United States v. H.K. Porter Company Reply Brief for Plaintiff-Appellant

    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
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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.

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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.

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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.

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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