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1

TABLE OF CONTENTS

TABLE OF CITATIONS--------------------------- --------- iv
PROCEEDINGS BELOW -------------------------------------  2
SCOPE OF THE APPEAL---- 7-----------------------------  5
QUESTIONS PRESENTED -----------------------------------  6

INTRODUCTORY STATEMENT --------------------------------  7
STATEMENT OF FACTS ------------------------------------  8

A. The Parties---------------------------------  8
B. The Facilities Involved--------------------- 10
C. Historical Background -----------------------  13
D. Hiring And Initial Job Assignments---------- 21

1. Hiring Of Hourly Job Applicants -----  21
2. Initial Job Assignments of New Hires

Within The Department ---------------- 26
E. Seniority, Transfer, And Promotion Procedures 27

1. The Contractual Provisions ----------- 27
2. The 1972-73 Stemmery Transfers ------  30
3. The 197 4 Labor Agreements------------ 32

F. Race and Sex-Segregated Jobs And Departments 32
G. Union Representation ------------------------  36
H. Plaintiffs' Economic L oss------------------- 41
I. The Named Plaintiffs------ '----------------- 43

ARGUMENT----------------------------------------------  49
A. The District Court Properly Found That

Plaintiffs Established A Prima Facie Case Of 
Discrimination

Page

49



11
TABLE OF CONTENTS

(Continued)

Page
B. The District Court Properly Found That 

Defendants Failed to Adequately Rebut 
Plaintiffs' Prima Facie Case Of
Discrimination ------------------------------  50

1. Evidence That The Company Has Hired 
Blacks Freely Into All Permanent Departments--------------------------  51

2. Evidence That The Factors Which Have 
Led To A Predominantly Black Stemmery
And Prefabrication Are RaciallyNeutral------------------------------  54

3. Evidence That The Company Enjoys A 
Very Favorable Reputation In The 
Black Community As An Equal
Opportunity Employer ----------------- 61

4. Evidence That The Actual Hiring 
Practices Were Without Discriminatory
Taint--------------------------------  63

5. The Findings Below That The Company 
Has Done Nothing To Dispel The Belief 
That It Still Assigns To Departments
On The Basis Of R a c e ------------------ 79

6. The Finding Implicit In The Decision
Below That Substantial Numbers Of Class 
Members Believe That The Company Still 
Maintains Job Classifications Segregated 
Along Racial And Sexual Lines------  82

7. The Court Below Did Not Err As A 
Matter Of Law In Holding That An 
Employer Discriminates Under Title VII 
If It Fails To Eliminate The Present 
Continuing Effects Of Past Discrimination 94

C. The District Court Correctly Held That Quarles
v. Philip Morris Is Not A Bar To This Action 96

1. Quarles Is Not A Bar To Female Members
Of Plaintiffs' Class ----------------- 96 2

2. Quarles Is Not a Bar To Any Members Of 
The Class Hired After The Quarles
Decision-----------------------------  96



Page
3. Quarles Is Not A Bar To Any Of

The Class Members-------------------  98
D. The Finding Of The District Court That The 

Unions Also Engaged In Unlawful Discrimina­tion On The Basis Of Race And Sex WasProper--------------------------------------  103
E. The Proposed Back Pay And Injunctive ReliefGuidelines----------------------------------  ]_]_3

iii
TABLE OF CONTENTS

(Continued)

CONCLUSION 114



XV

TABLE OF CITATIONS Cases

Albemarle Paper Co. v. Moody, 423 U.S. 405, 95
S.Ct. 2362 (1975) -------------------------  m

Alberti v. Cruise, 383 F.2d 268 (4th Cir. 1967) 6
Barnett v. W. T. Grant Co., 518 F.2d 543 (4th Cir.

1975) ------------------------------------  50,55,64,77,84
Brown v. Gaston County Dyeing Machine Co., 457

F.2d 1377 (4th Cir. 1972), cert, denied,
409 U.S. 982 (1972) ----------------------  63,66,68,76

Clark v. United States, 402 F.2d 950 (4th Cir.
1966) ------------------------------------  99

Cypress v. Newport News General and Non­
sectarian Hospital Association, 375 F.2d
648 (4th Cir. 1967) ----------------------  73

First Citizens Bank & Trust Co. v. Camp, 432 F.2d
481 (4th Cir. 1970) ----------------------  1

Gamble v. Birmingham Southern Ry. Co., 514 F.2d
678 (5th Cir. 1975) ----------------------  53,73

Green v. McDonnell-Douglas Corporation, 463 F.2d 
337 (8th Cir. 1972) remanded 411 U.S. 792
(1973) -----------------------------------  68,76

Griggs v. Duke Power Co., 401 U.S. 474 (1971) - 51,77,94,95,96
Jamerson v. Lennox, 356 F.Supp. 1164 (E.D. Pa.)

aff'd 414 U.S. 802 (1973) ---------------- 96,107

Page

Lea v. Cone Mills, 301 F.Supp. 97 (M.D.,N.C.
1969), aff'd in part, 438 F.2d 714 (4th Cir.
1971) ------------------------------------  65

Parham v. Southwestern Bell Telephone Co., 433 F.2d
421 (8th Cir. 1970) ---------------------  53

Patrician Towers Owners, Inc. v. Fairchild, 513 F.2d
216 (4th Cir. 1975) ---------------------  6

Patterson v. American Tobacco Co., 535 F.2d 257 
(4th Cir. 1976) cert, denied, U.S.
(1976) 107,111,112



V

TABLE OF CITATIONS
(Continued)

Quarles v. Philip Morris, Inc., 279 F.Supp. 505 (E.D. Va. 1968) --------------------------
102

Robinson v. Lorillard, 444 F.2d 791 (4th 
Cir. 1971), cert, denied, 404 U.S. 1006 (1971) ----- ~ --- -----------

Sabala v. Western Gillette, Inc., 362 F.Supp,
1142 (S.D. Tex. 1973) --------------------

U.S. v. Chesapeake and Ohio Railway Co., 471
F.2d 582 (4th Cir. 1972), cert, denied, 411 U.S. 939 (1973) --------- ----------------

United States v. Dillon Supply Co., 429 F.2d
800 (4th Cir. 1970) ----------------------

United States v. Hollis, 424 F.2d 188 (4th Cir. 1970) ------------------------------------
United States v. Virginia Electric and Power Co. 

327 F.Supp. 1034 (E.D. Va. 1971) -------
Williamson v. Bethlehem Steel Corp., 468 F.2d

1201 (2nd Cir. 1972) ---------------------

OTHER AUTHORITIES
United States Code:

42 U.S.C. §1981 -----------
42 U.S.C. §2000e, et seq.--
29 U.S.C. §151 -------------

Federal Rules of Civil Procedure:

Page

6,85,94,96,97,
98,99,100,101,
103,105,107,109

51,77,78,95,107,
111

53

50,55,83,84,110

66,76

6

53

96,100,101

2
2,94,107

2

Rule 52(A) 94



IN THE
UNITED STATES- COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

Nos. 76-1998 and 1999

NORA LEWIS, ELIZABETH BULLOCK, MARY 
CARTER, BETTY JOHNSON and GERTRUDE 

MOODY, each individually and on behalf 
of all other persons similarly situated,

Appellees,

v .

PHILIP MORRIS INCORPORATED, a corporation; 
TOBACCO WORKERS' INTERNATIONAL UNION, 

an unincorporated association; and LOCAL 
203, TOBACCO WORKERS' INTERNATIONAL UNION, 

an unincorporated association,
Appellants.

BRIEF OF
APPELLEES NORA LEWIS, ET AL.



-2-

PROCEEDINGS BELOW
This action, filed on September 9, 1973, and brought 

by five black female employees of Philip Morris, Incorporated, 
alleged that Philip Morris, Incorporated, the Tobacco Workers' 
International Union, and Local 203, of the TWIU, had engaged 
in broad practices of both race and sex discrimination.

Plaintiffs alleged violations of Title VII of the 
Civil Rights Act of 1964, 42 U.S.C. §§2000e et seq., 42 
U.S.C. §1981, and 29 U.S.C. §151, et seq. (unions' duty of 
fair representation).

This is a class action on behalf of the named 
plaintiffs and all females and black males, whether currently 
employed or no longer employed for any reason, who were 
employees of the Company's Green Leaf Stemmery on or after 
July 2, 1965. The required notice to the class was given on 
October 8, and 11, 1974.

This matter was tried April 2-5, 1975. After 
trial, counsel for all parties were permitted to file post­
trial briefs. On July 7, 1976, the district court entered a 
Memorandum Opinion and Order holding the Company and both 
Unions liable for discrimination.

The determination of liability in this case was not, 
as the Company suggests, solely grounded upon failure to inform 
class members of opportunities for placement and advancement, 
but instead upon plaintiffs' prima facie statistical evidence of

I.



- 3 -

discrimination plus other supporting evidence of discrimination 
and the defendants' failure to adequately rebut it:

"The statistics gathered by the plaintiffs 
and submitted in evidence establish a prima 
facie case of racial and sexual discrimination. 
Philip Morris assigned over fifty percent of 
all blacks initially hired from 1965 to 1974 
to the seasonal stemmery jobs, as compared with 
the assignment of only eleven and five-tenths 
percent of all whites hired in the same period 
to the Stemmery." 1/

The statements by the district court in its 
Memorandum Opinion regarding the defendants' failure to 
inform blacks of all job opportunities were made in reject­
ing defendants' rebuttal arguments. The court's careful 
analysis of the defendants' evidence beginning at p. 129 and 
ending in the first paragraph of p. 133, first examines and 
then rejects the Company's claims in justification of the 
disparate percentage of blacks employed at the Stemmery.

The first proposition examined by the court (at 
p. 130) was " . . .  that, of those people who are qualified only 
to perform Stemmery work, blacks predominate;" it held, "No 
evidence was introduced at trial in support of such a proposition 
and it may be and is rejected out of hand." The second 
possible justification examined was that "blacks are more 
willing to accept seasonal employment if permanent employment 
is not available". The third, that "blacks prefer to work 
in the Stemmery, even though given a choice of either permanent 
or seasonal work."

u
p-Appendix unless

126; references are to pages in the Joint 
otherwise indicated.



- 4 -

The court held that with regard to both the second 
and third possible justifications, ", . .no reason has been
advanced as to why blacks, as opposed to whites, are so 
inclined to accept or prefer the seasonal and lower paying 
jobs of the Stemmery" (p. 132).

Based upon the evidence before it, the court concluded 
that the actual reason for the disparate proportion of blacks 
assigned to the Stemmery is based upon defendants' history, 
and continued maintenance, of a segregated Stemmery department.

The district court did not, as the Company suggests,
. . absolve[d] the Company of any actual racial or sexual

_2_ /bias in hiring, placement or advancement," but instead it 
merely held that it was unable to find that the Company 
intentionally assigned an excessive amount of blacks to the 
Stemmery, thus recognizing that no such "actual intent" need 
be found. Similarly the district court held that defendants' 
liability for sexual discrimination in job assignments is 
based upon their failure to eliminate the vestiges of past 
acts of discrimination. ( p. 134-5) .

Finally, the court requested all counsel to brief 
the court on appropriate procedures for ascertaining the 
relief that should be made available to those class members 
entitled to such relief. Plaintiffs and the Company, but not 
the Unions, submitted proposed guidelines for relief, and on

2_/p . 2 Brief of Appellant Philip Morris (herein­
after "Company Brief").



- 5-

September 2, 1976, the district court adopted those guidelines 
proposed by plaintiffs.

II
SCOPE OF THE APPEAL

The Company appealed the district court's Order of 
September 2, 1976 which adopted plaintiffs' proposed back pay 
and injunctive relief guidelines. The Unions' first appealed 
the July 7 Memorandum Opinion and Order and then amended their 
appeal to include the September 7 Order. Plaintiffs, below, on 
October 29, 1976, filed in this Court a motion to dismiss this 
appeal on the grounds that the September 2 Order is not "final" 
and therefore not appealable. That motion is still pending 
in this Court.

This appeal seeks review of the July 7 decision below 
based on the defendants' proposition that the September 2 
Order cannot stand if the July 7 Order was erroneous, and 
therefore review of the July 7 Order is required.

Plaintiffs, however, continue to maintain the position 
that the September 2 Order is not appealable and hereby renew 
their motion to dismiss this appeal on the grounds stated in 
their previously filed motion and memoranda.

Should this Court decide, however, that the September
2 Order is appealable, it is also plaintiffs' position that it
is not reviewable on the grounds that no findings of fact or

!_/conclusions of law were made in support of it. First Citizens

—  The Unions also take the position that the 
September 7, 1976 Order is not reviewable, despite the fact 
that they appealed it.



-6-

Bank & Trust Co. v. Camp, 432 F.2d 481, 484 (4th Cir. 1970);
United States v. Hollis, 424 F.2d 188, 192 (4th Cir. 1970);
Alberti v. Cruise, 383 F.2d 268, 271 (4th Cir. 1967); Patrician 
Towers Owners, Inc, v. Fairchild, 513 F.2d 216 (4th Cir. 1975).

Furthermore, if the September 2 Order is found to be 
appealable but not reviewable, and it is found that the July 7, 
1976, Order is still properly before this Court, then this Court 
should only review the July 7, 1976 order and remand the 
September 2, 1976 Order with instructions to the court below 
to make findings of fact and conclusions of law in support 
thereof.

Ill
QUESTIONS PRESENTED

(1) Whether the finding of the district court that 
plaintiffs' proved the defendants engaged in unlawful dis­
crimination on the basis of race and sex was clearly erroneous.

(2) Whether the finding of the district court that 
defendants' failed to adequately rebut plaintiffs' prima facie 
case of discrimination was clearly erroneous.

(3) Whether the finding of the district court that 
Quarles v. Philip Morris is not a bar to the present action on 
the basis of res judicata and stare decisis was clearly erroneous.

(4) Whether the finding of the district court that 
the Unions also engaged in unlawful discrimination on the basis 
of race and sex was clearly erroneous.



- 7-

INTRODUCTORY STATEMENT
The decision below is founded upon well settled legal 

precedent and an abundance of supporting evidence in the record. 
The defendants in this appeal, have erred here, just as they 
did below, by attempting to cast upon plaintiffs a much more 
stringent burden of proof than the law requires. The whole 
thrust of their argument on liability rests upon the basis 
that plaintiffs failed to prove that "a substantial number of 
black applicants for seasonal work believed that the Company 
still assigns to departments on the basis of race". The court 
below, however, properly found that (1) the plaintiffs had 
established a prima facie case based on statistics and other 
evidence; (2) that defendants did not rebut the prima facie 
case by a showing that their practices and policies were 
required by valid business necessities, and in so finding, 
an inference was drawn, based on the entire evidence, both 
plaintiffs' and defendants', that the actual failing was the 
refusal to take proper affirmative actions to discontinue the 
present effects of past discrimination.

The defendants attack upon the findings of the court is 
misguided. The shortcomings in this matter are not attributable 
to either the plaintiffs or the court, but instead to those who 
protest, the defendants. It will be demonstrated herein that 
plaintiffs produced "strong" evidence of discrimination, and the 
defendants' rebuttal evidence in the district court failed; so 
too must their case fail here.

IV



- 8 -

STATEMENT OF FACTS 

A. The Parties:
The named plaintiffs are Nora Lewis, Elizabeth

Bullock, Mary Carter, Betty Johnson and Gertrude Moody.
All are black female citizens of the United' States and all
reside in the City of Richmond, Virginia. They were first
employed in the GLS and are now employed by Philip Morris
at its plants in Richmond, Virginia. They are members of

A/Local 203, Tobacco Workers' International Union.
During the period 1965. through year-end 1974,

the Company hired a total of 6,872 black hourly employees,
and 3,484 (over 50%) of these black employees were initially

5/
assigned to the Company's Green Leaf Stemmery. By Order 
filed October 7, 1974, the Court determined that this 
action be maintained as a class action on behalf of a 
class consisting of the named plaintiffs and all females 
and black males, whether currently employed or for any 
reason no longer employed, who were employees of the

V

4/Joint Stipulation No. 10, p. 98.

Stipulation 1 and 3, pp. 93 and 95.5/



-9-

defendant Company s Green Leaf S Lemmery on or after July 2,

sons w 1 io were notified of this suit plus persons hired
subsequent to the notifications.

Defendant Philip Morris, Incorporated, is a
corporation organized under the lawq. of the Commonwealth
of Virginia and is engaged in the business of manufacturing
and marketing cigarettes and other consumer goods in inter—/

TJstate and foreign commerce.
Defendant Local 203 of the Tobacco Workers' 

International Union is an unincorporated association and 
a. labor union and is the duly designated and elected 
representative for the purpose of collective bargaining of 
approximately 5,300 hourly paid employees of Philip Morris,
Richmond, who are engaged in the production of pi.garettes.

Union is an unincorporated association which lias a number 
of local unions affiliated with it. One such affiliated 
union is Local 203. The International is a labor oryaniza-

6/
Stipulation 21, p. 100.

yStipulation 1 and 3, pp. 93 and 95.
£/Stipulation 4, p. 95.

y

The defendant Tobacco Workers' International

rs



-10

officers in contract bargaining negotiations between Local
R/203 and the Company. It has been a signatory to each 

such contract from before 1962 through the 1974-77
is/contract.
13. The Facilities Involved: ,
The Company's manufacturing operations in

Richmond are divided into three "general" (permanent)
departments and the Stemmery, they are the following:
(i) Fabrication - where ' cigarettes are manufactured; (ii)
Prefabrication - where tobacco in bulk is processed for
cigarette manufacture; (iii) .Warehouse, Shipping and
Receiving (WSR) - where the finished goods inventory is
handled; and (iv) the Green Leaf Stemmery (GLS) - where
the current crop of tobacco is processed for storage. The
operation of the GLS is seasonal, spanning the months from
July through March and the GLS is shutdown except for a
skeleton housecleaning staff during the intervening period

Stemmery employees are employed on a seasonal
basis. All other employees are employed on a year round
basis. The Company's hourly employees in Richmond work at

11/the following locations:

9/
pp. 855-856.

10/
PX 8, p. 340 and pp. 859-864. 

11/Joint Stipulation No. 9, p. 97.



-11

Plant

Seasonal GLS
Prefabrication Dock Street

Blended Leaf 
20th Street 
19th Street 
Commerce Road

Fabrication Stockton Street
20th Street 
19th Street 
Commerce Road

WSR Stockton Street
20th Street 
Bells Road 
Commerce Road

The plants operated by the Company and their respective 
functions are:

Green Leaf Stcmmery. Here tobacco from the 
current domestic crop is tipped and threshed to separate
the stems. It is then dried and prized into hogsheads for 
storage.

Dock otrcct Plant. Here imported leaf tobacco 
is stored in bond, withdrawn from storage, processed, 
blended and shipped to the cigarette manufacturing plants. 
It is located at 15th and Dock Streets. This plant first 
went into operation in 1948.

Manufacturing Center (Commerce Road Plant;) . 
Tobacco ready for processing is received in bulk and 
manufactured into cigarettes, which are then packaged and 
wrapped as finished consumer goods. This plant, completed 
only recently, is located at 3601 Commerce Road.



-12-

S lock Lon Street Plant. This plant: performs the 
same functions as the Manufacturing Center. It is located 
at 7th and Stockton Streets. This plant commenced opera­
tions in 1936.

2 0 tli Street Plant. This plant performed the 
same functions as the Manufacturing Center. It is located 
at 20th and Main Streets. This plant commenced operations 
in 1934, however, cigarette production was phased out of 
this plant in December, 1974.

19th Street Blended Strip factory . Here, strip 
tobacco is blended for use in manufacturing cigarettes 
abroad. The plant is located at 19 Lh and Cary Streets. 
Production was discontinued in 1974, but the plant remains 
in use for ancillary operations.

blended I,oaf Plant. Stems and scrap tobacco 
collected at other locations are regenerated here. It is 
located at 2301 Everett Street. Tills plant first went into 
operation in 1957.

W a r clious e . This is a storage facility for 
manufacturing supplies and a depot for inventory and ship­
ment of finished products. It is .Located" at 2211 bells 
Road.

Support L’acili ties . A Training Center, an 
Engineering Center and a Repair Center support the opera­
tions carried on at the plants. They arc located at various



-13-
sites in the Richmond area. The Company's offices and 
Operations Center is located on Commerce Koau.

In March of 1973, a Gum Plant, where Live Company
r 12'manufactured and packaged chewing gum was closed.

Prior to 1971, all hiring of hourly employees, 
both permanent and seasonal, was done at the Company's 
20th and Main Streets plant. A separate hourly hiring 
office v/ as opened in 1971 in the Company's Wes tab building 
at 300 Commerce Road. In October 1972, an additional
hoUf ly employment office was opened at 159 13elts Boulevard, 
and in January 1973 , a seasonal ciuployinent office was
opened at the Steinmery for the purpose of hiring seasonal
■ _iyemployees only.

C . Ills tori cal Backciroui id

Philip Morris, Incorporated, has used a tobacco
stemming operation in its Richmond, Virginia, plants since
the early 1930's. Before then stemming was done, both by
hand and machine, in the manufacturing plants on a year— 

14/
round basis. In those earlier years, aged and dried
tobacco was stemmed one to two clays before it was used in

12/
Joint Stipulation No. 2, p. 93.

13/
p. 1036.

14/Depositions of F. D. Lbliaston; 5-31-71, pp. 7-9 
and pp. 965; 992.



-14

manufacturing. Although the process was different,
the objective was the same as it is today -- to keep the
product size as large as possible to insure a quality

16/product.
Today, millions of pounds of green tobacco are 

purchased by the Company from green tobacco markets, 
stemmed in the Green Leaf Stemmery, stored and aged for 
approximately two years, and ultimately used by the

_iyCompany in its manufacturing operations.
Since its inception, and even in the 1930's

and 1940's, the Stemmery has been historically and
18/

traditionally manned by Blacks.
Prior to the early 19G0's, the Company was 

organized in a strictly defined and racially segregated
la./departmental system. Prefabrication and the Stemmery were

13/

15/Depositions of F. D. Li lias ton, supra, p. 8.
16/
pp. 1431; 992.

17/
pp. 969, 970, 973, and 974.

18/
pp. 992; Stip. 22, p. 101; Lillaston Dep. supra 

at pp. 7 and 1437.
19/Company and Union Admissions 1, 5, and 7-9, 

pp. 63-65, and 86.



-15

black, while Fabrication and WSR were predominantly 
7 Cl/

white. In 1955, thirteen Blacks were assigned to
Fabrication in response to a Presidential Executive
Order; however, there had been a few Blacks in WSR even

21/in the early 1960's.
Along with the racially segregated departments,

there also existed racially segregated local unions.
Local 209 of the Tobacco Workers' International Union,
represented only Blacks in Prefabrication, Stenimery,
and the Janitorial Staff, even though some of these

22/people worked in the Fabrication departments. Local 
203, of the Tobacco Workers International Union,

22/represented only Whites in Fabrication and WSR.
While the separate local unions existed, the

Company and unions negotiated unequal wages for the same
24_/work with Blacks generally being paid lower wages.

20/
Defendants' Adm. do. 1, pp. 63 and 86.

21/
Stipulation 26, p. 101.

2 2 /
Admission 16 of Company and the Union, pp. 67and 86.

23/
Admission 16, pp. 67 and 86.

24/Admission 20, pp. 68 and 87.



-16-

There were "colored" and "white" rates for entry level
.2 5/jobs in VISR, and black elevator operators in Pre­

fabrication were paid less than white elevator operators
26/in Fabrication.

Also while the separate Unions existed, the
Company and Unions negotiated discriminatory transfer-
provisions. The "six months rule" was first negotiated
in 1950; its express purpose being to allow one white
male employee in outlying plants to transfer to basic
machine operator jobs in Fabrication with "Transfer Date

22. /Seniority". in 1957, the "six months rule" was modified 
to allow one white female in outlying areas the 
opportunity to transfer to .Fabrication with "Transfer

28_/
Date Seniority. In 1960, the "six month rule" 
again modified to allow employees transferring 
method to keep their "Employment Date Seniority

was
under 
23J11

this

25/Admission 21, pp. 68 and 87. 
26/
Stipulation 39, p. 104.

27/Admission 23, pp. 69 and 87. 
28/
Stipulation 40, p. 104.

29/
Stipulation 42, p. 104.



-17

The Company during this period of time was a
juZgovernment contractor. In 1961, a Presidential 

Executive Order was issued which set forth specific 
penalties for government contractors in non-compliance

di /With Federal Equal Employment Opportunity requirements.
As a result, the Company initiated a "Factories Employment
Program" in May, 1961. When this’ policy was initiated,
there were 213 hourly employees in the Stenunery, and
355 hourly employees in Prefabrication, all of whom were

22/black. Yet in 1961 and 1962, no Blacks were hired into 
23/Fabrication.

In addition to establishing the "Factories 
Employment Program" in 1961, the Company also modified 
the "six months rule" to allow two Prefabrication 
employees the opportunity to transfer to Fabrication 
once every six months to the jobs of catcher, boxer, or

30/
Stipulation 24, p. 101.

31/
Stipulation 27,'p. 101.

32/
Stipulation 27 and 28, p. 101. 

32/
Stipulation 32, p. 102.



-18
machine operator. This was the first formal procedure

15/allowing Blacks to transfer to Fabrication.
The 1962 "Supplemental" Labor Agreement, which 

covered Sternmery employees, contained a provision giving 
such employees the right to transfer to any permanent 
department at the end of a season if vacancies existed 
and if, in the opinion of management, they were capable 
of satisfactorily performing the work.

In 1963, in response to a Presidential Executive 
Order, Local 209 and Local 203 merged; Local 203, the

jj/formerly all-white union, becoming the surviving entity, no
officer of which was black.

The Company in 1965, for the first time in
its history, hired more Whites into the Sternmery than 

29/
Blacks. The 1965 Sternmery contract contained a similar 
provision to the 1962 agreement, allowing Sternmery

3A/

34/
Stipulation 41, p. 104.

35/
Stipulation 41, p. 104.

36/
PX No. 8; 1962 Supplementary Agreement, Article II, paragraph 10, p. 346.

37/
Stipulation 8, p. 96; Admission 7, pp. 67.

38/
Deposition of Wallace A. Mergler, 6-20-74;

39/
PX 29-A, p. 494; p. 982.

p. 1503.



-19-
employees to transfer to "any" pernunion L do par!Liiien L .
Through this provision , at the end of the 1965 s e a s o n ,

95 Stemmery <employees transferred, 4 8 (o r 5 6) of whom
Aj/were White.

March, 19 G 6 was Lhe elate oi the d c x L major change 
trails for procedures. On that date Liie number of employees 

allowed to transfer from Prefabrication to fabrication under 
the "six months rule" was increased to four and Prefabrica­
tion employees were also allowed to transfer to WSR under
the "note of intent" procedure with "transfer date seniority",

_42/at the rate of one per month.

Tlie Company and Unions in ney o tia tiny the 1968 
labor agreements made one significant chanye. '['lie urovision 
in the Stemmery agreement which had allowed Stemmery 
employees to transfer to all permanent locations was changed 
to restrict Stemmery transfers to Prefabrication onlv.

40/
PX 8, 1965paragraph 9, (p. 355). Supplementary Agreement, Article II,

41/
PM Ex. 3 (p. 580).

42/
Stipulations 43 and 38, pp. Admission 30, of Company and the Unions, 103 and 104; 

pp. 71 and 87.
43/

_ PX 8; 1968 Supplementary Agreement,Section 6 (p. 366). Article IV,



-20-

In spite of this contractual change, the practices did not 
change, because 8 Stemniery employees transferred to Fabrica-

m /tion and 9 transferred to WSR between 19G8 and 1971. The 
1971 Stemmery labor contract continued the previously

45/
mentioned transfer restriction to Prefabrication only. Yet,
again, between 1971 and 1974, over 200 Stemmery employees
were transferred to Fabrication and WSR, with the bulk of

4.6./them (197) going to Fabrication.
It was not until the 1974 labor agreements that 

the most significant changes were made. They are as 
follows:

(1) Both the "six months rule" and "note of 
intent" transfer procedures were abolished.

(2) All permanent employees were given the right 
to transfer from one department to entry 
level jobs in another with "permanent employ­
ment date seniority'.' Transfers were limited 
to not more than 4 per month from Fabrica­
tion, 2 per month from WSR, and 7 per month 
from Prefabrication.

44/
PMn Ex. 3, p. 58 0.

45/
PX 8, 1971 Supplementary Agreement, Article IV, Section 7, p. 377.

* 46/
PM Ex. 3, p. 580.



-21-

(3) Employees who had previously transferred by 

"note of intent" were given their permanent 
employment date seniority as their depart­
mental seniority.

(4) Stemmery employees were no longer restricted 
to transfer to Prefabrication only, but 
could again transfer to entry-level jobs in 
any permanent department existing at the 
end of a Stenunery season if capable,
in the opinion of management of performing
the work satisfactorily. They will acquire
transfer date seniority" in the department

Al/to which they transfer.
The 1974 contract changes leave Stemmery

employees as the only employees of the Company who now'
, .. . . . AS/lose their seniority upon transfer.

D. Hiring And Initial Job Assignments
1• Hiring Of Hourly Job Applicants
The hiring process is conducted by.Company

employment officers who orally interview and hire the

47/
Stipulation 44, p. 105.

Admission 3 of Company and the Unions, pp. 73
48/

and 87.



-22
applicants. Applicants are hired into on try-love 1 jobs

4 9/in all permanent departments and the Stenunery. Inter­
viewers who do the hiring receive no written instructions, 
guidelines, or objective criteria of any nature which
indicate what qualifications or skills are required of 

50/
applicants. The process consists of an applicant's coming 
into the employment office, completing a written applica­
tion, and sometimes being questioned about previous work 

Sl7
history. Interviewers had and spent little time with
applicants because of the large number of people to be

52./interviewed.

Between 1963 and October 1972, most hourly 
applicants were given the GATB Test. The only requirement 
was that an applicant pass four of its five parts to be

49/
Stipulation 48, p. 106.

50/
pp. 688 and 690; Deposition of R. E. Antell; 

5-22-74, p. 1248 and Deposition of R. C. Robins - 7-10-74, p. 1576.
51/
Two witnesses testified that there was no oral 

interview whatsoever. See pp. 790 and 814.
Additionally, the Company has maintained a policy that the preferred minimum height is 5 ft. 4 in.

This policy has sometimes been relaxed by the Company.
[p. 693; Stipulation 59, p. 109]

52/
pp. 689; 1072.



-23-

employed. At times, when the Company considered itself in
3A/an emergency situation, the GATE Test was dispensed with.

Employment testing was discontinued completely in 1972
because the procedure was "too slow" for the Company's 

-5S7

_537

purposes. When Employment 
applicants was based solely 
and the interviewer did not

testing stopped, employment of
_5jS/upon the oral interview; 

change his interview techniques
31/because the testing had stopped.

Although assignments to various
entry-level classifications were made by

5 8/

duties
Company

wi thin 
officials

after new employees have been hired, the 
know which department, plant and shift he

interviewer would
33./was hiring for

53/
The validity of the GATB test is not in issue here because it was not used to determine departmental assignments. See p. 695.

54/
Company Admission 46.

55/
Stipulation 60, p. 110.

56/
Company Admission 48.

57/
Deposition of Glenn Holder; 6-7-74 p. 1386.

58/
Stipulation 48, p. 106.

59/
p. 1065; Deposition of Glenn Holder, 6-7-74, pp. 1373-1374.



-24

because he would be sent job orders or " resignisi tions" 
beforehand for "x" number of people in Stemmery or Fabnca-

_6t) /tion, etc., by various Company officials. If was the 
interviewer who decided to which department an employee
would be £l/assigned.

Between March,1968,and October, 1972, the Company
£2./had only one full time hourly interviewer. Between 1965 

and 1974 almost 14,000 hourly applicants were hired while
during the years 1968-1972, over 6,000 hourly applicants

63/ 6.4/were hired, and many more were interviewed. The demands
made upon the interviewer were great, and on occasion an
interviewer might interview 90 to 100 people in a single

60/
pp. 690; 696; 1039.

61/
pp. 1081-1082 and p. 690; Deposition of Glenn Holder, supra, pp. 1376-1377.

62/
pp. 687; 1036; 1057-1058.

63/
See PM Ex. 3, p. 580.

64/
E.g. See PX 27, p. 493 which covers total 

applicants for the years 1970-73, the only years for which 
these statistics are available, which shows that from 1970 
through year-end 1972 there were over 14,000 hourly 
applicants and in the first six months of 1973, there were 
over 13,000 applicants.



day. At times, so many people were interviewed in a
day that the interviewer " . . .  had very little time to

6_6/tell them [applicants] about anything." At the same 
time the interviewers were under pressure from the Company

6JZJto ". . . sign a person up in a short period of time".
The hiring and departmental assignment decision was made by
the interviewer on the basis of these interviews and
the Company's priorities, i.e., "wherever people were 

68 /needed.
During the oral interview, the only explanation

of entry-level jobs given to applicants, if_ any, was for
those jobs in the department in which the applicant was
being offered employment. The difference between the
various departments and the entry level jobs in them was

J-Q'''not explained to each applicant. Nor was each applicant 
told that in some departments, (e.g. GLS and PRE), there

65/
pp. 694; 729.

66/
pp. 694 and 1043.

67/
Fn. 18 supra and p. 1982.

68/
pp. 695 and 1058.

69/
pp. 1067, 1065-1066, and 694.

70/
See Fn. 21 supra and pp. 729, 777, 821, 1104, 1114, and 1115. 843,



-26
were two entry level pay rates, or that one pay rate applied 
to "light labor" and a higher pay rate applied to "heavy 
labor", or that some jobs v/ere seasonal and other jobs

izYwere permanent.
Several witnesses testified that they did not know

22./the Stemmery was seasonal until after they had been hired;
and many of the witnesses who had received no explanation of
the various departments and were hired into the Stemmery had
originally been seeking permanent rather than seasonal

12/employment.
2. Initial Job Assignments Of New Hires 

Within The Department______
Once an employee is hired and assigned to

report to a particular department, the actual job assign-
74 /ment is made by Company officials within the department.

The Company officials who make initial assignments do not 
specify or rely upon any particular skills or qualifi­
cations of new hires, either in making requisitions to

71/
pp. 1067-1069, 729, 777, 778, 825, 843, and 844. 

72/
pp. 705, 730, and 815.

73/
pp. 703, 704, 728, 793, 943, and 1115.

74/
Stipulation 48, p. 106.



75_/ -27-
interviewers or when making the actual job assignments.

When newly hired Stemmery employees reported to 
work, they were not asked whether they preferred heavy' or 
light labor, neither were they asked in the department.

l UThey were assigned their first jobs by Company officials, 
the females to "light labor" and the males to "heavy

1jJlabor".
E. Seniority, Transfer, And Promotion Procedures

-X871. The Contractual Provisions:
Permanent employees and Stemmery employees are 

covered by two separate labor agreements, the "main" 
contract and the "supplementary" seasonal contract. This

jzyhas been the practice since before 1965.

75/
Company Admission 75, p. 84 and Deposition of the following: F. P. Lipski, 9-13-74; pp. 1442-1443; Roy D.

Hass, 6-7-74; p. 1369; L. L. Craighill, 5-24-74; p. 1316-1317; 
J. P. Horne, Jr., 6-4-74, p. 1401-1402; G. W. Holmes, III,74; p. 1388; L. H. Nuttal , 9-13-74, P- 1529.

76/
pp. 706, 707, 730, 731, 825, 843 , 844, and

77/
pp. 707, 708, 732, 815, 826, 844 , and 944.

78/
The history of the contractual changes has 

already been discussed above in the Section "C", entitled 
"Historical Background". Only what is considered to be the 
most important provisions will be restated here.

79/
Stipulation 8, p. 96.



-28

Under this arrangement, Stemmery employees have
seasonal seniority among themselves, while employees in
each permanent department had seniority within their
department based upon the dates of their employment within
the permanent department. This practice changed in the
1974 labor contract to the extent that now all permanent
employees have seniority among themselves based upon their

_8_D//date of entry into permanent employment. In essence, 
the 1974 contract changed the permanent employees' seniority 
system from a departmental seniority system to a Company­
wide seniority system.

Before the 1974 labor agreement, transfers from 
one permanent department to another could occur in one of 
two ways: by way of the "note of intent" procedure or by

_ai/way of the "six months rule". The "note of intent",
procedure, which began in May 1961, allowed transfers from
one permanent department to entry-level jobs in another

82/permanent department with transfer date seniority.
The "six months rule", which began in 1950, 

allowed transfers from one permanent department to

80/
Stipulation 36, p. 103. 

81/
Stipulation 36, p. 103. 

82/
Stipulation 36, p. 103.



V -29-

certain jobs above the entry level in another permanent 
department.

Transferees under the "six months" procedure
were allowed to keep their employment date seniority, rather
than take transfer date seniority. These transfers

under the "six month rule" were allowed only once every six
months and the total permitted to transfer from each depart-

-83/ment was limited. Neither the "six months rule" nor the
M./"note of intent" procedure applied to Stemmery employees.

While permanent employees had the "note of intent"
and "six months" transfer procedures, Stemmery transfers
were governed by the then current Supplemental Stemmery
Agreements. Both the 1962 and 1965 Stemmery Agreements
allowed Stemmery employees to transfer to all permanent
departments without restrictions as to the locations, as is
shown by the following provision from Article II, paragraph
9, page 9 of the 1965 agreement:

"Employees . . . employed in the . . . Green 
Stemmery . . . will be transferred in order of 
their seniority when there are openings for 
jobs in other locations of the Company a_t 
Richmond, Virginia, to which said employee's

83/
Stipulation 38, p. 103.

8_4_/
PX 8. [Labor Agreements], p. 340.



-30-

scniority v/ould entitle them, i.n accordance 
with present policy, provided the employee 
is capable of performing the work satisfactorily 
in the opinion of management. Recommendations 
of the Union Committee shall be given careful 
consideration. [Emphasis supplied.]

It was not until the 1968 Supplementary Agreement
which became effective on February 15, 1968, that Slemmery
• employees were restricted by contract to transfer to the
Prefabrication department only, as is. stated in Article
IV, Section 6 , p. 10, as follows:

Employees who have established seniority
will be transferred in 
Company 's Prefabrication 
Virginia,

seniority order _to the 
Dopartment in Richmond, 

are available provided 
of performing the

when openings
such employees are capable 
work satisfactorily in the opinion of manage­
ment. It is understood that the date of 
transfer becomes the seniority date for promotion 
or reduction of force in the Prefabrication 
Department. Recommendations of the Union Cgm-n 
miktee shall be given careful consideration-?—  ■ [Emphasis supplied]

The 1971 Supplementary Agreement contained the same
87/language as quoted above from the 1968 contract.

2. The 1972-73 Stemmery Transfers
At the close of the 1972 and 1973 Stemmery

seasons, the defendants agreed to offer Stemmery employees

85/
PX 8, p. 340.

86/
PX 8, p.•340.

87/
PX 8, 1971 Supplementary Agreement, Article IV, Section 7, p. 377.



-31
the opportunity to transfer lo entry level jobs in

either Prefabrication or Fabrication, notwithstanding
the transfer restrictions contained in the then current

RR71971 contract. These transfers were allowed due to the
opening of a new plant, increasing production demands, and

£3/a tight labor market in Richmond.
Stemrnery employees transferring to Prefabrication 

and Fabrication at the close of the 1972 and 1973 Stemrnery 
seasons were given 48 hours to decide whether they wanted

an/to stay in permanent employment. If they wanted to
return to Stemrnery within 48 hours they could; but if they
changed their minds after 48 hours had passed, they lost

21/their rights to return to the Stemrnery. Most of the black 
females who transferred from Stemrnery to Fabrication in

2271972 and 1973 were assigned the job of hanging trays.

88/
Stipulation 45, p. 105.

89/
pp. 987-988; 1145.

90/
Stipulation 45, p. 105.

91/
Stipulation 45, p. 105.

pp. 713, 714, 737, 750, 798, 799, 848, and
92/

952-953.



-32

In 1972 and 1973, a total of 227 Stemmery 
employees transferred to Fabrication, in addition to the 
251 who transferred to Prefabrication.

3. The 1974 Labor Agreements:
The Company and Unions agreed during negotiations 

for the 1974 labor contracts to include a provision again 
allowing Stemmery employees to transfer to permanent depart­
ments other than Prefabrication with transfer date seniority. 
This, with certain other changes, is set forth above in 
Section "1" page 27, and is discussed in Section "C", 
entitled "Historical Background" at pp. 20-21, supra. .

In 1974, a total of 41 Stemmery employees
sa/transferred to Fabrication.

F. Race And Sex-segregated Jobs 
 And Departments_________

Historically and traditionally, the defendants 
have maintaind sex-segregated job classifications and 
departments. The traditionally female jobs in Fabrica­
tion have been those of catcher, attendant, examiner and

93/
PM Ex. 3, p. 580.

94/
PM Ex. 3, p. 580; Cf. Testimony of Lloyd L. Craighill, p. 1145.



-33-
3lE /inspector. The traditionally male 

have been those of fixer and until a
a&/operator and tray-hanger.

Company-wide, the jobs of 
operator and fixer have been "male". 
and Prefabrication departments, the 
have been the so-called "light labor 
while the black male jobs have been

jobs in Fabrication 
few years ago,

forklift truck 
ST-/In the Stemmery 
black female jobs 
" classification 
in the so-called

28/"heavy-labor" classification.
In the Stemmery, in addition to there being 

sex-dominated entry-level classifications, the "key" 
or classified jobs have been clearly sex-defined, with 
female tag meter operators, male line-out and press 
operators, male fork lift operators, and a predominantly

95/
PX 35-B, p. 510 and pp. 1016-1017; Depositions 

of R. C. Robins - 7-10-74, p. 1577-1579; K. L. Jackson - 
9-13-74, p. 1408; R. D. Hass - 6-7-74, p. 1367-1368, and p. 833.

96/
PX 35-B, p. 510; PX 35-C, p. 511 and pp. 1017- 

1018; Deposition of L. L. Craighill - 5-24-74, p. 1319-1321;
K. L. Jackson - 9-13-74, p. 1407; J. P. Horne, Jr., - 6-20-74, 
p. 1403; 1405-1406; Deposition of R. D. Brown - 6-20-74, 
p. 1277-1280; W. A. Mergler - 6-20-74, pp. 1504-1505.

97/
PX 35 A, B, C, and D, pp. 510-512; Deposition of J. P. Horne, supra, p. 1004.

98/
p. 819 and Deposition of F. D. L-illaston - 5-31-74, p. 1432.



-34
male "skeleton" crew that works during the shut-down

St sfperiod at the Stemmery.

Between 1965 and 1974, with the exception of 
one female hired in 1971, the Warehouse, Shipping and

inh/Receiving Department has been totally male. Even at the 
end of the 1972 and 1973 stemmery seasons when mass trans-
 ̂ . 1&1/fers were being offered, no transfers to WSR were offered.
There has never been a female transfer from the Stemmery 

102/ 
to WSR.

New hires are assigned to both departments and
.103/

entry level jobs by Company officials. Females, such as
named plaintiff Gertrude Moody, have been discouraged from
... 104/bidding for forklift operator jobs. And neither the

.105/selection of fixers nor the selection of transferees
10 6/

from the Stemmery nor the promotion of hourly employees

99/
PX 35-A, p. 510 and pp. 762, 709, 732, and 779. 

100/
PX 31-D, p. 505.

101/
pp. 711, 786, 841, and 1049.

102/
PM Ex. 3, p. 580.

103/
See Section d , supra.

104/
pp. 733 and 734.

105/
Deposition of L. L. Craighill - 5-24-74, p. 1325; R. J. Brown, supra, p. 1283-1284.

106/
pp. 761-762.



-35-

is based entirely upon seniority.
In addition to there being predominantly

male and female jobs, there also exist predominantly
118/"black" and "white" jobs. In the highest paying

109/
Fabrication jobs of "llead-fixer", there has been one black

110/ .and no females since 1965. Nor have there been any
Blacks in the Fabrication jobs of Stockroom Clerk, or

111/Watchman. There are many jobs in all of the departments
that have been filled totally or predominantly by one 

112/ 113/
race or by one sex, while the traditionally "black"
Stemmery and Prefabrication Departments continue to be

114/predominantly black.

1 0 2 ^

107/
p. 1158.

108/
PX 26, p. 491.

109/
PX 8; "wage rate schedules", p. 379.

110/
PX 26 and PX 35-B, pp. 491 and 510.

111/PX 26, p. 491.
112/

PX 26, p. 491.
113/

PX 35, A, B, C, and D, pp. 510-512.

PX 30-A and 30-B and PM EX 3, pp. 498 , 499 ,
114/

and 580.



-36-

G . Union Representation
Article I, Section 3 of the Constitution of 

the Tobacco Workers' International Union states in 
pertinent part:

"The provisions of this Constitution and • 
of the Constitution of the Local Unions 
. . . shall constitute a contract between
and be binding upon all individual members 
officers and local unions which are now or 
may hereafter become affiliated with the 
TWIU" JLX5-/

Article E, Section 28 of the Constitutional
provisions governing Local Unions of the TWIU states 
in pertinent part:

" . . .  no collective bargaining and working 
agreements shall be consummated until first 
submitted to the General President who 
may . . . approve or reject any proposed
agreement and no such agreement can be 
executed without the approval .of the 
General President . . . "  -LL6/
The collective bargaining agreements between

the TWIU and the Company from 1962 to the present list

the names of representatives of the Company, the
112./International Union and Local 182. As Mr. Pearce,

115/
PX 6 and 7, pp. 253 and 299.

116/
PX 6 and 7, pp. 253 and 299.

117/
PX 8, p. 340; in the 1974 collective bargaining agreement, the phrase "Representing Tobacco Workers 

International Union" was replaced with the words "Witnessed 
by:". However, the nature of the International Union's 
Participation in the negotiation in no way changed (p. 864).



-37

P^-®idsiit of Local 203, testified, the appearance of the 
names of the representatives on those contracts indicates

11 p/
that those persons signed the agreements.

The collective bargaining agreements between the 
Company and the Unions have specified the terms for working 
conditions, wage rates, employee benefits and conditions for 
promotion for all employees at Philip Morris, Inc., includ­
ing Stemmery employees, under TWIU jurisdiction. The terms 
of those agreements are periodically negotiated by 
representatives of the Unions and the Company. At these 
negotiations, the representatives of the International
Union present proposals and otherwise assist Local 203 in

1 1 q/the bargaining process.

In addition to the collective bargaining agree­
ments negotiated periodically between the TWIU and the 
Company, the defendants have also entered into Supplemental 
Agreements which pertain only to Stemmery employees.
These agreements have always provided that emplovees

118/
pp. 898-899.

119/
pp. 855, 858, and 897; further, the local 

union cannot adopt by-laws without the approval of the 
International Union (PX 13 S, pp. 869-870.

120/
PX 8, p. 340.



-38-

transferring from the Steivunery to other departments of the 
Company will forfeit their seniority acquired in the

_i2iStemmery. Moreover, although the unions have made
several proposals to the Company dealing with seniority

122_/rights of other employees upon transfer no such proposal
, , ,12.yhas ever been made on behalf of Stemmery employees.

121/
Id.

122/
For example, a proposal was made in 1967 or 

1968 that employees of the Clark Gum Plant (which was being 
shut down) be allowed to retain their employment date 
seniority upon transfer to the manufacturing plants 
(PX 13 (n) ) .

123/
Several union representatives testified about 

a "mysterious" proposal to the Company that Stemmery 
employees be allowedto retain their employment date 
seniority upon transfer to other departments (pp. 871-876, 
Deposition of Charles Pearce 15-18, Deposition of Gerald 
Throckmorton 15-20, Deposition of Reginald Brown 25-26). 
However, none of these representatives was able to articu­
late this proposal upon examination. The testimony of 
Wallace Mergler is particularly enlightening. After testi- 
fying that such a proposal was made, the following discourse 
took place between Mr. Mergler and the Court:

THE COURT: Mr. Mergler, let me get it straight
now. You say you got the Company to agree to this?

THE WITNESS: Yes, sir.
THE COURT: What did they agree to?
If I went over there and got a job in the 

prefab . . . and I got it tomorrow, wouldn't my seniority 
start from tomorrow?

THE WITNESS: That's true. (Continued on p. 39.)



-39-

The local union has also failed to seek redress
of black employee grievances. See, e. cj . , the testimony

JL2J./ 125/  12g/of Shad McEachin, Nora Lewis, Gertrude Moodv,
122/ 121//Carrie Andrews, George Pleasant and Racilia

123..'Howard.

As a result of the Union's failure to equalize 
the wage rates of job classifications in the Stemmery

(Continuation of footnote 123.)
THE WITNESS: Yes, sir.

*  * *  *

THE COURT: What you are saying is that you got
[the Company] to agree to something that helped . . .
everybody except the stemmery people? They stayed the same?

THE WITNESS: Yes sir. (pp. 875-876.)
124/

The testimony of Mr. McEachin is particularly 
significant. After exhibiting an almost incredible faith 
in his union representatives, Mr. McEachin was forced by 
those representatives to apologize for an incident in which 
he did not precipitate. And even after Mr. McEachin 
apologized, the Union failed to prevent his being dis­
charged by the Company. (pp. 916-932.)

125/
pp. 954-960.

126/
pp. 755-758.

127/
pp. 768-775.

128/
pp. 803-804 and 810-812.

129/
pp. 829-832.



-40

with those in p 
in the Stemmery 
counter parts i 
requiring the s

ermanent employmen 
receive less wage 

n the permanent de 
ante skills and per

t, Blacks and females

s than their V.'hite male
partments for jobs

13D/fo nuance.

130/
Plaintiffs were unsuccessful on this issue in the district court.



-41-

H. Plaintiffs Economic Loss
The practices of the defendants which have been 

described above in Sections "C" through "G" have caused 
the members of plaintiffs' class to suffer substantial 
losses of earnings.

Plaintiffs' Exhibit 36, gives a comparison of 
the average rates of pay and the number of employees 
involved for three groups of employees by year of hire. 
The first group of employees are those Whites initially 
assigned to Fabrication who have remained in Fabrication. 
The second group of employees are those members of the 
class who were assigned to the Stemmery and were still 
there as of June 30, 1973. The third group is composed 
of members of the class who were initially assigned to 
Stemmery and have since been transferred to Fabrication.

A comparison of the three groups for persons
. . , . . 131/hired m  the year 1972 is as follows:

GROUP I GROUP II GROUP III
White Males BM BF WF BM BF WF

1972 3.82 3.58 3.36 3.35 3 . 32 3.15 3.24
Number
of
people 213 31 54 2 15 27 5

Difference 
from White 
Males in 
Group I: . 24 . 46 . 47 . 50 . 67 . 58

131/
From PX 36, p. 513. The year 1972 was chosen as an example only because it is the latest year on the page 

which has representatives in each category.



-42

The above excerpt shows that black males hired 
into the Stenune r y in 19*72/ averaged 24/ an nour less than 
white males hired directly into Fabrication, while black 
females made 46/ an hour less and white females made 4 7/ 
an hour less. The Group III comparison shows an even 
greater disparity for members of the class who were 
initially hired into Stemmery and later train i'-n'rod into 
Fabrication. In this group the disparity for black 
males is 5Ojzf per hour, for black females 67b per hour, 
and for white females 58/ per hour.

All of the named plaintiffs were hired in either
1966 or 1968 and each was transferred into Fabrication

, 132/the year 19 72 . Page 2 of PX 36 gives a graphic 
illustration of their economic status as compared with 
whites assigned directly to Fabrication in 1966 and 
1968. One need only compare the Group I white males 
with the Group III lack females to see the difference 
in average hourly rates of pay:

WM BF Difference Per Hour
1966 4.13 3.55 *> 'j 3
1968 3. 86 3.57 . 29
Number
of 45 13
people 75 10

132/
Joint Stipulation 11 and 12, p. 98.



Plaintiffs' Exhibit 3G clearly demonstrates that 
both those members of the class who wore hired into the 

Stemmery and remained there, and those members of the 
class who were hired into the Stemmery and were eventually 
allowed to transfer, have suffered substantial losses of 
earnings when compared with Whites hired in the same year 
who were initially assigned to Fabrication.

In addition to the loss of hourly earnings, 
members of the class have also suffered economic loss 
through the company's pension and profit-sharing plans.
The amount of earnings an employee receives during his 
employment with the Company determines the amount of pen­
sion. benefits he will receive. Prior to 1966, the pension 
plan formula was based on "career average earnings", but 
in 1966 it was changed to "the average of the five con­
secutive highest earning years during the last ten years of

133 /
employment. Loss of earnings during employment causes a 
continued loss even after retirement.

I• The Named Plaintiffs
The named plaintiffs are Nora Lewis, Elizabeth 

Bullock, Mary Carter, Betty Johnson and Gertrude Moody.
All are black female citizens of the United States and all 
reside in the City of Richmond, Virginia. They are 
employed by the defendant Company at its plants in Richmond

133/
Stipulation 58, p. 109.



-44-
and are members of Local 203, Tobacco Workers' International 134/
Union.

Plaintiff Elizabeth Bullock was first employed by the
Company in November, 1966; plaintiff Gertrude Moody, in October,
1966, and plaintiffs Nora Lewis, Mary Carter, and Betty Johnson

138/
in December, 1968. Each of the named plaintiffs was first
employed in the GLS and each remained there until April 25, 1972,
.  ̂ 136/when they were transferred to the Fabrication Department.

Upon their transfer from the GLS to Fabrication, the
named plaintiffs acquired transfer date seniority in accordance
with the seniority system set forth in the then current (1971)
collective bargaining agreement. After transfer each was
initially assigned to the entry level miscellaneous classification,

137/
which included the task of hanging trays. Four of the five
named plaintiffs testified during the trial, and each recounted
how she had been affected by the discriminatory policies and

138/
practices of the defendants. A brief summary of that
testimony is as follows:

134/
Stipulation 10, p. 98.

135/
Stipulation 11, p. 98.

136/
Stipulation 12, p. 98.

137/
Stipulation 13, p. 98.

138/
These policies and practices have been discussed 

more fully above in Sections "C" through "F" at pp. 13-35.



-45-
Each came to the Company seeking "a job", and

US''not necessarily seasonal employment. None v;as familiar
with the various departments and entry level jobs available

JLA0/at the Company. The interviewer did not explain to them
1A 1the different jobs and departments, nor were they given

a preference of jobs and departments 142/ Each was assigned
, 143/to the light labor" job in the Green Leaf Stemmery.

Most did not know that the Stemmery was seasonal until
144/

after they had been hired. Each had to work by the 
Stemmery "bell".

139/
pp. 703-704, 728, 843, and 943.

140/
pp. 705, 728, 843, and 942.

141/
pp. 606, 728-729, 843, and 950-951. 

142/
pp. 706-707, 731, 843-844, and 944. 

143/
pp. 707, 732, 844, and 944.

144/
705, 730, and 843.



-46-

Eacn of the named plaintiffs remained in the 
Stemmery^until the mass transfers at the end of the 1 9 7 2  

season. Prior to 1972, each was laid off at the end of 
each stemmery season without being offered the opportunity 
to work on the off-season Stemmery c r e w . ^ o n e  was dis­
couraged by a supervisor from bidding for a promotion in 

the stemmery because the gob involved was a traditionally 
e 3 0b. Most were by-passed by male GLS employees 

who transferred with less GLS senior! ty, R e s p i t e  the 
fact that they had previously requested transfers.14^

When the mass transfers were offered in 1972, 
none was given the opportunity to transfer to Warehouse, 
Shipping and Receiving, a traditionally "white" and 
completely "male" department . ^ ^ p o n  transfer to

145/
Stipulation 1 2 , p. 9 8.

146/
PP- 707, 732, and 844.

147/
PP. 732-733.

148/
PP- 728-729, 845-846, 760-761, 

149/
PP- 710, 734, and 845.

150/
PP- 847, 944, 951-952,

813, and 816-818.

and PX 30-D, p. 501.



-47-

Fabrication, each was given a two clay trial period and
15l/assigned the job of hanging trays. bach replaced a

male employee in this assignment 152/ Most saw white females,
with less company and departmental seniority, assigned to

155/ 15A/easier tasks. Some were injured from hanging trays;
155/

but the defendants gave them no relief. At the same
155/time, Whites who were injured were given light duty.

Complaints to both the Company and the Union went 
15?/

unheeded. And in some instances it only caused the
situation to worsen, in that two of the named plaintiffs

158 /were assigned the 3 0b of hanging trays full time, whereas 
.the few white females who occasionally hung trays were only

151/
pp. 711-713, 727, 749, 848, and 945.

152/
pp. 713, 727-728, 848, and 953.

153/
pp. 712-713, 729, 740, and 947-948 

154/
pp. 716 and 911.

155/
pp. 715-717, 758, and 945-946.

156/
p. 717.

157/
pp. 734-735, 739, 755-757, 947, and 954-957. 

158/
pp. 758 and 957-959.



-48-
so assigned for less than a dâ 1-5-9-/Some iiad L:o I;

L6.Q. /undesirable shifts just to avoid hanging trays. All 
have suffered economic loss because of the initial assign­
ment to GLS, the transfer restrictions on GLS employees,
and
Yet
rnent
for

the loss of seniority upon transfer to Fabrications 
they have been successful in the Fabrication depart 
, demonstrating that they were, and are, qualified
Fabrication jobs

163/

159/
pp. 799, 810, 913, 953, and 1102. 

160/
pp. 740-741 and 958.

161/
pp. 722-723 and 753.

162/
pp. 718-724, 741, and 742.



-49-

ARGUMENT
A.

VI

THE DISTRICT COURT PROPERLY FOUND THAT PLAINTIFFS 
ESTABLISHED A PRIMA FACIE CASE OF DISCRIMINATION

The threshold issue presented to the court below 
plaintiffs post—trial brief was framed somewhat differently 

from the question here presented. It was, "may a company which 
historically and traditionally maintained two 'black' depart­
ments and two 'white' departments continue to maintain two 
predominantly black departments just because the two white
departments have been 'desegregated' at least in terms of the163/

SMSA ratio? The district court answered that question
• negatively.

The statistics produced during the trial of the case 
clearly demonstrate that the Company assigned a disproportion­
ately large percentage of black employees to the Stemmery. A 
summary of that statistical evidence is:

(i) between 1965 and 1974, over 63% of all 
black hires were initially assigned to 
the two traditionally black departments; 
Stemmery and Prefabrication;

(ii) between 1965 and 1974, over 50% of all 
black hires were initially assigned to the Stemmery;

(iii) between 1966 and 1974 the yearly 
percentages of black employees 
initially assigned to Stemmery has 
ranged from a low of 72.6% to a 
high of 97.3% in 1974; and

163/
' post Trial Reply Brief of Plaintiffs' Nora Lewis, et al, p. 7.



-50-
(iv) one of the consequences of the disproportionately 

large number of black assignments to formerly 
all black departments is that, in 1974, the 
Prefabrication and Stemmery workforce were 
85 and 95 per cent black respectively; both 
departments having been "more black" in 1974 
than they were in 1965.

These facts, based upon exhibits placed in evidence
at trial, were then, and are now, undisputed by defendants.
It was the foregoing statistics that the district court relied
upon in holding that plaintiffs had established a prima facie 

164/
case (126-128). That finding is supported by this Court's 
previous holding that, "statistics can in appropriate cases 
establish a prima facie case of discrimination without the 
necessity of showing specific instances of overt discrimination" 
Barnett v. W. T. Grant Co., 518 F.2d 543, 549 (4th Cir. 1975).

B.
THE DISTRICT COURT PROPERLY FOUND THAT DEFENDANTS FAILED 

TO ADEQUATELY REBUT PLAINTIFFS PRIMA FACIE CASE OF DISCRIMINATION
Having held that plaintiffs had established a prima 

facie case, the court then examined defendants' rebuttal 
evidence, recognizing that when employment statistics 
demonstrate that a defendants' hiring practices have resulted 
in segregated departments, then the defendants must come forward 
with evidence to show that they have not discriminated. U. £3. v. 
Chesapeake And Ohio Railway Co., 471 F.2d 582, 586 (4th Cir.

164 /As will be demonstrated herein, plaintiffs introduced 
a substantial amount of testimony and other evidence in support 
of their statistical evidence.



-51-
1972.) And that the burden of proof is then upon the defendants
to show by competent evidence that their discriminatory practices

165/
are compelled by business necessity. Griggs v. Duke Power Co., 
401 U.S. 474 (1971).

It is significant to note that the Company, in its 
brief, does not argue that it has met its burden of proving 
business necessity, but, instead attacks a portion of the judge's 
finding of liability as erroneous. Even if it is assumed for 
the sake of argument that the finding that "a substantial number 
of black applicants believed the Company assigns to departments 
on the basis of race," is erroneous, then the Company still must 
rebut the statistical disparity, and this still has not been 
done. No business necessity defense has been advanced, either 
in this Court or below, and even the evidence presented falls 
short of overcoming plaintiffs' statistical and other evidence 
of discrimination. An examination of the Company's arguments 
will dispel any notion that it has met its burden. This examina­
tion will address each of the Company's arguments and show the 
evidence that plaintiffs' presented to refute them.

(1) Evidence That The Company Has Hired Blacks 
Freely Into All Permanent Departments_____

The Company immediately points to hiring in the 
permanent departments as evidence that it has no bias against

165/
This Court has held that "business necessity" 

means "an overriding, legitimate, non-racial business purpose". 
Robinson v. Lorillard, 444 F.2d 791, 797 (4th Cir. 1971). There 
must be available no acceptable alternative policies or practices 
which would better accomplish the business purpose advanced or 
accomplish it equally well with a lessor differential impact. 
Robinson v. Lorillard, supra at 798.



-52-
hiring blacks in any area of the operation. At first blush,
this is a seemingly convincing argument. Closer examination, how-

• causes it to lose its appeal. The Company admits that
Fabrication " . . .  contains the highest hourly paid job
classifications in the Company and furnishes the most

16J/
opportunities for promotion". With this in mind, it is 
not surprising to find that although the number of blacks 
assigned to Fabrication has increased, it is at a much lower 
ratio than their assignments to Stemmery which has the lowest 
paying jobs and least opportunities for promotion.

The increase in the assignments of blacks to the 
two traditionally "white" departments, Fabrication and WSR 
is the crux of this case. The entire work force has increased 
in terms of black employees, and Fabrication and WSR have, as 
a result, become the "last havens" for white employees. The 
defendants may preserve the racial identity of the two remaining 
predominantly white departments only by assigning the majority
of new black hires to the Stemmery and Prefabrication.

167/The court below closely examined defendants' 
evidence of hiring in permanent departments, but refused to draw 
the inference that defendants attempted to establish because 
Prefabrication, also a permanent department, but historically 
black, continues to be 85 per cent black. The court instead

166/
Company Brief, p. 13.

167/
At 131 and 132.



correctly found that the historically "black" and "white" 
departments continue to be staffed in racially identifiable terms 
and held that "a distinction between permanent and nonpermanent 
hiring is not b or re out by the facts." (p . 132)

The district court's interpretation of, and 
application of the law to, the Company's evidence of hiring 
in permanent departments is well supported by precedent. No 
case has been cited by the Company, and it is submitted that 
no case has held that progress in one department is a defense 
to discrimination in another. Indeed, the law is to the 
contrary, courts have held that even if a defendant has stopped 
discriminating (in this case it would even apply to the Stemmery 
itself) it is not a defense to discrimination that has already 
occurred, nor does it moot the issues. Gamble v. Birmingham 
Southern Ry. Co., 514 F.2d 678, (5th Cir. 1975); Parham v. 
Southwestern Bell Telephone Co., 433 F.2d 421, 429 (8th Cir.
1970) ; Sabala v. Western Gillette, Inc., 362 F. Supp. 1142,
1150 (S.D. Tex. 1973); See also, United States v. Virginia 
Electric And Power Co., 327 F. Supp. 1034, 1039 (E.D. Va.,
1971) . Here there is no evidence that the defendants have 
stopped discriminating in Stemmery assignments.

This Court should reject the Company's "no bias in 
permanent department hiring" theory as did the court below, and 
as was done in Sabala, supra, where the court held:

"Defendants in effect contend that statistics 
cannot show discrimination unless there is one 
hundred per cent discrimination. This court 
cannot accept this theory. . . . These statistics

-53-



-54-
and evidence presented at trial indicate that there 
has been discrimination. The fact that this 
discrimination is not one hundred per cent dis­
crimination does not make this fact any less 
invidious. 362 F. Supp. at 1150.
(2) Evidence That The Factors Which Have Led 

To A Predominantely Black Stemmery And 
Prefabrication Are Racially Neutral_____

Notwithstanding the fact that the Company in its
brief (p. 16) asserts that the disproportion of blacks in the
Stemmery is ". . . plainly attributable to factors having
nothing to do with discrimination," it then goes on to state
the reasons for this disproportion in terms of "race".

The major assertions are that whites are incompatible
with Stemmery employment, i.e., they will not apply for it,
and when assigned to Stemmery, they will not stay there. The
only evidence to support these conclusions is the testimony
of Mr. Budne, the Company's statistician, who testified that
these were inferences that might be drawn from the Company's
statistics. But even this evidence is questionable and
susceptible to different conclusions as the following will
demonstrate.

The Company points to evidence of applicants for
Stemmery employment in the years 1973-74, its point being that
supposedly only 5.5% were white. This evidence, however, should

168/
be given little or no weight for several reasons; first,
although the Company characterizes these applications as being 
"for stemmery employment", it in fact represents a list by race

168/—  One reason is that such records were also kept for 
for permanent departments, but were not put into evidence by 
the Company for comparison. (p. 1078)



of employees who applied for employment at the Stemmery employ­
ment office. ( p. 1078) There is no evidence that each person 
who filed an application at the Stemmery was seeking employment 
in the Stemmery. This is an extremely important distinction 
in light of the fact that there is substantial evidence in 
the record that many black applicants seeking permanent employ­
ment were not told by interviewers the difference between the
various departments or that some jobs were seasonal and other

169 /
jobs were permanent.

Perhaps the most important reason for discounting the 
Company's statistics on "seasonal applicants" is plaintiffs' 
evidence that the Stemmery, since its inception, even in the 
1930's and 1940's and up to the present has been either totally 
or predominantly "black" and has had the reputation in the community 
for being a place where blacks are hired. (P. 823-824) . There 
is little wonder that/when the Company opened a separate employ­
ment office at the Stemmery in 1973, many blacks and few whites

JJO/
appeared at the Stemmery's door seeking employment.

No explanation, whatsoever, is offered to show why 
so many blacks were assigned to the Stemmery prior to the 
opening of the separate Stemmery employment office during those 
years when hiring was centralized. Additionally, prior to

- 5 5 -

169/
pp. 729, 777, 821, 843, 1104, 1114, 1115.

170/
The Company's evidence of decentralized hiring 

after 1971 (p. 1026) is indicia of discrimination that 
sustains rather than disproves such charges. United States 
v. Chesapeake Ohio Ry. Co, 421 F.2d 382, 387 (4th Cir. 1972) 
[and cases cited in fn. 10]; Barnett v. W T. Grant Co.,518 
F .2d 543,(4th Cir. 1975).



the revision of the application forms dated "9/73" (pp. 244-252),
no applicant could specify a preference for either seasonal
or permanent employment. The Company has attempted to rely
on the consequences of its past and present discrimination
as a defense to charges of that very same discrimination.

The Company's evidence and arguments regarding the
ratio of black applicants at the Stemmery in the near past,
sustains, rather than disproves, the finding of-the court below,

"Philip Morris' history of segregated departments, 
and the continued dominance of blacks in the 
traditionally black departments has led a substantial 
number of the blacks applying to Philip Morris for 
work to the understanding that their most likely 
opportunity for employment would be in the Stemmery.
It is not surprising that the lines to the Stemmery 
hiring office are populated with aspiring black 
workers. . . ." (p. 132)

The court below also recognized that the statistics offered by the 
Company were in no way an explanation of the disproportionate 
ratio, ". . .no reason has been advanced as to why blacks, as
opposed to whites, are so inclined to accept or prefer the 
seasonal and lower paying jobs of the Stemmery (p. 132)".

The Company in its Brief (at p. 18) distorts the 
truth when it states:

"The District Court, while accepting the fact 
that blacks as opposed to whites are inclined to 
accept or prefer the seasonal and lower paying 
jobs of the Stemmery, was troubled as to why this 
should-be so, 'what perverseness makes blacks as 
opposed to whites more willing to accept what 
appear to be less desirable jobs?' A complete 
answer to this question would undoubtedly be a 
complex sociological one. One facet of it, however, 
certainly must be that during this entire period 
of time the unemployment rate for blacks must 
have been at least twice that of whites." (emphasis 
added)

-56-



- 5 7 -

First, the district court did not accept the fact that blacks 
prefer the Stemmery, when it found "given this background, any 
notion of 'preference' is meaningless; to prefer one alternative 
to another, one must believe that both alternatives are 
available" (p. 133). Secondly, the district court, correctly 
answered its own above-quoted question, " The answer in the 
Court's view lies in the testimony of the plaintiffs' witness 
that "if you want to get hired, you know, being black, your 
best chance would be to go through the Stemmery and then 
transfer to permanent employment later" (p. 132). And 
although the Company makes much "ado" about the fact that the 
latter statement is the "sole basis" for the Court's ultimate 
decision, it is the only direct evidence in this record explaining 
why so many blacks were willing to accept employment in the 
Stemmery. No "complex sociological" evidence was offered by 
defendants, nor is there any evidence of "unemployment rates" 
in the record. The Company's only rebuttal was, and remains to 
be "speculation". The court below had no other choice than to 
find that the Company's argument " . . .  merely begs the question 
of why, percentage-wise, so many more blacks are assigned to 
specified departments." (P. 132)

The second component of the Company's "racially 
neutral factors" theory is that whites are unwilling to apply 
at, or stay in, the Stemmery. Again statistics are used as 
the basis for the inference that the Company asserts and, again, 
the basis is susceptible to contradictory inferences. Even



-58-_17J
though the white "turnover rate" is higher in Stemmery, the
white turnover rate in every other department is also higher
than that of blacks. Additionally, the black turnover rate

172/
in Stemmery is also highest of all departments. The most
obvious conclusion is that no one likes to stay in Stemmery, 
white or black, but the burden of staffing this most undesirable 
department has been cast upon blacks by the defendants.

The Company, in attempting to "confirm white 
unwillingness to work in the Stemmery", has contradicted one 
of its other arguments, i.e., that it does not assign new 
hires to departments. At pages 17-18 of its brief, a Company 
official is quoted who admits that in 1965 the Company made 
a conscious effort to assign whites to the Stemmery. An 
additional significant factor is that in 1965, when more 
whites were assigned to Stemmery than ever before or after 
in the Company's history, the turnover rates for whites were 
lower than they were in 1967, 1969, 1970, 1971, 1972, or 
1973 and there was less than 1% difference in 1966 and 1968.
(p. 616) Those "turnover rates" do not include transfers. 
However, when we examine Stemmery transfers for 1965, we 
find that 57% of them were white which is the highest white 
percentage for any of the years 1965 through 1974. (pp. 522 & 
592). This 57% or 53 whites out of a total of 95 transfers 
remained with the Company, though not in Stemmery. Another

171/
Ratio of terminations compared to hires.

172/
pp. 613-616.



-59-
exhibit (p. d86) shows that a total of 90 white employees 
were still employed in the Stemmery at year end 1965, and again 
this is the highest number of whites in the Stemmery at year 
end for any of the years 1965 through 1974. So, contrary to 
Mr. Soyars' testimony, (pp. 982-3) that ". . . they didn't 
stay there, by the end of the day, most of them had gone on to 
something else . . in 1965, when the Company intentionally
assigned more whites than blacks to the Stemmery, more of 
those whites remained than in any other year'. Thus, even 
the Company's "white unwillingness to stay in Stemmery" 
theory must fail, and in failing, supports the lower court's 
reluctance to rely upon it. (p. 131-2 and 139, fn. 5).

Understandably, the Company also attempts to 
construct a "white unwillingness to work" theory for Pre­
fabrication, and additionally, attempts to justify the 
disproportionate number of blacks in Prefabrication, partially 
on the basis of transfer restrictions. The thrust of its 
argument is threefold, (i) Stemmery employees were until 
1974 only allowed to transfer to Prefabrication; (ii) a high
turnover rate existed in Prefabrication, and (iii) blacks

,  ̂ 173/are reluctant to transfer out of Prefabrication. There
is evidence in the record on both hires and transfers into
Prefabrication, however, which are two separate and distinct
concepts. Though the evidence on transfers and turnovers
presented by the Company partially explains why Prefab has

173/
The Company fails to mention that it limited, by contract, the number of transfers. (Stipulation 38 p. 104).



- 6 0 -

remained predominantly black, it does not explain or justify 
the continued disproportionate hiring of blacks into Pre­
fabrication. That was the lower court's concern:

"From January 1, 1965 to December 31, 1974, of all 
the personnel hired into Prefabrication sixty-three 
percent were black. Sixty-three percent of all 
blacks hired between 1965 and 1974 were either assigned 
to the Stemmery or Prefabrication; almost two out of 
every three black hires." (p. 131) [Court's emphasis]
In the absence of any rebuttal evidence on why 

blacks continued to be hired into Prefabrication at a dispro­
portionately high rate, while whites were hired at a dispro­
portionately low rate, the lower court had no other alternative 
than to conclude, as it did: "A distinction between permanent 
and nonpermanent hiring is not borne out by the facts." (p.131) 
Therefore, the district court, on the basis of these unexplained 
factors, correctly refused to draw the inference that all 
permanent positions are filled non-discriminately.

In its attempted explanation of why it did nothing
174/

to "achieve a better racial mix" in Prefabrication, 
the Company claims that it would not have been permissible 
to deny blacks their "right to transfer" into Prefabrication, 
or to refuse to hire blacks in that department; nor force 
whites into Prefabrication rather than Fabrication, "especially 
since blacks in Fabrication are already overrepresented, and

174/
The term "better racial mix" is the Company's, 

plaintiffs' position is not that a certain "racial mix" is 
necessary, only that defendants have a duty to prevent the 
disproportionate initial assignment of blacks to the lower pay­
ing departments.



-61-
the whites underrepresented in that department [Fabrication]
in terms of SMSA percentages." Here, the Company came very
close to admitting what, plaintiffs have asserted, is the
crux of this case. Translated, the admission is: The
Company did not want to remove the contractual Stemmery
transfer restriction to Prefabrication only; nor discontinue
its policy of assigning blacks to Prefabrication and Stemmery
and whites to Fabrication; or begin to assign more whites to
Prefabrication (and Stemmery), in a "last effort" to preserve
a white majority in Fabrication (and WSR). Despite this
admitted reluctance, the defendants were forced to allow
Stemmery employees to transfer to other locations in 1972-1973
because of an "emergency" situation, and did finally remove
the contractual restriction on Stemmery transfers in 1974.
Apparently, in 1965 when the Company "intentionally" assigned
whites to Stemmery, the ratio of blacks and whites in Fabrica-

175/
tion (91% white and 9% black) was acceptable.

(3). Evidence That The Company Enjoys A Very
Favorable Reputation In The Black Community 
As An Equal Opportunity Employer__________

The Company, at pages 21-22 of its brief, cites the 
testimony of four witnesses in support of its argument that it 
has a favorable reputation in the black community as an equal 
opportunity employer. Three of those witnesses are black, and

175/
p. 498.



-62-
one, a Company official, is white. The language quoted by
the three blacks only supports the conclusion that they applied
because " . . .  they were paying good money there", which is not

177/evidence of being an equal opportunity employer. The only
evidence to support the conclusion that the Company has a
"favorable reputation in the black community" is the self-serving
opinion of the white Company official, (p. 1253) It is sub-
mitted that evidence of offering well-paying jobs and evidence
of being an equal opportunity employer are two separate and
distinct concepts. The district court may properly discount
the self-serving testimony of a Company official about his
own Company's reputation in the black community.

With respect to the Company's evidence regarding
an opinion survey of how the Company was regarded as an employer
by the Richmond community, that evidence supports, rather than
contradicts, the lower court's findings. It is not disputed that
the Company employs many blacks in the Richmond, Virginia
community, having hired almost 7,000 blacks between 1965 and 17 8/
1974. it is not surprising that blacks regard the Company as

116_/

176/
Two of the three black witnesses, Shirley Sayles 

(p. 1587) and Shad McEachin (p. 936) are not members of the class 
having been first employed in a permanent department. Mr. McEachin, 
however, testified at the trial that he was a victim of dis­
crimination by the Company and Union. (pp. 913-941).

177/
See e.g. (p. 935).

178/
Actually 6,872 (p. 586);



-63-

one which will employ them. Plaintiffs did not and do not
now assert, however, that the Company discriminates in its
overall hiring of blacks, but instead in its assignment180/ ----------
practices.

Some 3,484 of the blacks hired between 1965 and
1974 were assigned to Stemmery; of the 6,872 blacks hired, a
total of 4,330 were assigned to Stemmery and Prefabrication,
the two historically black departments, (pp. 587, 589, 591.)
This evidence may support two conclusions, (1) that the
Company has a reputation of hiring blacks and (2) that the
Company has a reputation of hiring blacks predominantly into
the Stemmery and Prefabrication, especially the Stemmery.
That is the conclusion which the lower court reached, "Philip
Morris' history of segregated departments, and the continued
dominance of blacks in the traditionally black departments,
has led a substantial number of the blacks applying to Philip
Morris for work to the understanding that their most likely
opportunity for employment would be in the Stemmery." (p. 132).

(4) Evidence That The Actual Hiring Practices 
Were Without Discriminatory Taint_______

Proof of overt racial discrimination in employment is sel­
dom direct. Brown v. Gaston County Dyeing Mach. Co. 457 F. 2d 1377,

179./

17 9/
Plaintiffs' do not concede that a reputation for giving 

blacks jobs and for being an equal opportunity employer are the 
same, especially if blacks are being given low-paying, low-oppor­tunity seasonal jobs.

18 0/
It is significant that the Roper Survey did not ask whether the Company discriminated in employment. See e.g. pp. 699-701.



at 1382. And this Court has, recently, reiterated that such
proof is not required, stating:

"The district court erred in requiring proof of 
actual discrimination in addition to the statistical 
data implying discrimination. Statistics can in 
appropriate cases establish a prima facie case of 
discrimination, without the necessity of showing 
specific instances of overt discrimination." Barnett, 
v. W. T. Grant Co., supra at 549 (citations omitted, 
emphasis added).
Yet, in this case, plaintiffs went further than what 

is required by producing additional evidence of discrimina­
tion, '. . . and when [such specific practices are] combined
with statistical evidence they establish a strong case of 
discrimination forbidden by Title VII " Barnett, supra, at 
550 (emphasis added).

The evidence is overwhelming that black applicants
who were assigned to the Stemmery were not informed of, or
given the opportunity to choose which of the Company's depart-

181/
ments they might prefer. The lack of choice resulted from
two major causes. First, most applicants had no independent
knowledge of the various departments, job duties and entry-level

182/job available at Philip Morris. Secondly, the applicants
were not informed of the nature of the various departments,

183 /
jobs and job duties by the Company's interviewers. The
only jobs or departments that were explained, if any, were those

- 6 4 -

181/
See p. 25, fn. 69, supra.182/
See p. 26, fns. 72 and 73.

183/
See pp. 25-26, fns. 70 and 71.



-65- 
18 4/in the department for which they were being offered employment. 

i.e., the Stemmery. It has previously been held that when 
a company has traditionally "white" job classifications or depart­
ments, it is unlawful to give incomplete information to blacks 
or to fail or refuse to inform them of the procedures for 
obtaining the higher paying jobs. Lea v. Cone Mills, supra;
301 F. Supp. at p. 102.

It may not now be said that members of the class 
freely and voluntarily chose the Stemmery. Their only 
option was to accept the job offered, or not be employed at 
all. Nor may it now be said that those employees who chose 
to stay in the Stemmery, even after they discovered its 
disadvantages, did so freely and voluntarily. They were forced
to stay by economic realities. Some were jobless when they

18 5/ 18 6/applied for employment; some had left other jobs;
and those who were aware of the Company's discriminatory
practices realized that if they were black, they might have
to serve an "internship" in the Stemmery before they could

18 7/advance to the better jobs.
There was also evidence produced, by plaintiffs, to 

show that company interviewers use "subjective criteria"; and

184/
See 25 fn. 69 

185/
pp. 948-949 & 743

186/
p. 835 

187/
pp. 823-824



- 66 -

this Court has held that a lack of fixed or objective standards
and guidelines for hiring serves to corroborate racial bias
shown by the statistical patterns of a company's workforce.
Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377, 1383
(4th Cir. 1972). Such deficiency, even though neutral on
its face, may operate to segregate and classify on the basis
of race at least as effectively as overt racial discrimination.
Particularly is this so when a history of past discrimination

181/has been developed. United States v. Dillon Supply Co.,
429 F.2d 800, 804 (4th Cir. 1970).

Philip Morris' interviewers receive no written
instructions, guidelines, or objective criteria of any nature
that indicate what qualifications or skills are required of 

18 9/
applicants. Nor do company officials who make requisitions 
to the interviewers specify any particular skills or qualifi-

190/ ‘cations for new hires. The prime factors in hiring employees
191 /are the interviewer's evaluation, his subjective judgment and, 

as Mr. Holder stated during trial, the Company's priorities:
"The first thing I would have to look at would 

be the priority, which area we needed the people 
in the most, and then we would go from there and 
we would make a decision and make a job offer. . . .
Seasonal employment, at times of the year, it is 
very high priority . . . "  (pp. 1081-1082)

188/
As was done in this case. See. pp. 13-21, supra.

189/pp. 688-689; 690; p. 1576; p. 1248; p. 1380
190/

p. 27, fn. 75 
191/

p. 1247; p. 1246



-67-

Perhaps one of the most important facts is that, prior
to trial, the company officials responsible for hiring and job
assignments, including Mr. Holder, admitted that they did not

192 /look _ for any different skills for the different departments.
Mr. Ralph Antell, personnel manager, stated it most directly:

Q. In your hiring of applicants for entry-level jobs, 
the hourly jobs, are there different skills 
required for different variations of entry-level jobs?

A. No.
Q. The same skills are required?
A. The same skills. In the hiring of hourly 

employees we had two types of jobs: green 
leaf stemmery which was basic labor and 
miscellaneous which is basic labor. Within 
the miscellaneous classification there was a 
variety of duties. They were unskilled jobs.
They were jobs that anyone with normal physical attributes could do.

Q. The entry-level jobs in all departments, the 
general departments, also required the same skills?

A. You can say required the same unskilled people.
Q. All right. Are there different requirements for 

entry-level people in the stemmery than from 
those in the general departments? I don't know 
if I was clear on that or not.

A. No.
Q. The same skills are required?
A. In our entry-level jobs, a fair term is that 

they are unskilled jobs.
(Testimony of R. E. Antell pp. 1255-1256)

192/
P. 1381.



- 6 8 -

The use of only a written application, sometimes 
an oral interview, and the evaluation of the interviewer 
without the assistance of any objective guidelines, simply is 
not enough. "Elusive, purely subjective standards must give 
way to objectivity if statistical indicia of discrimination 
are to be refuted.11 Brown v. Gaston County Dyeing Machine 
Co., supra at 1382.

Employers seldom admit racial discrimination. Its 
presence is often cloaked in generalitites or vague criteria 
which do net measure an applicant's qualifications in terms of 
job requirements. Green v. McDonnell-Douglas Corporation,
463 F.2d 337, 352 (8th Cir. 1972). Here, in the absence of 
objective criteria and, even more importantly, in the absence 
of a need for specific qualifications, this (along with the 
statistics) indicates that "race" is the only identifiable factor 
explaining the disparity between black and white assignments to 
the Stemmery.

An additional method of establishing a prima facie 
case of hiring and job assignment discrimination is when a 
minority applicant shows that he or she was denied a job 
for which he or she was qualified while the vacancy remained 
open. Green v. McDonnell-Douglas Corporation, supra, at 353.

All but one of plaintiffs' hourly employee witnesses 
who were initially hired into the Stemmery had successfully

193/
Cynthia Rustin had requested a transfer to 

Fabrication three weeks prior to trial but had not been trans­ferred. p. 783.



-69-

transferred to other permanent departments. In accordance
with the defendants' policies, most of them had been transferred
into entry level jobs in the other departments. One, Ms. Carrie
Andrews, had been transferred from Stemmery directly into a1_95/
Fabrication job above entry level. Two black men had eventually

196/reached the highly skilled "fixer" classification.
Transferring employees are assigned to the same entry 197/

level jobs as new hires. Defendants, at trial, asserted that
Stemmery employees learn no skills there which are useful to

198/
them in Fabrication. Without conceding that the assertion is 
correct, but assuming it is for the sake of argument, the only 
conclusion that may be reached is that Stemmery employees who 
successfully transferred to permanent departments were just as 
well qualified to have been hired directly into those permanent 
departments. This conclusion is bolstered not only by company 
officials' admissions that no particular skills are required 
for any entry-level job, but also by other practices.

194 /

194/
Even those witnesses who were no longer employed 

with the Company had not left because of incompetency.
195/

pp. 766-767
196/

Maxie Cannon and George Pleasants; Mr. Pleasants 
had been demoted to operator in what, plaintiffs submit, was 
a discriminatory manner. See pp. 800-808

197/
Company Admission No. 76, p. 84.

198/
pp. 978; 990; 1139.



-70-
For example, at the end of the 1972 and 1973 Stemmery 

seasons, the defendants gave every Stemmery employee the
19_9_/opportunity to transfer to Prefabrication or Fabrication.

There is no mention anywhere in the record that the Company 
screened employees to determine which were qualified for Pre­
fabrication and which were qualified for Fabrication. To the 
contrary, the choice of department was left to the employee.

An additional fact supporting the conclusion that 
many Stemmery employees were qualified to work in other depart­
ments is that, between 1965 and 1974, a total of 1,136 Stemmery

2 o<y
employees were permitted to transfer to permanent departments.
Some of these employees had specifically been denied permanent201/
employment previously, and all of them had been generally 
denied permanent employment previously, by virtue of the fact 
that they were in the Stemmery.

The foregoing clearly demonstrates that hundreds of 
employees who were initially assigned to the Stemmery were, 
in fact, qualified to have been placed in permanent employment 
initially.

In addition to the statistical and other evidence 
above-mentioned, there is also evidence of a specific incident 
of hiring discrimination.

199/
P. 1046

200/
Company Ex. 3, p. 580.

201/
0 o ̂  / Racillia Howard, discussed infra.



-71-
Ms. Racillia Howard, a black female, and a group of 

4 others, 2 black females, 1 black male, and 1 white female, 
applied for permanent employment at the Stockton Street 
employment office on the same day and at the same time in 
October, 1973. Ms. Howard and the white female had been 
working together, doing the same type of work, on another 
job for the previous two years. The only person hired from 
the group of five people was the white female who was 
assigned to the Fabrication department. After the white 
female was hired, Ms. Howard called the Company to ask "why?", 
but she was told that there was a "freeze" on jobs and that 
no one was being hired. After waiting about a month, Ms.
Howard went to the Stemmery and applied because she had been 
told that " . . .  if you were short, or if you were too fat, 
or if you were black you could get on at the Stemmery," (P* 835). 
She also stated that she had heard ". . .if you want to get hired, 
you know, being black, your best chance would be to go through 
the Stemmery and then transfer to permanent employment later."
(p. 824). She applied at the Stemmery and was hired. She 
was laid off at the end of the season, called back in June,1974 
and subsequently allowed to transfer to Fabrication. She chose 
the Commerce Road Plant because she knew that she would not have 
to hang trays there (p. 829).

Ms. Howard stated during cross-examination that she 
believed that she had been a victim of racial discrimination 
(p. 834). Plaintiffs submit that Ms. Howard is correct in 
that belief. Her testimony was unchallenged with respect to



the details of the discriminatory incident. Defendants did 
not explain why she was initially refused permanent employment 
while a white female was hired; or why she was assigned to 
the Stemmery although she was qualified to transfer from 
Stemmery to Fabrication a few months later. That question 
remains unanswered, not only as to Ms. Howard, but as to all 
of the members of the class. We submit that "the real 
reason is the obvious one".

When combined with the statistical evidence presented, 
the fact that the Company makes departmental assignments 
without giving applicants a preference, the lack of objective 
employment criteria, the absence of particular skill requirements, 
the fact that many class members have demonstrated that they 
were and are qualified for other departments, plus the 
unrebutted evidence of a specific incident of discrimination, 
all afford conclusive proof that the Company has discriminated 
on the basis of race in its initial assignments to the Stemmery.

The Company's main thrust in rebuttal relies heavily 
upon the testimony of former job interviewers who, in general 
and conclusory terms, denied that they had discriminated in hir­
ing. This is in contrast to plaintiffs' witnesses' specific 
testimony that they were not informed of the various departments, 
jobs, and job duties by the interviewers. The Company also 
ignores that the same witness, on which it relies so heavily , 
admitted that the only explanation of jobs given, if any, 
was for those jobs in the department in which the applicant was 
being offered employment. (pp. 1067; 1065-1066 and 1064). For

- 7 2 -

Stemmery hires that, of course, is the Stemmery department.



-73-

The Company, on page 24 of its brief, even states 
that a separate hiring office was established, " . . .  the latter 
location being at the Stemmery where applicants can view the 
seasonal job environment at first hand before signing on."
[No reference is cited to the record]. It is not surprising 
that there is no citation to the record because there is no 
evidence in the record, whatsoever, that applicants viewed 
or had the opportunity to view the Stemmery "at first hand 
before signing on".

The Company then makes the blanket statement that,
"any applicant who expresses a desire for permanent employment

202 /
is directed by Mr. Lyles where to apply". That statement 
must be qualified because Mr. Lyles only became personnel super­
visor at the Stemmery in January of 1973,after the EEOC charges

20y
had been filed in this action; prior to that time his 
position did not exist (p. 1453). Additionally, Mr. Lyles 
admitted that only when the applicant, in some way, indicated 
that he was not interested in seasonal employment, would he 
be informed of the existence of the permanent employment office, 
(p. 1456).

202/
Company brief p. 24.

203/
The initial EEOC charges were filed in 1970,

". . . often the acts relied upon as evidencing good faith are
taken in response to the lawsuit filed by the discriminatees." 
Such actions in the face of litigation are equivocal in purpose, 
motive, and permanence; Gamble v. Birmingham Southern Ry. Co 
514 F.2d 678, (5th Cir. 1975); Cypress v. Newport News 
Hosp., 375 F. 2d 648, 658 (4th Cir. 1967).



The Company then states that its control is limited: 
by the availability of openings; by the willingness of the 
applicant to accept a proffered job; and by the applicant's choice 
as to whether he preferred seasonal or permanent employment. The 
response to that assertion is that the preponderance of the 
evidence as set forth at pp. 21-26/ supra, speaks for itself 
and proves that applicants were not informed of options regarding 
departments, nor seasonal or permanent work, and were thereby 

the opportunity to make a choice. The only rebuttal 
made to plaintiffs' evidence was a reference to Mr. Holder's 
testimony at (p. 1068). But, there, Mr. Holder admits that 
he did not explain the differences in jobs in each individual 
case: ". . . 1  would discuss with them the job for which I 
was making the job offer. . . . "

Nor does the evidence presented at pages 26-29 of
the Company's brief support its argument that "class members

204/have confirmed Mr. Holder's testimony." in each of the 
instances cited by the Company, the class members' testimony 
concerned shift preference on transfer from the Stemmery and 
not shift preference upon assignment to the Stemmery as is 
intimated in the Company argument. None of the persons mentioned 
testified that they chose Stemmery employment initially because 
of shift preference, and their testimony certainly does not

-74-

204/
Citing as examples, Mary Carter, Elizabeth Bullock, Beatrice Wilform, Alfonso Banks, Lois Coleman, Lillie May 

Mosely, Charles Thomas, Dorothy Hines, Francis Crenshaw, Jean 
Porter, Lilly Davis, Viola Robinson, Annie Jones, Lucille Pitt, 
Cynthia Rustin, Racillia Howard, and Deloris Allen.



- 75 -

". . . indisputably establish[ed] . . - that the Company's
hiring procedures are totally without any taint of racial bias.

It is ironic that the Company would, on page 29 of its
brief, point to Cynthia Rustin and Racillia Howard as examples of
persons who chose Stemmery by preference. Mrs. Rustin testified
that she was first offered a transfer to Fabrication in 1972
but was told by the Company that she could not transfer since she
was pregnant and would have to have spent six months in permanent
employment before she could take maternity leave. (pp* 780-781;
and 789). This is despite the fact that she had been employed
by the Company since 1967 (p. 776). When she came back from
maternity leave, she immediately transferred to Fabrication
and was assigned the job of hanging trays; she was given two
days to decide whether she wanted to stay and hang trays or
return to Stemmery. She returned because of sore and swollen
muscles. (pp. 780-782). Mrs. Rustin testified during the trial
that she had again requested a transfer to permanent employment
some three weeks prior to trial (p. 783). This evidence simply
does not support the contention that Mrs. Rustin willfully chose

205/
to stay in Stemmery.

Similarly, the Company points to one remark (at p. 826) 
where Ms. Racillia Howard stated that she turned down a transfer 
because she was told it was "heavy labor", but they ignore the 
fact that on the next page (at pp. 827-828) she testified

2 0 5/
It does, however, show that she was the victim of 

discrimination with regard to maternity, transfer, and seniority 
policies.



- 76 -

that within two months she had transferred to permanent employment 
and is presently working there. It was she who testified that 
she thought the Company discriminated against her when they 
hired a white female into permanent employment and turned 
her and three other blacks away thus forcing her to apply at 
the Stemmery. (p. 831).

The Company's entire rebuttal to -plaintiffs' evidence 
of discrimination in initial assignments has been an attempt to 
"gloss over" that evidence.

No response, whatsoever, was made to plaintiffs' 
evidence that interviewers used subjective criteria, or that 
many members of the class have demonstrated that they were 
qualified to have been employed in permanent departments 
initially. That evidence must be taken as admitted, and it is 
strong evidence of discrimination. See, e.g. Brown v. Gaston 
County Dyeing Mach. Co., supra at 1382-3, United States v. Dillon 
Supply Co. 429 F.2d 800, 804 (4th Cir. 1970), and Green v. 
McDonnel-Douqlas Corporation, 463 F.2d 337, 352-3 (8th Cir. 1972).

The Company failed to provide any explanation of, or 
rebuttal to plaintiffs' evidence regarding Ms. Howard's dis­
criminatory rejection for permanent employment. They attempted 
to discount the effect of that incident by citing hiring 
statistics (Company brief p. 15), by "speculating" whether a 
black interviewer would discriminate against other blacks, and 
by concluding that if so, it was a rare case. None of this 
disproves that the incident did occur. The evidence clearly 
shows that a black acting as an agent for and on behalf of the



-77-

defendant Company did discriminate. That should end the need 
to "speculate". Moreover, Ms. Howard had been questioned 
during depositions by defendants prior to trial and the 
defendants had ample opportunity to call Mr. Holmes (the inter­
viewer) as a witness, but they did not. The statistics they 
cited do not disprove that the incident occurred nor do they 
lessen its unlawfulness. The only conclusion that may be 
reached is that Ms. Howard was a victim of discrimination. The 
Company implies that plaintiffs have somehow failed by only 
proving one specific instance of hiring discrimination, when in 
fact, the law does not require a showing of any specific 
incidents. See Barnett v. W. T. Grant, supra.

The only other evidence presented by the Company to 
justify the disparity in Stemmery consists of self-serving 
conclusory statements by Company officials and interviewers; 
e.g. they have to hire people hurriedly and that interviewers are 
under intense pressure to staff the Stemmery during the Stemmery 
season. This simply is not enough. The burden of proof is 
uoon the defendants to show by competent evidence that their

--------- ----------------------------------------------2 g g y

discriminatory practices are compelled by business necessity.
Business necessity means "an overriding legitimate, non-racial

207/
business purpose". There must be available no acceptable 
alternative policies or practices which would better accomplish

206/ Griggs v. Duke Power Co., 401 U.S. 424 (1971) 
(emphasis added).

Robinson v. Lorillard, 444 F.2d, at 797 (4th207/
Cir. 1971).



- 7 8 -

the business purpose advanced or accomplish it equally well with
2 08/

a lesser differential racial impact. The business purpose 
advanced (at least by implication) is that whites will not 
work in seasonal employment so they are preferentially assigned 
elsewhere while the majority of blacks are assigned to seasonal 
employment. And, again, the Company's evidence supports rather 
than contradicts the lower court's findings, because of the 
large number of blacks applying for employment at the Stemmery 
employment office, (2,828 in 1973 and 1974; p. 626) and the 
relatively low number of people hired into the Stemmery, (992 in 
1973 and 1974; p. 591), in addition to the intense pressures to 
to staff the Stemmery (p. 1082), the finding that black 
applicants " . . .  either take a Stemmery job or look for work 
with another employer " (pp. 132-33) is supported by the Company's 
own evidence.

Because it has been demonstrated that blacks who 
worked in the Stemmery are also capable of working in permanent 
departments, and because it has also been demonstrated that 
blacks "on the whole" are more stable because they have lower 
turnover rates than whites, (pp. 613-16) an acceptable alternative 
would have been to place more blacks in permanent departments 
rather than continue to attempt to retain the "white majority" 
in the two traditionally white departments. Defendants have 
failed in carrying their burden of proof and, therefore, the

208/
Robinson v. Lorillard, supra at 798.



- 7 9 -

district court correctly held that they were guilty of dis­
crimination in departmental assignments.

(5) The Findings Below That The Company Has Done 
Nothing To Dispel The Belief That It Still 
Assigns To Departments On The Basis Of Race

The Company asserts that the lower court's findings
that it has "done nothing" to change the belief of blacks that
it discriminates in departmental assignments " . . .  misrepresents

209/the state of the record." It is also asserted that its hiring
of blacks and its reputation demonstrates that blacks in Richmond
believe that Philip Morris is a good place in which to work and
that it had high paying jobs which were available to them.
It is not disputed that Philip Morris has a reputation for

210/offering well paying jobs. But, this, alone, is not evidence 
that blacks in Richmond believe that the Company does not 
continue to discriminate in departmental assignments. No 
such evidence to the contrary was presented by defendants, 
but there is evidence presented by plaintiffs which supports

2 1y
such a finding.

Furthermore, the Company's supposed evidence of 
affirmative action misses the point, and is, in fact, a "mis­
representation of the record". Only one point need be made,

2 09/Company brief p. 29.
210/

See discussion at pp. 61-63 supra.
2 1 1 /

See p. 824.



- 80 -

the class consists of "hourly" employees, i.e. non-salaried,
and each of the examples of affirmative action listed by the
Company (at pp. 30-34; Company brief) applies to salaried rather
than hourly employees as will be demonstrated below;

(A.) Frances Cherry (Company brief p. 30)
" Q. Have you done any studies or made any

reports on the Richmond area, with respect 
to hourly production workers.

A- No. . . . "  (P. 1305)
* * * *

Q. Have you ever followed the affirmative 
action program in the Stemmery?

A. Not in the Stemmery -- the one in Richmond. 
(P. 1306) .

(B) Ralph Antell (Company brief pp. 30-31).
Here, the Company admits that Mr. Antell discussed 

how he had instructions to "break the color line in the salaried 
ranks", and did so by hiring two black chemists.

(C) John Benson (Company brief pp. 31-32).
Here also, the Company admits that Mr. Benson

had " . . .  the specific task of bringing more blacks into
2_lg/salaried positions." Mr. Benson testified that one of his 

duties was the preparation of a manual for policies and 
procedures, which included affirmative action procedures for 
hourly and salaried jobs. When asked if the section on

212/
Mr. Benson did not personally testify that he did 

any recruiting for hourly positions; the citation to p p. 57-62 
in fn. 82 at p. 32 of the Company's brief is a reference to a 
Company answer to interrogatories, which states that Mr. Benson 
recruited at high schools for hourly employees.



- 8 1 -

affirmative action had been completed, he replied, "No. I did 
a lousy job. Nothing has gotten published." (pp. 1275-76).

(D) Brian Horan (Company brief pp. 32-33)
Mr. Horan's duties involved "in-house" coordination 

of EEO matters and consequently had no affect upon dispeling 
the belief in the black Richmond Community that the Company 
discriminates in departmental assignments. Additionally, Mr. 
Horan's responsibilities were confined to salaried employees:

"Q. Were those goals set for both hourly 
and salaried people?

A. Not to my knowledge in the hourly people 
because I never had anything to do with 
that. This was simply salaried people as 
far as setting the goals . . . "  (p. 1396)

(E) George Oliver (Company brief pp. 33-34) .
Mr. Oliver also admitted that the Company's

affirmative action programs are "mainly" limited to salaried 
employees and that the Company was "forced" by the Department 
of Labor to establish an affirmative action program for hourly 
employees in 1972-73:

Q. Is this for both hourly and salaried?
A. This is for salaried mainly. We did make

projections as far as the affirmative action 
program is concerned for hourly people. We 
were forced to do so. Our hourly people 
move by seniority, seniority, merit, and 
ability. We told the Department of Labor 
this, when we submitted our affirmative 
action program for approval. They insisted 
we make projections anyway . . . .

* * * *



-82

Q. So the affirmative action program has been 
really limited to salaried people?

A. Mainly. (P. 1536).
(F) Lloyd Craighill (Company brief, p. 34).

Here, again, Mr. Craighill's testimony relates
to promotions within the factory and not recruitment or initial
assignments to departments.

The above indicates that, again, the Company's evidence 
supports rather than contradicts, a finding of the court:

"What has been established is that the 
Company although liberally proclaiming that 
it assigns new hires without regard to their 
race, has unfortunately done nothing to 
dispel the belief, . . . that it still assigns
to departments new hires on the basis of 
race." ( . 133) [emphasis added.]

Of all the supposed "evidence" cited in its brief, 
only one example out of six is even arguably material, i.e. Mr. 
Benson, and even in that instance there is no evidence that 
he did anything other than invite people to apply for hourly 
employment in general. Therefore the lower court's finding that 
defendants "did nothing" is in accord with the evidence and 
is not clearly erroneous.

(6) The Finding Implicit In The Decision Below That 
Substantial Numbers Of Class Members Believe 
That The Company Still Maintains Job Classifi- cations Segregated Along Racial And Sexual Lines

Evidence which shows significant disparities in the 
racial or sex composition of certain specific job classifications 
is alone sufficient to establish a prima facie case of discrimina­
tion and shift the burden of justifying the disparity in terms



- 83 -

of non-racial reasons. U.S. v. Chesapeake And Ohio Ry. Co.,
471 F.2d 582, 586 (4th Cir. 1972). The district court held that
plaintiffs had met their burden of proof regarding race and sex
segregated jobs and that defendants had failed to meet their
burden of rebuttal. (pp. 128 & 134).

The Company readily admitted that, historically, hourly
jobs in the tobacco industry, and at its Richmond plants, have

213 /
been segregated by race and sex; and the district court so

214 /found. Yet it then argues that such a finding ignores the
"uncontradicted" evidence that jobs are routinely awarded on
the basis of seniority. The Company is first mistaken in
asserting that its evidence is uncontradicted because plaintiffs
presented evidence of two specific occasions, one race-related
and one sex-related, where jobs were not routinely awarded.
Named plaintiff Gertrude Moody was discouraged by a white male215 /
foreman from bidding on a "male" job, that of forklift operator.
The Company also overlooked the testimony of Shad McEachin, a
black male, who testified that a white male with less seniority

216/
than he had been promoted ahead of him. Both of those

2iy
Company brief p. 34 and 38, ". . . it is also 

uncontradicted that over the years certain job categories have 
been filled predominately by members of one race or sex." (p.38).

21V
"In light of the strong evidence of past acts of 

discrimination, and the evidence of present segregation among 
job classifications . . . "  (pp. 134-5).

215/
pp. 733-734

216/
pp. 914-915



specific examples of discrimination were uncontradicted by 
the defendants.

The Company next complains that plaintiffs offered 
no proof at trial that anyone ever applied for and was denied 
promotion to any job which his seniority would have entitled 
him to hold. Here, again, the Company is mistaken in two 
respects, it misconceives the applicable law by arguing that 
the only credible proof of race or sex discrimination is 
evidence that blacks or females applied for jobs but were denied 
them in favor of whites or males. That proposition is directly 
opposed to the holding in U. S_. v. Chesapeake Ohio, Ry. Co. , 
supra, and Barnett v. W. T. Grant Co., supra. Moreover, the 
above cited examples of Ms. Moody and Mr. McEachin i_s direct 
proof which supports the statistical evidence and thus ". .
establishs a strong case of discrimination forbidden by Title 
VII." Barnett, supra. (emphasis added).

Upon plaintiffs' showing, and indeed, defendants' 
admission of a history of race and sex segregated jobs and 
departments which continued even until the time of trial, 
defendants are required to make a strong business necessity 
defense, or to show that they made substantial efforts to 
correct the past discrimination. They did neither. The district 
court in finding that defendants' history of race and sex 
segregated jobs, coupled with defendants' inaction, was the 
barrier that "caused" the continuing segregation; also found 
that removal of such barriers would be the "cure": "What
is required . . . is the removal of artificial, arbitrary,

- 84 -



- 85 -

and unnecessary barriers to employment when the barriers 
operate invidiously to discriminate on the basis of racial or 
other impermissible classification." (p. 134) [Court's emphasis; 
citations omitted]. None of the evidence presented by the 
defendants showed that they had made any affirmative efforts 
to remove the artificial barrier consisting of the notion that 
certain jobs are "black", or "male", or "female" jobs.

The Company's evidence of its "job-interest card"
system which was in effect from 1966 until 1974 quite obviously
did not correct the effect of the past segregation since such

217/departmental segregation still continued to exist in 1974. Nor 
is it a correct statement that the Quarles case, "expressly 
authorized" such a system. The court in Quarles ordered the 
Company to establish a system for informing employees of 
vacancies as a part of the injunctive relief. The mere fact 
that the system was court ordered does not insulate defendants 
from their duty to take further steps, if necessary, to desegregate 
their jobs and departments.

Similarly, when the defendants, in 1974, changed 
from the job interest card system to a job posting system, it 
was not intended to be, or done as a means of advising minorities 
that defendants no longer discriminated in job assignments.
Instead a Company official admitted that the change was made only

217/The job interest card system would have little 
effect on Stemmery employees at any rate, since until 1974, they 
could only transfer to the other "black" department, Prefabrication.



- 8  6 -

because of growth of the Company's workforce and because the
218/job interest card system had become too cumbersome. It

is significant that Mr. Odell Stutts, who helped to initiate 
the job interest card system in 1966, testified that the only 
benefit of the system was to have fewer people to deal with, 
rather than for purposes of affirmative action:

"Q. So really is it fair to state the purpose of this 
system was not to necessarily change the way you 
had been doing it, but to control a larger number 
of people, to keep from having to deal with each person - - -

A. Each individual we had still to deal with each each individual.
Q. But to eliminate those not interested, to have 

fewer people to deal with?
A. Right.
Q. Was the purpose of this system to change the racial complexion?
A. No, Sir, No, Sir.
Q. This was not an affirmative action?

219/A. No, Sir. . . ."
It is indeed ironic that the Company, in its brief 

(at p. 37) would cite Karen McCarty, a white female, as an 
example of how fairly the seniority system operated. She 
testified that she was promoted from the entry-level hourly 
Fabrication job of "miscellaneous" to the salaried job of 
timekeeper within six weeks after being hired. (p . 1089)

218/
p . 1604 

219/
' P • 1598-99



- 87 -

This promotion was ahead of literally hundreds of class 
members who had more seniority. Shortly thereafter, she was 
personally contacted by the head of personnel at the Research 
Division, interviewed by several managers and directors in 
the Research Center, offered a choice of two salaried jobs, 
and promoted to the position of analytical chemist in the 
Instrument Division, (pp.1093-94) all in less than one 
year's time.

Even more ironic is the fact that the Company 
chose to cite George Pleasants and Gertrude Moody as examples 
of persons who recognized that seniority determines the choice 
of jobs. Ms. Moody is the same lady who was discouraged by a 
Company official from applying for a forklift job; and Mr. 
Pleasants testified that he was discriminatorily demoted from 
a job as a fixer (pp. 800-803).

The Company's reference to Mr. Pearce's testimony, to 
the effect that the Unions "policed" the seniority system, is 
also contradicted by Mr. Pleasants' testimony. When Mr. 
Pleasants requested Mr. Pearce, president of the Union Local, 
to assist him regarding his demotion, Pearce refused. (pp. 803- 
804) .

The Company next argues that the lower court ignored 
evidence that class members refused to bid on certain jobs 
because they didn't want them. It then cites as "conclusive 
proof", company exhibit 18, which supposedly demonstrates that 
107 black females promoted to machine operator jobs ahead of 
30 more senior black females because the 30 senior women did not
want the machine jobs. Although the conclusion asserted by the



- 88 -

Company is an inference which might be drawn from the exhibit, 
it certainly is not ’bonclusive" evidence. The only direct 
evidence is the opinion of a Company official that the only way 
this could happen would be a failure to bid. The inference does 
not explain "why" the four job categories held by the 30 women in 
question are, and have always been, predominantly female. Perhaps 
most importantly,-the lower court did not ignore this evidence 
but, instead, made provisions for it in its finding by stating:

"Those applicants in the class that were not 
so informed and that would have applied for any 
such openings if informed, are entitled to 
recover. (p.. 135). [court's emphasis]

The Company's argument goes to the award of relief and not to 
the finding of liability. The lower court held that the 
Company's evidence and argument were not sufficient to rebut 
plaintiffs' prima facie showing, but, apparently, was sufficient 
to allow the defendants an opportunity, in the second stage 
proceedings, to attempt to limit injunctive or monetary relief 
upon a proper showing of such evidence.

The Company argues that sex segregation of females 
into "light labor" and males into "heavy labor" jobs is not a 
result of its policies or any employee beliefs that it has 
such policies, citing as an example one employee, Dorothy Hines. 
Here, again, the Company has resorted to its previously dis­
cussed reasoning that if there is not one hundred per cent dis­
crimination then there is no discrimination. This simply is not



- 89 -

sufficient to rebut the prima facie showing of sex segregated 
22 O'

jobs.
The only evidence presented by the Company of its

efforts to destroy vestiges of sex discrimination is, again,
through the testimony of Karen McCarty, the white female who

221/was promoted from laborer to chemist in less than a year.
But this evidence must be contrasted with the testimony of

222/plaintiffs' witnesses that they were not so informed.
Additionally, Ms. McCarty testified that in the context of her
employment interview, the interviewer was probing her sincerity
as opposed to simply informing her of Company policy:

"Q. Would you tell the Court the tenor of your 
conversation with Mr. Payne?

A. Yes. Well, I filled out an application and
he reviewed it, and he asked why someone like 
myself was applyinq for a factory job, and 
I told him . . . (p. 100).

* * * *

. . . But he was very reluctant to hire me.
In fact, he said that he thought the only reason I 
was applying was to get a few pay checks, and then 
in a couple of weeks I would be gone . . . (p. 1088)".

Here, again, the Company has resorted to its "100% or none"
discrimination theory. The lower court correctly found

--- See pp. 32-35, supra.
221/

p. 1087
222/

See pp. 25-26, supra.



- 9 0 -

that the preponderance of the evidence clearly shows that
most class members were not given the information received by
Ms. McCarty in their interviews.

Other justifications offered by the Company are, first,
that "females avoid taking heavy labor jobs," citing as examples
Cynthia Rustin (pp. 784-6), Racillia Howard (pp. 826, 829), Drew
Roane (pp. 1115-16) and Frances Crenshaw (p. 1333) . Ms. Rustin
testified, however, that she did not want to transfer to
Prefabrication because it would have been menial labor similar
to Stemmery, and she therefore preferred Fabrication. (pp. 782-3)
Ms. Howard also testified that she was only given a choice
between Prefabrication and Fabrication and that she was never
offered the opportunity to transfer to, or even told about
jobs in WSR, a totally "male" department. (p. 841). Ms.
Roane testified that she chose light labor in the Stemmery after223/
she was refused permanent employment, (p. 1115). Ms.
Crenshaw testified that she was discouraged from transferring,
at all, because a Company official told her that she would
have to do "men's work" and that she "could not come back to224/
Stemmery if [she] could not do the work"- (p. 1333)

223/
The entry-level jobs in Fabrication are not 

divided into light labor and heavy labor as they are in Stemmery 
and Prefabrication.

224/
This is contrary to the Company's evidence that all 

transferees may return to the Stemmery. Ms Crenshaw also testi­
fied that on another occasion, a Company official told her that 
she could not transfer because she was "too fat". (P. 1334).



It is not disputed that some females prefer light 
labor to heavy labor jobs, but here, again, the abovementioned 
"condition" that the district court placed on recovery would 
only allow recovery by those class members who were not informed 
and who would have applied if so informed. Even in those 
examples cited by the Company, there is evidence of mis­
conduct on the part of defendant's, e.g. failing to inform 
Ms. Howard of jobs in WSR; and discouraging Ms. Crenshaw from 
transferring at all. With this evidence, in addition to the 
statistics, the district court could reasonably conclude that 
defendants had failed to take any affirmative steps to 
desegregate the "light" and "heavy " labor jobs.

Additional facts offered by the Company in justification 
of the disparities are: (1) In many of the jobs there are but
few people and vacancies occur infrequently. However, in the 
"fixer" categories alone, the number of employees almost 
tripled between 1965 and June 30, 1973, going from approximately 
135 to approximately 380, while the number of females added 
was four. (P. 468 & 480). Similarly in the Prefabrication 
"heavy labor"job, there were over 500 people in 1973. In 
the Fabrication jobs of attendant, examiner, catcher, and 
inspector, for 1973, there were over 800 persons. (p . 468, et 
seq. Px-19). It cannot be concluded that only a "few" people 
are involved.

The assertion that males tend to avoid job categories 
in which women predominate, is just that, an assertion, and 
is not supported by any evidence in the record, as is the

-91-



-92-

assertion that "females are reluctant to qualify for jobs
such as fixer which require a high degree of mechanical 

225/
skill".

The Company's argument that the seniority system and 
personal preferences explain the disparity in race and sex 
segregated jobs leaves much to be desired. Both "beg" the 
question of failure to inform class members because even if the 
seniority system is neutral, it was not designed to, nor did it, 
dispel the idea that certain jobs are "male" or female" and 
certain others are "black" or "white". Secondly, if that notion 
was not dispelled, personal preference would not come into 
effect, e.g. female class members would not consider or bid for 
jobs that are considered to be "men's work", and vice-versa.

The two other examples used by the Company regarding 
female class members' who refused transfer to Fabrication or 
returned from Fabrication to Stemmery because of "tray-hanging 
duties must be considered in light of the evidence that "tray­
hanging" which had previously been a "male" job, was assigned
to female Stemmery transferees for an inordinate amount of

2 26/
time, and obviously to discourage and harass them.

No evidence was presented by the Company to show why 
between 1965 and 1974, with the exception of one in 1971, the

225/The citation to the record in support of that 
assertion is to the testimony of two Company officials who gave 
their "opinion" why there are so few blacks and female fixers. 
One official, Mr. Craighill, admitted that he "didn't know the 
reasons". (P• 1327)

226/
1262 & 1317-13?.?’.

711-713; 745; 749; 848; 945; 737; 738; 953;



- 93 -

Warehouse Shipping and Receiving department has remained
totally male, especially when the Company assigns new hires to
departments. Nor is there any explanation why no transfers to
WSR were offered to Stemmery employees when "mass" transfers were
being offered in 1972 and 1973. Nor is there evidence presented
to show why no female has ever been allowed to transfer from
Stemmery to WSR. The only justification given is that there is
no evidence that any other female ever applied for work in WSR;
but nor is there evidence that such transfers were ever offered
to female class members, and this still does not explain why new

227/hires were not assigned there.
The Company's premise that "all" jobs are filled 

according to seniority does'not rebut plaintiffs' evidence. The 
seniority system, alone, was not intended to, and did not correct 
past patterns of segregated jobs, nor does it justify the 
Company's failure to assign class members to segregated entry- 
level jobs. Even the Company's claim that its evidence, of a 
neutral seniority system, is "uncontradicted", is untrue by virtue 
of the aforementioned testimony of Ms. Moody, Ms. Crenshaw, and 
Mr. McEachin. The preponderance of the evidence, again, supports 
the district court's finding that a substantial number of class 
members were led to believe that past patterns of discrimination 
had not been eliminated.

227/
The testimony of Ms. Howard cited on p . 44 of the 

Company's brief must be read in light of her testimony that "WSR" 
jobs were never explained or offered to her. (p.841)



- 94 -

(7) The Court Below Did Not Err As A Matter Of
Law In Holding That An Employer Discriminates 
Under Title VII If It Fails To Eliminate The 
Present Continuing Effects Of Past Discrimination

The basic legal premises upon which the lower court
relied in reaching its decision are two well settled Title
VII concepts:

(a) "Under the Act, practices, procedures, or 
tests neutral on their face, and even neutral 
in terms of intent, cannot be maintained if 
they operate to 'freeze' the status quo of 
prior discriminatory employment practices."
(p . 133) ; 228 / and
(b) "What is required by Congress is the removal
of artificial, arbitrary and unnecessary barriers 
to employment when the barriers operate invidiously 
to discriminate on the basis of racial or other 
impermissible classification." (p . 134) 2 2 2/
The Company, relying upon the legislative history of

Title VII, asserts that Title VII was not intended to affect
"the failure of the employer to take affirmative action to
improve the position of minorities", and that if such action
were taken it would constitute "preferential treatment" in230/
violation of Section 703 (j) of the Act.

It is undisputed that between 1965 and 1974 more than 
half of the black employees hired by the Company were assigned to 
the Stemmery and during the same time period more than 63% of the

430 (1971). 505

229 /
Griggs, supra at 431.

230 /

228./Griggs v. Duke Power Co., 401 U.S. 424, 
See also, Quarles^ v. Philip Morris,~Tnc., 279 F.Supp. 
(1968 D.C • Va.).

Company brief p. 45



- 95 -

black employees hired were assigned to Stemmery and Prefabrica­
tion, the two traditionally "black." departments. It is also 
undisputed that Congress did not intend to require employers 
to "prefer" black applicants over equally qualified white 
applicants, but no preference is involved in the elimination
of present continuing discriminatory patterns that existed before 231/
the Act. The term "affirmative action" complained of by 
defendants (and sometimes referred to by plaintiffs) is not 
a requirement that blacks be made aware of a fact that is to be 
kept secret from whites, but instead that blacks and women be 
made aware of a change in policies that never affected white

, i.e., that the defendants would no longer continue their 
past practices of staffing the Stemmery and certain jobs almost 
totally with blacks or females. That policy never adversely 
affected white males,so there was, and is, no need to inform 
them that those policies had changed. Because it did adversely 
affect blacks and females there was a duty upon the defendants 
to inform them in order for them to be in parity with white 
male applicants.

The defendants' supposed "neutrality" in failing to inform 
either white or black applicants of their change in policies 
therefore gave "preference" to whites over blacks which is a 
present act of discrimination in violation of Title VII. The 
Court in Griggs held that Congress in enacting Title VII

233/
Griggs, supra at 430; Robinson v. Lorillard,supra at 795.



- 96 -

intended. that such barriers be removed, and failure to remove 
them, even if a "neutral" practice,is an affirmative act of 
discrimination. That is what the lower court held and that 
is what the United States Supreme Court approved in Griggs, 
supra.

C
THE DISTRICT COURT CORRECTLY HELD THAT QUARLES 
V. PHILIP MORRIS IS NOT A BAR TO THIS ACTION

(1) Quarles Is Not A Bar To Female 
Members Of Plaintiffs' Class

The Quarles decision was limited to charges of race 
discrimination. Inasmuch as the present case alleges both 
race and sex discrimination, and the issue of sex discrimination 
has never been litigated between the present parties, the 
principles of res judicata, collateral estoppel, and stare 
decisis do not apply here. Jamerson v. Lennox 356 F.Supp.
1164 (E.D. Pa. 1973); Williamson v. Bethelehem Steel Corporation, 
468 F.2d 1201 (2nd Cir. 1972).

(2) Quarles Is Not A Bar To Any Members Of 
The Class Hired After The Quarles Decision

Res j udicata does not bar parties from bringing a 
subsequent suit on a new cause of action. Jamerson v. Lennox, 
supra. The Quarles case was tried in May 1967, and the decision 
of the court, rendered January 4, 1968, was based upon evidence 
of the Company practices up to the date of the trial. The 
findings rendered in the January 4, 1968, decision were based



- 97 -

upon the then existing labor agreements, i.e., the 1965 agree­
ments. As has been preyiously stated, the 1965 agreement did

232 /not restrict Stemmery transfers to Prefabrication only.
The 1968 Supplementary Agreement, which became

effective on February 15, 1968, changed Stemmery transfer
procedures to restrict such transfers to the Prefabrication233 /
department only. The 1968 contract change was not in issue 
during the Quarles trial because it had not occurred. Plaintiffs 
submit that the 1968 change constitutes a substantial change in 
circumstances and presents new evidence never before considered:
a change in the operative facts, the infringement of a different 
right by a different wrong, and a question of the applicability 

different principles of substantive law than those applied 
in Quarles; in sum, a completely different issue has been 
presented.

Xt is an extraordinary thing to bar a person who has
not had his day in court; and the policy of assuring to each
person a day in court certainly outweighs whatever policy
there is in favor of putting an end to litigation. Plaintiffs

this action had not had their day in court with respect to
the 1968 contract changes, the 1971 continuation of the 1968

7 34/contract changes, nor the 1974 contract changes.

p. 355. 

section

232/
PX 8, 1965 Supplemental Agreement, Article II,

233/
PX 8, 1968 Supplemental Agreement, Article IV, 

6, P-366 
234/

See: pp. 27-32, supra



- 98 -

Quarles Is Not A Bar To Any Of 
The Class Members

The district court held that Quarles did not bar 
members of the class in this action on the grounds that seasonal 
employees were not adequately represented. In reaching that 
conclusion, it reasoned that because the Quarles class was 
large and consisted of several distinct subclasses, the class 
representatives in Quarles litigated the claims of black per­
manent employees to the detriment of the claims of black 
seasonal employees. The lower court acknowledged that notice 
to the class is not required in a Rule 23(b)(2) class action, 
but recognized that had notice been given in Quarles, it may 
have allowed seasonal employees to assess the adequacy of 
representation beforehand, and thus avoid the subsequent 
findings of inadequacy.

Defendants' challenge the finding of inadequate 
representation on the grounds that there must first be evidence 
of bad faith, collusion, or negligence. They argue that none 
of these three elements was found by the lower court. They 
also argue that seasonal employees could be, and were, adequately 
represented in Quarles and that, at any rate, the interests of 
the class representatives and those of seasonal employees were 
not antagonistic.

Plaintiffs readily agree that the district court 
did not find "bad faith", or "collusion", because it did not 
exist, but its analysis of the adequacy of representation of



-99-

seasonal employees and its subsequent conclusion is sufficient
235/to satisfy the appropriate standard. The test applied by 

the court was " . . .  whether the class representatives, through 
their counsel, vigorously and tenaciously protected the interests 
of the entire class." (P. 122) It answered that question 
thusly, . . . the Court now concludes that the interests of 
the seasonal employees of Philip Morris were not satisfactorily 
advanced and litigated." ( p. 122) The reason given being:
" . . .  the claims of the Stemmery employees were seemingly 
lost in the breadth and ambition of the class' overall interest."
(p . 121) .

The Company's major arguments appear to be that because
relief was not granted to seasonal employees in Quarles, that
does not establish that the litigation was conducted in bad236/
faith, collusively or negligently"; and that additionally
the only evidence relied upon by the district court was "the 
findings of Judge Butzner which denied . . . .  relief." This 
is not so. The district court indicated that it viewed " . . .  
the entire . . . .  record and the Court's finding in that 
case. . . . (p. 122) (emphasis added). The lower court did,

23y
i.e., Rule 52(A), F.R.Civ.P.; See, e.g., Clark v. United States, 402 F.2d 950 (4th Cir. 1966). -----

226/
Company brief p. 50.

237/
Company brief pp. 49-50.



-100-

however, use the findings in Quarles as "example^1 to demonstrate 
-̂hat, though plaintiffs therein had successfully prepared and 
advocated the rights of permanent employees, because of the 
attempt to include a too broad class of litigants, i.e., permanent 
and seasonal employees, the successful advocacy of permanent 
employee rights was, unfortunately, done to the exclusion of 
a full and fair advocacy of seasonal employees' rights.

Plaintiffs agree that the fact that seasonal employees 
were denied relief does not, alone, establish that they were 
inadequately represented. It is submitted, though, that the 
finding is a starting point in the examination, and it does 
establish that the evidence offered on behalf of seasonal employees 
was insufficient to entitle them to relief. When we consider 
that a different result was reached in this case based, in 
part, upon the same evidence that then existed and could have 
keen presented in Quarles, then the court, after viewing the 
record in both cases, could reasonably decide that the denial 
of relief to seasonal employees in Quarles was a result of a 
failure to "vigorously and tenaciously" litigate the seasonal 
employees' claims, rather than being the result of a failure 
to have valid claims.

In Williamson v. Bethlehem Steel Corporation, 468 F.2d 
1201 (2nd Cir. 1972), plaintiffs sought to bring an action involv­
ing issues which had been raised in an earlier suit brought by the 
Federal Government. In holding that the earlier suit was not 
res j udicata the Court stated:



-101-
"The very first case involving the issue of 
discriminatory seniority and transfer systems 
was decided only in January 1968, Quarles v.Philip Morris, Inc,
In Williamson, as in this case, the defendant argued

that the plaintiffs in the later action were bound by the order
in the earlier Title VII case, and the district court so held.
The Second Circuit, in reversing that decision, stated:

"It is thus true as Judge Henderson said below 
that this Court 'considered' the question of 
recall after layoff, but only to point out that 
in accordance with the Government's 'moderate' 
prayer for relief. . . . The question was 
not in contention." 464 F.2d, at 1203.
Plaintiffs in Quarles had set sail upon previously

uncharted waters. The attempt to include Stemmery employees
in the class was only an attempt to show a policy of companv—wide238/
discrimination. The overwhelming, if not exclusive emphasis

. . . . 239/was placed on obtaining relief for permanent employees. No
mention was made of merging Stemmery employees' seniority with
that of permanent employees. A review of the opinion in Quarles
will show that the interests of Stemmery employees were only
mentioned in relation to the overall question of company-wide
discrimination. Just as in Williamson, supra., the question of

238/
Just as in this case, plaintiffs, in proving 

discrimination against Stemmery employees, also attempted to show 
that defendants still discriminatorily assign blacks to Pre­
fabrication; no relief could be sought on that issue because the class is confined to Stemmery employees.

239/
For example, this is evident from the opinion: "The 

plaintiffs suggest that the seniority rosters for fabrication, 
prefabrication, and warehouse shipping and receiving be merged 
according to employment seniority." Quarles at 512 (emphasis added).



-102-

"recall" was considered only in passing; in Quarles the question
of seasonal employees' rights was only considered in passing.

The only evidence presented by defendants to show
that seasonal employees were adequately represented is the fact
that two of the named plaintiffs in Quarles were former Stemmery
employees and that the same counsel represented plaintiffs in both
cases. That, simply, is not enough. They argue that there
could be no conflicting interests because the status of the
plaintiffs in Quarles is no different from that of the named
plaintiffs in this action, i.e., former Stemmery employees. And,
"had the attack upon transfer date seniority for Stemmery employees
been successful in Quarles, the named plaintiffs would have
received more retroactive seniority than they in fact received.

240 /
Such relief is sought again here." That argument is contrary
to the evidence that no such relief was requested for Stemmerv241/
employees in Quarles. And the named plaintiffs and the class 
receiving relief did benefit from the result in Quarles because 

they were then permanent employees regardless of where they 
were initially employed.

Defendants have offered no evidence in support of their 
assertion that the relief denied Stemmery employees in Quarles 
had been "strenuously advocated on their behalf"; nor have they 
offered any evidence to show that the primary concern of plaintiffs

24/
Company brief p. 49.

2 4]/
infra As is indicated by the excerpt from the opinion



-103-

in Q^a^les was not the vindication of black permanent employees' 
rights. The evidence in the record, instead, supports the 
finding-made by the district court.

D.
THE FINDING OF THE DISTRICT COURT THAT THE 
UNIONS ALSO ENGAGED IN UNLAWFUL DISCRIMINATION 
ON THE BASIS OF RACE AND SEX WAS PROPER

The district court held the Unions liable to the class
members on the same reasoning which it used to find the Company
liable:

Since the Union's past indicates that it 
facilitated the Company's tradition of segrega­
ted departments, it also must have the responsi­
bility for informing its members that all jobs 
are open in all departments without regard to 
race or sex so as to mollify members present 
understanding as based on past history. Its 
failure to perform this function makes it jointly 
liable with the Company to those plaintiffs 
entitled to recover. (p. 136).
The Unions argue that because the court absolved 

them of arbitrary actions or bad faith conduct in the handling of 
grievances; in representing seasonal employees in the negotiation 
process with the Company; and in being guilty of breach of their 
statutory duty of fair representation; it then must follow that 
there may be no Union liability on any other grounds. Their 
misconception lies in the premise that the Unions have no duty 
to, and need not, take any steps to correct the present effects 
of past discrimination.

The only evidence offered by the Unions in support of 
their argument is, first, the bare assertion that "it is simply



-104-

inconceivable that the plaintiffs were ignorant of [defendants'
242/non-discrimination employment p o l i c y ] a n d  secondly, that the

lower court's finding that it was initial assignment practices
that "taint the system", coupled with no finding of discrimination
in transfer policies left "nothing more that the Unions could
do". This theory is erroneous in several respects.

First, the lower court did find that the defendants'2 4 3/
transfer system was discriminatory.

"Since the Court has concluded that class members 
are often led to seek employment in the Stemmery on 
the basis of past racial discrimination, it must also 
conclude that the labor provisions that restrict the 
seniority, transfer and promotional rights of a 
seasonal employee so situated are likewise discrimina­tory. " (p. 135) .

The Unions misinterpret•the court's finding that the labor
244/

contract provisions need not be redrafted to also be a finding 
that the Unions were not guilty of any wrongdoing:

"However, such a finding does not require 
redrafting of the seniority, transfer, or 
promotion rules; it is the initial assignment 
policies that taint the system. The fact that 
Stemmery employees are more restricted in their 
transfer rights than permanent employees, without 
evidence of impermissible discrimination, would 
represent a justifiable policy." (p. 135).

However, because there was evidence of impermissible discrimination,
which the court found, the restricted transfer rights are not

242/
Union's brief p. 11

243 /
See also pp. 127-8.

24^
(p. 135) .



-105-

justifiable, and as a result, the continuation of such 
restrictions by the defendants, in light of the discriminatory 
assignment policies, makes them guilty of promulgating discrimina­
tory seniority, transfer, and promotion policies.

The court held that the existing transfer policies 
need not be changed on the condition that the now existing 
discriminatory assignment policies be changed. In other words, 
if seasonal assignments are neutral and non-discriminatory then 
the existing labor provisions applicable to seasonal employees 
would also be neutral and non-discriminatory.

The lower court's finding that "seasonal employees are 
adjudged to be poorer workers on the whole and must prove them­
selves in a permanent capacity before they are given the rights
and benefits of permanent workers" is in following with that

245/holding in the Quarles decision. Defendants could properly
restrict transfer and seniority rights of seasonal employees
after Quarles, as long as departmental assignments were non-
discriminatory. But not only did defendants allow disparate
assignments of blacks to the Stemmery to continue;they also changed
their seasonal transfer policies.

Neither the 1962 nor the 1965 Stemmery contract
restricted the locations to which a Stemmery employee could 2_46/
transfer. And between 1965 and 1968, a total of 292 Stemmery

245/
Quarles, supra at 519. 

246/
See p. 22.



-106-

employees did, in fact transfer. There were 222 transferring
to Prefabrication, 62 transfers to Fabrication, and 8 transfers
to WSR. However, in 1968, the Company and Unions negotiated
a change in the Stemmery contract that in effect lessened
Stemmery transfer rights. The 1968 agreement restricted Stemmery2_48/
transfers to Prefabrication only. The immediate effect of this
agreement was that employees in the Stemmery, which at the time
was 86% black could only transfer to Prefabrication which was 2_49/
83% black. The defendants, through the 1968 contract, restricted 
most of their black employees to the two traditionally black 
departments. This transfer restriction was blatantly dis­
criminatory on its face, no other department in the Company 
was restricted in this way.

In light of the Company's history of past segregation, 
and its Stemmery hiring patterns, the addition of the transfer 
restriction is a clear violation of Title VII. When a company 
has operated a segregated system of employment by which assignments 
to job classifications are restricted on the basis of race, the 
failure or refusal to provide for transfer to the traditionally 
white classification perpetuates the effects of segregation by 
race and constitutes a present pattern or practice of discrimina­
tion against black employees within the meaning of 42 U.S.C.

247/

2 47/
Company Ex. 3. , p. 13

248/
PX 8. Art. IV, p. 340.

249/
PX 30, p. 498.



-107-

§2000e-2(a)(2). This is the "theory" upon which Union 
liability is predicated.

Res judicata does not bar plaintiffs from attacking
the aforementioned seasonal transfer and seniority provisions.
The Quarles case was tried in May 1967 and the decision of the
court rendered January 4, 1968, was based upon evidence of
defendants' practices up to the date of trial. The findings
rendered in the January 4, 1968 decision were based upon
the then existing labor agreements, i.e., the 1965 agreements.
As has been previously stated, the 1965 agreement did not

T S 2 /--
restrict Stemmery transfers to Prefabrication only. The 1968
contract change, which restricted Stemmery transfers to
Prefabrication only, was not in issue during the Quarles trial
because it had not occurred.

It is also significant that the 1968 change in the
Seasonal Labor Agreement is in direct opposition to Judge
Butzner's findings in Quarles:

"Transfers at the discretion of management are 
allowed from . . . Stemmery to any qualified 
employee who requests it and is recommended by 
his supervisor to an entry-level job in 
fabrication when vacancies occur." 279 F.Supp at 512. (emphasis added)
Further evidence that the defendants did not rely 

upon or consider the Quarles decision as a restriction upon

250/

250/
Robinson v. Lorillard Corp., supra; Patterson v. American Tobacco Co., 535 F.2d 257 (4th Cir. 19761^

251/See Jamerson v. Lennox, supra .
252 /PX 8, 1965 Supp. Agreement, Art. II 1|9. Transfer 

rights were reduced from " . . .  other locations" to only ". . . Prefabrication", p.  355.

251/



-108-

how their transfer policies operated is the fact that, although
the 1971 Stemmery Agreement negotiated by the defendants con-

253,/tamed the same transfer restrictions as the 1968 Agreement,
at the end of the 1973 and 1973 Stemmery season all Stemmery
employees were given the opportunity to transfer to either
Prefabrication or Fabrication, notwithstanding the transfer
restriction embodied in the 1971 labor agreement. In 1972 and
1973, a total of 227 Stemmery employees were allowed to transfer

254,/to Fabrication while 261 transferred to Prefabrication.
In 1974 a new contract was negotiated by defendants 

which: (1) changed the seniority system for permanent employees 
from departmental to company-wide; (2) gave permanent employees 
who had previously transferred between permanent departments 
retroactive seniority for the time spent in their former per­
manent department; (3) gave Stemmery employees, again,the right, 
by contract, to transfer to all permanent departments; ( 5) 
left Stemmery employees as the only employees who will now lose 
seniority upon transfer; and (6) preserved the prior policy of
giving credit only for "permanent" department seniority to former

2 55/Stemmery employees now in permanent employment.

253 /
PX 8 1971 Supp. Agreement, Art. VII, p. 378

254/
Company Ex. 3, pp. 593-4.

255/
e„g., a former Stemmery employee who transferred 

first to Prefabrication and then to Fabrication would only be 
given retroactive credit for the time spent in Prefabrication but not for the time spent in Stemmery.



-109-

It is obvious from the allowance of "wholesale"
seasonal transfers in 1972 and 1973, and the 1974 contractual
adoption of such a policy, that the defendants did not, then,
and do not now regard seasonal employees as "poorer" or "less

256/
skilled" workers. In this case however, when that same 
issue was fully and fairly litigated, the lower court found, "no 
evidence was introduced at trial in support of such a proposition 
and it may be and is rejected out of hand." (p. 130).

The evidence is that the Unions, though fully 
aware of the past history of segregated departments, did nothing 
to "mollify" class members present understanding based on 
that past history, but instead actively participated with 
the Company in actions that "preserved" such understandings, 
i.e., the transfer restrictions, and did nothing to dispel 
such notion. Even the removal of the contractual transfer 
restrictions in 1974 cannot be regarded as an "affirmative" 
action since the Unions were only restoring rights which 
they had "bargained away" in 1968. They were merely taking 
a step forward after having taken a giant step backward.

It is also interesting to note that the Unions' 
implied "ignorance" of their duties under the Civil Rights 
laws is not as it is professed to be. For example, the 
Unions sought and received indemnification from the Company 
for certain maternity leave practices they suspected to be

256/No doubt that finding in Quarles was a result of 
the inadequacy of representation given seasonal employees.



- H O -

violative of Federal Civil Rights laws. (p. 467).
Finally, the Unions protestations that transfer rights

were restricted at the request of blacks in the local is not a
valid defense, and in no way serves to relieve them of liability
for unlawful discrimination as this Court has previously held:

"The participation of the black brakemen 
through their yard committee and union in 
establishing the Company's hiring policy 
and the acquiescence of the government in 
the segregation of the yard, did not make 
the discrimination any less real .258/

Nor is their claim that the court's theory of liability was
never advanced by plaintiffs true, as is evident by the
following excerpts from Plaintiffs' Post-Trial Brief:

"It may not now be said that members of the 
class freely and voluntarily chose the Stemmery.
Their only option was to accept the job offered, 
or not be employed at all. . . . those who
were aware of the Company's discriminatory prac­
tices realized that if they were black, they 
might have to serve an "internship" in the Stemmery 
before they could advance to better jobs. (Foot­
notes omitted) "25!/

257. /

* * * *
"The defendants' practice of assigning black 

employees to the low-paying and lower opportunity 
Stemmery jobs, combined with a departmental seniority 
system and transfer restrictions, has effectively 
locked present and former Stemmery employees into

257/
It is ironic that the Unions were perceptive enough 

to do so on maternity leave where the state of the law was much 
less settled than it is on transfer and seniority rights which is much clearer.

258/
U. S. v. Chesapeake Ohio Ry. Co. , supra.

259/
Plaintiffs' Post-Trial Brief p. 57.



-111-

a position where they will remain perpetually 
beneath employees who were hired into Fabrica­
tion and WSR, contemporaneously or even 
subsequently" 266/

*  *  *

"A transfer policy violates Title VII, if 
it preserves the effects of past discrimination"26/ (Citations omitted).
Local 203 and the Tobacco Workers International Union 

entered into collective bargaining agreements with the Company 
which were the exclusive determination for transfer rights, pro­
motional systems, and working conditions for all of the employees 
in job classifications within their bargaining unit. Those 
agreements together with the Supplemental Agreements covering 
Stemmery employees have fostered a system of discrimination 
based on race and sex.

The rights guaranteed by Title VII are not rights
262/which can be bargained away. Title VII requires that

unions evaluate employment practices and eliminate unlawful 
26V

discrimination. If a discriminatory contract provision is
acceded to, the bargainee as well as the bargainor should be 

26V
held liable.

2_6Q/
Id. at p. 67 

261 /
Id at p. 69

2_&yPatterson v. American Tobacco Co., supra at 270.
263/

Albemarle Paper Co. v. Moody, 423 U.S. 405, 417-418, 95 S.Ct. 2362, 2371-72 (1975)
2_64/

Robinson v. Lorillard Corp., supra at 799.



-112-

The evidence in the record demonstrates that the
International Union has also played a very active and substantial
role in every collective bargaining contract negotiated with
the Company. The express language in the Constitution of the
Tobacco Workers' International Union mandates that no collective
bargaining agreement shall be consummated unless approved by2_65/
the International. The union officials who testified at trial
stated that officials of the International always attend
the bargaining sessions, and that they take an active part

266/
at those negotiations.

In addition, the evidence plainly shows that all
2_67/by-laws of the local union must be approved by the International.

Under these circumstances, the court properly considered that the
International should be made jointly responsible with the 268/
Local. In Patterson v. American Tobacco, supra at 270-271, 
this Court affirmed the district court's ruling which held the 
same international union jointly liable with the local on the 
basis of the same evidence as presented in this case, and stated 
that the district court was not obliged to accept the testimony
of union witnesses which contradicted the plain meaning of the 
written documents.

265/See PX 6 Si 7 ppl 253 and 299
2_66/ pp. 858 and 897
267 /

PX 6 and 7 pp. 253 and 299 and pp. 864-870.
26ty

The International argued in its brief that it could 
not be held liable on the grounds that the local union acted as 
its agent, but the lower court held both unions jointly liable as 
principals.



113-

The Unions were given the opportunity in the lower 
court to respond to the evidence of their participation in the 
discriminatory practices directed at class members, but they 
failed to adequately rebut that evidence there, just as they 
have failed to do so in this Court.

E.
THE PROPOSED BACKPAY AND 
INJUNCTIVE RELIEF GUIDELINES

Although this appeal was supposedly based on the 
backpay and injunctive relief guidelines, not one error was 
argued in the Company^ brief. And the only error argued in the 
Union's brief is that the court adopted the guidelines without 
making the required supplemental findings of fact and conclusions 
of law in support. On this point plaintiffs agree.

Plaintiffs disagree with the Unions' contention that "a 
substantial portion of the affirmative relief prayed for by the 
plaintiffs has been granted." Only two things have been done.
An interim award of attorney's fees has been made and the 
Company delivered a list of the names and employment dates of 
all the class members to counsel for plaintiffs. Neither of 
these may be categorized as "injunctive relief" since attorney's 
fees are provided for by the statute, and the list of names is 
in the nature of pre-stage II discovery.

The lack of any attack upon the proposed guidelines 
is indicative of the defendants' intent. They did not appeal 
this case because of any dissatisfaction with the guidelines, 
but because they were dissatisfied with the findings of liability.



-114-
CONCLUSION

In the lower court, plaintiffemade an argument in the 
post—trial brief entitled, "Plaintiffs' Evidence Is Conclusive 
Proof that Defendants Have Discriminated In Employment 
Practices." We contend that the aforementioned remains as an 
accurate assessment of the evidence presented in this case in 
light of the prevailing law.

Plaintiffs have gone far beyond their allocation of 
the burden of proof. In addition to the statistics produced by 
the plaintiffs, other additional evidence of discrimination was 
presented and that evidence is overwhelming. Plaintiffs proved 
past discrimination in departmental assignments; lack of 
objective hiring criteria; that class members were qualified to 
have been assigned to other departments; that class members were 
not given a choice of departments; specific acts of hiring 
discrimination; specific incidents of discouragement and dis­
crimination in promotions and transfers; that the Company did not 
intend for the seniority system to eliminate discrimination; and 
that no affirmative action programs were designed to affect hourly 
employees. This proof corroborates the statistical evidence 
that since 1965 more than one-half of all blacks hired by the 
Company were assigned to low paying, low opportunity, seasonal 
employment in Stemmery. And almost two-thirds (63%) of all 
blacks hired were initially assigned to the two historically 
black departments.

The only attempt at a business necessity defense 
advanced was that whites do not like to work in the Stemmery.



-115-
And even that evidence was convincingly rebutted by a showing 
that in 1965, when more whites than blacks were assigned to 
Stemmery, they did stay in the Company's employ. Additionally, 
much of plaintiffs' evidence remains unrebutted, and in light 
of the state of the evidence, and the law, the district court 
was compelled to reach the conclusion that defendants had 
discriminated in their employment practices.

More than ten years have passed since the passage of 
the Civil Rights Act of 1964, a long enough period for 
defendants to have voluntarily removed the vestiges of racial 
discrimination. Yet the record indicates that the only changes 
made were designed to, and did, thwart the opportunities and 
expectations of the class members.

It is because of such discrimination that Title VII 
was enacted. And it is because of such discrimination that 
Congress directed Federal Courts to fashion such relief as 
would "prevent future discrimination and remedy the effects of 
past discrimination." The district court correctly followed 
that mandate in its decision below.

WHEREFORE, for the above-stated reasons, Appellees 
respectfully request this' Court to affirm the decision of the 
district court and to remand this matter for further proceedings 
in that court.

Respectfully submitted,



-116-

HENRY L. MARSH, III 
WILLIAM H. BASS, III 
JOHN W. SCOTT, JR.
RANDALL G. JOHNSON 
HILL, TUCKER & MARSH

214 East Clay Street 
P. 0. Box 27363 
Richmond, VA 23261

JACK GREENBERG 
BARRY L. GOLDSTEIN

10 Columbus Circle 
Suite 2030
New York, NY 10019 

Counsel for Appellees

CERTIFICATE OF SERVICE

I hereby certify that on the 15th day of January, 
1977, two (2) copies of the, foregoing Brief were mailed, 
postage prepaid, to Lewis T. Booker, Esquire, Hunton & 
Williams, P. 0. Box 1535, Richmond, Virginia 23212, and Jay J. 
Levit, Esquire, 1223 Central National Bank Building, Richmond, 
Virginia 23219, counsel for appellants.



'