James v. Stockham Valves & Fittings Company Plaintiffs' Post-Trial Brief

    ITS) THE UNITED STATES district court 
FOR THE NORTHERN DISTRICT OF ALABAMA 

BIRMINGHAM DIVISION 
NO. 70-G-173

PATRICK JAMES, et al.,
Plaintiffs,

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

Defendants.

PLAINTIFFS' POST-TRIAL BRIEF

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

JACK GREENBERG 
BARRY L. GOLDSTEIN 
JOHNNY J. BUTLER 
JOSEPH P. HUDSON10 Columbus Circle, Suite 
New York, New York 10019

Attorneys for Plaintiffs.



TABLE OF CONTENTS

Pace

STATEMENT OF THE CASE
STATEMENT OF FACTS ........................... .........

A . Background ..................................
B. The Discriminatory Practices ...............

1. The Segregated Facilities and Programs ...
2. Discriminatory Job Assignment and 

Promotion Policies for Hourly Workers ....
Initial Assignment Practices ............
The Departmental Promotional Practices ...

3. The Discriminatory Selection of Employees
for Training Programs .................. *
Training Programs for Craftsmen .........
Training Programs for Supervisors .......

4. The Discriminatory Selection Procedures
for Supervisory and Other salaried 
Positions ..... ....... ..................

5. The Discriminatory Testing and
Educational Requirements ................

ARGUMENT ......................................
I. STOCKHAM'S MAINTENANCE OF SEGRETATED 

FACILITIES AND PROGRAMS IS A CLEAR VIOLATION OF EQUAL EMPLOYMENT LAWS ...
II. THE COURT SHOULD GRANT FULL INJUNCTIVERELIEF FROM THE SENIORITY AND TRANSFER 

POLICIES OF STOCKHAM WHICH PERPETUATE 
THE EFFECTS OF PAST AND PRESENT JOB 
ASSIGNMENT PRACTICES ........... .....

3
3
4

7
9
11

14
15
16

18

20

21

21

24

III. THE COURT SHOULD ORDER FULL INJUNCTIVE RELIEF TO TERMINATE THE DISCRIMINATORY 
SELECTION PROCEDURES AND THEIR DISCRIMINATORY 
EFFECTS FOR TRAINING PROGRAMS, SALARIED 
POSITIONS, NON-BARGAINING UNIT JOBS AND 
CERTAIN HIGH PAYING PRODUCTION JOBS ........

l



IV. STOCKHAM'S USE OF THE WONDERLIC TEST 
FROM 1965 TO 1971, THE HIGH SCHOOL 
EDUCATION AND AGE REQUIREMENT FOR THE 
APPRENTICE PROGRAM AND ITS PROPOSED
USE OF THE "TABAKA" TESTS ARE UNLAWFUL......
A. The Educational and Age Requirements for

the Apprenticeship Program .............
B. The Use of the Wonderlic Test Plainly 

Inhibited Blacks Reaching Their "Rightful 
Place" and was in Violation of Title VII 
and the EEOC Guideline on "Disparate 
Treatment"; Similarly the Proposed Use
of the Tabaka Tests is in Violation of 
Title VII and the EEOC Guideline .......

C. The Wonderlic Test Had An Adverse Impact
on Black Employees, was not Validated, 
and Consequently Was Unlawfully Used by 
Stockham ...................... .........

D. The Court Should Enjoin Stockham From
Using the Tabaka Tests as Presently 
Designed ...............................

V. IN LIGHT OF THE PLAINLY UNLAWFUL 
DISCRIMINATORY PRACTICES OF THE DEFENDANTS 
WHICH HAVE RESULTED IN ECONOMIC LOSS TO 
BLACK EMPLOYEES THE COURT SHOULD AWARD
BACK PAY ........................•...........

VI. THE PLAINTIFFS ARE ENTITLED TO REASONABLE
ATTORNEYS' FEES AND COSTS ..................

CONCLUSION . ...... ....................................

Page

36

36

38

40

43

44

47
47

l i



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

BIRMINGHAM DIVISION 
NO. 7 O-G-178

PATRICK JAMES, et al.,
Plaintiffs,

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

Defendants.

PLAINTIFFS' POST-TRIAL BRIEF

STATEMENT OF THE CASE*

This action presents for decision plaintiffs' 
claims of systematic racial discrimination by defen­
dants Stockham Valves & Fittings Company, ("Stockham" 
or "Company") United Steelworkers of America,
("Steelworkers") and Local 3036, Steelworkers ("Local
*/ The form of citation to the record used in this 
Brief is the same as that used in the Proposed Findings and set forth in the "Note on Citations" 
attached thereto.



3036") in violation of Title VII of The Civil Rights Act 
of 1964 (as amended 1972), 42 U.S.C. §§ 2000e et seq., 
The Civil Rights Act of 1866, 42 U.S.C. § 1981 and, with 
respect to the union defendants, the duty of fair re­
presentation pursuant to the National Labor Relations 
Act, 29 U.S.C. §§ 151 et seq. The Court has jurisdic­
tion over this action pursuant to each of the above 
causes of action. [Pre-trial Order, para. 2]

The plaintiffs Patrick James, Howard Harville, 
and Louis Winston are black citizens' of the United 
States and the State of Alabama. Messrs. James and 
Winston are presently hourly employees at Stockham. 
Plaintiff Harville retired on medical disability in 1972 
after more than twenty-five years at Stockham in the job 
of arbor molder in the Grey Iron Foundry. The plain­
tiffs bring this action on their own behalf and on 
behalf of the class of black persons who have been, are 
presently, or will in the future be employed at Stockham 
and. who have been, are presently, or will in the future; 
be, affected by the discriminatory practices of the 
defendants. The plaintiffs bring this class action 
pursuant to Rule 23(b)(2) of the Federal Rules of Civil 
Procedure.

The three-named plaintiffs filed charges with 
the Equal Employment Opportunity Commission ("EEOC") on

2



October 15, 1966. [PX 56] This charge alleged a broad
panoply of unlawful practices: segregated facilities,
discriminatory training, promotional opportunities, 
exclusion of Blacks from supervisory positions, etc. 
fid.] An amended charge to the EEOC was filed on June 
8, 1970. [PX 57] The plaintiffs received Notices of
Right to Sue on or about February 16, 1970 and duly 
filed this action within thirty days of receipt of 
said Notices.

STATEMENT OF FACTS
The plaintiffs have set forth a detailed fac­

tual statement in the Plaintiffs' Proposed Findings of 
Fact; this factual statement is incorporated by 
reference in this Brief.

Rather than reiterating all of the pertinent 
facts set out in the Plaintiffs' Proposed Findings of 
Fact plaintiffs herein will simply highlight the 
patterns of discrimination that permeate and determine 
the conditions and opportunities of employment at 
Stockham.

A. Background
Stockham's facility on Tenth Avenue in 

Birmingham produces a wide variety of fittings, cas­
tings and valves. Over the years Stockham, founded in

3



1903, has gradually diversified its products. The
Company manufactures iron, brass, and steel products;
except for steel, Stockham processes raw materials into

1/finished products.
The Stockham facility was organized by the 

Steelworkers during World War II. Since then Local 3036 
has been the bargaining representative of the hourly 
production and maintenance employees.

The workforce at Stockham has had, since 1965 
more than a majority of black employees. In 1966 there 
were 1,002 Blacks and 760 whites; in 1973 there were 
1,298 Blachs and 998 whites. [PX 13; PX 45] There is 
no question that the percentage of Blacks in the work­
force exceeded the percentage of Blacks in the 
Birmingham area. Likewise, there is no question that 
the Company hired Blacks for the hard, dirty, menial 
production jobs, while the Company hired, recruited and 
trained whites for the skilled, maintenance, clerical 
and supervisory positions.

B. The Discriminatory Practices
The employment structure has to be viewed

1/ The manufacturing processes, the nature of the 
product lines and the history of the Company have all 
been fully described by Stipulation, see DX89 Nos. 4 and 5.

4



within the totality of the segregation and entrenched 
racially discriminatory practices at Stockham. It is 
one thing for a Company to attempt to excuse its dis­
criminatory practices as having been in accord with the

2/"customs and practices" of the time. The customs and 
practices of discrimination, in the North as well as 
the South, have been severe enough. However, the prac­
tices at Stockham are more in accord with the practices 
of South Africa than with the practices in the United 
States in the 1960s. V
1. The Segregated Facilities and Programs

of 1965 the plant was totally segregated. 
Bathrooms, drinking fountains, cafeteria, bathhouse, 
etc. were all segregated. Moreover, the plant even had 
segregated gates with entrances marked "white" and 
"colored" separated by partitions. [See Proposed 
Findings, Section II, paras. 1-37] In 1965 Plaintiff 
Harville had the demeaning experience of being pulled 
from the "white" entrance gate by a white guard and told

2/ See Stockham1s Answer to Plaintiffs' Interrogatory 
No. 8 . [PX 18] Of course, the "good faith" of a defen­
dant, much less the reliance on local customs and prac­
tices is no defense to a Title VII suit. Rowe v. General 
Motors Corporation, 457 F.2d 348 (5th Cir. 1972); Johnson 
v. Goodyear Tire & Rubber Company, 491 F..2d 1364, 1375-// 
(5th Cir. 1974).
3/ Section II of the Proposed Findings outlines in de­
tail the segregated facilities and programs of Stockham.

5



to go in where he belonged. [T. Harville 657-58]
The particularly repulsive nature of parti­

tioned entrance gates struck the Stockham Board of 
Directors as being contrary to Title VII and those 
partitions were removed by order of the Board in mid— 
1965. [D. Sims 34-35, PX 61] Peculiarly the Board did
not have the same reaction to the partitions segrega­
ting bathrooms, the cafeteria and the bathhouse. These 
facilities remained partitioned and segregated until 
the eve of trial.

However, it was not just the facilities which 
were segregated. Until 1969 the Company assigned em­
ployee identification numbers by. race. All Blacks had
I.D. numbers ranging upwards from 3000; whereas, all4/
whites had I.D. numbers below 3000. Through 1969 the 
Company paid employees by cash which was disbursed from 
pay windows. Of course, Stockham had segregated pay 
windows; there were windows for employees with numbers 
ranging up to 2999 (all whites) and windows for em­
ployees with numbers ranging from 3000 (all Blacks).

Moreover, the Company maintained segregated
1/

athletic and other programs through its YMCA. [See 
Proposed Findings, Section II, paras. 8-22]

47 In 1969 the Company revamped its system of assign­
ing I.D. numbers; employees received I.D. numbers on the 
basis of the cost accounting department which they were 
in. [DX 88, No. 14]
5/ The YMCA was basically an employee services pro­
gram; the athletic programs began to become integrated 
after 1965.

6



Apart from the obviously illegal and degrading 
nature of Stockham's segregated facilities and programs, 
the segregation had a general deleterious effect on em­
ployment opportunities of Blacks. This segregation of 
facilities combined with the basic segregation of jobs at 
Stockham had the obvious and logical effect of discourag­
ing black employees from aggressively seeking promotion. 
Conversely, the continued facility segregation counten­
anced by Stockham Management could not but have had an 
effect on the supervisors, who until May, 1971 were all- 
white, in their selection of employees for promotion and 
training; the message was clear —  Blacks were still to 
be kept in their place at Stockham.
2. Discriminatory Job Assignment and Promotion Poli­

cies for Hourly Workers
Stockham did not have a simple pattern of job 

segregation, such as all-Black and all-white departments; 
although there were and are some all-Black or predominant­
ly black departments. Rather, whichever the department,

6/
the jobs in the lowest job classes, the hottest, dirtiest 
and most menial jobs were reserved for Blacks; whereas, 
the jobs in the highest job classes and those jobs offering 
the most opportunity for training were reserved for whites.

Company officials admitted that until 1965 there 
were "black jobs" and "white jobs" at Stockham. [T. Sims

|[7 Hourly pay rate depends on the job class of a par­
ticular position. Generally, the lower the job class the 
lower the pay rate. However, incentive earnings and merit 
increases must be taken into account. [see Proposed Fin­
dings, Section IV]

7 -



103-104, 126; D. Sims 146-147, PX 61; D. Carlisle 17,
PX 64; D. Burns 25-26, PX 66] The testimony and statis­
tical evidence demonstrates that apart from some token­
ism, which accelerated as trial approached, the Company 
has continued its segregated job assignment and pro­
motion system.

h thorough review of the McBee or personnel 
history cards of the employees working at Stockham in

7/September, 1973, indicates the following: [See gen­
erally Proposed Findings, Section VI, paras. 1-7]

(1) No Black employee was working in a job 
higher than JC 6 as of June, 1965;

(2) 154 or 92% of the white employees were 
working in jobs in JC 7 and above.— [PXl]

As clearly demonstrated in the charts in paras. 3-6 of
the Proposed Findings there was little advancement of
Blacks from 1965-1973.

The obvious disparity in job position of
Blacks and whites is amply demonstrated by PX 94 (attached
as Appendix E) which details the job class by race of all
workers in the September 2, 1.973 payroll of the Company.

7/ This analysis was based on a review of the employees 
at the Company as of September, 1973; consequently the 
figures represent the jobs these employees were working 
in as of June, 1965.
8/ These figures support Dr. Barrett's observation based 
on a review of Stockham's files made in 1968 that few 
Blacks were in jobs above JC6 and few whites in jobs below 
JC6 [DX 74; See T. Barrett 2298-3302]

8



(1) The 371 black non-incentive workers had an 
average job class of 3.30; the 366 white 
non-incentive workers had an average job 
class of 10.23.

(2) The 872 ‘black incentive workers had an
average job class of 4.15; the 178 white 
incentive workers had an average job class 
of 7.19.
The clearly inferior employment position of 

Blacks at Stockham results from a range of discrimina- 
tory practices.

Initial Assignment Practices
New hirees are first screened by the personnel 

department. [T. Adamson 516-21] Before an employee is 
hired and assigned to a specific job he is approved by 
the foremen over that job. rId.] Mr. Adamson, a long­
time personnel department employee, estimated that 75%
of the employees sent to a foreman for interview for a

9/
job vacancy were accepted for the position. [T.
Adamson 523]

The results of this assignment procedure was 
straightforward: Blacks continued after 1965 to be
overwhelmingly assigned to the departments and jobs to 
which they had been assigned prior to 1965 and whites 
continued after 1965 to be overwhelmingly assigned to 
the departments and jobs to which they had been assigned 
prior to 1965.

g7 During the period August, 1965, to April, 1971, 
new hirees were given the Wonderlic Test. The use of 
this test is discussed, infra.

9



Otto Carter, a long-time white supervisor 
of the Grey Iron Foundry, stated that no white em­
ployee worked in jobs other than traditionally white 
jobs on the Box Floor or as Crane Operator in the 
Foundry until 1968-1969. [T. Carter 708] On the
one hand, the Foundry departments have right up until 
the present been staffed, almost exclusively, by 
Black employees. [T. Sims 133-34; T. Given 270-7j_; 
T. Carter 708] On the other hand, the majority of 
workers assigned since 1965 to traditionally white 
maintenance departments have continued to be white.

Plaintiffs' Exhibit 93 wtich breaks down 
the employee composition of each seniority depart­
ment by year of hire and by race incontestably shows 
that whites have continued to be overwhelmingly 
assigned to the maintenance departments and Blacks 
to production departments such as the foundries. The 
number of Blacks and whites hired since 1965_ and who 
were working in the traditionally white maintenance 
departments as of September, 1973 are as follows:

Dep1t. #w #B
Machine Shop 37 4
Electrical Shop 13 1
Pattern Shop 26 2

- 10 -



Dep't. #w #B
Tapping Tool Room 17 2
Foundry Repairs 45 6
Valve Tool Room 9 0

147 11
The number of Blacks and whites hired since 1965 and 
who were working in the traditionally black foundry 
departments as of September, 1973, are as follows:

#B

218
181
34 

433

Of the 158 employees hired since 1965 and who 
were working in the six maintenance departments as of 
September, 1973, 147 or 93% were white; of the 472 em­
ployees hired since 1965 and who were working in the 
three foundry departments as of September,.433 or 92% 
were Black.

The Departmental Promotional Practices
It is ironic that the departmental promotional 

system at Stockham worked both to exclude Blacks from 
the higher-paying traditionally white departments which 
offered substantial training opportunity and yet also 
prevent them from promoting to the generally higher­

Dep't.
Grey IronFoundry 16
Malleable

Foundry 15
BrassFoundry 8

39

11



paying jobs in the department in which they were 
located.

The segregated job assignment system at 
Stockham naturally led to some predominantly black 
departments and to some predominantly white depart­
ments. [See Proposed Findings, Section VI, paras.
7, 10-11, 50] The Company prior to the June 1970
Collective Bargaining Agreement had an unadulterated

10/departmental seniority system. If an employee 
transferred departments voluntarily he entered the new 
department as if he was a new employee without depart­
mental seniority in his new or foirmf?̂- department.

In 1970 and 1973 the Contract provisions 
pertaining to departmental seniority were modified. 
These modifications simply did not remove the dis­
criminatory effects of the departmental seniority 
system. An employee no matter how much plant senior­
ity he had accumulated prior to transfer, entered a de­
partment as a new employee for promotional and reduc- 
tion-in-force purposes in that departmsnt. The new

10/ The pertinent contract provisions are set out 
in Proposed Findings, Section V, paras. 1—6.
11/ Local 3036 since 1967 had been pressuring the 
Company during Contract Negotiations to modify the 
departmental seniority provisions. See Proposed 
Findings, Section V, paras. 17-24.

12



provisions only provided that transferees were able to 
- retain seniority in their old department for certain 
periods of time: (1) in the 1970 Contract the period
was two years; and (2) in the 1973 Contract the period 
was based on the length of time the transferee had 
worked in his old department. [PX 23, Section XIII, 
7(b) pp. 20-2; PX 24, Section XIII, 7(a) pp. 20-1] 
Moreover, employees faced a possible reduction in pay 
rate if they transferred departments.

Even in departments in which Blacks were 
senior employees, in terms of departmental seniority, 
junior white employees received training for and pro­
motion to higher-paying jobs. The pertinent Contract 
provisions explicitly set out that the Company will 
consider the senior employee in a department for a 
vacancy. [See e.g., PX24, Section XIII, 4(b) p. 19]

Perhaps the most outrageous example of 
white employees being trained and promoted around 
black employees was in the Grey Iron Foundry. At 
least three white employees, hired since 1965, were 
promoted to or are in training for the highest job 
class rated position, box floor molder. [PX 84; T. 
Carter 723-25] Moreover, at least five white em­
ployees who were hired since 1965 have been trained

13



and placed in the second-highest job class rated po­
sition, crane operator. [ PX 84; PX 89; T. Carter 721-25] 
This is despite the fact that 74 black employees in the 
Grey Iron Foundry who were working there in September,

12/
1973, were hired prior to 1965. [PX 93; T. Carter 72]
No blacks until several weeks prior to trial had ever
received training as a crane operator much less the
opportunity to work as a crane operator. [T. Carter 719-
20] A few weeks prior to trial the Company began to
train one black for the job. [JEd.] No Black has ever
had the opportunity to train for or work as a Box Floor

13/
Molder (Large.)

The running-around of senior black employees 
by junior white employees in the Grey Iron Foundry 
occurred in most other departments, see Proposed 
Findings, Section VI.
3. The Discriminatory Selection of Employees for 

Training Programs.
The Company has extensively utilized training

12/ It should also be noted that there were Blacks who 
worked as charger operators and as yardmen who had ex­
perience that would be useful for the position of crane 
operator. [See Proposed Findings, Section VI, para.28]
13/ On the last day of trial Stockham announced that 
Willie Lee Richardson, a black employee hired in 1965, 
was accepted in the apprentice program for Box Floor 
Molder. (Large.) Mr. Richardson is an exceptional em­
ployee; in nine years he had been absent a total of nine 
days.

14



programs to develop both supervisory personnel and
craftsmen. Until 1970, black employees were totally
excluded from these programs.

Training Programs for Craftsmen
The Company maintains an extensive appren-

14/
ticeship program for eight crafts. [T. Sims 103] It 
was not until April, 1971 that a black employee was ever 
selected for the apprenticeship program. *[PX 12a]

Since July 2, 1965, 101 employees have en­
tered the Stockham apprenticeship program. [PX 12a] Only 

15/six (6) cf these employees have been Blacks. The number 
of Blacks selected for the apprenticeship program is 
hardly substantial in an hourly workforce which is
approximately 66% Black.

The Company also trains craftsmen and skilled
operators, e.g., welders and cranemen, through an on-the
job training program. Blacks have been all but excluded
from this program. Blacks have been excluded from on-the16/
job training as welders, cranemen, box floor molders 
(large), and other craft positions. [See Proposed 
Findings, Section VII, B]

14/ The apprenticeship program at Stockham is described 
In detail in Section A, Proposed Findings.
15/ One of the six Blacks, George Moore, never really 
entered the program. Stockham offered Mr. Moore admission 
to the program, but Mr. Moore refused the offer because it 
would interfere with his schooling.
16/ The Company had placed a black employee in on-the-job 
training as a crane operator just prior to trial.

15



Training Programs for Supervisors 
The Company has maintained three training pro­

grams for supervisors. Two programs, the Organizational 
Apprentice ("OAP") and the Management Training Program
("MTP") were developed as a means to recruit and develop

17/
individuals from outside the plant.

The OAP was in existence until 1969. In 1969, 
a training committee was established which thoroughly 
re-worked this training program; rhe committee abolished 
the OAP and instituted the MTP. [T. Marsh 875-76; PX39]

The recruitment for the OAP and the MTP was 
largely the responsibility of the'Personnel Department, 
and particularly of Mr. Adamson. The Personnel Depart­
ment regularly solicited the advice of Company Super­
intendents and Managers concerning the selection of 
trainees.

Trainees for the program were recruited from 
college campuses by Company employees and also were 
recommended by "friends of Stockham." [D. Sims 77-78;
EX61; T. Adamson 551-52 ; D. Adamson 22-23; PX62; T.
Given 278]

The Company has regularly recruited at 
predominantly white colleges such as Auburn, Alabama,

17/ Although from 1950-1969 approximately 20 employees 
were selected for the OAP from inside the plant, no blacks 
were sekected. Approximately ten of these employees became 
foremen.

16



Tennessee, Georgia Tech, and Samford. [Id.] However,
the Company has never, despite the continued need -for
college-trained employees, recruited at predominantly
black colleges such as Tuskegee, Alabama A & M,

18/
Alabama State, Tennessee State, or Miles. [Id.; D.
Sims 78-82, PX 61]

During the entire existence of the OAP, there 
was never a single black participant. Since 1950 there 
have been approximately 150 trainees in the OAP, all 
of them white. The discriminatory nature of the 
program barely improved after 1970 and the institution 
of the MTP: there have been 49-50 trainees in the MTP-
all but one have been white. [T. Givens 276-77]

In addition to the OAP and the MTP, Stockham 
has had a program, the Personnel Development Program 
("PDP"), which is directed to training and identifying 
hourly employees for supervisory positions. Employees 
were selected for the program by foremen and other 
supervisory personnel. [D. Adamson 14, PX 62]

From 1958, the year the program was instituted, 
until 1969 the PDP was run on an informal and intermittent 
basis. During this period there were thirty-two employees

18/ Participants in either the OAP or MTP were not guar­
anteed supervisory positions. From 1950 to 1969 there 
were approximately 150 persons selected for the OAP; of the 
130 persons who were hired by the Company after they com­
pleted the OAP, 40-50 eventually became foremen. [D. Sims, 
73-74, PX 61]

17



who finished the program and became supervisors; all
19/of these thirty-two were white. [T. Given 274-75,

PX44]
In 1969 Stockham established a more for­

mal and regularized Personnel Development Program.
[Id.] Since 1970 there have been forty-six (46) whites 
and only ten (10) Blacks selected for PDP -- Thus over 
80% of PDP trainaes since 1970 were white even though 
the disparity in a workforce is approximately 66%
Black. [T. Given 275; T. Waddy 910-11; PX 44]
4. The Discriminatory Selection Procedures for 

Supervisory and Other Salaried Positions
The all-but total exclusion of Blacks from 

supervisory training programs has, of course, limited 
the opportunity of Blacks to become supervisors. How­
ever, it is not necessary for an employee to go through 
a training program in order to become a supervisor; [D. 
Sims 94-5, PX 61] Workers may be selected directly 
from the hourly force for promotion to supervisor.
But no Black was ever selected for a supervisor position 
until May, 1971. [PX 11; T. Sims 198] .

This exclusion of Blacks is particularly re­
vealing as to the discriminatory selection practices at

19/ Forty-three people finished the PDP program prior 
to the 1969 modifications; it is unclear how many 
people entered the program. [PX 44]

18



Stockham; even though Blacks have regularly consti­
tuted 60% of the hourly workforce only whites were

20/
selected for supervisor positions. Since 1970 a few, 
token Black's have been selected for foremen positions. 
[See Proposed Findings, Section 10, paras. 4-5]

Foremen are selected by the superintendent 
and manager(s) responsible for the department con­
taining the vacancy. [T. Marsh 858-59] There are no 
written guidelines or procedures for foremen selection; 
[D. Sims 106, PX 61] There has never been a black 
superintendent or manager at Stockham. [see Proposed 
Findings rf Fact, Section X, para. 9 ] Such subjective
discretion vested in an all-white supervisory staff is

21/
"a ready mechanism for discrimination.''

It is clear that this ready mechanism for
discrimination worked to not only limit opportunities
for Blacks to promote to supervisory positions but also

22/
to promote to other salaried positions: clerical,

27/ 24/ 25/
timekeepers, sales workers, and plant guards.

2'o'/ The Company regularly selects employees from the 
hourly workforce to fill supervisor positions. [T.
Sims 128; PX 11]
21/ See Rowe v. General Motors Corp., 457 F.2d 348,
358-59 (5th Cir. 1972). . ^22/ See Proposed Findings, Section VI, paras. 63-71.
23/ See Proposed Findings, Section VI, paras. 72-74.
24/ See Proposed Findings, Section VI, paras. 75-78.
25/ See Proposed Findings, Section VI, paras. 79-80.



5. The Discriminatory Testing and Educational 
Requirements

The discriminatory testing requirements at 
Stockham fall into two'periods, August, 1965' to 
April, 1971 and July 17, 1973 to the present. 26/

Stockham, like so many other companies, 
instituted a full-scale testing program almost contem­
poraneously "with the effective date, July 2, 1965, of
Title VII. Stockham began to use the Wonderlic Test

27/in August, 1965. [Ans. to Interrogs. No. 28, PX 18] 
Prior to August, 1965 the Company only used 

tests for employee selection on a limited basis. Of 
course, the Wonderlic Test posed an obstacle to job 
advancement for Blacks who prior to 1965 had been ex­
cluded from the better jobs at Stockham solely on the 
basis of their race. Moreover, it is clear that the 
Wonderlic Test had an adverse impact on Blacks; that is, 
whites scored better on the test than Blacks. [see 
Proposed Findings, Section XI, para. 13] The Company 
did not conduct any validity study for the Wonderlic 
Test.

In 1970 the Company instituted a high school
diploma or equivalent requirement for the apprenticeship 

28/program. [PX 38; T. Given 279—83; D. Given 16—18,

26/ See Griggs v. Duke Power Company, 401 U.S. 424 
(1971); Pettway v. American Cast Iron Pipe Co., supra 
at 3260.27/ The use of the Wonderlic Test is fully described 
in the Proposed Findings, Section XI, paras. 6-14.
28/ It should be noted that as of 1970 not one Black had been selected for the apprentice program. [PX 12a]

-  20 -



PX 67] Previously, the educational requirement had 
been merely grammar'school. [PX 36; D. Given 16-18,
PX 67] At Stockham Blacks do not have, on the average, 
as much formal education as whites. [DX 4]

Stockham halted its testing program by 
April, 1971. However, in 1973 the Company asked 
Mr. Tabaka to develop a testing program. On July 17, 
1973 Stockham began to administer the tests which 
Mr. Tabaka suggested. Until, the date of trial these 
tests have only been administered to accumulate data 
for future study and have not been used to assist in 
selection of employees for promotion, training pro­
grams, etc. [T. Adamson 623-24, 626-27, 634, 642-43]
The substantial obstacle which the Tabaka tests, if 
used for employee selection, would be to Blacks finally 
moving to their "rightful place" is described in Sec­
tion IV, infra.

ARGUMENT
I.

STOCKHAM'S MAINTENANCE OF SEGREGATED 
FACILITIES AND PROGRAMS IS A CLEAR 
VIOLATION OF EQUAL EMPLOYMENT LAWS

As set out in the Statement of Facts, pp. 5-7, 
supra, Stockham segregated its employees in practically 
every conceivable manner. [See Proposed Findings, Sec­
tion II] Despite the passage of the 1964 Civil Rights

21



Act, charges filed by plaintiffs with the EEOC, a clear 
finding by the EEOC in 1968 that Stockham maintained 
segregated facilities, and repeated requests made by 
employee members of the Civil Rights Committee, the 
Company persisted in maintaining segregated facilities 
into 1974. Of course, such segregation of facilities 
violates Title VII. Buckner v. Goodyear Tire & Rubber 
Company, 339 F. Supp. 1108 (N.D. Ala. 1972) aff'd per 
curiam 476 F.2d 1287 (1973); Witherspoon-v. Mercury
Freight Lines, Inc., 457 F.2d 496 (1972).

The preservation of segregated facilities 
and programs into 1974 is a particularly egregious vio­
lation of the Fair Employment Laws. There -have been 
few Companies which have so obstinately clung as 
Stockham has to unlawful practices of segregation. This 
Court must enter a clear-cut injunction terminating 
these practices once and for all.

The Company entered into a conciliation 
agreement with the EEOC concerning certain segregated 
facilities on January 21, 1974, practically the day
before trial. [See Proposed Findings, Section II, C] 
This agreement in no way alters this Court's obligation
to enter an injunction.

First, the agreement does not even purport to 
cover all segregated facilities but rather only covers

22



those designated in the agreement. Plaintiffs clearly- 
established that the two women's bathrooms in the dis­
pensary (for a total of six women) were segregated.
[T. Short 2744-47; T. Sims 94-96]

Secondly, the Company's agreement to terminate 
long-standing segregated facilities and programs on the 
eve of trial is suspect. For example, until December, 
1973 the Company maintained segregated employee Boards 
which advised the Company concerning employee activi­
ties within the YMCA. That the Company has recently 
created an integrated Board and integrated YMCA 
activities is no justification for denying injunctive 
relief; as the Fifth Circuit has plainly stated "[s] 
uch actions in the face of litigation are equivocal in 
purpose, motive, and permanence." Jenkins v. United 
Gas Corporation, 400 F.2d 28, 33 (1968).

Thirdly, the plaintiffs have the right to an 
unequivocable, judicially imposed order which will 
finally terminate all segregation and bar all such prac­
tices in the future. See e.g., Rowe v. General Motors 
Corp., 457 F.2d 348, 359 (5th Cir. 1972); Jenkins v. 
United Gas Corporation, supra at 33 n. 11; Anderson v. 
City of Albany, 321 F.2d 649, 657 (5th Cir. 1963).

The Court's injunction should require the

23



posting of notices in readily understandable language 
informing the employees and supervisors of the Company 
that all facilities and all programs at Stockham are 
integrated. See Bolten v. Murray Envelope Corp.,
No. 73-1856, p. 3037 (5th Cir. April 26, 1974).

II.
THE COURT SHOULD GRANT FULL 
INJUNCTIVE RELIEF FROM THE 
SENIORITY AND TRANSFER POL­
ICIES OF STOCKHAM WHICH 
PERPETUATE THE EFFECTS OF PAST AND PRESENT JOB ASSIGN- 
MENT P R A C T I C E S ___________

In Pettway v. American Cast Iron Pipe Co.,
No. 73-1163 (Slip Opinion April 29, 1974), the Fifth 
Circuit once again set forth, and in painstaking de­
tail, the two factors which together constitute an 
unlawful departmental seniority system: (1) racially
discriminatory assignment practices; and (2) a sen­
iority system which "locks" employees into departments. 
The Pettway opinion is particularly instructive because 
the factual situation is so similar to this action.

It cannot be disputed that Stockham has en­
gaged in racially discriminatory assignment practices.
It is admitted that until 1965, the Company maintained 
exclusively black jobs and exclusively white jobs. [T. 
Sims 103-04, 126; D. Sims 146-147, PX 61; D. Carlisle

29 / Actually, the discriminatory practices at Stockham 
were harsher and more persistent than at ACIPCO. See 
discussion, infra.

- 24



However, the17, PX 64; D. Burns 25-26, PX 66]. 
discriminatory assignment practices did not stop in 
1965; rather, the Company has continued up to the 
present to disproportionately assign Blacks to the 
traditionally Black departments and whites to the 
traditionally white departments. [see Statement of 
Facts, pp. 9-11, supra; Proposed Findings, Section VI, 
paras. 81-82]

Consequently, Stockham's continued racial 
assignment practice was more severe: than ACIPCO's.
In Pettway the Court found that the intentional main­
tenance of racially exclusive jobs terminated in 1961 
but was preserved by economic conditions until 1963.
Id. at 3258. At Stockham the admitted segregated
assignment policy lasted not only until 1965 but also,

30 /
as the testimony and statistics clearly reveal, the 
practice of racial job assignments continues.

The racially discriminatory assignment prac­
tices at Stockham naturally led to exclusively or pre­
dominantly white departments and exclusively or pre-

30/ It is now accepted that statistics have a critical 
and important evidentiary role in Title VII cases. The 
numerous authorities on this point are comprehensively 
collected in Pettway v. American Cast Iron Pipe Co., 
supra at 3270, fn. 34.

25



dominantly Black departments. [see Proposed Findings, 
Section VI, paras. 7-35 and paras. 50-62] Compare 
Pettway v. American Cast Iron Pipe Co., supra at 3258, 
3275-3279. The predominantly Black departments, those 
with approximately an 80% or more Black workforce, are 
the Malleable Foundry, Brass Foundry, Grey Iron Foundry, 
Core Room and Yard, Final Inspection, Foundry Inspection, 
Galvanizing, Shipping, Dispatching and Brass Core Room. 
[PX 91, attached hereto as Appendix C]. In September,

• 1973, there were 903 Blacks or 72% of the Blacks in
the hourly workforce in those departments; only 75 
whites or 13% of the whites in the hourly workforce were 
employed in these departments [Id-] The predominantly 
white departments, those with an 80% or more white work­
force, are the Valve Tool Room, Electrical Shop, Machine 
Shop, Foundry Repairs, Pattern Shop, and Tapping Tool 
Room. [Id.-] In September, 1973, there were 2 08 whites or 
36% of the whites in the hourly workforce in those de­
partments; only 28 Blacks or(2% of the Blacks in the 
hourly workforce were employed in these departments.
[Id.] Compare Pettway v. American Cast Iron Pipe Co.,

31/

31 / There were also some ,rintegrated" departments at 
'stockham. [see Proposed Findings, Section VI, paras. 36 
49] However, in these departments as ip the rest of the 
plant Blacks were restricted to the lowest-paying most 
menial positions. The appropriate_remedy_for thus dis­
criminatory practice is discussed in Section III, infra.

26



supra at 3275-76
The practice of discriminatory assignment 

coupled with the lock-in effects of the seniority 
system have substantially contributed to the rele­
gation of Black workers to the lowest-paying, most 
menial, hottest and dirtiest jobs. [see Proposed 
Findings, Section VI, paras. 3-6, 11, Section XII]

The seniority system at Stockham falls into 
the pattern of systems that have time and time again 
been held to be discriminatory. United States v.
Local 189, 301 F. Supp. 906 (E.D. La. 1969), aff'd
sub nom. Local 189 v. United States, 416 F.2d 980 
(5th Cir. 1969) cert. denied 397 U.S. 919 (1970) ; Long v . 
Georgia Kraft Company, 450 F.2d 557, 560 (5th Cir.
1971); United States v. Hayes International, 456 F.2d 
112, 119 (5th Cir. 1972); United States v. Jacksonville 
Terminal Company, 451 F.2d 418, 453 (5th Cir. 1971); 
United States v. Georgia Power Company, 474 F.2d 906 
(5th Cir. 1973); Johnson v. Goodyear Tire & Rubber Co., 
491 F.2d 1364, 1373 (5th Cir. 1974); Pettway v. American 
Cast Iron Pipe Co., supra at 3266-70, United States v.
United States Steel Corporation, 6 EPD 5[ 9042 (N.D.

32/Ala. 1973).

32/ There are numerous similar decisions from other Circuit Courts of Appeal. see Pettway v. American Cast 
Iron Pipe Co., supra at 3268 fn. 31, 3269 fn. 33.

27



The Fifth Circuit recently clearly reaffirmed
the law with respect-to departmental seniority:

"Once it has been determined that 
blacks have been discriminatorily 
assigned to a particular depart­ment within a plant, departmental 
seniority cannot be utilized to 
freeze those black employees into 
a discriminatory caste." (foot­
note . omit ted) Johnson v. Goodyear .
Tire & Rubber Co., supra at 1373.

i.lie departmental seniority system at Stockham
locked Blacks into the departments to which they were
discriminatorily assigned in a number of ways; (1)
workers ir. the department in which the vacancy arose
had the first opportunity to move into the vacancy;
(2) workers lost all their accumulated seniority and
thus, their job security, when they transferred depart- 

33/ments; (3) workers are "new" men for promotion and 
regression purposes in the department which they trans­
fer to; (4) transferees may have to take an initial cut

34/in pay in order to move into a department. [see Proposed

33/ In the 1973 and 1973 Contracts the system was modified. 
Workers did not lose their accumulated seniority immediately 
upon transferring departments. However, employees still 
lose their seniority at a certain time after transferring, 
[see Proposed Findings, Section V, paras. 4-6]

It should be noted that at ACIPCO transferees retained 
their seniority in their former department in case of lay­
off from their new department. In this way the seniority 
system at ACIPCO was "less" discriminatory than the system 
at Stockham. See Pettway v, American Cast Iron Pipe Co., 
supra at 3266
34/ The full discriminatory impact of these effects is 
elucidated in Pettway, supra at 3266-3269. See also Local 
189 v. United States, supra at 988; United States v. 
Jacksonville Terminal Company, supra at 453.

28



Findings, Section V, paras. 1-16]
The appropriate relief in circumstances such 

as these has often been stated by the Fifth Circuit. 
The Pettway opinion catalogues the necessary relief:
' "Therefore, the district court

should issue an injunction re­
quiring: (1) the posting of
vacancies plant-wide; (2) the 
selection of 'qualified' per­
sonnel for the vacancies on the 
basis of Plant-wide seniority;
(3) transferring members of the 
class shall retain their plant­
wide seniority for all purposes 
including promotion, lay-off, re­
duction-in-force, and recall; (4) 
advance entry into jobs for which 
an employee in the class is ''qual­
ified' or for which no specific 
training is necessary; (5) red- 
circling of members of the class;
(6) establishment of specific 
residency periods in lines of 
progression where the Company has 
established prerequisite training 
as a 'business necessity'" (foot­notes omitted) £&. at 313-14-42/

35/ The footnotes to the text authoritatively set forth 
the law relating to each form of relief.

It is necessary for the "red-circling" rates to in­
clude incentive earnings. see United States v. United 
States Steel. 5 EPD para. 8619 pp. 7819-20 (order) (N.D. 
Ala. 1973), 6 EPD para. 9042 p. 6393 (Memorandum Opinion)

29



III.
THE COURT SHOULD ORDER FULL 
INJUNCTIVE RELIEF TO TERMINATE 
THE DISCRIMINATORY ‘SELECTION 
PROCEDURES AND THEIR DIS­CRIMINATORY EFFECTS FOR TRAIN­
ING PROGRAMS, SALARIED POSITIONS, 
NON-BARGAINING UNIT JOBS AND 
CERTAIN HIGH PAYING PRODUCTION 
JOBS....................... ....

Black employees have.been either excluded 
or had limited opportunity to enter training pro­
grams or move into high-paying and/or otherwise 
desirable jobs at Stockham.

The recurring theme throughout the dis­
criminatory denial of these opport inities to Blacks
is the use of subjective discretion by white super-

36./
visors, officials or managers,

The discretion exercised by Company per­
sonnel certainly was affected by the pervasive prac­
tices of segregation at Stockham, from job assignment 
to facilities. The Fifth Circuit and other courts 
have recognized the discriminatory potential of a 
subjective decision-making system; if .such a system 
actually results in a racial disparity in job
opportunities, then courts have held that the system

37/
violates Title VII.

36/ Other factors certainly contributed to the dis­
crimination against Blacks in these-areas such as 
unlawful testing and educational requirements (see 
Section IV) and the discriminatory seniority system.
37/ The gross disparity in the job opportunities in 
every area at Stockhanj combined with .numerous clear practices of segregation and discrimination at Stcpckham require the Court to find that.the.subjective decision­making system at Stockham is discriminatory.

- 30 -



Rowe v. General Motors Corp., 457 F.2d 348,
358-59 (5th Cir. 1972); United States v. Jacksonville 
Terminal Company, supra at 449; see Pettway v. American 
Cast Iron Pipe Co., supra at 3299-3203; United States 
v. Bethlehem Steel Corp., 446 F.2d 652, 655 (2nd Cir. 
1971); Brown v. Gaston County Dyeing Machine Co., 457 
F.2d 1377, 1382-83 (4th Cir. 1972) cert, denied 93 S. 
Ct. 319 (1972); United States v. United Carpenters' 
Local 169, 457 F.2d 210, 215 (7th Cir. 1972).

The Fifth Circuit described a system of su­
pervisory discretion as a "ready mechanism for dis­
crimination against Blacks":

"All we do today is recognize 
that promotion/transfer pro-- 
cedures which depend almost 
entirely upon the subjective 
evaluation . . .  of the 
immediate foreman are a ready 
mechanism for discrimination 
against Blacks . . . We and
other's have expressed a skep­
ticism that Black persons de­
pendent directly on decisive 
recommendations from Whites 
can expect non-discriminatory 
action." Rowe v. General Mo­
tors Corp., supra, at 359

Perhaps the most outrageous selection prac­
tices at Stockham occur within the seniority depart­
ments. Black employees in the predominantly black 
departments were regularly passed over for promotion 
and whites junior in terms of departmental seniority 
were selected for the higher-paying jobs, such as box

31



ductile iron melters,floor molders, crane operators, 
and oven operators. [see Proposed Findings Section 
VI, paras. 12-35] Similarly, in the "racially inte­
grated" departments and in the predominantly white 
departments black workers have been relegated to 
lower-paying, menial jobs while white workers have 
regularly been afforded training opportunities and 
been promoted before senior Black workers in the 
department. [see Section VI, Proposed Findings 36-
62]

The foremen is supposed to give the "oldest" 
employee in the department a vacancy "as far as prac­
tical." [ PX 24, Section XIII, 4(b), p. 19; T. Sims 
126-29] However, the foreman is the sole judge of 
what is "practical." [T. Sims 127-29] When the 
determination for promotion so regularly goes against 
senior Black employees in so many departments, the 
court must conclude that the foreman excluded black 
employees from promotional opportunities in a dis­
criminatory manner.

The Court,
38/

in order to grant full relief,
should order that black workers be trained immediately
for jobs, such as crane operators, for which they were 
discriminatorily passed over in violation not only of
387 "This Court [the Fifth Circuit] has always recog­
nized the importance of granting full relief in Title 
VII cases. E.g., United States v. Georgia Power Cg., 
supra, 474 F.2d at 927; Vogler v. McCarty,. 451 F.2d 
1236, 1238-39 (5th Cir. 1971)." Pettway v.- American 
Cast Iron Pipe Co., supra at 3304 fn. 82. f^e also 
Louisiana v. United States, 380 U.S. 145, 154 (1965).

32



rp-j/tie VII but of the collective bargaining contract, 
and then that they be placed on these jobs as soon 
as practical.

The Company has almost totally excluded 
Blacks from training programs and salaried jobs.

In the three training programs 
for supervisory employees, the 
Organizational Apprenticeship 
Program, Management Training 
Program, and the Personnel 
Development Program at least 
284 whites have been enrolled 
since 1958 as compared to only 
10 Blacks. [see Proposed 
Findings Section VIII, paras.
34-50] No Black was selected 
for these programs until 1970. 
lid.]

(2) Until May, 1971 the Company had 
no black foremen, [PX 11; T.Marsh 879-80] At present there 
are only 5-7 black foremen out 
of more than 100 foremen; there 
are no black superintendents or general 
foremen. [see Proposed Finoings, 
Section X]

(3) In the apprenticeship training 
program, 95 whites have been 
enrolled since 1965 and only 6.Blacks. [See Proposed Findings,
Section VII, paras. 24-25] No 
Black has finished the appren­
tice program nor was any Black 
selected for the program prior 
to April, 1971. [PX 12a]

(4) As of September, 1973, there were 
221 whites in the craft and skilled 
jobs, JC10-13, and only 6_ Blacks;
[PX 94] ■

(5) Until some time in 1965 the Company did not hire or promote 
Blacks to clerical positions.
[T. Sims 209-210] In 1973 only 18 of the 207 clerical and office 
workers at the Company were Black.
[PX 13; PX 45]

(1 )
t

33



(6) There has never- been a black sales worker or sales department 
employee at the Company. [see 
Proposed Findings, Section VI, 
paras. 75-78]

(7) At one time Stockham excluded Blacks from timekeeper or guard, 
positions. [See Proposed 
Findings, Sect-don Vi, paras. 72- 
74, 79-80]. In 1973 only two 
out of- 22 timekeepers and only 7 
out of 35 plant guards were 
Black. fid.]

‘ strong1'affirmative belief is appropriate‘to
remedy the effects of Stockham1s total exclusion of
Blacks from better jobs at the Company until a few
years ago, and its subsequent policy of affording
Blacks only limited, token opportunities. This relief
must provide goals and timetables for the promotion of
qualified Blades until the effects of the present dî >
crimination at Stockham has been terminated. Buckner
v. Goodyear Tire and Rubber Company, 339 F. Supp. 1108,
1125 (N.D. Ala. 1972) aff1d per curiam 476 F.2d 1287
(1973)(provides for at least one Black to be selected
for the apprentice program for each white selected);
United States v. United States Steel Corporation, 5

39/EPD H 8619 p. 7819-20 (N.D. Ala. 1973)) United States
v. Wood, Wire & Metal Lathers Int11 Union, Local 46,
471 F.2d 408, 412-13, cert. denied 37 L. Ed.2d 398
(1973) (the Court upheld an order requiring immediate
39/ The district court issued in United States Steel 
an order calling for a program of comprehensive affir­
mative action in the apprentice program, clerical se­
lection, training programs, and supervisory selection.

34



-issuance of 100 work permits to minority group per­
sons, and a one-for-one quota on issuance of sub­
sequent permits until 1975); Carter v. Gallagher,
452 F.2d 315, 331 (8th Cir. 1972); Southern Illinois 
Builders Association v. Oqilvie, 471 F.2d 680 (7th 
Cir. 1972); Strain v. Philpott, 331 F. Supp. 836 
(N.D. Ala. 1971), order issued 4 EPD para. 7562; 
see Contractors' Association of Eastern Pennsylvania 
v. Secretary of Labor, 444 F.2d 159 (3rd Cir. 1971), 
cert. denied 404 U.S. 854 (1971).

In addition, the Court should order the 
Company to recruit at predominantly black colleges. 
Stockham has regularly recruited at predominantly 
white colleges but has inexplicably ignored the num­
erous Black colleges in the area. [See Proposed 
Findings, Section IX]

Furthermore, the Court should consider the 
establishment of an "Implementation Committee" to 
facilitate the institution of the Court's Decree.
See United States v. United States Steel Corp., 5 EPD 
para. 8619, pp. 7815-16, (Order N.D. Ala. 1973), 6 
EPD para. 9042 p. 6388 (Memorandum opinion). This 
Committee, which would have representation from the 
affected class, would provide a means of communications 
to the class and also serve to resolve complaints' or am­
biguities concerning the Court's Decree. See Pettway v.

35



American Cast Iron Pipe Co., supra at 3341-42.

Finally, the Court should order the Company 
to make periodic reports relating to the implementa­
tion of the Court's Decree; these reports would be 
served on counsel for plaintiffs, see United States 
v. United States Steel Corporation, 5 EPD para. 8619, 
pp. 7820-22 (N.D. Ala. 1973). The Court should re­
tain jurisdiction of this action for a reasonable 
period of time to insure "the continued implemen­
tation of equal employment opportunities." Pettway 
v. American Cast Iron Pipe Co., supra at 3341.

IV.
STOCKHAM'S USE OF THE WONDERLIC 
TEST FROM 1965 to 1971, THE HIGH 
SCHOOL EDUCATION AND AGE REQUIREMENT 
FOR THE APPRENTICE PROGRAM, AND ITS 
PROPOSED USE OF THE "TABAKA" TESTS 
ARE U N L A W F U L ______________

A .____The Educational and Age Requirements for the
Apprenticeship Program

The Committee established in 1969 to review the
apprentice program at Stockham recommended that a formal
high school diploma or equivalent requirement be established

40/for admission to the program. An age limit, 30 years old 
for applicants was also recommended. These recommendations

40/ The time which an applicant spent in the military 
would not be counted; thus, if a man spent 3 years in the 
military and was 32 years old, he would be treated the 
same as a 29 year-old man for purposes of admission to 
the program [T.Given 280-83].

36



were put into effect in 1970. [PX38; T.Given 279-83;
Given 16-18, PX67]. As of 1970 no Black had ever been 
selected for the apprentice program. [PXl2a; T. Given 283-84] .

An age requirement, which while facially neutral, 
has the obvious effect of continuing to exclude some Blacks 
(those over thirty) from the program because they are "too 
old"; however, when these Blacks were "young enough they 
were excluded on the basis of race. This' practice clearly 
violates Title VII. Pettway v. American Cast Iron Pipe Co., 
supra at 3295, 3315-17.

The institution of a hig.i school education re­
quirement discriminates against Blacks in two ways: (1)
Blacks, who previously were excluded on the basis of race, 
are now forced to pass a requirement which Whites did not 
have to pass [see Section B, infra, on "disparate treatment ] 
and (2) Blacks at Stockham have, on the average, fewer years 
of formal schooling than whites and consequently, the 
education requirement has an adverse impact on Blacks. [PX4]. 
The Company did not undertake: any validity study for the 
High School education requirement, [T. Waddy 989-90] as is 
required by the EEOC Guidelines. [T. Tabaka 2566]. The 
use of a high school education requirement under these 
circumstances violates Title VII. Griggs v. Duke Power 
Co., supra at 431-32; Pettway v. American Cast Iron Pipe
Co., supra at 3291-95.

41/ Prior to 1970 the Company had a grammar school 
requirement for entrance to the apprentice program.
[PX36; T. Given 276-83] .

41/

37



B. The Use of the Wonderlic Test Plainly Inhibited 
Blacks Reaching Their "Rightful Place" and Was in 
Violation of Title VII and the EEOC Guideline on 
"Disparate Trea-tment" ; Similarly the Proposed Use of 
The Tabaka Tests Is In Violation of Title VII and 
The EEOC Guideline.

Ln 1965 the Company realized that Title VII
would not allow them to maintain their strict and overt
job segregation system. Consequently, the Company officially 

42/stated that jobs were no longer to be allocated on the basis
of race. However, there was a "catch-22": employees now

45/
had to pcss the Wonderlic test. Of course, the white 
employees had previously moved into the higher-paying and 
more desrrable jobs at Stockham without taking the Wonderlic 
Test.

This catch, the adding of an additional requirement
when Blacks for the first time, have an opportunity to44/
promote, is unlawful. The pertinent EEOC Guideline is 
explicit:

Sec. 1607.11. Disparate Treatment. - The 
principle of disparate or unequal treatment 
must be distinguished from the concepts of 
test validation. A test or other employee 
selection standard - even though validated 
against job performance in accordance- with 
the guidelines in this part - cannot be 
imposed upon any individual or class pro­tected by Title VII where other employees,

42/ In practice the Company essentially maintained their 
segregated employment structure. See Proposed Findings, 
Section VI.
43/ The method of implementation of the Wonderlic Test is 
described in detail in Proposed Findings, Sec.XI, paras.6-14
44/ The Fifth Circuit has held that the EEOC Guidelines are 
mandatory. United States v. Georgia Power Co., supra at 913; 
Pettway v. American Cast Iron Pipe Co., supra at 32 63-64.

38



applicants or members have not been subjected 
to that standard. Disparate treatment, for 
example, occurs where members of a minority 
or sex group have been denied the same employ­
ment, promotion, transfer or membership 
opportunities as have been made available 
to other employees or applicants. Those 
employees or applicants who have been -denied 
equal treatment, because of prior discriminatory 
practices or policies, must at least be afforded 
the same opportunities as had existed for other 
employees or applicants during the period of 
discrimination. Thus, no new test or other 
employee selection standard can be imposed upon 
a class of individuals protected by Title VII 
who, but for prior discrimination, would have 
been granted the opportunity to qualify under 
less stringent selection.standards previously 
in force.

See Griggs v. Duke Power Company, 420 F.2d 1225, 1230-31, 
1236-37 (4th Cir. 1970) af f'd in pertinent part, 401 U.S.
424 (1971).

Similarly, if the Tabaka Tests are implemented 
45/

for employee selection as proposed in the Report [PX32,p.39],
then these tests will be used in an unlawful manner. The
use of these tests would directly frustrate the opportunities
of black workers to move to their "rightful place". Blacks
have been discriminatorily denied access, or afforded only
token opportunity, to move into many of the jobs for which
the Tabaka tests are to be implemented as a tool for employee 

46/selection. To now permit tests to be used to limit

45/ Stockham has not used the Tabaka tests to determine or 
assist in the selection of employees for promotion, training 
programs, hire or any other term or condition of employment.
[T. Adamson 623-24, 626-27, 634, 642-43: T. Tabaka 2541-42]
46/ These jobs include the following: Job Class 8 and 9
machine operators, guards, patternmakers and apprentice patternmakers, electricians and apprentice electricians, machinists, millwrights and carpenters. [See Proposed Findings, 
Sections VI and VII; Sections II and III, supra.]

39



the opportunities of Blacks to move into these jobs, who 
previously had been discriminatorily denied access to them, 
would substantially hinder any attempt to terminate the 
discriminatory practices at Stockham and remove, the effects 
of those practices.

C. The Wonderlic Test Had An Adverse Impact On 
Black Employees,' Was Not Validated, and Consequently 
Was Unlawfully Used By Stockham.

The Wonderlic Test was instituted by the Company in 
1965. Stockham did not undertake a validation study at that 
time or any later time concerning the Wonderlic. The law 
has been clearly established that if a test or educational

47/requirement has an adverse impact then the test must be 
validated and demonstrated to have "a manifest relationship 
to the employment in question." Griggs v. Duke Power Co.,
401 U.S. supra at 432; United. States v. Georgia Power Co., 
supra at 911-18; Pettway v. American Cast Iron Pipe Co., supra 
at 3261-65, 3305-07.

It is clear that the Wonderlic Test had an adverse 
impact on the promotional opportunities of Blacks at Stockham 
during its use from 1965 into 1971.

(1) The authors of the Wonderlic prepared a massive, 
nationwide survey which demonstrates that, on-the-average 
Blacks score approximately eight points lower on the test than

47/ Of course, a test need not be shown to have had an "adverse 
impact" in order to be unlawful under "disparate treatment."
See Section B, supra.

40



whites. The authors compared Blacks and whites in numerous 
areas and occupations; this racial difference in scoring
remained fairly constant. [PX14] See Moody v.Albemarle__Paper
Company, 474 F.2d 134, 138, fn.l (4th Cir. 1973).

(2) This nationwide survey was corroborated by expert 
witnesses at trial who testified that intelligence tests, like 
the Wonderlic, have an adverse impact on Blacks. [T. Barrett 
2190; T. Ash 2495-96].

(3) Moreover, courts have repeatedly found the Wonderlic 
Test to have an adverse impact on Blacks. See Griggs v . Duke.
Power Co. , supra; Moody v. Albemarle__Paper Co . , supra. More
particularly, the evidence relating specifically to Stocxham s 
plant leads to the inescapable conclusion that- the Wonderlic
had an adverse impact on Blacks.

(4) Dr. Joan Haworth, a statistician who was retained by 
Stockham, testified that in a computer study,done at the request 
of Stockham, she found that Blacks at the Company scored less on 
the Wonderlic than whites. [T. Haworth 1758]

(5) Plainly Blacks are represented in disproportionally 
small numbers in the jobs for which higher Wonderlic scores were 
required. Compare, Pettway v. American Cast Iron Pipe Co., supra 
at 3273-74. 48/

(6) From 1969 to March 31, 1971 there was an increase
in employment at Stockham of 141 employees. [PX45; PX13, Appendix 
B attached hereto]. The number of Black employees only increased

48/ The use of the Wonderlic Test was terminated on 
approximately this date.

41



by 3_ while the number of white employees increased by 138.[Id.]
Of course, this large increase in the number of white employees
while the number of black employees remained 'constant, is
atypical of employment at Stockham. [Id.] This disparity
between the number of black and white hirees combined with
the use of the Wonderlic test to determine hire indicates the
adverse affect of the Wonderlic on Blacks. Compare, Pettway.
v. American Cast Iron Pipe Co., supra at 3271-73

( The evidence of "adverse impact" at Stockham is
considerably more substantial than the evidence on which the

49/
Supreme Court relied in Grigas. The Supreme Court relied50/
on the following evidence: (1) expert opinion that
standardized intelligence tests had a discriminatory impact;
(2) the promotion rate of Blacks was low; (3) the situation 
in other employment contexts (the Court only refers specifi­
cally to an EEOC Decision), see Griggs v. Duke Power_Co., 
supra at 430 N.6. Plaintiffs have gone substantially beyond 
the proof found adequate in Griggs in order to prove adverse 
impact.

49/ Adverse impact was not discussed by the district court. 
Griggs v. Duke Power Co., 292 F.Supp. 243 (M.D.N.C. 1968).
The only specific mention of adverse impact in the Court 
of Appeals was by Judge Sobeloff. 420 F.2d 1225, 1239 N.6 
(dissenting opinion). In the Supreme Court the only 
specific mention of adverse impact was at 401 U.S. 424, 430 N.6
50/ Dr. Barrett was the sole expert witness for plaintiffs 
in Griggs.

42



D. The Court Should Enjoin Stockham From Using *
The Tabaka Tests As Presently Designed.

The Company is not presently using the Tabaka tests
to assist in employee selection; the tests are only being
used to accumulate data on testing, see supra. Plaintiffs
request that the Court simply freeze the present situation,51/
at least until further study of the .tests is completed.

The study, as conducted, had several defects which 
may substantially have affected the results. These defects 
have been set forth in detail in the Proponed Findings, Section 
XI, paras. 31-45. Any problem relating to these tests is 
magnified by the substantial adverse impact which these tests 
will have on Blacks as is readily apparent from Mr. Tabaka's 
own statistics. [PX20, ans.15]. Moreover, the method for 
implementation suggested by Mr. Tabaka does not adequately 
take into account the "differential validity" demonstrated by 
his study and thus, will have an "unfair" and unlawful effect 
on opportunities of Blacks for promotion. [See, Proposed 
Findings, Section XI, paras. 40-45]. In sum, the Tabaka 
testing program, in its present form, does not measure up to 
the EEOC Guidelines.

51/ Mr. Tabaka agrees that further study should be under­
taken and that a more useful study may be developed.
[T. Tabaka 2548]

43



V.

i n’light of the plainly unlawful
DISCRIMINATORY PRACTICES OF THE 
DEFENDANTS WHICH HAVE RESULTED IN 
ECONOMIC LOSS TO BLACK EMPLOYEES 
THE COURT SHOULD AWARD BACK PAY

It is apparent that Blacks lost substantial
earninqs as a result of the defendants' discriminatory52/
practices. All of the discriminatory practices at 
Stockham directly locked Blacks out of higher-phying hourly 
or salaried jobs and denied Blacks training opportunities 
which would have provided means to promote into the higher­
paying jobs.

■' The severe economic effect of the discriminatory
policies at Stockham is apparent from a comparison of the
actual average hourly and gross earnings of white and black
workers. The black hourly workers actually earned $3.83
for each hour worked from January through September, 1973;

53/
while white hourly workers earned $4.20. Thus, black workers 
earned on the average, $.37 per hour less than white workers. 
[PX91, attached as Appendix CJ . Moreover, white workers 
earned on the average, $4,666.77, from January 1, 1973 to 
September 1973, which is $530.75 or 12.3% more than the average 
black worker earned, $4,138.02, fId. 1

As striking as these figures are, they actually

52/ The practices are detailed in the Proposed Findings of 
Fact and are outlined in this Brief, supra.
53/ This average hourly rate was calculated by dividing the_ 
total number of hours worked into gross earnings; thus overtime 
and incentive earnings are included. The disparity in earning 
rate is even greater when only the standard [not including 
overtime or incentive pay] rate is calculated, see Proposed 
Findings, Section XII.

44



underestimate|the earnings lost by Blacks. The figures do
not include the economic loss suffered by Blacks as a resuit .
of their discriminatory exclusion from supervisory or other
salaried positions; nor do the figures include the economic
loss in pension payments or other fringe benefits paid or to

54/be paid to Blacks. The Fifth Circuit has made it abundantly 
plain that once economic loss as a result of discriminatory 
practices is established back pay is the necessary remedy.

"It is obvious to me that where employment 
discrimination has been clearly demonstrated, 
employees who have been victims of that dis­
crimination must be compensated if financial 
loss can be established." Johnson y. Goodyear 
Tire & Rubber Co., supra at 1375. (Emphasis 
added)

x x x
"Because of the compensatory nature of a back 
pay award and because of the 'rightful place' 
theory adopted by the courts, and of the strong 
congressional policy, embodied in Title VII, 
for remedying employment discrimination, the 
scope of a court's discretion to deny back pay

54/ The Fifth Circuit has clearly held that pension payments 
and other fringe benefits are to be included in back pay.

"Finally, the ingredients of back pay should include 
more than 'straight salary'. Interest, overtime, 
shift differential, and fringe benefits such as 
vacation and sick pay are among the items which 
should be included in back pay. Adjustments to 
the pension plan for members of the class who 
retired during this time should also be considered 
on remand." (footnote omitted) Pettway v, American 
Cast Iron Pipe Co., supra at 3340-41.See also, Peters v, Missouri-Pacific Railroad Company, 483 

F.2d 490 (5th Cir., 1973); Rosen v. Public Service Electric 
& Gas Co., 477 F.2d 90, 95-96 (3rd Cir. 1973) .

The pension plans at Stockham are to some extent dependent 
on an employee's gross earnings. [PX25-27]. Obviously, since 
black employees' gross earnings were limited by the discri­
minatory practices, it follows that black employees' pensions 
are discriminatorily limited.

45



' is narrow. Once a court, has determined
that a plaintiff or complaining class has 
sustained economic loss from a discriminatory 
employment practice, back pay should normally 
be awarded unless special circumstances are ' >present." (Footnotes and citations are omitted). 
Pettway v. American Cast Iron Pipe Co., supra 
at 3320-21.
The recent unequivocal opinions in Johnson and

Pettway were foreshadowed by a series of Fifth Circuit opinions
which established the importance and essentiality of back pay.
’as a' part' of a full T|>le"V'II remedy. Johnson v. Georgia
Highway Express, 417 F.2d 1122, 125 (1969) ; United States
v. Hayes International Corp., 456 F.2d 112, 121 (1972); United^----- - 55/
States v. Georgia Power Co., supra at 921

Consequently, the Court should order the defendants
56/liable for back pay and order that the amount should be 

' determined in a manner consistent with the approach to burden 
of proof and method of calculation set forth by the Fifth 
Circuit. Johnson v. Goodyear Tire & Rubber Co., supra at 
1375-1378; Pettway v. American Cast Iron Pipe Co., supra at

55/ Other Courts of Appeal, like the Fifth Circuit, have 
determined that back pay is an essential part of Title VII 
relief. Rosen v. Public Service Electric and Gas Co., 477 
F.2d 90, 95-96 (3rd Cir. 1973); Moody v, Albemarle Paper Co., supra at 142; Robinson v. Lorillard Corporation, supra 
at 804; Head v. Timken Roller Bearing Co., 486 F.2d 870,876 
(6th Cir.1973); Bowe v. Colgate-Palmolive Co., 416 F.2d 711 
720 (7th Cir. 1969); United States v. N.L. Industries, 479 
F .2d 354, 380 (8th Cir. 1973)
56/ The plaintiffs are of course due full recovery. However, 
the District Court may apportion back pay liability among the 
defendants according to its exercise of discretion pursuant 
to Title VII. See, Johnson v. Goodyear Tire & Rubber Co., 
supra at 1381-82

- 46



57/
3330-3342 .

THE PLAINTIFFS ARE ENTITLED TO 
REASONABLE ATTORNEYS! FEES AND 
COSTS_________________________

The Court should award reasonable attorneys' fees 
and costs as a necessary part of Title VII relief. The 
award of costs and attorneys fees is an essential, appropriate 
and well-precedenfed form of relief for the private party, 
who assumes the "mantle of private attorney general", in 
implementing the strong public policy of terminating racial 
discrimination in employment. Johnson v. Georgia Highway 
Express, 488 F.2d 714 (5th Cir. 1974) ; Clark v. American 
Marine Corp. , 32 0 F.Supp 709(E.D. La.1970), aff'd 43 / F.2d 959 
(5th Cir. 1971) ; Newman v. Piggie Park Enterprises, 390 U.S. 
400, 702 (1968).

VI.

CONCLUSION
Judge Gewin's twice-used summary of Title VII cases 

is applicable to the present action:

57/ it should be noted that plaintiffs will continue to suffer 
economic harm as a result of discriminatory practices until they 
reach their 'rightful place'. Accordingly, back pay should 
be calculated so as to compensate this harm which will occur 
after the entry of the Decree in this action. Judge Pointer 
carefully described and calculated compensation for this harm 
in the steel cases. United States v. U.S. Steel Corporation,
6 EPD para. 9042 (N.D. Ala. 1973).

47-



” [I] t may be observed that on the surface the present case concerns only the meaning 
of statutory provisions. But beneath the 
legal facade a faint hope is discernible 
rising like a distant star over a swamp of 
uncertainty and perhaps despair. Those who 
love their work may sometimes forget that 
a successful human community requires the 
performance of many vapid and colorless 
tasks. Even the most tedious physical 
labor is endurable and in a sense enjoyable, 
however, when the laborer knows that his 
work will be appreciated and his progress 
rewarded.

x x x
The ethic which permeates the American dream is that a person may advance as far as his 
talents and his merit will carry him. And 
it is unthinkable that a citizen of this 
great country should be relegated to un­
remitting toil with never a glimmer of light 
in the midnight of it all." (Footnote omitted).
Miller v. International Paper Company, 408 
F.2d 283, 294 (5th Cir. 1969); Johnson v .
Goodyear Tire & Rubber Co., supra at 1368
WHEREFORE, for the above stated reasons the plaintiffs

respectfully request this Court to award the relief set forth
herein.

Respectfully submitted,

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

10 Columbus Circle, Suite 2030 
New York, New York 10019

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

Attorneys For Plaintiffs.

48