United States v. H.K. Porter Company Reply Brief for Plaintiff-Appellant
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November 28, 1969

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Brief Collection, LDF Court Filings. United States v. H.K. Porter Company Reply Brief for Plaintiff-Appellant, 1969. 9f227cbe-c79a-ee11-be37-000d3a574715. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/a6e14d49-ed5d-4928-a535-1b8bda7339fc/united-states-v-hk-porter-company-reply-brief-for-plaintiff-appellant. Accessed May 15, 2025.
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No. 27,703 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellant, v. H. K. PORTER COMPANY, INC., ET A.L. , Defendants-Appellees. On Appeal from the United States District Court for the Northern District of Alabama REPLY BRIEF FOR THE UNITED STATES JERRIS LEONARD Assistant Attorney General, WAYMAN G. SHERRER United States Attorney, DAVID L. ROSE THOMAS R. EWALD Attorneys, Department of Justice, Washington, D. C. 20330* IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT 27,703 UNITED STATES OF AMERICA, Plaintiff-Appellant, v. H. K. PORTER COMPANY, INC., et al., Defendants-Appellees. On Appeal from the United States District Court for the Northern District of Alabama REPLY BRIEF FOR THE UNITED STATES Our main brief showed that the district court erred in deciding, in the context of a traditional pattern of hiring Negroes for and assigning them to low paying jobs with little opportunity for advancement, that a seniority system which made eligibility for ad vancement to the better paying "white" jobs dependent upon length of service in those jobs was lawful under Title VTI of the Civil Rights Act of 1964. We also showed that it erred in permitting defendants to condition the right of Negro employees to transfer from low opportunity departments (where they were initially assigned on the basis of their race) to high opportunity departments on their taking and passing written examinations never taken by their white contemporaries, and upon their losing all previously accrued seniority rights for advancement. Our initial brief adequately sets forth the relevant facts and precedents. While virtually conceding that the legal theory upon which the district court decision was based has been rejected by subsequent 1_/ 2_/ decisions of this Court, and the Eighth Circuit, defendant Company has written a brief of extraordinary length (106 pages -- compare Rule 28(g), Fed. R. App. P.) which purports to set forth facts supporting the district court below. The undisputed facts of record, many of which are not reflected in defendant Company's brief, however, demonstrate that the district court was in error. _/ Local 189, United Papermakers v. United States, '̂ 16 F~ 2d 980 (5th Cir.,July 28, 1969)5 petition for rehearing en banc denied, October 1, 1969 , Ibid. ; United States v. Hayes International Corp., 415 F. 2d 1039 (5th Cir., No. 2b,<309, August 19, 1969). 2 / United States v. Sheet Metal Workers, 4l6 F. 2d 123 ~["8th Cir., September 16^ 1969). 2 1. Job Seniority. This Court has held that where Negroes were traditionally assigned to lower- paying, less desirable jobs on the basis of their race, a "job" seniority system for advancement to better paying white jobs which was based upon seniority attained in other formerly white jobs was unlawful, under Title VII of the Civil Rights Act of 1964, because it perpetuates the effects of past discrimination. Local 189, United Papermakers v. United States, supra. Among qualified applicants, this Court ruled, the Act requires that "Negro seniority be equated with white seniority"(Slip Op., p. 3). The undisputed facts of record are that the present "job" seniority system of defendant Company does not meet this requirement of law; but, for purposes of promotion and advancement, gives virtually no credit to seniority earned in Negro jobs. It is, accordingly, unlawful under Title VII. Defendant Company attempts to defend the district court’s decision on the "job" seniority system on the ground that it cannot be assumed that employees could satisfactorily perform the jobs if they had less training and experience than they now have under the "job" seniority system. (Company Brief, pp. 104-105.) But we showed in our Main Brief (pp. 56-58) that the length of time one served in a job under the present system was based only upon the chance of when those - 3 - ahead of him transferred, retired or died, and is in no way related to the length of time necessary to become qualified to perform the next higher job. We also showed that with the residency requirements as adopted in the Local 189 case, the needs for training and experience will be satisfied. Defendant Company's brief does not address itself to these arguments, much less does it show that they are in error. Defendant Company does challenge one of our factual statements, however. It denies that, as a result of the changes in the seniority system in October 1962 and the use of job seniority, every white employee but one obtained priority for advancement in his own line of progression over all Negro employees. The fact is shown by the employment histories of all of the present employees in the plant who were in their !_/ present lines of progression in October 1962, as stated by the defendant company in answer to interrogatories. ayThe one exception is L. Tennyson who entered the electric furnace department on June 24, 1962 in the entering white job of weighman. After the reorganization of October 1962, he advanced to the job of utilityman, 3 / Appendix A , trial brief, containing information Trom defendant Company's answer to plaintiff's interrogatory 7 (third set). The defendant's answers omitted the job histories of employees in other than their present departments. ^ / Id. atp. 42. following 27 Negro employees, all of whom had earlier plant seniority dates than his, having served in Negro jobs in electric furnace from one to sixteen years 5_/ prior to the reorganization. Elsewhere in that depart ment and in the rest of the plant, as the defendant’s answer to the interrogatory shows, every white employee who is still in the same line of progression as on October 1962, obtained priority in that line of progression over all Negro employees, regardless of their plant seniority or departmental seniority and regardless of their §_/ qualifications. Under the job seniority system which both defendants urge the Court to preserve, senior Negro employees will continue to advance behind junior white employees until the white employee voluntarily forfeits his seniority to the Negro employee or becomes disqualified or one or the other of the two employees retires -- as the Personnel Director put it -- "or dies or gets fired" (App. 3, pp. 1173-1174). In their lengthy discussion of "job skipping" (Company Brief, pp. 82-92), defendant Company attempts to defend the district court finding that all jobs jT7 la. at 28-41. 6 / Even if defendant Company's contentions on pp. 101- 102 were correct, they would only show two present white employees who were behind Negro employees as a result of the merger. - 5 - provide training and experience for next higher jobs in the line of progression. But that finding is contradicted by the facts. For, while training in this plant is acquired 7 / on the job (except in "skill and craft" jobs j, white employees often skip jobs on the way up the lines of8_/ progression. Their work histories show they are not required to hold every job on regular assignment in order to receive training necessary to advance to the top of the line of progression, even in the four high oppor tunity departments, where the jobs demand the greatest skill and pay the highest wages. Prior to October 1962, white employees in the electrical, electric furnace, and mechanical departments skipped the Negro jobs at the bottom of those departments. 7 / App. 1, pp. 416-417. 8 / Appendix A in support of plaintiff's brief in the District Court (hereafter, "Appendix A trial brief"). Appendix A is a chart of information obtained from the^ defendant's answer to Interrogatory 7 (third set), giving the names and dates of employees who have held specific jobs at the plant. The chart also shows the line of pro gression in each department as contained in the defendant's answer to Interrogatory 9 (first set), the name, payroll number, department seniority date, and race of each employee (PI. Ex. 3 in evidence), the date any employee refused advancement or was disqualified as stated in the defendant's answers to Interrogatories 20 and 21 (third set). Three copies of Appendix A are being filed in this Court along with the briefs on appeal. 9 / There were no Negro jobs in mill tonnage. Appendix A- to brief of the United States on appeal. - 6 - Thus, 63 white employees have advanced up the line of progression in the electrical department without having 10/ held the jobs of cleanup or shop helper-oiler. In the electric furnace department 47 white employees have 11/ skipped the job of crane follower. In the mechanical department line of welder and millwright jobs, 22 white employees have skipped the jobs of cleanup and mill wright helper, while three senior Negroes have skipped the job of cleanup and the entering white job, oiler 12/ helper. 13/ There are 15 jobs in mill tonnage. The job of roller, at the top of the line of progression, is held by four employees, all of whom arrived there after 10/ Appendix A trial brief, pp. 57-83* 11/ Id. at 29-42. 12/ Id. at 130-135. 13/ Id. at 56-66. - 7 - holding only five of the fourteen lower-rated jobs. The second highest job, roll change roller, is held by 15/two employees. One of them has held seven jobs in the line of progression and skipped seven. The other has held six jobs and skipped eight. The third highest 16/ job, guideman, is held by one employee. He has served on seven jobs in the line of progression and skipped six. The fourth highest job, roller helper, 17/ is held by five employees. One of them has held nine 18/ jobs in the line of progression and skipped three. The others have held six jobs and skipped six. All 12 employees holding the top four jobs of roller, roll change roller, guideman, and roller helper have skipped the fifth highest job, heater. Of the four employees in the heater job, two advanced there by holding five lower-rated jobs and skipping five. The other two 19/have held four lower jobs and skipped six. 14/ 14/ Id., at 167, 169. All four held the jobs of ring- out-saw operator/roll change grade III, layover, enterer, heater helper, and roller helper, and skipped tne rest. 15/ Id., at 167, 176. 16/ Id., at 169- 17/ Id., at 170-173, 176. 18/ Id., at 173* 19/ Id., at 168-170. - 8 - The same holds true throughout the plant. For while it is true that many jobs do provide training and experience which is necessary to perform the next higher job, the job histories of the present employees demon strate that regular or permanent assignments to many of those positions can be skipped. Accordingly, as we requested below, and as the district court in Local_l89, United Papermakers required, Negroes previously the vic tims of discrimination should be allowed to progress up the ladders on the basis of their qualifications and seniority, without having to serve time in jobs which do not provide necessary training; and the com pany should be directed to compile job descriptions which prescribe which jobs fall into each category. 2. Transfer Requirements a . Written Examinations The defendant company's brief argues as follows: "The sum of it is that nothing more is now asked of the employees in question [Negroes] than was required of ^ all the employees who have entered in any department." It also argues that removing the test requirement would 21/ "downgrade job qualifications." These statements are contradicted by the evidence. Written tests have not 20/ Brief, p. 21/ Brief, p - 9 - been required of many of the white employees holding the highest paid, most responsible jobs in the elec trical, electric furnace, mechanical, and mill tonnage departments, the four departments where the best job opportunities are located. On the contrary, no written examinations for transfer were required prior to 1955* What we request for Negro employees simply is treat ment equal to that of their white contemporaries. In mill tonnage there are 74 white employees. 22/ They occupy 15 jobs. The l4 highest paying jobs are held by 56 white employees, of whom only four have ever taken a written test in connection with their employ ment for the defendant company. Fifty-two have never 23/ been tested. Of the white mechanical department employees who hold the seven highest rated jobs (machinist, blacksmith, welder first class, millwright foreman, millwright leader- man, millwright, and mechanic), 12 have taken written 24/ tests and 22 have not. The foreman and leaderman in the electrical de partment and seven of the eleven first class electricians 22/ Appendix A trial brief, pp. 165-182. 23/ Defendant's answers to plaintiff's Interrogatories T5 and 12 (third set), requesting the names of all em ployees given any test. 24/ Ibid. 10 have not been required to take written tests for hiring, transfer, or any other purpose at this plant. Those employees, all of whom are white, supervise and perform the work of inspecting, repairing, replacing, installing, . , . 25/and maintaining the electrical equipment in the plant. There are nine white employees who operate the overhead cranes that transport ladles of molten steel from the electric furnace to the transfer car (ladle craneman- furnace) and from the floor of the continuous casting building up into the tower (ladle craneman-tower). They hold the highest paying and most responsible crane oper- 26/ ating jobs in the electrical department. None have been required to take written tests in connection with their employment by the defendant company. In these circumstances the continued use of written tests as a requirement for Negro employees trans ferring into departments from which they were excluded altogether or in disproportionate numbers is racially discriminatory and should be enjoined. The defendant company further argues that written transfer aptitude tests are required for safe and satis factory operation of its plant, despite its own experi ence in successfully operating its steel plant with so many untested key employees. The argument also overlooks 25/ Job descriptions are from the defendant’s answer to plaintiff’s Interrogatory 22 (third set). 26/ Defendant’s answer to Plaintiff’s Interrogatory 9 "("First set). See defendant's brief, p. 37. 11 the fact that the company routinely fills jobs in.all departments through temporary assignments of employees from the extra board. Such assignments frequently place employees from one department in jobs in other 27/ departments. The company never has required extra board employees to take aptitude tests to hold jobs outside their own departments on temporary assignment. Up to and after the filing of this suit those assign ments were made on the basis of race, rather than 28/ tests. Under the District Court’s order they are to be made in the future on the basis of plant senior ity. But at no time has the defendant company suggested, or the District Court found, that written aptitude tests were required to provide safe and satisfactory perform ance by employees on temporary assignments to jobs out side their own departments. 27/ The job of ringout saw operator in the mill tonnage department is cited as an example of a job where written aptitude tests are required to determine qualifications. (Defendant’s brief, pp. 47-48.) During the first six months of 1967 (the period in which this suit was filed) the company assigned employees to the jobs of ringout-saw operator and ringout operator #3 spell on temporary assignments totalling olO hours. (Plaintiff’s request to admit facts No. 4 and defendant's response; defendant’s answer to plaintiff’s Interrogatory 4 (first set).) 28/ Finding of fact, "Extra Board" (J) No. 7. 12 Finally, it is not clear from other developments since the trial that the company actually intends to use written aptitude tests to screen out employees seeking to transfer to departments where they are not qualified to advance to the highest rated jobs. After the trial in this case the company and union agreed that transfer tests should be used in the future "as an aid in deter mining [only] whether he can qualify for the entrance job and the next higher job in the line of progression „ 29/in the department to which he seeks to transfer. Thus, in the high opportunity departments, the jobs for which tests are to be given are: roll changer grade III and ringout saw operator (mill tonnage), cleanup and shop helper-oiler (electrical), crane follower and weighman (electric furnace), and machinist apprentice, machinist subjourneyman, blacksmith helper, cleanup, oiler helner, mechanic second class and mechanic (mechanical). The discriminatory impact of the transfer testing requirement,even as modi fied by the company and union, and the absence of busi ness necessity for it is emphasized by the fact that 30/ of those l4 jobs, five are menial formerly Negro 29/ Collective bargaining agreement dated September 1, T£68, p. 45, filed December 27, 1968, 296 F. Supp. 40, 82. 30/ crane follower (electric furnace), cleanup and shop Kelper-oiler (electrical), and blacksmith helper and cleanup (mechanical). See Appendix A to brief of the United States on appeal. 13 - jobs which the white employees now in those departments routinely skipped when they first entered, pursuant to the operation of the segregated system prior to October 31/1962. The other jobs include those to which the com pany makes frequent temporary assignments without re quiring written aptitude tests, b. Loss of Seniority The company argues at length that "it is not true that departmental transfers mean a loss of accrued 32/ . . .seniority." However, the loss is clear and discrimi natory. All assignments to jobs and departments prior to October 1962 -- the period in which the large major ity of present employees started work at this plant were made on the basis of race. A vacancy in a depart ment was either a white vacancy or a Negro vacancy be cause of the racially segregated system of jobs. Most white employees were assigned initially to one of the four high opportunity departments and began accruing department seniority there. The company assigned most Negro employees initially to one of the three low oppor tunity departments. In order to enter high opportunity departments at all most. Negro employees have had to transfer. Because they receive no credit toward advance ment in the new department for any of the seniority they 21/ The employment histories of white employees are shown In Appendix A trial brief, pp. 25-53, 5^-91, 123-139, and 165- 182. 32/ Brief, p. 6l. - 1 4 - previously have earned* they lose seniority for advance ment purposes. Thus they never can obtain the same advancement opportunities in high opportunity depart ments as their white contemporaries* regardless of 33/ qualifications. This kind of seniority provision is precisely the kind held by this Court to be unlawful in Local 189* United Papermakers and Hayes International, supra. The result in this case should be the same. 33/ The retention of accrued seniority in his former department does not help an employee advance in the new department. Meanwhile* he continually loses standing relative to the employees in his former department for jobs there in event of layoff because under the collec tive bargaining agreement his seniority in that depart ment remains constant while theirs increases. - 15 - CONCLUSION For the foregoing reasons, and those set forth in our main brief, the decision of the District Court should be reversed and remanded for the entry of an appropriate remedial order. Respectfully submitted, JERRIS LEONARD Assistant Attorney General WAYMAN G. SHERRER United States Attorney DAVID L. ROSE THOMAS R. EWALD Attorneys Department of Justice CERTIFICATE OF SERVICE I certify that I mailed a copy of the foregoing brief to each of the following persons at the addresses shown below: Lucien D. Gardner, Jr., Esquire William F. Gardner, Esquire Cabaniss, Johnston, Gardner and Clark First National Bank Building Birmingham, Alabama 35203 Jerome A. Cooper, Esquire Cooper, jflfjitch and Crawford 1025 Bank for Savings Building Birmingham, Alabama 35203 Jack Greenberg, Esquire Norman C. Amaker, Esquire 10 Columbus Circle New York, New York 10019 Oscar W. Adams, Jr., Esquire 1630 Fourth Avenue, North Birmingham, Alabama 35203 November 28, 1969* THOMAS R. EWALD Attorney Department of Justice