worker advances from one pay
gradation to the next one on the basis of the merit score which

14/he receives. [S. Request A.2, P. Response, DX 51]
30. The immediate supervisor, usually the foreman of 

an employee,rates that employee every six months; except a new 
employee is rated after three months on the job. [S. Requests 
A. 6, 10, P. Responses, DX 51]

31. The foreman rates the employee on a personnel rating 
form which allows for the rating of seven work characteristics.
[See S. Requests A. 1012; P. Responses; DX 51 ] An example of this 
form is PX 81, the rating from for 8-1-73 for Mr. James.

32. The completed merit rating form is approved by the 
Superintendent and then sent to the Industrial Relations Depart­
ment where the merit rating score is determined from a table 
which assigns a numerical value to each rating. [S. Requests A.
17, P. Responses, DX 51 ]

33. An individual may only move up one pay gradation
in the job class per merit rating, relardless of his merit rating 
score. [ D. Bagwell 16, DX 85] But the merit rating is not

14/ The merit rating system is carefully described by
Mr. Bagwell, the Company's administrator for the system, in 
his deposition. [PX 85]

Also Section A of Stockham's Requests for Admissions of 
Fact to which plaintiffs largely admitted sets out in detail 
the merit rating system. [S. Requests A. (Section A), P. 
Responses , DX 51a-b]

24



used to reduce an employee from one pay gradation to a lower 
one. [S. Requests A. 19; P. Responses; DX 51a-b]

34. A merit rating score is given to all employees, both 
non-incentive and incentive workers, and is entered as a per­
manent record in an employee's personnel file; [S. Requests A.
9; P. Responses; DX 51 ] The score is entered on an employee's 
"McBee" Form. [Examples of McBee Forms are found in PX 84]

35. An employee's merit rating score is a factor which 
is included in promotion and training selection decisions.
[D. Bagwell 25; PX 85]

Incentive Workers
~  15/36. As of September 2, 1973, 70% cf the black workers

were on an incentive system as compared to 31.7% of white 
workers. [PX 95; this exhibit details average and gross earnings 
by year of seniority and by race and is attached hereto as 
Appendix "D"]

37. No jobs in the top-paid four job classes, 10-13, 
are on an incentive program.

38. There are two types of incentive programs: direct 
16/

and indirect.

15/ This figure includes all workers in the hourly payroll
register. This includes all employees paid an hourly rate; accordingly all the bargaining unit are includes as well as those 
hourly employees in the payroll departments listed in fn. 9 , supra.
16/ The description of the incentive programs _ in these
Proposed Findings is cursory: a detailed description is con­
tained in the testimony of Mr. Harry Burns. [T. Burns 1331—1341]

25



39. Each incentive worker is guaranteed a base rate; 
this base incentive rate for each job class is listed in Appendix 
C to the 1973 Agreement. [PX 24]

40. The Company establishes a unit value for each in­
centive job. If the direct incentive worker produces at a 60 
unit rate or less per hour he earns the base rate. Any produc­
tion above the 60 unit rate entitles the worker to incentive 
pay above the base rate. [T. Burns 1334]

41. The Company constantly reviews the unit value for 
each job. It is the responsibility of the foreman and super­
intendent over a specific job to insure that there is "proper" 
unit value for the job; although the actual determination of the 
unit value is made by the time study department. [T. Burns 
1332, 1339]

42. The indirect incentive worker, unlike the direct 
incentive worker, does not receive incentive pay on the basis 
of "his production." [T. Burns 1338] Rather, his incentive pay 
is based on the production of the direct workers for whom he 
provides a service. [T. Burns 1338-39]

Pension Plan
43. The Company through an Agreement with Local 3036 

provides a Pension Plan for its employees. [PX 25-27, Pension 
Plans; PX 83]

44. The amount of the pension is based, in part, on the 
gross earnings of an employee over a specific period of time.
[PX 25-27]

26



V.
THE DEPARTMENTAL SENIORITY, PROMOTION AND 

TRANSFER SYSTEM AT STOCKHAM
A . The General Pattern of the System

1. Stockham had during the pertinent period maintained
a departmental seniority system :

"The parties agree that full consideration 
shall be given to length of service in 
selecting workers for promotion, lay-offs 
and recalls, but that, in the interest of 
the security of the whole working force, 
consideration must be given to the skill, 
knov/ledge, training, efficiency and physical 
fitness of the workers being considered.
Where, among such workers, each has about the 
same degree of these qualities, then the ones 
with the longest service in the department 
will be given preference."

[See 1964 Agreement, PX 21, Section XII, 1, pp. 11-12; 1967 
Agreement, PX 22, Section XII, 1, p. 13; 1970 Agreement, PX 23, 
Section XIII, 1, p. 17; 1973 Agreement, PX 24, Section XIII, 1, 
pp. 16-17]

2. The department seniority system has served to lock
17/Blacks into the lower-paying departments to which .they were dis­

proportionately assigned and locked-out of the higher-paying 
18/departments.

17/ The departments in which Blacks were assigned were also the
hottest and dirtiest departments and the ones offering the least 
training opportunities. See infra.
18/ While plaintiffs argue that the department seniority system
was discriminatory, they further contend that the system has not 
even been operated even-handedly —  rather whites with less department 
seniority than Blacks are promoted into the better jobs in a 
department. See, infra.

- 27 -

1



3. Prior to the June, 1970 Agreement, if a worker 
voluntarily transferred departments he lost all his seniority in 
his old department. [PX 21, Section XII, 7(b) p. 14; PX 22, 
Section XII, 7(b) p. 15]

4. In the 1970 Agreement this harsh requirement was 
modified:

"Hereafter, if a worker is transferred 
from one department to another at his 
request he will be notified within eighteen 
(18) months from the date of the transfer 
that he must decide within five work days 
whether he wants to remain in the new 
department or return to his home department.
If he elects to remain in the new depart­
ment, he will lose his seniority in his 
home depa r tment.

This fact will be known to him in a 
personnel report. If he elects to return 
to his home department, such return will 
take place within twenty-four (24) months 
from the date he was transferred and the 
time worked in the new department will be 
removed therefrom and added to his seniority 
in his home department. If it should be 
necessary, during such twenty-four (24) 
months to lay him off from the new department 
because of lack of work, he may return to 
his home department with such seniority as 
he may have accrued in the new department."
[PX 23, Section XIII, 7(b) pp. 20-21]

5. A further modification was made in the 1973 Agreement
with respect to the situation of an employee who elected to
remain in the new department:

"Hereafter if he elects to remain in the 
new department, for layoff protection, he 
will retain his seniority in his home 
department until he has been in the new 
department as long as he was in his home 
department. If it should be necessary to

28



lay him off from the new department, during 
the time he still retains his seniority in 
his home department, he may return to his 
home department with such time worked in 
the new department added to his seniority 
in his home department." [PX 24, Section 
XIII, 7(a) pp. 20-1]

6. Under both the 1970 and 1973 Agreements an employee 
who transferred departments still had to forfeit seniority in 
his former department at a certain time and therefore had to 
forfeit his job security built up over the years in that 
department. [Paras. 4-5, supra]

7. A worker who voluntarily transfers departments is 
now, and always has been, a new employee for purposes of pro­
motion and regression in the new department. [PX 21, Section 
XII; PX 22, Section XII; PX 23, Section XIII; PX 24, Section 
XIII]

8. Prior to sometime in 1965 there was no procedure for 
an employee to make a request to transfer departments. [T. Sims 
98-99] At best a worker could informally approach his super­
visor and request that he be transferred, rid.]

9. In 1965 Stockham instituted a "Timely Application" 
procedure. [T. Sims 99] Under this procedure an employee may 
request a Timely Application be made out for any job in the 
Company. [T. Sims 100-101] There is no requirement that there 
be a vacancy in the job applied for.

10. The employee making the Timely Application does not 
fill out the form; rather, he goes to his immediate supervisor

29



and requests the supervisor to make out the Timely Application 
[T. Carter 713-14]

11. The employee does not get a copy of the Timely 
Application. [T. Carter 714]

12. The Timely Application procedure was not formalized 
into the Collective Bargaining Agreement until 1970. [PX 23, 
Section XIII, 4(a) pp. 18-19] It was not until 1973 that the 
Agreement provided that the Company would give a copy of the 
Timely Application to Local 3036. [ PX 24, Section XIII, 4(a)
p. 18]

13. It is not necessary for an employee to fill out a 
Timely Application for a job in order to be considered for or 
promoted to that job. [T. Carter 730-31]

14. A foreman or other supervisor may select an employee 
for a position; or the supervisor may encourage an employee to 
fill out a Timely Application. [T. Carter 731]

15. The Agreements specifically set forth that regard­
less of Timely Applications "(a)s far as practical, the oldest 
well-qualified worker in the department [in which the vacancy 
arises] will be given the job." [PX 21, Section XII, 4(b) p. 13;
PX 22, Section XII, 4(b) p. 11; PX 23, Section XIII, 4(b)

19/
p. 19; PX 24, Section XIII, 4(b) p. 19]

19/ In the 1970 and 1973 Agreements, PX 23-24, the language
is slightly altered but the substance is the same.

30



16. In fact the Timely Application Procedure has not
been extensively used by employees, especially in the years

20/prior to its incorporation in the 1970 Agreement. [DX 62]

B. The Attempts by the Union Negotiating Committee 
During Collective Bargaining to Modify the 
Seniority System
17. During the 1967 Contract discussions Local 3036

21/
made a written proposal requesting plant seniority. [PX 87, 
item 18; T. Robbins 1195-1204]

18. The use of plant wide seniority was discussed at
the 1970 Contract negotiations. [T. Robbins 1211] Although
the written union proposal to the Company in 1970 asked for a
limited retention of seniority rights for job security upon

22/
transfer to another department. [ PX 52, pp. 15--16]

19. In 1973 the Union by written proposal specifically 
requested that an employee be able to use his full plant seniority 
in a department to which he transfers after he had spent one

20/ For example, in 1966 only 17 Timely Applications were
received: 5 by Blacks and 11 by whites.
21/ PX 87 is a copy of the 1967 written proposals submitted
by the Union to Stockham. It was admitted as a business record. 
[T. Robbins 1204]
22/ This written proposal was similar to the contract
provision incorporated in 1973 as set forth in paragraph 5, 
supra.

31



year in that department. [PX 54, p. 8; See T. Robbins 
1235-1236, 1243; T. Winston 1271]

20. The Union also requested that "red-circling be 
instituted. [T. Sims 244-246]

21. In conjunction with its request for "red-circling" 
and plant seniority the Union showed the Company the "Lackawana 
decision." (a reference to United States v. Bethlehem Steel

H7
Corporation, 446 F.2d 652 (2nd Cir. 1971). [T. Robbins 42-44]

22. Furthermore, the Union has always taken the position 
at negotiation sessions that Stockham initiate a system of plant­
wide posting of vacancies and bidding. [PX 52, pp. 16-17]

23. As of 1970 the Company agreed to inform the Union 
Committeemen in the seniority group of vacancies in the 
department. [PX 23, Section XIII, 4(b) p. 19]

23/

24/

23/ It is perhaps coincidental (perhaps not) that in May,
1973 (the 1973 Contract was authorized June 14, 1973) Judge 
Pointer ordered a plant seniority system to be put into effect 
at Fairfield Works which permitted a transferee to use his full 
plant seniority in his new department after one year. United 
States v. United States Steel, et al., 5 EPD ?[8619 (N.D. Ala. 1973)
24/ Red circling is a standard remedy for eliminating past
discrimination. Pettway v. American Cast Iron Pipe Co., No. 73- 
1163; Slip. Opinion at 3315 (April 29, 1973).
25/ "Red-Circling" and plant seniority had become established
relief, of course, much earlier. See, e.g., United States v.
Local 189, United Papermakers and Paperworkers, 301 F.Supp. 906 
(E.D. La. 1969) aff1d sub nom Local 189 v. United States, 416 
F .2d 980 (5th Cir. 1969) cert denied 397 U.S. 919 (1970).

32



»

24. It was not until the 1973 Agreement that the job 
class of jobs and the respective rates were available to the 
workers. [T. Robbins 1218; PX 24, Appendix C]

VI.
THE SEGREGATED JOB ASSIGNMENT PRACTICES 
______________OF STOCKHAM______________

A . The General Pattern
1. It is admitted by Company managers that prior to 1965

26/
the jobs at Stockham were rigidly segregated. [T* Sims 103-04;
D. Sims 146-147, PX 61; D. Carlisle 17, PX '64; D. Burns 25-26,
PX 66].

2. Not surprisingly the all-black jobs were the lowest- 
paying positions, the most menial, hottest and dirtiest, see, 
infra.

3. The following list shows the number of Blacks and
whites in each job class for both incentive and non-incentive

27/ 28/
workers as of June 1973. [Source: PX 1]

For example, Mr. E. Reeves Sims testified as follows:
"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." [T. Sims 103]

27/ These figures are taken from the McBee forms of August
1973 employees produced by the Company for plaintiffs. 
Accordingly the figures represent the job classes in which 
those workers employed by the Company in August, 1973 were 
in as of June, 1965, June, 1968, November, 1970 and June, 1973.
28/ "B" indicates an incentive job.

33



a. INCENTIVE WORKERS
01

Job Class June
B

1965
W

June,
B

1968
W

Nov.
B

1970
W

June, 
B

1973
W

B9 0 5 0 1 0 11 2 22
B8 0 47 2 53 4 60 18 111
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 11
B4 21 1 72 1 82 0 109 5
B3 89 0 80 0 94 0 102 4
B2 58 0 21 1 32 1 157 15

TOTALS 327 57 441 58 517 74 801 177

b. NON-INCENTIVE WORKERS
Job Class , June 

' B
1965
W

June, 
B

1968
W

Nov.
B

1970
W

June,
B

1973
W

13 0 46 0 55 4 77 1 144
12 0 9 0 7 0 9 3 34
11 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 11 24 24
6 2 9 16 11 19 8 27 25
5 103 3 108 1 12 9 5 143 9
4 8 0 11 0 15 1 40 1
3 31 0 43 1 45 0 56 5
2 34 0 59 3 61 2 190 14

TOTALS 178 110 239 144 281 189 502 367

- 34 -

!



4. On the one hand, in June 1965 no black worker
(at least of those who were working as of August, 1973) was in 
a job avove job class 6 —  all 505 of the black workers were in 
job class 6 and below; on the other hand, 154 or 92% of the 167 
white workers were in job class 7 and above. [PX 1]

5. After 1965 the practices of job segregation except 
for some minor token changes continued. (See, infra) These overt 
practices of job segregation combined with the lock-in effect
of the department seniority system resulted in only slight 
improvement in the employment situation of Blacks from 1965 to 
1973:

a. The average job class for black and 
white incentive workers [PX 1 -- see 
para. 3, supra)

BLACKS WHITES
1965 3.94 7.95
1968 4.50 7.78
1970 4.50 8.01
1973 4.35 7.15

b. The average job class for black
white Non-incentive workers [Id

BLACKS WHITES
1965 4.04 10.74
1968 4.02 10.35
1970 4.25 10.51
1973 3.90 10.2 3

- 35 -

!



6. The gross disparity in job positions of Black and 
white workers which has continued until the present is demon­
strated by PX 94; this exhibit sets forth the job class of^ 
all workers employed at Stockham as of September 2, 1973 
(this exhibit is attached hereto as Appendix E ).

a. Non-Incentive Workers --_9/02/73
Job Class

13
12
11
10
9
8
7
6
5
4Oo
2

Job Class
B9
B8
B7
B6
B5
B4
B3B2

Blacks
2
2
0
2
5
6

22
28
91
47
38

128
TOTALS 371

b . Incentive Workers 9/02/73
BLACKS

2
18
69
68
263
105
138
209

TOTALS 872

Whites
141
31
23
26
53
10
26
23
12
2
4

_15_
366

WHITES
29

.106
9
0
9
4
4
17
178

r The average job class for black non incentive 
worsts was 3JX), compared to 1CK23 for white 
tim_inrpni-ive workers.

,Q/ pX 94 like PX 91-97 were redone by plaintiffs after2 9/ PX 94, iixe ir-A the corrections suggestedStockham reviewed PX 2-8 f<3r 9,97 rT Mador 1704-05]by the Company are incorporated in PX 91 9/. {i.

36



d. The average job class for black incentive 
workers was 4.15, compared to 7.19 for white 
incentive workers.

e. Of the 367 white non-incentive workers,
282 whites or 77% were in job class 9 or 
above; of the 502 black non-incentive workers, 
15 Blacks or 3 %  were in job class 9 or above.

f. Of the 178 white incentive workers, 135 
whites or 76% were in the two highest incentive 
job classes, 8 and 9; of the 872 black 
incentive workers, 20 Blacks or 2% were in
job classes 8 and 9.

7. The racial staffing of jobs at Stockham has led to
racial staffing of departments. The chart below lists the
seniority departments by percentage of black employees in 1973:
[PX 91, Appendix C, is the source for 1973 rigures; PX 1 is the 

■ . 30/source for 1965 iigures}.

30/ px 74 details the racial distribution by seniority
department for employees at the plant as of September, 1973, 
for June, 1965, June, 1968, November, 1970, June, 1973. The 
exchibit demonstrates the continued racial staffing of 
depa rtments.

37



1973 %B 1965 %B
NO. SENIORITY DEPTS ' B W 1973 B w 1965
14 Galvanizing 15 0 100% 9 0 100%
04 Coreroom & Yard 76 1 99% 24 0 100%
03 Grey Iron Foundry 292 16 95% 92 0 100%
11 Final Inspection 52 4 93% 16 0 100%
01 Malleable 259 19 93% 88 4 96%
02 Brass Foundry 59 8 88% 30 1 97%
17 Shipping 56 8 88% 22 0 100%
12 Foundry Inspection 56 9 86% 25 0 100%
18 Dispatching 27 7 79% 4 0 100%
20 Brass Core Room 11 3 79% 11 0 100%
15 Tapping Room 151 45 77% 53 16 77%
13 Valve Finishing Insp.20 18 53% 8 4 67%
21 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 10% 1 7 12%
05 • Pattern Shop 3 37 8% 1 7 12%
07 Valve Tool Room 1 17 6% 0 5 -
16 Tapping Tool Room 2 30 6% 0 11 -

31/ 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. [PX 91 
Appendix "C"l

38



8. The departments fall into three categories: pre 
dominantly Black, racially integrated, and predominantly white.

9. The discriminatory practices at Stockham adversely
P.A/

affected black employees in each category of department.

B . The Predominantly Black Departments
10. The following departments are predominantly staffed

33 /with black workers: Malleable (including Malleable Foundry),
Brass Foundry, Grey Iron Foundry, Core Room and Yard, Final 
Inspection, Foundry Inspection, Galvanizing, Shipping, Dis­
patching and the Brass Core Room. As of September, 1973, 903 
Blacks or 72% of the Blacks in the hourly workforce worked in 
these departments; 75. whites or 7 3% of the whites in the hourly 
workforce, worked in these departments. [PX 91]

11. The predominantly black departments are basically 
all of the actual production departments. These departments

32/ The precise situation in each department is not detailed
here; rather, examples of the discriminatory practices m  eacn 
category of department is set forth.

The specific racial staffing of the jobs in the depart­
ments may be examined from the use of PX land 80. PX 1 lllu®~ trates the racial staffing of cost accounting departments as of 
four dates from 1975 through 1973. PX 80 details the costs 
accounting departments in each seniority department.
33/ Further, an examination of PX 93, which details the
staffing of each seniority department by year of hire confirms 
what is evident from the more general statistics -- the racial 
assignment practices of Stockham have continued since 1965.

All of the departments have approximately 80% or greater 
black workforce in 1973 —  although most are substantially 
greater than 80%.

39



include all of the foundry units which are the hottest and
the dirtiest jobs in the plant. [T. Carter 742-43; See T. Fowler
754-755; T. Harville 654-55]

12. The only jobs in these departments that are in job 
class 8 and above were, and to a large extent still are, reserved 
exclusively for whites, see, infra.

13. Apart from the jobs referred to in para. 12, supra,
the jobs in the black departments are in low job classes which
offer little opportunity to develop skills for craft positions.
Moreover, the jobs require hard, difficult work in hot and dirty

34/surroundings; employees are generally on incentive and must work 
strenuously to earn incentive wages ("to put ham on the hambone"). 
[T. Chapman 796]

14. The top job class position in the Grey Iron Foundry
is box floor molder (large) - JC12. [T. Carter 648-649] There
have been 5-6 employees in this position since 1951; there has

35/never been a Black in this positron. fid.]
15. Apart from the box floor there was no white employee 

assigned to work in the Grey Iron Foundry until 1968 or 1969.
[T. Carter 653-654; D. Carter 17, PX 63]

16. At least some of the Blacks were senior,in terms of 
Grey Iron Foundry department seniority, to whites who received

34/ PX 91 - Appendix C, lists the percentage of workers in
each department on incentive.
35/ On the last day of trial the Company announced that a
Black employee, Mr. Willie Lee Richardson, would be placed on the 
apprenticeshop program for box floor molder (large).
[T. Richardson 2756-57]

40



and who then became box floortraining as box floor molders
molders. [T. Carter 654-655; see para. 17, infraj

17. At least three white employees,who were hired since 
July 2, 1965,have become box floor molders or are in training 
to become box floor molders: [PX 84; T. Carter 669-670]

Name Date Hired
Carlisle, Truman 8/23/71
Russell, William 
Kilpatrick, Earnest

7/28/69
10/28/66

18. The ductile foundry is included within the Grey
iron Foundry seniority unit. [PX 80] The ductile foundry began 
operations in the early 1960s. [T. Carter 655-56]

19. There are approximately 35 employees working in the
Ductile Foundry. [PX 4; p. 80]

20. Until the last year the only job which a white
employee worked in the ductile foundry was the job of ductile

36/
iron melter, a job class 12 position. [T. Carter 656-57; see 
T. Sims 114]

21. There were Blacks with greater departmental seniority 
than the white worker who became the first ductile iron melter. 
[T. Carter 712-13]

36/part-timp d  L  L —  L.XULeven when uc --3 —  - - -
711]

41



22. There are three overhead crane operator jobs rated as
37/JC 11 in the Grey Iron Foundry; there are two cranes over the 

box floor and one crane on the outside of the building. [T.
Carter 717-18; DX 35 is a pictorial representation of the crane 
outside the Malleable Foundry]

23. Only white employees have worked as regular crane 
operators in the Grey Iron Foundry. [T. Carter 718-19]

24. In the last few weeks prior to trial a black employee 
has begun training on the outside crane. [T. Carter 720]

25. The Company trains crane operators by placing the 
trainee in a crane with an experienced crane operator. [T.
Carter 718-19]

26. At least five white employees who were hired since 
1965 have been trained and placed as crane operators in the Grey 
Iron Foundry: [PX 84; PX 89; T. Carter 721-725]

Name
Hays, Darrell 
McConnell, Jerry 
Naylor, Phillip 
Alverson, Ernest 
Wells, Dan

Date Hired
8/8/72
10/7/71
7/29/68
10/11/65
9/28/65

37/ Mr. Carter testified that these were in JC12; however,
this appears to be an error. In Appendix C to the 1973 Agreement 
the crane operator job is listed as JCll. [PX 24]

42



27. Of course, there were black employees in the Grey 
Iron Foundry who had many years more seniority than those white 
employees who became crane operators. [T. Carter 23]

28. Moreover, black employees were passed over in the 
selection of crane operators who worked in positions which 
provided on-the-job training and experience for the crane 
oeprator position. [T. Marsh 1437-51]

a. One such job is the cupola charger operator 
(JC3); this man operates a charger (or crane)
which goes primarily in and out of the 
cupula. The job provides some experience 
for handling the overhead cranes. [T. Marsh 
1447-51]

b. Other such jobs include: the worker who 
assists in making part of the charge picked 
up by the crane; or the man in the yard who 
hooks materials unto the outside crane and 
also assists the crane operator in other 
ways. These employees work in close coop­
eration with the crane operator. [T. Marsh 
1437-1444]

29. The second highest job classification in the malleable 
Foundry is crane operator, job class 11. [T. Pugh 1102-03,
PX 24, Appendix C]

30. There has never been a black employee who has worked 
in the job of crane operator in the malleable foundry. [T. Pugh 
1103]

43



31. Mr. Ralph Mowry, a white employee, became^crane 
operator in Malleable even though he was hired in 1968. [PX 86;
T. Pugh 1114] There were many black employees in Malleable 
with greater seniority than Mr. Mowry, [see fn. 39, i^bra]

32. The job with the highest job class in Malleable
is oven operator. [T. Pugh 1103]

34. Mr. James Robert Amos, a white employee, was at the 
time of trial an oven operator helper but whohas worked and 
been classified as an oven operator. [T. Pugh 1104; PX 86]
Mr. Amos was hired in April, 1967, and has considerably less 
seniority than many Blacks in Malleable Foundry. [PX 93]

35. The remaining predominantly black departments do 
not have a job with a higher job class than 8. [PX 93] Also
black hourly employees in the Shipping and Dispatching depart­
ments have been discriminatory limited in their opportunity to 
promote to salaried clerical jobs for which they have had relevant 
job experiences. [See Section E, paras. 69-71]

C. "Racially Integrated" Departments
36. The racially integrated seniority departments are 

Valve Machining and Assembly, Valve Finishing Inspection, Tapping

38/ The information listed above is summarized from the
- ^ B e e  form of the employees. Full detail of their employment 
history, education, etc. is found on this McBee forms.
39/ This chart, PX 93, reflects 89 Blacks who were hired
Drior to 1966 and who worked in the Malleable Department as o 
September, 1973.

44



Room, and Construction. In these departments approximately 25% 
of the employees are of the minority race in that department. 
See para. 7, supra.

37. It should be emphasized that in these departments 
there is a "vertical segregation; that is, whites are in the 
higher-paying jobs and Blacks in the lower-paying jobs. The 
following chart illustrates the average hourly earning rate of 
black and white employees in those departments and their re­
spective average seniority: [PX 91 - Appendix C]

NO. Avg. Hr. Rate Avg. Sen.
Department 
Valve Machining

B W B W B W

70 171 3.76 4.25 64.06 65.45
& Assembly

Valve Finishing 20 18 3.69 3.57 63.45 66.83
Inspection

Tapping Room 151 45 3.79 4.05 64.49 65.04

Construction 15 18 3.54 4.08 62.00 66.50
40/

38. Except for the Valve Finishing Inspection [where 
the black average earnings are slightly higher than whites] whites 
although they have less seniority earn substantially more than 
Blacks - $.49 more per hour in Valve Machining and Assembly,
$.26 more per hour in the Tapping Room, and $.54 more per hour
in Construction.

40/ Of course, in this department Blacks have, on the average,
mrer three years greater seniority than whites.

45



39. The Valve Machining and Assembly Department include
machining and assembly operations for brass valve, iron valves.
butterfly valves, steel valve and wedgeplugs. [PX 80] Of these
operations those utilising the most employees are brass machrn-

41/
ing and assembly. [px

40. in brass valve assembly all the jobs were in job
class B5 and lower except for one job, repairman. [T. Vann 
969-70] The repairman was a job class 9. [T. Vann ]

41. until Mr. Vann, the then superintendent left brass
valve assembly in 1970 or 1971 all the jobs in brass valve 
assembly had always been manned by black employees except for the 
top job, repairman, which had always been manned by a white 
employee.%. Vann 987-970, This same racial composition of the
jobs continued at least up to Fall, 19/3. [PX 1, PX 93]

42. Brass Machine and Finishing was "considered
as a separate unit [than brass assembly] but all of these people

^  ij, * 1  se s irn a  s s ii- ' l’ - ,a ™ 9721
43. The top job in Brass machine was service mechanic

(JC 13). «  has always been filled by a white employee. [T.

Vann 972; PX 1]

^ ^ i ^ / £ e r e i n  f/deSu/basi/a/l/the 
i r S S  mailer scale existed in the

othSr units in this seniority department.
42/ in addition there was a testing c]
"[“Setup inteco Automatic Tes biass valve assembly. This
was" a J M  job" a ^  wa s___ac tua lly in th^ Infection Department. It,was a JC9 jod and was actuony -y ^  was manned by white employees. [T. Vann

46



44. The automatic screw machine (JC 9) had always been 
run by a white employee. [T. Vann 973; PX 1] The white employee 
on the day shift had been on the job for years, however the 
machine was also run at night on occasions and was then also
manned by white employees. [T. Vann 973]

45. There are approximately 30-35 machine operators in 
job class B-8 in brass machining. This was formerly an all-white 
job. [T. Vann 973; PX 1] In 1970-1971 there were possibly three 
black B-8 operators. [T. Vann 974] In September, 1973, there 
were 27 white B-8 operators and only 4 black B-8 operators.
[PX 5]

46. Until 1970-71 all of the servicemen and laborers 
(JC 3) in brass machining were Black. [T. Vann 974-75] This was
still the case in 1973. [PX 4]

47. In the Construction Department there is an almost
equal number of whites and Blacks (15 Blacks and 18 whites).
[PX 91] However, the jobs are not evenly distributed.

48. On the one hand, all of the five or six laborers
in the department are Black. [T. Monroe 1523] On the other hand,
all 9 of the employees in job class 9 and above are white. [PX 94]

Department
49. Moreover, in the Construction /there are eight employees 

who are presently either in an apprentice program (three employees)

41/ing
as
ind

It should be borne in mind that Mr. Vann is only testify- 
about the period up through 1970 or 1971 when he was removed 
superintendent from his department. However, PX 1 and PX. 93 
icate the continued racial staffing in this department.

47



or in learner jobs (five employees) which lead to millwright 
or carpenter positions. Of these 8 employees only one, a learner, 
is Black. [T. Monroe 1521-22]

D . Predominantly White Departments
50. The predominantly white departments are Valve Tool 

Room, Electrical Shop, Machine Shop, Foundry Repairs, Pattern 
Shop and Tapping Tool Room. All of these departments are over 
82% white and most are considerable more than that. [See para.
7, supra]

As of September, 1973, 108 whites or 36% of the whites 
in the hourly workforce worked in these departments; 28 Blacks 
or 2% of the Blacks in the hourly workforce worked in these
departments.

51. The basic pattern of employment in these departments 
is that Blacks work as cleanup men or laborers and whites work
in all the other jobs in the departments. [PX 1, PX 93; T. Sims
119-122]

52. In the Valve Tool Room the serviceman has always 
been Black. jT. Robbins 1181-1182] The serviceman job is JC2, 
whereas, the remaining jobs in the Valve Tool Room run from JC9-13 
[PX 1; Ans. No. 1, PX 18]

53. There are presently 5-7 Machinists, i.e., qualified 
to do journeymen machinists work. [T. Robbins 1184] Of these 
only Mr. Robbins qualified through the apprentice program. [Id..; 
see Section VII., paras 27-8, infra for a description of on-the-job 
training in the Valve Toom Room]

48



54. Since 1965,3-4 white employees have come into the 
Valve Room Room as Machinist Learners. [T. Robbins 1187-89] 
Machinist Learner is JC9. [PX 24, Appendix C]

55. The only black employee who has worked in the Valve 
Tool Room in a position other than cleanup man is Mr. Francis 
Smith. [T. Robbins 1184] In 1971 Mr. Smith entered the machinist 
apprentice program. [T. Smith 1129]

56. In the Electrical Shop until Mr. Louis Winston be­
came an apprentice.in 4/5/71 Blacks had only worked as laborers 
or utilitymen (JC 2 or 3). [T. Sims 120; PX 1] The remaining
jobs in the Electrical Shop ran from JCll to JC13 and were manned 
by white employees, fid.]

57. Mr. Winston worked as a laborer or utilityman in 
the Electrical Shop from January 1, 1965 until April 5, 1971.
[T. Winston 1249]

58. A Company supervisor transferred Mr. Winston from 
the Galvanizing Department to the Electrical Shop because as
the supervisor stated, "[t]he Electrical Shop needs a man of his 
caliber." [T. Winston 1257] Mr. Winston was assigned as a 
laborer, JC2, in the Electrical Shop. [T. Winston 1250]

59. In late 1965 Mr. Winston's first foreman in the
Electrical Shop, Mr. Warner, wrote the following reference of
Mr. Winston in his personnel file: [T. Winston 1259]

"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."

49



60. Moreover, Mr. Winston consistently did extra work 
and assumed extra responsibility over and above his duties as 
a laborer. [T. Winston 1262-63] Mr. McDermott, Mr. Winston's 
foreman in 1971 wrote on 2//23/71 on Mr. Winston's personnel
report: [T. Winston 1271]

"It's my opinion this man [Winston] should be 
reclassified from Job Class 2 to Job Class 3.
This man assists in, one, changing motors 
throughout the plant; two, installation of 
jobs such as pulling wire in conduit and over­
head; three, waters batteries and checks con­
ditions of same; four, marks and stops the 
spare motors in the five» assembly of
motors in the shop."—

61. Mr. Winston received excellent personnel rating 
during his tenure as a laborer in the Electrical Shop. [T.
Winston 1250-51]

62. During the period, 1965 through April, 1971, when Mr. 
Winston worked as a laborer in the Electrical Shop white employees, 
both hirees and transferees, were brough in to work on higher­
rated jobs and also to receive apprentice training. [T.
Winston 1270-71]

E. The Limitation on Opportunities for Blacks to Enter 
Clerical. Timekeeper. Sales, and Guard— Position^
Clerical Employees
63. The Company has regularly employed approximately 200 

office and clerical employees since 1965. The following chart

44/ Mr.
from JC2 to

Winston had initiated the 
JC3. [T. Winston 1263-64]

re-evaluation of his job



illustrates the number of black and white clerical employees 
at the Company from 1965 through 1973 (not including 1970) 
as enumerated in the EEO-1 forms filled out by Stockham. [PX 
45; PX 13, attached as Appendix "B"]

office and Clerical Employees
Year No. Black No. White Total
1966
1967
1968
1969
19711972
1973

5 193 198
5 191 196
6 200 206
8 205 213
14 184 198
12 198 210
18 189 207

64. There are approximately 75-100 clerical positions
which are salaried and which are not covered by the Collective
Bargaining Agreement. [T. Burt 1548]

65. In 1965 the Company began to hire black clerical .
workers; prior to that date only whites worked as clerical 

45/ •employees. [T. Sims 209-210; T. Burt 1550]
66. The Company frequently transfers hourly production

employees to clerical positions. [T. Burt 1555]

Mr. Sims testified as follows:
"Q. But there may have been one or two blacks [working 

as clericals] in 1965?
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 1965." [T. Sims 209-210]

51



67. The general qualifications for clerks were listed
by Mr. Burt. [T. Burt 1529]

a) Average or above merit rating;
b) Good attendance record;
c) Ability to read and so simple arithemtic and 

a legible handwriting;
e) Ability to do simple reports;
f) Willingness to work any shift and physically 

qualified.
68. From August, 1965, until April, 1971, an employee 

had to score a 20 on the Wonderlic Test to hire, or transfer into 
a clerical position. [PX 72] This testing requirement dis­
criminated against Blacks: (a) prior to August, 1965, Blacks
were excluded from clerical positions solely on the basis of 
race and during that time whites did not have to pass the 
Wonderlic Test to become clerks; (b) the Wonderlic Test had an 
adverse impact on Blacks and was not properly validated. [See 
Section XI, A, infra]

69. Hourly production employees in the Shipping and 
Receiving Departments learned some of the functions and expertise
necessary to work as clerks. [T. Burt 1551]

70. The Shipping departments was until 1968 or after 46/
filled only by black hourly employees. [D. Carlisle 13, PX 64]

46/ Mr. Carlisle became the Superitendent of production con
t Z o l  in approximately 1968. [D. Carlisle 8, PX 64] He stated that
the first white hourly employee was "probably" hired into the 
Shipping Room during 1968. [.Id- at 13]

52



The Shipping and Receiving departments remain predominantly
Black. [See PX 91; para. 7, supra,]

71. Plaintiff James specifically applied for a clerical
position in 1966 in the Shipping Department.[T. James 451] 
Previously he had also applied for a clerical position. [T.
James 467] At that time, Mr. James was an hourly employee 
in the Shipping department; there were no black clerks in the 
department in 1965. [D. Carlisle 13, PX 64] Mr. James was
denied the clerical position. [T. James 453] Mr. James has been 
discriminatorily denied clerical jobs.

Timekeepers
72. The Company also employs approximately 22 time 

keepers. [T. Burt 1559] The position of timekeeper is a 
salaried position.

73. Frequently, hourly employees are transferred into
the timekeeper position. [T. Burt 1555j>]

74. Of the twenty-two timekeepers only: two are Black.
One of the black timekeepers was promoted last year; the first 
black timekeeper was selected sometime in in the sixties. There 
have been no other black timekeeper. [T. Burt 1554-15555; T.
Sims 213-214; see T. Chapman 789-91]

Sales Employees
75. There are approximately 22 employees in the Sales 

section of Stockham who work at the Birmingham plant. [T. Wilcox 
1278-79] All of these employees are white. [Id.-!

53



76. There are approximately 46 sales workers under the 
supervision of Mr. Wilcox. One of these employees is located in 
Birmingham and the others are located all over the United States. 
[T. Wilcox 1278] All of these employees are white. [T. Wilcox 
1278-79]

77. The recruiting for sales workers is done by Mr. 
Adamson. [T. Wilcox 1279-80]

78. Between 1968 and 1973 the Company hired at least 
ten employees in the Sales department. [T. Wilcox 1281] Of all 
the individuals sent by Mr. Adamson to Wilcox for interview for 
possible hire only one was Black. [T. Wilcox 1282] That one 
Black was not hired, rid.]

Plant Guards
79. The entire guard force at the Company was white 

until 1965 or 1966. [D. Sims 128, PX 61] The first black guard 
was Mr. James Rowell, rid.]

80. As of June, 1973 there were 28 white plant guards, 
including sergeants, and only 7 black plant guards. [PX 1] All 
three of the sergeants were white, fid.*]

F. Summary
81. Black employees have been segregated into the most 

menial low-paying jobs and denied training opportunities. [For 
training opportunities see Sections VII and VIII, infra] Mr.
Sims testified as follows:

"Q. But, in fact, blacks did not fill the traditionally 
white jobs prior to '65, is that true?

54



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

seniority of the black employee, isn't that true?
A. Yes, Sir." [T. Sims 126]

Of course, the further testimony and statistics set out above 
clearly prove that the Company's segregated job assignment and 
promotion practices continued until the present.

82. Blacks since 1965 have continued to overwhelmingly 
assigned to the traditional black departments such as the 
Founderies. [T. Sims 133-134; T. Given 270-71; T. Carter 708]
The majority of the workers assigned to traditionally white 
departments, such as Foundry Repair, Valve Tool Room, and 
Electrical Shop have been white. [T. Given 270-71]

The number of whites and Blacks hired since 1965 and who 
were working in the traditionally white maintenance departments 
(Section D, supra) as of September, 1973, are as follows: [PX 93]

Department # w # B
Machine Shop 37 4
Electrical Shop 13 1
Pattern Shop 26 2
Tapping Toom Room 17 2
Foundry Repairs 45 6
Valve Tool Toom 9 0

Total 147 11
The number of Blacks and whites hired since 1965

were working the traditionally black Foundry departments 
September, 1973, are as follows: fid.]

Department # w # B
Grey Iron Foundry 16 218
Malleable Foundry 15 181
Brass Foundry 8 34

Total 39 433
55



VII.

TRAINING PROGRAMS:
APPRENTICE AND ON-THE-JOB

A. Apprentice
Structure
1. The Company has an apprentice program for the follow­

ing crafts: Millwrights, Patternmakers, Machinists, Electricians, 
Box Floor Molders, Carpenters, Heat Treaters, and Blacksmiths.
[T. Sims 173]; however, the Company also trains workers for some 
of these crafts through on-the-job training. See Section B, 
infra.

2. The apprentice program is a 9,000 hour program [PX 
38, Section 4] This program includes both shop work and class­
room work. [PX 38]

3. An apprentice is paid according to the number of hours 
he has spent in the apprentice program.

4. The pay rate is set forth in an Apprentice Contract 
signed by the Company and the Apprentice. [PX 37; (post 1969);
PX 36, (Pre-1969), See DX 59]

5. An apprentice may be given "a credit of hours."
[T. Winston 1265] However, a long-term employee on an incentive 
job may well earn more than he would as an apprentice. [See T. 
Robbins 1193-94]

6. The short-term loss in pay that an employee at 
Stockham may have to take has been an obstacle to workers, es­
pecially long-time empllyees, to enter the apprentice program

- 56 -



because they are forced to take a pay cut. [T. Robbins 1193-94]
7. It is not necessary for an employee to file a Timely 

Application in order to be selected for the apprentice program.
[T. Waddy 917]

8. The selection of apprentices is solely within the 
discretion of the Company. [T. Waddy 917]

9. The Union has no role in the selection of apprentices; 
The Company's selection is not subject to the Collective Bargaining 
Agreement. [T. Waddy 917] An employee may not even file a 
grievance concerning the Company's selection of an apprentice.
[T. Waddy 918; T. Smith 1136]

10. In collective bargaining Local 3036 requested at 
least in 1973 that a joint Union-Company procedure for the 
apprentice program be established. [T. Waddy 922-23]

11. The foremen or superintendents of the departments 
containing craft jobs recommend employees for the apprentice 
program. [T. Waddy 918] However, foremen or superintendents in 
other departments may recommend employees for apprenticeship to 
the Supervisors in the craft departments. [T. Waddy 916-18]

12. The employees recommended by the craft department 
supervisors are then sent to the Apprenticeship Committee for 
approval. [T. Waddy 917-918] The Apprenticeship Committee is 
composed of three Company Managers, Mr. George Dicks (Chairman),
Mr. Stanford, and Mr. Monroe. [T. Waddy 915-917]

13. Generally, the Apprenticeship Committee approves the
47/

recommendations of the craft department supervisors; since 1971

47/ The important role that testing had or has in apprentice
selection is discussed, infra, Section XI.

57



every employee recommended by these supervisors has been approved 
by the Apprenticeship Committee. [T. Waddy 918-919]

14. In 1969 the Company established a committee to eval­
uate the training programs at the plant; Mr. Marsh was the chairman

48/
of the committee. [T. Marsh 866] The Committee issued a report 
on August 28, 1969, approved September 25, 1969. [PX 43]

15. A sub-committee was established by the 1969 Training 
Committee to review the Company's apprenticeship program; Mr. Vann 
was chairman of this committee. [T. Vann 983] This sub-committee 
produced an apprenticeship training booklet for use at the 
Company. [PX 38; T. Vann 983]

16. Rule 2.2 in the 1969 apprentice training manual 
establishes the requirement of a high school diploma or G.E.D. 
certificate. [PX 38, T. Vann 1001]

This requirement may be waived by the Apprenticeship 
Training Committee. [PX 38, T. Vann 983-84] It has been waived, 
at least once, for a Mr. Sims. [T. Vann 984]

17. The Company did not conduct any study to check the 
validity of the high school diploma or equivalent requirement.
[T. Vann 989-90] Nor did the Apprenticeship Committee chaired 
by Mr. Vann inquire as to what the previous educational require­
ment had been. [T. Vann 989]

18. The Apprenticeship Committee drafted a new 
apprentice Contract form. [T. Vann 990, PX 37]

19. Up to that point, the contract form used by the Com­
pany was (except, of course, the pay rate schedule changed overtime) 
the one entered into by Mr. Robert Sykes. [T. Vann 991, PX 36]

48/ The other two members of the Committee were Mr. Wilcox, Mar­
keting Manager, and Mr. Ed Glenn, Industrial Relations Department. 
[T. Marsh 866-67]

58



20- The Sykes Contract lists the educational require 
ment for an apprentice as grammar school. [PX 36; p. 3, T. Vann 
991]

21 Rule 2.1 of the Apprentice Training Manual es-
49/

tablished a 30 year age requirement for apprentices. [PX 
38; T. Given 280-81] This requirement may be waived by the 
Apprenticeship Committee. [PX 38; T. Given 281-82] Since 1970 
the requirement has been waived three times; once for a black 
employee and twice for white employees. [T. Given 281-82]
The Limited Apprenticeship Opportunities for Black Employees.

22. No Black employee has ever finished the Stockham
apprenticeship program. [PX 12; PX 12a]

23. No black employee entered the apprentice program
until April, 1971. [Id.; See T. Given 283-84]

24. Since July 2, 1965, 101 employees have entered the
apprenticeship program at Stockham. [PX 12a - This exhibit was
prepared by the Company.] Of these post July 2, 1965 apprentices 

50/only 6 are Black. [Id., See T ' Given 283-86]

49/ The years which an employee spent in the armed forces do
count; that is, an employee who spent 4 years in the Army_ 

and was 34 would be treated as 30 for purposes of the apprentice 
program. [T. Given 282]
50/ Actually one of the six Blacks, George Moore, never
entered the program. Mr. Moore was offered an apprentice  ̂
position but declined it because it would interfere with his 
schooling.

59



25. The following chart lists the number of apprentices 

by race who entered the program in each year since 1965; [PX 12a]

YEAR WHITES BLACKS TOTAL
1965 (after July 2) 4 - 4
1966 8 - 8
1967 6 - 6
1968 7 - 7
1969 12 - 12
1970 17 - 17
1971 10 13
1972 14 1 15
1973 17 o 19

Totals 95 6 101

B . On-The-Job Training

26. The Company also trains employees for high-skilled 
and high paying jobs through on-the-job-training, see infra.

27. In the Valve Tool Room only one out of 5-7 machinists 
went through the apprenticeship program. [T. Robbins 1184]
Three to four white employees have entered the valve tool room 
as machinists-learners since 1965. [T. Robbins 1187-89] There
has never been a black machinist learner. [T. Robbins 1184]

28. It should be noted that machinist learner (JC9) 
pay in April, 1971 was $2,91; whereas, Francis Smith, a black 
employee, who was placed on an apprentice machinist program in 
the Valve Rool Room started at $2.80 per hour even after re­
ceiving a "1000 hour credit." [DX 59; T. Smith 1136-37]

29. The Company has regularly trained white employees 

for crane operator jobs. [T. Carter 718-25, PX 84; PX89] Until

a few weeks before trial, no Black was trained for these jobs even

6 0



though these jobs were in practically all-black departments.
[T. Carter 720]

30. Similarly, the Company through on-the-job traininq trained
programs,/white employees for the job of box floor molders in 
the Grey Iron Foundry, the highest-paying job in the Foundry.
[T. Carter 648-54] No Black has ever received training as a 
box floor molder. [T. Carter 648-49; see T. Richardson 2756-57]

31. In the Tapping Rool Room, the white employee who is 
the heat treater (JC 13) was trained on-the-job. [T. Burt 1641-42]

32. In Valve Machining and Assembly there are three 
welding jobs: union melt machine welding (JC 9); union melt 
machine welding and Electric Acety. Repair Welding (JC 11); 
and Welder Specialist (JC 13). [T. Burt 1650-51]

Workers in these jobs learn through experience on-the- 
job; also the lower-rated jobs provide experience for the higher­
rated jobs. [Id..] No black worker has ever been afforded the 
opportunity to work as a welder. [Id.]

VIII.
TRAINING PROGRAMS: SUPERVISORY POSITIONS
1. The Company has had three programs which are 

basically geared to providing supervisory personnel at the Company 
Organizational Apprentice Program; ("OAP"); Management Training 
Program ("MTP"); and Personnel Development Program ("PDP").
[see paragraphs 34-50, infra.1

A . The Organizational Apprentice Program ("OAP")
2. The purpose of the OAP was to select and train people

61



for supervisory positions. A large number of the OAP personnel 
were recruited from college campuses, [see Section IX, infral

3. People who entered the OAP were not "guaranteed" 
supervisory positions. [See Requests, F 4, Plaintiffs Response,
DX 51]

4. The 1969 Training Committee (see para. 14, supra) 
revised the OAP; the OAP was replaced in’ 1969 by the MTP.
[see Requests, F. 2, Plaintiffs Response, DX 51]

5. In addition to recruitment,individuals were re­
commended for the OAP by "friends" of the Company. [D. Sims 
77, PX 61]

6 . From 1950 to 1969 approximately 150 persons were 
hired into the OAP; of these, about 130 were hired by the Company 
after they completed the OAP. [D. Sims 73-74; PX 61] About 40-50 
eventually became foremen. [Id.]

7. Also, there were approximately 20 employees from
inside the plant who were selected for the OAP between 1950 
and 1969. [D. Sims 73, PX 61] Approximately ten of these
employees became foremen. [Id.] The employees who were selected 
for the OAP were largely chosen on the recommendation of foremen 
and superintendents. [D. Sims 96, PX 61]

8 . No black was ever selected for the OAP. [T. Adamson 
546-47; T. Sims 189-90]

B . The Management Training Program ("MTP")

9. The OAP was updated by the 1969 training committee.

62



Section VII,
[see/para. 14, supral The Committee in fact updated the OAP 
and developed a formal outline for the program; the name was 
changed to Management Training Program. [T. Marsh 875-76; T.
Given 275-76; PX 39]

10. The fact that Blacks have never been enrolled in the 

OAP, PDP (or the apprentice program),nor the concomitant need

to recruit Blacks for these programs,never entered into the 

discussions or deliberations of the Training Committee. [T.

Marsh 869]
11. Like the OAP the MTP has largely been staffed from 

recruitment of people from outside the Company. [T. Given 276] 
Since the institution of the MTP only one Management Trainee,
Mr. Mike Smith, who is white, was selected from within the 
Company. [T. Given 276-77]

12. There have been approximately 49 or 50 management 
trainees since the start of the program; all but one have been 
white. [T. Given 276-77]

13. Like the OAP the MTP does not automatically insure 
that the participant will be placed in a supervisory or manage­
ment position. [S. Requests F 4, P. Response thereto]

C. The Personnel Development Program ("MDP")

14. The Personnel Development Program was established 
in 1958 for the purpose of identifying and developing front-line 
supervisors from the hourly workforce. [S. Requests, G (1-2) 
Plaintiffs Response, DX 51]

63



15. The PDP was formalized in the latter part of 1959 
by the Training Committee, [see para. 14, supra; T. Given 273;
S. Requests G. 3, Plaintiffs' Response, DX 51]

15. Employees are selected for the PDP by foremen and 
other supervisory personnel. [D. Adamson 14, PX 52]

17. Prior to the 1959 formalization of the PDP, there were 
thirty-two employees who went through the program and who then 
became foremen. [T. Given 274-75; PX 44] All of these employees 
who completed the PDP and who then became foremen were white.
[Id.]

18. Since 1970, 55 employees have been selected for 
participation in the PDP; of these, only 10 black employees 
were selected. [PX 44; T. Given 275]

IX.
THE DISCRIMINATORY RECRUITMENT PRACTICES AT 
_________________STOCKHAM__________________
1. The Company regularly recruits on college campuses.
2. Stockham recruiters have regularly visited pre-

51/dominantly white colleges; Auburn, Albama, Tennessee, Georgia 
Tech. Sanford. [D. Sims 77-78; PX 61; T. Given 278; T. Adamson 
551-52; D. Adamson 22-23, PX 62]

3. Despite the persistent need for college-trained 
employees, Stockham has never recruited at predominantly black

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

64



colleges such as Tuskegee, Alabama A&M, Alabama State, Tennessee 
State, or Miles. [T. Given 278; D. Sims 78-82, PX 61; T.
Adamson 551-52; D. Adamson 22-23, PX 62]

4. In positions in the Company in which college re­
cruits are regularly placed, there have been only a couple of 
Blacks and then only recently. In the OAP-MTP there have been 
approximately 200 trainees; of these, only one was Black, [see 
paras 38-40, 44, supra.] The first black engineer employed by 
the Company was hired several months prior to trial. [T. Given 
275-76]

X.
THE SELECTION OF SUPERVISORS

1. The Company regularly promotes employees from the 
hourly ranks into supervisory positions. The large majority of 
the current supervisors are former hourly workers. [PX 11;
T. Sims 128]

2. The promotion and selection of supervisors is within 
the discretion of the Company; the Union has no role in the 
selection of supervisors. [PX 24, Section XIII, para. 10, pp. 
21-22; T. Waddy 917]

3. Foremen are selected by the superintendents and 
managers. There are no specific written standards for the 
selection of foremen. [D. Sims 106, PX 61] The superintendent 
of the area which contains a foreman vacancy selects several 
candidates; the pertinent manager and superintendent then select

65



the foremen. [T. Marsh 858-859]
4. There are approximately 100-120 front-line foremen.

[PX 11; T. Given 296-297] Of these there are only five (or 
52/possibly seven) black foremen. [PX 11; T. Given 296-198]

5. There was no black foreman at the Company prior to 
May 1/ 1971. [PX 11; T. Marsh 879-880] Mr. John Davis was the 
first Black appointed to a foreman position. [Id..]

6. Stockham employs general foremen on its night shift 

[D. Sims 90, PX 61] and none on its day shift. There are six 

general foremen. [D. Sims 105, PX 61] There has never been a 

black general foreman. Presumably the method for selecting 

general foremen is the same as that for selecting superintendents. 

[See, para. 9, infra] Mr. Burns makes the final decision on 

selection of general foremen. [D. Sims 107, PX 61]
7. 'While the supervisory training programs at the 

Company supplied some foremen it is not necessary for an employee 

to go through one of these programs in order to become a foreman. 

[D. Sims 94-95; PX 61]
8. White hourly employees were promoted to foremen 

positions in all-black or predominantly black departments even 

though they had never worked in these departments. For example, 

in the Grey Iron Foundry there are presently twenty-four white

52/ PX 11 which is compiled from the McBee forms of the current
(as of late fall, 1973) foremen indicates that there are presently 
five black foremen. However, Mr. Given, testified that there are . 
presently (at the time of trial) seven black foremen. It appears 
that the Company promoted two Blacks to foremen positions jusc 
prior to trial.

66



foremen and two white general foremen. Only five of these fore­
men worked in the Foundry before becoming supervisors. [D. Carter 
36-37; PX 63] Both of the current black foremen worked in the 
Foundry before they were appointed supervisors. fid.]

9. Stockham has approximately 27 superintendents.
[D. Sims 104, PX 61] There is generally one superintendent for 
each department, usually.selected from the foremen. The selection 
is made by "manufacturing people" and Mr. Burns makes the final 
decision. [D. Sims 106-7, PX 61] There has never been a black 
superintendent at Stockham.[D. Sims 198]

XI.
THE UNALWFUL AND DISCRIMINATORY TESTING 
AND EDUCATIONAL PRACTICES AT THE COMPANY

A. Pro — 7̂viCfTJI S t  / 1 ̂ S 5

1. The Company did not have a comprehensive testing 
program prior to August, 1965.

2. Prior to August, 1965 there was no test given to new 
hirees. [T. Adamson 52] Nor was any test given to inter­
departmental transferees, except for apprentice applicants.
[Ans. to Interrogs. 29, PX 18]

3. At least since 1953 the Bennett Mechanical Test was 
used as a selection device for the apprenticeship program. [D. 
Sims 163, PX 61; Ans. to Interrogs. No. 29, PX 18]

4. The Company also used a personnel placement test at 
tim.es for selection of candicates to the OAP.

5. A clerical test was also administered for clerical
positions.

67



B . August, 1965 - April, 1971
6. In August 1965 the Company put in a comprehensive 

testing program.
7. The Wonderlic Test was instituted for all new hirees 

in August, 1965. The Wonderlic Test was also instituted as a 
selection device for all jobs. [T. Adamson 520; PX 72; Ans. to 
Interrogs. No. 28, PX 18]

8. 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 various jobs 
according to the general and suggested rating scores established 
by the Manual put out by Wonderlic Assciates. [T. Adamson 528;
PX 82]

9. On October 7, 1966, Mr. Herbert Stockham established 
the procedure for testing at the Company. [T. Adamson 528; FX 72] 
No one connected with the preparation of this testing procedure 
had any professional testing experience. [T. Sims 203-05]

10. The Company did not undertake a validity study of 
the Wonderlic Test or any other test which is used prior to July 
17, 1973.

11. The Stockham memorandum established a "minimum" score 
and a "normal" score for jobs according to their job class.
[PX 72] In order to qualify for a job in another department a 
worker had to score the norm or above. [Id.] However a worker 
who sought a job in his own department, was allowed to be con-

68



sidered for the job if his test score was not less than the 
minimum if he had developed "basic departmental job skill." [Id.]

12. In addition the Stockham memorandum established 
scores for salary jobs, e.g., those applying for clerical jobs 
had to score a 20, as well as for apprenticeship positions.
[Id.1 A person applying for an apprenticeship position had to 
score at least 18. fid.]

13. The Company gave in addition to the Wonderlic test 
specific tests for apprenticeship and clerical positions.
[T. Adamson 541]

14. The Wonderlic test had an adverse impact upon 
black employees.

a. The Wonderlic Associates prepared a massive study 
which demonstrates that blacks generally score 8 
points lower than whites on the Wonderlic test.
[PX 14] .

b. The fact that the Wonderlic Test has an adverse 
impact on blacks is widely accepted by pro­
fessional psychologists as was testified to by 
experts for both the plaintiff and the defendant.
[T. Barrett 2190; T. Ash-2 495-96]

c. Black employees have been either excluded or limited 
in their opportunities for the higher wage class 
jobs and for the salary jobs for which higher 
Wonderlic scores were (the higher the JC, the 
higher the required score, PX 72) required. [See 
Sections VI and VII, supra]

69



dt In numerous court decisions and EEOC decisions 
the Wonderlic Test has been found to have an 
adverse impact, see Griggs v. Duke Power Company,
401 U.S. 424 (1971).

e. A statistician employed by the Company stated that 
in a computer study which she had done at the 
request of defendant's counsel black workers at 
Stockham had scored less thah white workers on the 
Wonderlic Test. [T. Haworth 1758]

f. From 1969 to March 31, 1971, just prior to the time 
the Wonderlic Test was haulted, there was an 
increase of 141 employees from 1,835 to 1,976; 
however, the number of whites rose 138 from 780
to 918 while the number of Blacks rose 3, from 
1,055 to 1,058. [PX 45] This large increase in the 
number of white employees while the number of 
black employees remained constant is atypical of 
employment at Stockham. [PX 45; PX 13] The fact 
that the Wonderlic Test was given during this time, 
1969-1971, to applicants combined with the disparity 
in employment of whites and Blacks, clearly 
indicates the adverse impact on Blacks of the 
Wonderlic Test.

15. The use of the Wonderlic Test by the Company started 
almost simultaneously with the effective date of Title VII 
and the date when Company officials stated that they no longer 
maintained segregated jobs. [See Section VI, para. 1]

70



Black employees were treated in a "disparate" manner from their 
white contemporaries. Prior to 1965 it is undisputed that black 
employees were locked into certain all-black jobs. Prior to 
that time white employees did not have to pass any Wonderlic 
Test in order to move into the higher wage class jobs or into 
the apprenticeship program or into salary jobs. The institution 
of the Wonderlic Test at the the same time as opportunities, no 
matter how limited, for promotion were first offered to Blacks 
constituted disparate treatment in violation of the EEOC's 
Guidelines.

16. The Company in 1970 put in a high school diploma
or its equivalent requirement. [PX 38; T. Given 279-80] The
Company also established a formal age requirement; an apprentice,

53/unless he had military service, had to be 30 or under. [PX 38;
T. Given 279-83; D. Given 16-18, PX 67]

17. Black workers at Stockham have, on the average, 
fewer years of formal schooling than whites. [DX 4] The Company 
did not conduct any Validity Study for the high school education 
requirement.

C. July 17, 1973 to Present, The "Tabaka" Tests
18. In early 1973 the Company hired Mr. Tabaka to review 

the jobs at the plant and implement testing procedures for 
employee selection.

53/ Both these requirements could be waived. [PX 38; DX 60]

71



19. In May, 1973, Mr. Tabaka submitted a proposed plan 
for testing to the Company. [PX 32]

20. Mr. Tabaka defined the objective of his study; "to 
identify and validate those selection tests which appeared to 
show promise of validation in specific job applications."
[PX 32, p. 1]

21. It is significant to note what jobs are not included 

in the Tabaka study and why they are not included.

a. All salaried, supervisory, clerical, etc., jobs 
are excluded [See PX 32];

b. Also "86 job titles covering approximately

1,000 workers, mostly in common labor and unskilled
job classes were excluded"; these jobs "were
excluded from the study because their specific job
aptitude requirements did not appear to be measureable

54/
by pencil and paper tests." [PX 32, p. 1]

c. Mr. Tabaka also eliminated a number of jobs at 
higher levels because there were too few workers 
under an individual supervisor to permit validation. 
[PX 32, p. 1]

55_/
22. Mr. Tabaka undertook a concurrent criterion study.

This process involves the following general processes: [See

generally T. Tabaka 2331-2406]

54/ It is important to note that employees were tested by a
paper and pencil test, the Wonderlic, for these jobs from 1965 
to March, 1971. [See Section B, supra]
55/ Dr. Barrett described in a detailed manner the proper method
for evaluating testing or other selection devices. [T. Barrett 
2183-2189]

72



a. Determining the important, relevant aspects or 
criteria of a job which measure successful 
performance on the job;

b. Instructing foremen or supervisors to rate 
employees according to these criteria and then 
developing such ratings;

c. Giving the selected tests to the employees who 
were rated by the supervisors;

d. Determining the statistical significance or

probability of the correlation between the
supervisor ratings of individuals and the test

56/
ratings of these individsuals.

23. The EEOC Guidelines define statistical sig­
nificance; the relationship, (i.e., between test scores and 
supervisor ratings) "should be sufficiently high as to have a 
probability of no more than 1 to 20 [.05] to have occurred by 
change." "Guidelines on Employment Testing Practices," 29 
CFR 1607 ("Guidelines") Section 1607.5 (c)(1).

24. A concurrent criterion validity study which is done
in accordance with professional standards, especially those set

57/forth by the EEOC Guidelines, is permissible under appro­
priate circumstances.

56/ The statistical significance or probability was deter­
mined by Mr. Tabaka by three different methods which were used 
for various situations: Pearsen's formula for the product moment 
coefficient; Chi Square; phi coefficient. [PX 32]
57/ The Fifth Circuit has ruled that the EEOC Guidelines are man
datory. United States v. Georgia Power Co., 474 F.2d 906, 913 
(1973); Pettway v. American Cast Iron Pipe Co., No. 73-1163 - Slip 
Opinion at 3263-3264 (April 29, 1974). Plaintiffs in no way admit 
that the Tabaka study satisfies the proper standards for a con­current study.

73



25. The preferable way to validate tests is through a
58/

predictive study. [T. Barrett 2185-2186; T. Tabake 2547-48, 
2559-60] Mr. Tabaka specifically stated, "[t]hat validation 
[predictive] will be actually more more useful than this [the 
May 1, 1973 Report on Validation, PX 32]." [T. Tabaka 2548]

26. The Tabaka Tests have not at least as of the date
of trial been used in any way to determine or to assist in the
selection of employees for promotion, training programs, hire

59/
or any other term or conditions of employment. [T. Adamson 
623-624, 626-627, 634, 642-643; T. Tabaka 2541-2542]

27. Mr. Tabaka suggested that a predictive study be
60/

undertaken with the data which is presently being accumulated.
[T. Tabaka 2547 ] Mr. Tabaka further observed that "the fact that 
the Company has not excluded any applicant based on test results 
should contribute to such a study." [Id.]

28. Mr. Tabaka's Report suggests a battery, of five tests 
be given for applicants for hire, promotion or transfer to 
approximately 60 job positions which he divides into 10 general 
classifications. [PX 32, p. 1-2, 39] Not all the tests are 
suggested for each job group; the tests to be given each job 
group is set forth on page 39 of the Report. [ PX 32]

58/ Dr. Barrett describes a predictive study on pages 2185-2186.
59/ There was some confusion on this point during debate of
counsel, see e.g., p. 611. However, the testimony of Mr. Adamson . 
and Mr. Tabaka is clear —  these tests have not been used except 
to accumulate data.
60/ Mr. Adamson testified that the test scores which employees
received on the Tabaka Tests is being accumulated in a log.
[T. Adamson 621]

74



as outlined in the Report satisfied the EEOC Guidelines. [PX 32,
p. 40] The Company relied on this certification; neither

61/
Mr. Adamson, Mr. Given nor any other Company employee reviewed 
the Report to ascertain whether or not the EEOC Guidelines were 
satisfied.

30. Except that Mr. Tabaka did not certify that the 
testing procedures-he used complied with the EEOC Guideline con­
cerning "Disparate Treatment," Section 1607.11. [T. Tabaka 2543]

31. Black workers have been either discriminatorily
limited or excluded from the overwhelming majority of jobs for
which Mr. Tabaka validated tests as set forth in Sections VT-VII, 

62/supra. It is a violation of the Disparate Treatment Guideline 
to require black workers to take and pass tests for jobs for 
which their opportunities had been discriminatorily limited and 
for which white workers who had free access to the jobs did not 
have to take the test battery.

2 9. Mr. Tabaka certified that the use of these tests

61/ Mr. Tabaka dealt primarily with Mr. Adamson concerning the
implementation of the tests, although he did work some with 
Mr. Given. [T. Tabaka 2538]
62/ Blacks have been excluded from or afforded limited access
to at least the following jobs for which Mr. Tabaka validated 
tests: Job Class 8 and 9 machine operators, guards, pattern­
makers and apprentice patternmakers, electricians and apprentice 
electricians,"machinists, millwrights and carpenters. [See 
Sections VI and VII, supra]

75



32. It is essential for a criteria study that the job 
analysis, which leads to the development of the criteria, 
describe what is actually done on the jobs. [T. Barrett 22.11]

33. The identification of skills and abilities for jobs 
used by Mr. Tabaka, as set forth in PX 32, exhibit 1, "are really 
conclusions about what is required rather than telling what is 
done, why it's done, how it's done, how often it's done and how 
important it is." [T. Barrett 2711]

34. This method of identifying job skills led to the 
criteria by which the supervisors rated the employees, see 
exhibit III of PX 32. These include such criteria as number 
facility, spacial relationships, mental alertness. Dr. Barrett 
described these criteria as follows:

Now, to a psychologist, these sound much more like descriptions of tests and (sic 
read than) descriptions of job functions.And I'll read some which indicates the 
extent to which . . . this is a rating
of perceived test performance rather than performance." [T. Barrett 2212]

35. The use of criteria which are basically test des­
criptions rather than job performance criteria exaggerates the 
correlation of test results and supervisor ratings. [T. Barrett 
2212—21̂ .4] This is a logical conclusion since the supervisor is, 
in effect, being asked to guess how well an employee will do on
a test rather than rate the employee's job performance.

36. In fact, the correlations derived by Mr. Tabaka,
which in a number of cases ranged close to .900, were "fantastically" 

Correlations of this level would be excellent for one admin­
istration to another administration of the same test. [T. Barrett 2224]

76



[T. Tabaka 2591]
37. Mr. Tabaka's use of the chi square test in situations 

involving less than 5 people in a "cell" was in error. [T.
Barrett 2215-20, 2234-35; T. Ash 2450-2451] Mr. Tabaks's method 
of calculating the Chi Square required four cells; thus, it was 
improper for him to have used the chi square in situations in­
volving less than 20 people, fid.]

38. Mr. Tabaka also used the phi variant of the Pearson 
Product Moment test in establishing correlations between super­
visor ratings and test scores for just Black employees. [PX
32, pp. 33-38]

39. The method for calculating the phi variant is similar
to the method for calculating the chi square. [T. Barrett 2254-35]
It is therefore inappropriate for Mr. Tabaka to have used the
phi variant in instances involving less than 5 employees in a cell,

64/
i*e*/ 20 people in the rating group. fid.]

Mr. Tabaka admitted that .900 correlations were "surprising."

64/ The phi alone or in conjunction with the chi square is 
used repeatedly in the section of the Report pertaining to the 
validation of tests for only Black employees. [PX 32, pp. 33-38]

In the section of the report dealing with validation of 
tests for both Black and white employees, pp. 7-32, the chi square 
is never the only method used to determine the validity of a 
specific test use. However, the chi square is used to give support 
to the finding of validity according to the Pearson Product Moment Test.

Dr. Ash, while agreeing with Dr. Barrett that the chi 
square test was inappropriate in situations involving less than 
20 employees, disagreed with Dr. Barrett's interpretation of the 
use of the phi variant. [T. Ash 2452-54] However, Dr. Ash

-  7 7  -



40. Black and white workers, for all practical purposes, 
received equal supervisor ratings; the difference in supervisor 
ratings was "statistically insignificant." [PX 32, p. 5; PX 20, 
Ans. 18]

better41. However, whites scored considerably/than Blacks on 
each of the tests in the Tabaka battery. [PX 20, Ans. 15; T. 
Barrett 2231-32]

42. If the Tabaka figures are valid, then if the tests 
are applied "evenly," i.e., the same failure probability score 
applies to Blacks as to whites, then whites who score better 
than Blacks on the tests but who, when the supervisor ratings
are considered, would predictably do worse than Blacks on the job, 
would be selected for the jobs. This result is described by Dr. 
Barrett as "unfair." (Dr. Barrett's explanation of the fairness 
concept in testing is found on pp. 2226-2230).

43. Compliance with the EEOC Guidelines requires that
cut-off scores must be so established so as to predict the same 
probability of success for each group where there is differential 
validity. Guideline §1607.5 (b) (5) [T. Barrett 2229-30; T.
Tabaka 2582].
64"" [Cont'd]
testified (I think) that chi square and the phi variant were related, although this was "accidental." [T. Ash 2447-48] It 
would seem that if the results obtained by the phi variant and 
the chi square are related, then if the chi square is unstable 
and inappropriate when a small number of cases is used the phi 
variant is similarly unstable. This was a common sense gist of 
Dr. Barrett's Testimony. [T. Barrett 2234-36] Dr. Ahs's 
Testimony concerning the derivation, philsophical, mathematical, 
or otherwise of the phi seems besides the point.

78



** ‘

' -

44. Mr. Tabaka, in fact, introduced the concept of 
differential validity into his Report. [PX 32, p. 39]

45. But the use of differential validity proposed by Mr. 
Tabaka is inadequate;the proposal would lead as may easily be 
concluded from his own figures (PX 20, Answers 15 and 18) to the 
exclusion of qualified Blacks.

a. The validity of a test should be calculated differ­
ently for the minority and non-minority groups. On 
page 39 Mr. Tabaka included all employees on the chart 
setting forth the use of tests on the top-half of
the page and separated black employees for inclusion
on the chart on the lower half of the page. Mr.
Tabaka admitted that the results for Blacks and whites

65/
should have been separated. [T. Tabaka 2582-83]

b. More importantly, the differential scores established 
on page 39 of the Report simply do not adequately 
take into account the substantial difference in test 
scores between Blacks and whites. [PX 20, Ans. 15] 
Blacks averaged over 7 points lower than whites on the 
arithmetic test, over 1 point lower on the coordina­
tion test, over 11 points lower on the space visualiza 
tion test, over 10 points lower on the mechanical com­
prehensive test, and over 7 points lower on the 
personnel placement test, fId. 1

65/ Mr. Tabaka stated that this would not have affected the re
suits. [T. Tabaka 2583] Because of the segregated nature of the 
exclusion of Blacks from the top-chart on page 39 would not affect 
each test validation; however, it certainly would have some effect 
on some of the validation scores.

7 9